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The
Civil Procedure Code, 1908
(Civil Procedure Code, 1908 - Section 1 to 78)
[Act 5 of 1908 as amended up to Act 32 of 2023 and updated as of 31st
December 2023]1
[21st March, 1908]
CONTENTS
PRELIMINARY
1. Short title, commencement and extent
2. Definitions
3. Subordination of Courts
4. Savings
5. Application of the Code to Revenue Courts
6. Pecuniary jurisdiction
7. Provincial Small Cause Courts
8. Presidency Small Cause Courts
PART I
SUITS IN GENERAL
Jurisdiction of the Courts and Res Judicata
9. Courts to try all civil suits unless barred
10. Stay of suit
11. Res judicata
12. Bar to further suit
13. When foreign judgment not conclusive
14. Presumption as to foreign judgments
Place of Suing
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15. Court in which suits to be instituted
16. Suits to be instituted where subject-matter situate
17. Suits for immovable property situate within jurisdiction of
different Courts
18. Place of institution of suit where local limits of jurisdiction of
Courts are uncertain
19. Suits for compensation for wrongs to person or movables
20. Other suits to be instituted where defendants reside or cause
of action arises
21. Objections to jurisdiction
21-A. Bar on suit to set aside decree on objection as to place of
suing
22. Power to transfer suits which may be instituted in more than
one Court
23. To what Court application lies
24. General power of transfer and withdrawal
25. Power of Supreme Court to transfer suits, etc
Institution of Suits
26. Institution of suits
Summons and Discovery
27. Summons to defendants
28. Service of summons where defendant resides in another State
29. Service of foreign summonses
30. Power to order discovery and the like
31. Summons to witness
32. Penalty for default
Judgment and Decree
33. Judgment and decree
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Interest
34. Interest
Costs
35. Costs
35-A. Compensatory costs in respect of false or vexatious claims
or defences
35-B. Costs for causing delay
PART II
EXECUTION
General
36. Application to orders
37. Definition of Court which passed a decree
Courts by which Decrees may be executed
38. Court by which decree may be executed
39. Transfer of decree
40. Transfer of decree to Court in another State
41. Result of execution proceedings to be certified
42. Powers of Court in executing transferred decree
43. Execution of decrees passed by Civil Courts in places to which
this Code does not extend
44. Execution of decrees passed by Revenue Courts in places to
which this Code does not extend
44-A. Execution of decrees passed by Courts in reciprocating
territory
45. Execution of decrees outside India
46. Precepts
Questions to be determined by Court executing Decree
47. Questions to be determined by the Court executing decree
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Limit of Time for Execution
48. Execution barred in certain cases
Transferees and Legal Representatives
49. Transferee
50. Legal representative
Procedure in Execution
51. Powers of Court to enforce execution
52. Enforcement of decree against legal representative
53. Liability of ancestral property
54. Partition of estate or separation of share
Arrest and Detention
55. Arrest and detention
56. Prohibition of arrest or detention of women in execution of
decree for money
57. Subsistence allowance
58. Detention and release
59. Release on ground of illness
Attachment
60. Property liable to attachment and sale in execution of decree
61. Partial exemption of agricultural produce
62. Seizure of property in dwelling-house
63. Property attached in execution of decrees of several Courts
64. Private alienation of property after attachment to be void
Sale
65. Purchaser's title
66. Suit against purchaser not maintainable on ground of
purchase being on behalf of plaintiff
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67. Power for State Government to make rules as to sales of land
in execution of decrees for payment of money
Delegation to Collector of Power to execute Decrees against Immovable
Property
68. Power to prescribe rules for transferring to Collector execution
of certain decrees
69. Provisions of Third Schedule to apply
70. Rule of procedure
71. Collector deemed to be acting judicially
72. Where Court may authorize Collector to stay public sale of
land
Distribution of Assets
73. Proceeds of execution-sale to be rateably distributed among
decree-holders
Resistance to Execution
74. Resistance to execution
PART III
I NCIDENTAL PROCEEDINGS
Commissions
75. Power of Court to issue commissions
76. Commission to another Court
77. Letter of request
78. Commissions issued by foreign Courts
Section 79 to 95
Section 96 to 131
Section 132 to 158
Schedule 1 (Order 1 to 10)
Schedule 1 (Order 11 to 20)
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Schedule 1 (Order 21 to 30)
Schedule 1 (Order 31 to 40)
Schedule 1 (Order 41 to 51)
Schedule 2 to 5
———
Civil Procedure Code, 1908
[Act 5 of 1908] [21st March,
1908]
An Act to consolidate and amend the laws relating to the procedure of
the Courts of Civil Judicature
Whereas it is expedient to consolidate and amend the laws relating
to the procedure of the Courts of Civil Judicature; it is hereby enacted
as follows:—
► Object and interpretation.—The Code of Civil Procedure, 1908, no doubt
also deals with certain substantive rights, but as the Preamble vouchsafes, the
object essentially is to consolidate the law relating to civil procedure, Prem Lala
Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551.
STATEMENT OF OBJECTS AND REASONS
Report of the Special Committee appointed to consider the
amendment of the Civil Procedure Code
We have the honour to present this report on the proposals to amend
the Code of Civil Procedure which have been submitted for our
consideration by the Government of India and, annexed to it, a draft
Bill amended by us. A detailed account of the alterations introduced in
the Bill will be found in the Notes on Clauses which form the second
part of this Report, but we desire by way of preface to make some
observations of a general character on the defects in the existing law
which appear to us to call for reform and on the more important of
those alterations.
1. The Code of Civil Procedure of 1882 has been in force for 25 years
and the experience of those years has shown that the general lines on
which it proceeds are sound. The matters in which it has proved
defective are, for the most part, matters of detail, and they arise, as it
seems to us, mainly from the fact that it is impossible to frame a fixed
and rigid Code in such a manner as to sufficiently meet the varying
needs of an area so diversified as that to which the Code applies. In our
opinion it is essential that there should be some machinery to enable
variations to be introduced in procedure to meet the different
requirements of different localities as well as to enable defects to be
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remedied as they are discovered without resort to the tardy process of
legislation. We propose to make provision for these purposes by a
rearrangement of the Code. We recommend that matters of mere
machinery should be relegated to Rules capable of alteration by each
High Court, subject to certain cheeks, and that those provisions only
should be retained in the body of the Code in which some degree of
permanence and uniformity is desirable. This re-arrangement is in
accordance with precedent and possesses advantages so obvious that it
is needless to enlarge upon them.
2. The objection—and as it appears to us the only objection of
substance—that can be urged against this proposal is that until the
scheme of distribution had become familiar to those who have to
administer the Act, the change may cause some confusion and the
familiar numerical references to the present Sections will no longer
apply. We are sensible that some inconvenience must arise from this
cause in the first instance, but this is but a small disadvantage in
comparison with the advantages to be obtained by the change, and we
cannot think that any one will seriously contend that such a slight and
temporary drawback should stand in the way of a reform which appears
to us in other respects to be wholly beneficial.
3. The adoption of this principle has necessarily involved a departure
from the arrangement of the present Code, but in other respects, we
have advisedly adhered as closely as possible to the existing language,
the meaning of which is now well understood by Courts and by
practitioners. Speaking generally, it may be said, that we have only
departed from the phraseology of the Code where experience has
suggested improvements or competent authority has called for some
change. We have refrained from altering the wording, merely, because
it might be capable of improvement; for in any change, even of a verbal
character, there is a risk of opening a door to fresh litigation. In the
amendments that we have introduced, we have endeavoured to state
general rules of procedure rather than to provide in detail for every
possible contingency; for, we hold it to be a sound view that excessive
elaboration of details of procedure tends to cramp the actions of the
Court and in consequence, to encourage technicalities. For this reason,
we have made no attempt to embody in the Code a digest of the very
numerous decisions on the existing Sections; we have made
amendments to meet case-law only on points on which there is a
conflict of authority. And in this connexion we desire to point out that
at the present time there is even less justification for the enactment of
elaborate provisions in regard to procedure than at the time when the
Code of 1882 was passed. Since then, the standard of legal efficiency in
the mofussil has been materially raised, and the principles of procedure
are now so well understood that the Courts may be trusted to apply
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them intelligently in cases for which no provision may be made in
terms.
But although we have made the present Code the basis of our draft,
we have carefully examined the Bill settled by the Select Committee in
1903, and we desire to express our acknowledgments to that
Committee for the store of information it contains, and for the materials
collected in their report.
Apart from the re-arrangement to which reference has “been made,
we have not introduced many changes of a radical character hi the
Code.
4. The general nature of some of the amendments we recommend,
may be conveniently illustrated by a brief examination of the extent to
which the various stages of a suit will be affected by them.
A. To begin with, it is hoped that the multiplicity of suits will be
further curtailed by the new provisions we have inserted to remove
limitations which we regard as needless on the comprehensiveness of a
suit, and by the wider powers of amendment vested in the Courts
under the Bill. An adequate check is provided by the power of a Court
to interfere where embarrassment is likely to result.
B. Increased facilities have been given for the service of process to
which further reference is made in the Notes on Clauses. It is hoped
that in the gradual introduction of service by post may be found a
solution of one of the principal defects in our legal system.
C. In our opinion, it is most necessary that litigants in this country
should come to trial with all issues clearly defined, and that cases
should not be expanded or grounds shifted without reference to the
true facts. For this purpose, we, think that the present system of
pleadings in the mofussil which is notoriously lax, should be improved,
and we have incorporated in the rules an order on pleadings, which, it
is hoped, will lead to sounder and fairer methods of arriving at the real
points in dispute. The forms have been revised and we hope that they
will be brought into more general use in the mofussil.
We have not been able, within the time at our disposal, to make
these forms, or the other forms in the Appendix to Schedule I
complete; but this is a matter of detail which can be further considered
before the Bill is passed into law.
D. It is not possible to secure expedition in the disposal of suits,
unless the questions of fact on which there is a real contest are
narrowed down as far as possible. As a step towards this, we have
incorporated in the rules an order in which provision is made for the
admission not only of documents but also of facts. It must be left to
litigants and their advisers to make adequate use of this order, but it is
hoped that the Courts will encourage the use of it, since it certainly
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affords a means whereby the two principal evils of litigation, delay and
expense, can be materially diminished.
E. We attach much importance to a proper use being made by Courts
in the mofussil of the procedure prescribed for the first hearing. The
Code as it stands makes provision for the examination of parties by the
Court, and we have altered the language so as to compel the
production of documents at the first hearing. In our opinion, this will
act as a substantial check on the fabrication of documentary evidence.
F. The provisions relating to the hearing of suits do not call for
material alteration, but we have thought it well to provide expressly for
the cases where a party dies between conclusion of the hearing and
delivery of judgment. It would obviously be wrong that such an
accident should in any way interfere with the disposal of the case, and
we have therefore inserted a provision to enable judgment to be
pronounced not withstanding the death.
G. A change of importance has been made in regard to decrees. In
the first place, we have inserted an express provision recognising the
distinction between preliminary and final decrees. We hope, in this way,
to afford facilities for checking the delay that now results from the
objectionable practice of leaving for determination in execution
questions which should be decided by the decree. This change should
ensure the more expeditious disposal of a class of suits which at
present are conspicuous for the delay to which they give rise. Another
amendment of importance which we have introduced is in regard to
mortgage-suits. These are very numerous and involve complicated
questions of law. Hitherto some confusion has been occasioned by the
co-existence of the provisions of the Transfer of Property Act and of the
Code in regard to execution in mortgage-suits. We think that the
provisions regulating this matter should be dealt with in their entirety
in the Code, and we have therefore introduced rules in Order XXXIV to
give effect to our view. We propose that the sections of the Transfer of
Property Act affected by this change should be repealed. We desire to
call the attention of those Provinces to which that Act does not apply to
the effect of these changes.
In our opinion, it is expedient to give greater assistance to the
Courts in the framing of decrees. The importance of this branch of
procedure cannot be overrated; it is surrounded by difficulties which
are a fruitful source of error and consequently of litigation. We have
amplified the provisions of the Code to meet this defect, and have
introduced some forms which can be adopted to meet the requirements
of individual cases. We think that further forms might be added with
advantage before the Bill becomes law.
H. Amongst other matters, we have removed limitations which at
present exist on the power of appointing Receivers, and have conferred
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a power to appoint Receivers on Subordinate Courts.
5.Execution.—The subject of execution is, perhaps, one of the most
difficult with which we have had to deal. The present system, in the
mofussil at any rate, tends to excessive delay and affords facilities for
defeating the claims of creditors. At the same time the creditor often
has only himself to blame, owing to his own laches in prosecuting his
rights. In the Presidency town the same objections cannot be fairly
raised; the system works well; whilst, in the mofussil, the difficulties
arise not so much from the machinery itself, as from the defective
manner in which it is worked. One of the most fruitful sources of
litigation is the setting aside of execution sales, on the ground of
irregularity in the publication of the sale proclamation. It is notorious
that in many of these cases the Court's officer either through
negligence or dishonesty has not duly published the proclamation, but
it is impossible to deal with such cases by any provision in a Code.
After a most careful consideration of the subject, we have not seen our
way to any very drastic changes in the present system. We have found
ourselves unable to accept the somewhat far-reaching proposal of the
Committee of 1902 in relation to the execution of decrees by precept;
but we are so far in accord with the view expressed by that Committee
as to have been able to insert in the Bill a clause which enables the
Court which passed the decree to issue a precept to any other Court to
attach property of the judgment-debtor pending execution in the
ordinary course. Beyond this we have felt we could not safely go.
We anticipate that there will be a substantial saving of time, and
consequent expense, from the provision requiting that mesne profits
shall be ascertained by the Court under the decree itself, and not as
now in execution proceedings.
Clause 53 has been introduces to settle a long mooted point upon
which there is much diversity of judicial opinion, as to whether or not
questions as to the liability of ancestral property in the hands of a son
or other descendant to whom it has come otherwise than by descent for
the payment of the debt for which the decree was passed, can be
determined under CI. 47 of the present Bill, corresponding with S. 244
of the existing Code. We think they should be.
Other amendments deserving notice relate to (1) the power to break
open the outer door of the judgment-debtor's dwelling-house; (2) the
date from which the purchaser's title accrues; (3) oral application for
immediate execution; (4) the discretion of the Court in the execution of
decrees for the restitution of conjugal rights; (5) the execution against
partnership property; (6) extended facilities for attaching salaries; and
(7) powers to decree-holders to carry decrees into effect at the expense
of the judgment-debtor.
We regard the changes made in relation to execution as calculated to
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materially assist the judgment-creditor in recovering the fruits of his
judgment.
6.Arbitration.—Two questions of importance have arisen in connexion
with this subject : (1) Should any of the Sections of the Arbitration Act
of 1899 be incorporated into the Code? (2) Should the right of appeal
as now existing be altered, and if so, in what direction ? We are of
opinion that the best course would undoubtedly be to eliminate from
the Code all the clauses as to arbitration, and insert them in a new and
comprehensive Arbitration Act There are, perhaps, difficulties as to this
at present. We have determined, therefore, to leave the arbitration
clauses much as they are in the present Code; but we have placed
them in a Schedule in the hope that at no distant date they may be
transferred into a comprehensive Arbitration Act.
In regard to appeals, some change has been made. Upon this
question, adopting the view of the Judicial Committee as expressed in
Ghulam's case (ILR 29 Cal 167), we are strongly in favour of finality in
cases of arbitration. If rights of appeal be given, the disappointed party
will take advantage of every such right. To meet the difficulty
expressed m the case reported in ILR 25 Cal 141 (which followed many
other cases in the Calcutta High Court), we have inserted the words “or
being otherwise invalid” in sub-section (c) of Section 521 of the present
Code. If, therefore, either party considers the award as invalid on any
ground, he can apply to have it set aside. We have thought it right to
give one appeal from the opinion expressed by the Court on a special
case under Section 517, and to allow one appeal as from order under
Sections 521, 523 and 526. And having regard to the rather wide
language of the Judicial Committee in Ghulam's case we have further
thought it advisable to make it clear that an order granting an
application either under Section 523 or Section 526 is not to be
deemed a decree within the meaning of the Code; otherwise there
would be a wider right of appeal from orders under these Sections than
from a decree under Section 522. The other alterations deal with the
text, rather than with any question of policy or principle.
7.Suits relating to public matters.—We have inserted a clause to
enable actions for public nuisances to be brought, with the consent of
the Advocate-General, irrespective of special damage. It has been
represented to us that such a power is needed and we concur in that
view.
8.Public Charities.—The suggestion has been made on high authority
that some express reference should be made in the Code to the power
of the court to Cypres doctrine in the settling of schemes. But this
power would appear to exist already within its proper limits (Mayor of
Lyons' case(1875-76) 3 IA 32) and we do not think it necessary to
make express reference to it.
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It has been represented to as by more than one gentleman whose
opinion is entitled to weight, that the power to enquire into the affairs
of public charities should be made more extensive. The clause, as it
stands, gives sufficient powers to the Courts to direct accounts and to
frame schemes when ones a suit has been instituted, but it is said that
members of the public interested in any public charity ought to have
the means of calling for and inspecting accounts without undertaking
the burden of a suit, at least in the first instance. We are told that
revenues derived from charitable trusts are in some cases very large in
amount, that no accounts of there expenditure are ordinarily rendered,
and that there is good ground for believing that a considerable portion
is misspent or squandered on useless objects.
The Hon'ble Dr Rashbehary Ghose supports these views and has
submitted a clause to give effect to them. It is in the following terms:
“93-A(1). The Court may also, upon an application by any two or
more persons having the like interest and having obtained the like
consent, direct any trustee of such charity to cause to be prepared
and filed in the Court, within such time as may be specified in the
order, a detailed account of the receipts and disbursements in
connection with the trust property for a period not exceeding three
years next preceding the date of the application.
(2) Such accounts, when filed in Court, shall be open to
inspection by the public.
(3) A trustee who fails to comply with any such direction shall be
removed if a suit for that purpose be instituted, unless he can show
good cause for such failure.”
We have given to the subject our best consideration and desire to
record our sympathy with the motives of the proposers. But we have
not inserted the clause in the Bill because we think that the question is
one of policy on which the public opinion of the communities interested
should first be obtained. It affects primarily, as we understand, the
Hindu and, to a less extent, the Mahomedan community. And we
should not feel justified in recommending an amendment of the law on
such a subject as this, unless the leaders of those communities were to
express their support of the proposal in unequivocal terms. If it is
eventually decided to adopt the amendment, then we think that the
clause proposed by Dr Ghose may be accepted.
9.Suits by or against firms.—Attention is directed to the new
provision in regard to suits by or against firms (O. XXX), which will, we
hope, prove acceptable to the commercial community.
10.New procedure.—We have given power to provide by Rules for
counterclaims, Third Party Procedure, Summary Procedure in suits for
debt or liquidated demands, as, for instance, rent, or any other definite
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sum payable under a contract and originating summons. We are of
opinion that these forms of proceeding may usefully be adopted in
some areas but that this is a matter which should be left for each High
Court to decide.
11.Appeals.—As regards appeals from original decrees we have
departed but slightly from the existing Code. We have thought it
advisable to give legislative sanction to the view that no appeal shall lie
from a consent decree, or as to costs, except by leave of the Court; but
the most important change is that incorporated in Clause 97, which
tenders it obligatory upon a party, who considers himself aggrieved by
a preliminary decree, to appeal from that decree, at the risk of being
precluded from disputing its correctness on an appeal from the final
decree. We feel strongly that this is a most useful provision, as tending
to that which is so desirable, viz., finality in litigation.
As regards appeals from appellate decrees the only substantial
departure from the existing Code is the insertion of Cl. 103. Experience
has shown the desirability of this clause, the effect of which will be to
avoid remands, with their consequent delay and expense.
As regards appeals from orders a comparison of Cl. 104 of the Bill
with S. 588 of the existing Code would support a prima facie inference
that the right of appeal from orders has been materially curtailed. But
this inference is dispelled on looking at sub-clause (h) of Cl. 104 which
allows an appeal from any order made under Rules from which an
appeal is expressly allowed by Rules. We have gone carefully into the
question of the cases in which an appeal should be allowed from these
orders and our conclusion is expressed in the Rules themselves.
12.Rules.—The distribution of the provisions of the Code between
the body of the Bill and the Rules is a matter on which opinions may
well differ. The general principle on which we have proceeded has been
to keep in the body of the Bill those provisions which appear to us to be
fundamental and those provisions which confer powers operating
outside the Province in which the Court is situated. In some eases we
have adopted the plan of inserting leading provisions in the Bill, stating
in general terms the powers of the Court, and of leaving the details to
Rules; in matters of less importance the provisions have been relegated
altogether to Rules. The result of this re-arrangement is to reduce the
Act, as distinct from Schedules, to 155 clauses. The existing order of
sequence has, speaking generally, been maintained, but the reduced
bulk of the Bill has rendered it no longer necessary to reproduce the
division into chapters.
It is proposed to vest the power of making Rules in High Courts,
subject to the control of Local Governments, (or, in the case of the
Calcutta High Court, of the Government of India), but we think it most
desirable that in exercising this power, the Courts should have the
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advice of representatives of the various branches of the legal
profession, and we have accordingly provided that, in the case of
Chartered High Courts and of Chief Courts, Rules shall only be made
after those Courts have taken the opinion of a Rule Committee on which
there will be representatives of the Bar, of Vakeels or Pleaders and, in
Presidency-towns, of Attorneys. In the case of other High Courts power
has been given to establish such Rule Committees as the Governor-
General in Council may determine. It is believed that Standing
Committees of this kind will be of great value. We have thought it
better to require the same sanction as is required by the Indian High
Courts Act of 1861, in order that the rule-makings power should
correspond with the power conferred under that Act; but we are of
opinion that, in the interest of uniformity, it is expedient that all
amendments of Rules should be communicated to the Government of
India and to other High Courts before sanction is given to them. This,
we understand, can be effected by executive order.
If our proposal is adopted, it will probably be useful to publish
annually in every Province some manual corresponding to the English
“Annual Practice” containing—
(1) the Act;
(2) all Rules of procedure made under it or under other Acts in the
Province;
(3) notes of decisions on the Act and Rules.
13. We are sensible that there may be defects and flaws in the Bill
which we append to this Report. The subject is complicated and
technical and the time at our disposal has been limited. We do not
doubt therefore that much improvement may be made in the Bill before
it is finally passed into law. But, in our opinion, it is framed on the right
lines. We believe for the reasons we have stated that in any reform of
Civil Procedure it is essential to introduce some elasticity; to give wider
powers of control to the High Courts, and to invest them with a larger
discretion in regard to the conduct of cases which come before them.
Mr. Dikshit, Subordinate Judge from Bombay, has been present
throughout our deliberations, and we take this opportunity of
acknowledging the help we have derived from his experience of the
working of the Code in the mofussil. We desire also to record our
acknowledgments of the services of Mr. Law, of the Legislative
Department, who has attended to the clerical and press-work to our
entire satisfaction.
Preliminary
1. Short title, commencement and extent.—(1) This Act may be
cited as the Code of Civil Procedure, 1908.
(2) It shall come into force on the first day of January, 1909.
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2
[(3) It extends to3 the whole of India except—
(a) 4[* * *]
(b) the State of Nagaland and the tribal areas:
Provided that the State Government concerned may, by notification
in the Official Gazette, extend the provisions of this Code or any of
them to the whole or part of the State of Nagaland or such tribal areas,
as the case may be, with such supplemental, incidental or
consequential modifications as may be specified in the notification.
Explanation.—In this clause, “tribal areas” means the territories
which, immediately before the 21st day of January, 1972, were
included in the tribal areas of Assam as referred to in paragraph 20 of
the Sixth Schedule to the Constitution.
5
(4) In relation to the Amindivi Islands, and the East Godavari, West
Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh
and the Union Territory of Lakshadweep, the application of this Code
shall be without prejudice to the application of any rule or regulation for
the time being in force in such Islands, Agencies or such Union
Territory, as the case may be, relating to the application of this Code.]
► Extent and applicability.—The CPC is applicable to all proceedings in
courts of civil jurisdiction, subject to any special or local law or any special
jurisdiction under any other law for the time being in force, Vareed Jacob v.
Sosamma Geevarghese, (2004) 6 SCC 378.
► Original jurisdiction of Supreme Court.—Original jurisdiction of Supreme
Court under Article 131 of Constitution of India is not governed by procedure
prescribed in CPC save and except the procedure which has been expressly
made applicable by Supreme Court Rules, State of T.N. v. State of Kerala, (2014)
12 SCC 696.
► Procedural Law.—Procedure is meant only to facilitate the administration
of justice and not to defeat the same, Banwari Lal v. Balbir Singh, (2016) 1 SCC
607.
2. Definitions.—In this Act, unless there is anything repugnant in the
subject or context,—
High Court Amendment
CALCUTTA.—In the opening words of the section add the words
“and in the Rules of practice and procedure of the Court of Small
Causes of Calcutta framed under the provision of Section 9 of the
Presidency Small Cause Courts Act, 1882,” after the words, “In this
Act” and before the words “unless there is” Cal. Gaz. Pt. I, dt. 20-4-
1967.
(1) “Code” includes rules;
High Court Amendment
CALCUTTA.—In clause (1) add the words “and, in its application
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to Courts other than the Court of Small Causes of Calcutta,
means the Code of Civil Procedure, 1908; and, in its application
to that Court, means the provisions of the Code of Civil
Procedure, 1908, as adapted, modified and extended by the
provisions of notifications issued from time to time under the
provisions of Section 8 of that Code” after the words “includes
rules” Cal. Gaz. Pt I, dt. 20-4-1967.
(2) “decree” means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection
6
of a plaint and the determination of any question within [* *
*] Section 144, but shall not include—
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
Explanation.—A decree is preliminary when further proceedings
have to be taken before the suit can be completely disposed of.
It is final when such adjudication completely disposes of the
suit. It may be partly preliminary and partly final;
High Court Amendment
CALCUTTA.—In clause (2) insert a fullstop after “matters in
controversy in the suit”; substitute. “In Courts other than the
Court of Small Causes of Calcutta it” for “and” after “matters in
controversy in the suit”; insert a semi-colon and the word
“and” in place of the fullstop after “preliminary or final” Cal.
Gaz. Pt I, dt. 20-4-1967.
► Decree.—A decree is defined in Section 2(2) CPC, 1908 to mean the
formal expression of an adjudication which, so far as regards the court expressing
it, conclusively determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or final, Chandi
Prasad v. Jagdish Prasad, (2004) 8 SCC 724.
Final decree distinguished from finality of a decree. A decree may be partly
preliminary and partly final. A decree whether preliminary or final is binding on the
parties, Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198.
An ex parte decree is as good and effective as a decree passed after contest
and would operate as res judicata on the same principles as a decree passed
after contest, unless the party challenging the ex parte decree satisfies the court
that such an ex parte decree was obtained by fraud or collusion, Saroja v.
Chinnusamy, (2007) 8 SCC 329.
Award passed by Lok Adalat shall be treated decree of Civil Court, United India
Insurance Co. Ltd. v. Master Imran Khan, 2007 SCC OnLine Del 1320.
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An award passed under the Karnataka Co-operative Societies Act shall be
deemed to be a decree, Belguam District Central Co-operative Bank Ltd. v.
Mahantesh Co-operative Credit Society Ltd., 2008 SCC OnLine Kar 55.
An order rejecting a plaint under Order 7, Rule 11 CPC is a decree, is
appealable, revision does not lie, Abdul Rashid Rather v. Ghulam Ahmad Ganai,
2010 SCC OnLine J&K 279 : AIR 2011 J&K 29 (30, 31).
► Preliminary and final decrees.—A preliminary decree is one which
declares the rights and liabilities of the parties leaving the actual result to be
worked out in further proceedings. Then as a result of the further inquiries
conducted pursuant to the preliminary decree, the rights of the parties are fully
determined and a decree is passed in accordance with such determination which
is final. Nature of preliminary and final decrees, explained, Shanker Balwant
Lokhande v. Chandrakant Shankar Lokhande, (1995) 3 SCC 413.
In certain situations, for the purpose of complete adjudication of the disputes
between the parties an appellate court may also take into consideration
subsequent events after passing of the preliminary decree, Satnam Singh v.
Surendra Kaur, (2009) 2 SCC 562.
► Decree and order : Distinction.—Ingredients of “decree” and tests to be
applied to ascertain whether a “order” is decree or not, explained, S. Satnam
Singh v. Surendra Kaur, (2009) 2 SCC 562 : (2009) 1 SCC (Civ) 663.
► Decisions which are not “decrees”.—An order dismissing a suit for non-
payment of costs, Piaro Devi v. Anant Ram, 2008 SCC OnLine HP 8 : AIR 2008
HP 107.
Order rejecting an application for condonation of delayState of Rajasthan v.
Rajpal Singh Chauhan, 2011 SCC OnLine Raj 2709 : AIR 2011 Raj 101.
An order passed under Order 22, Rule 5 of the CPC, Ashwani Kumar v.
Vidya, 2007 SCC OnLine All 20 : AIR 2007 All 105.
(3) “decree-holder” means any person in whose favour a decree
has been passed or an order capable of execution has been
made;
(4) “district” means the local limits of the jurisdiction of a
principal Civil Court of original jurisdiction (hereinafter called a
“District Court”), and includes the local limits of the ordinary
original civil jurisdiction of a High Court;
► Court.—CPC refers exclusively to the Civil Courts. In particular, CPC
specifically refers to the District Courts, the High Courts, and the Supreme Court
and makes little, if any, reference to other, quasi-judicial bodies, Ethiopian
Airlines v. Ganesh Narain Saboo, (2011) 8 SCC 539 : (2011) 4 SCC (Civ) 217.
7
[(5) “foreign court” means a Court situate outside India and not
established or continued by the authority of the Central
Government;]
(6) “foreign judgment” means the judgment of a foreign Court;
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(7) “Government Pleader” includes any officer appointed by the
State Government to perform all or any of the functions
expressly imposed by this Code on the Government Pleader
and also any pleader acting under the directions of the
Government Pleader;
8
[(7-A) “High Court”, in relation to the Andaman and Nicobar
Islands, means the High Court in Calcutta;
9 10
(7-B) “India”, except in Sections 1, 29, 43, 44, [44-A], 78, 79,
82, 83 and 87-A, means the territory of India excluding the
State of Jammu and Kashmir11;]
(8) “Judge” means the presiding officer of a Civil Court;
(9) “Judgment” means the statement given by the Judge of the
grounds of a decree or order;
► “Judgment”.—Notes taken by the Judges while hearing a case cannot be
treated as final views expressed by them on the case, Supreme Court of India v.
Subhash Chandra, 2010 SCC OnLine Del 111 : AIR 2010 Del 159 (FB).
(10) “judgment-debtor” means any person against whom a
decree has been passed or an order capable of execution has
been made;
(11) “legal representative” means a person who in law represents
the estate of a deceased person, and includes any person who
inter-meddles with the estate of the deceased and where a
party sues or is sued in a representative character the person
on whom the estate devolves on the death of the party so
suing or sued;
► Legal representative.—“Legal representative” includes donee of suit
property, Manovikas Kendra Rehabilitation & Research Institute v. Prem
Prakash Lodha, (2005) 7 SCC 224.
A legatee under a will intending to represent interest of estate of deceased
testator held, is a “illegal representative”, Suresh Kumar Bansal v. Krishna
Bansal, (2010) 2 SCC 162 : (2010) 1 SCC (Civ) 365.
The definition of word “legal representative” as provided under Section 2(11) of
the Code is inclusive in character and its scope is wide. It is not confined to a
preferred class of heirs only but also includes even intermeddlers, Yogendra
Bhagata v. Prital Yadava, 2009 SCC OnLine Pat 174 : AIR 2009 Pat 168 (FB).
(12) “mesne profits” of property means those profits which the
person in wrongful possession of such property actually
received or might with ordinary diligence have received
therefrom, together with interest on such profits, but shall not
include profits due to improvements made by the person in
wrongful possession;
► Mesne profits — Entitlement.—Right to mesne profits presupposes a
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wrong whereas a right to rent proceeds on basis of contract. In intermediate
cases, where possession not wrongful to begin with but assumes such character
when unauthorisedly retained, owner not entitled to claim mesne profits but only
fair rent, Union of India v. Banwari Lal & Sons (P) Ltd., (2004) 5 SCC 304.
(13) “movable property” includes growing crops;
High Court Amendment
CALCUTTA.—In clause (13) insert the words “except in suits or
proceedings in the Court of Small Causes of Calcutta” after the
words “growing crops”.
(14) “order” means the formal expression of any decision of a Civil
Court which is not a decree;
(15) “pleader” means any person entitled to appear and plead for
another in Court, and includes an advocate, a vakil and an
attorney of a High Court;
(16) “prescribed” means prescribed by rules;
(17) “public officer” means a person falling under any of the
following descriptions, namely:—
(a) every Judge;
12
(b) every member of [an All-India Service];
13
(c) every commissioned or gazetted officer in the military,
[naval or air] forces of 14[the Union] 15
[* * *] while serving
under the Government;
(d) every officer of a Court of Justice whose duty it is, as such
officer, to investigate or report on any matter of law or fact,
or to make, authenticate or keep any document, or to take
charge or dispose of any property, or to execute any judicial
process, or to administer any oath, or to interpret, or to
preserve order, in the Court, and every person especially
authorised by a Court of Justice to perform any of such
duties;
(e) every person who holds any office by virtue of which he is
empowered to place or keep any person in confinement;
(f) every officer of the Government whose duty it is, as such
officer, to prevent offences, to give information of offences,
to bring offenders to justice, or to protect the public health,
safety or convenience;
(g) every officer whose duty it is, as such officer, to take,
receive, keep or expend any property on behalf of the
Government, or to make any survey, assessment or contract
on behalf of the Government, or to execute any revenue
process, or to investigate, or to report on, any matter
affecting the pecuniary interests of the Government, or to
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make, authenticate or keep any document relating to the
pecuniary interests of the Government, or to prevent the
infraction of any law for the protection of the pecuniary
interests of the Government; and
(h) every officer in the service or pay of the Government, or
remunerated by fees or commission for the performance of
any public duty;
► Public officer.—Neither Bihar State Electricity Board would be
“Government” nor its officers would be considered as “Public Officers” for the
purpose of Section 80 CPC, Electricity Board, Bihar v. Binay Kumar Jha, 2011
SCC OnLine Pat 617 : AIR 2011 Pat 187.
(18) “rules” means rules and forms contained in the First
Schedule or made under Section 122 or Section 125;
High Court Amendment
CALCUTTA.—In clause (18) insert the words “in its application
to Courts other than the Court of Small Causes of Calcutta” after
the word “rules” and before the words “means rules and forms”;
and the words “of the Code of Civil Procedure, 1908, and, in its
application to that court means the ‘Rules of Practice and
Procedure of that Court’ made under Section 9 of the Presidency
Small Cause Courts Act, 1882, and includes the rules and forms
contained in the First Schedule of that Code which are made
applicable to that court by virtue of the provisions of Order LI of
that schedule” after the words “Section 122 or Section 125”. Cal.
Gaz. Pt. I, dt. 20-4-1967.
(19) “share in a corporation” shall be deemed to include stock,
debenture stock, debentures or bonds; and
(20) “signed”, save in the case of a judgment or decree, includes
stamped.
16
(21) [* * *]
3. Subordination of Courts.—For the purposes of this Code, the
District Court is subordinate to the High Court, and every Civil Court of
a grade inferior to that of a District Court and every Court of Small
Causes is subordinate to the High Court and District Court.
High Court Amendment
CALCUTTA.—Insert the words “and the Court of Small Causes of
Calcutta” after the words “District Court” and before the words “are
subordinate to”; and the words “other than the Court of Small Causes
of Calcutta” after the words “Court of Small Causes” and before the
words “is subordinate”; substitute “are” for the word “is” before the
words “subordinate to the High Court, and every Civil Court”; Cal. Gaz.
Pt. I, dt. 20-4-1967.
► “Courts subordinate” to High Court.—The Civil Courts are subordinate
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to the High Court. The appeals from their judgment will lie before a superior court.
The High Court is entitled to exercise its power of revision as also
superintendence over the said courts. Only because a court or a tribunal is
entitled to determine an issue involving civil nature, the same by itself would not
lead to the conclusion that it is a Civil Court, Nahar Industrial Enterprises Ltd. v.
Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646 : (2009) 3 SCC
(Civ) 481.
4. Savings.—(1) In the absence of any specific provision to the
contrary, nothing in this Code shall be deemed to limit or otherwise
affect any special or local law now in force or any special jurisdiction or
power conferred, or any special form of procedure prescribed, by or
under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the
proposition contained in sub-section (1), nothing in this Code shall be
deemed to limit or otherwise affect any remedy which a landholder or
landlord may have under any law for the time being in force for the
recovery of rent of agricultural land from the produce of such land.
► Special or local laws.—Special or local laws would remain functional only
as long as there is no specific provision to the contrary legislated by Parliament,
Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262.
► Section 4(1), “Specific provision to the contrary”, Meaning.—Special
provision, as distinct from general contained in CPC, must explicitly and not by
implication indicate that special law is to be affected. “Specific provision to the
contrary”, must be contained in CPC itself and not in any other law, Pankajakshi
v. Chandrika, (2016) 6 SCC 157 : (2016) 3 SCC (Civ) 105.
5. Application of the Code to Revenue Courts.—(1) Where any
Revenue Courts are governed by the provisions of this Code in those
matters of procedure upon which any special enactment applicable to
them is silent, the State Government 17[* * *] may, by notification in
the Official Gazette, declare that any portions of those provisions which
are not expressly made applicable by this Code shall not apply to those
Courts, or shall only apply to them with such modifications as the State
18
Government [* * *] may prescribe.
(2) “Revenue Court” in sub-section (1) means a Court having
jurisdiction under any local law to entertain suits or other proceedings
relating to the rent, revenue or profits of land used for agricultural
purposes, but does not include a Civil Court having original jurisdiction
under this Code to try such suits or proceedings as being suits or
proceedings of a civil nature.
6. Pecuniary jurisdiction.—Save in so far as is otherwise expressly
provided, nothing herein contained shall operate to give any Court
jurisdiction over suits the amount or value of the subject-matter of
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which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
7. Provincial Small Cause Courts.—The following provisions shall not
extend to Courts constituted under the Provincial Small Cause Courts
Act, 1887 (9 of 1887), 19[or under the Berar Small Cause Courts Law,
1905], or to Courts exercising the jurisdiction of a Court of Small
20 21 22
Causes [under the said Act or Law], [or to Courts in [any part of
India to which the said Act does not extend] exercising a corresponding
jurisdiction] that is to say,—
(a) so much of the body of the Code as relates to—
(i) suits excepted from the cognizance of a Court of Small
Causes;
(ii) the execution of decrees in such suits;
(iii) the execution of decrees against immovable property; and
(b) the following sections, that is to say,—
Section 9,
Sections 91 and 92,
23
Sections 94 and 95 [so far as they authorise or relate to—
(i) orders for the attachment of immovable property,
(ii) injunctions,
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to in clause (e) of Section
94], and
Sections 96 to 112 and 115.
8. Presidency Small Cause Courts.—Save as provided in Sections 24,
38 to 41, 75, clauses (a), (b) and (c), 76, 24[77, 157 and 158], and by
the Presidency Small Cause Courts Act, 1882 (15 of 1882), the
25
provisions in the body of this Code shall not extend to any suit or
proceeding in any Court of Small Causes established in the towns of
Calcutta, Madras and Bombay:
26
[Provided that—
(1) the High Courts of Judicature at Fort William, Madras and
Bombay, as the case may be, may from time to time, by
27
notification in the Official Gazette, direct that any such
provisions not inconsistent with the express provisions of the
Presidency Small Cause Courts Act, 1882 (15 of 1882), and
with such modifications and adaptations as may be specified in
the notification, shall extend to suits or proceedings or any
class of suits or proceedings in such Court;
(2) all rules heretofore made by any of the said High Courts under
Section 9 of the Presidency Small Cause Courts Act, 1882 (15
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of 1882) shall be deemed to have been validly made.]
STATE AMENDMENTS
Gujarat.—In its application to the State of Gujarat, in Section 8 in
the opening para, after the words “Calcutta, Madras and Bombay”,
insert the words “and in the city of Ahmedabad”. [Vide Gujarat Act XIX
of 1961 as amended by Gujarat Act XXXII of 1961, Section 21 and
Schedule (w.e.f. 1-11-1961)].
Part I
Suits in General
Jurisdiction of the Courts and Res Judicata
9. Courts to try all civil suits unless barred.—The Courts shall
(subject to the provisions herein contained) have jurisdiction to try all
suits of a civil nature excepting suits of which their cognisance is either
expressly or impliedly barred.
28
Explanation [I].—A suit in which the right to property or to an office
is contested is a suit of a civil nature, notwithstanding that such right
may depend entirely on the decision of questions as to religious rites or
ceremonies.
29
[Explanation II.—For the purposes of this section, it is immaterial
whether or not any fees are attached to the office referred to in
Explanation I or whether or not such office is attached to a particular
place.]
► Nature and scope.—The law confers on every person an inherent right to
bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the
claim may be, unless it is barred by a statute, Abdul Gafur v. State of
Uttarakhand, (2008) 10 SCC 97.
A decree passed without consideration of statutory provisions barring
jurisdiction of Civil Court must be subject to the orders of the appropriate authority
in proceedings under the statute concerned, Saraswatibai Trimbak Gaikwad v.
Damodhar D. Motiwale, (2002) 4 SCC 481.
Bar against jurisdiction of Civil Court, not be inferred unless alternative remedy
provided. Where there is no express bar, but statutory provisions imply exclusion
of jurisdiction, held, exclusion still cannot be inferred unless the statute also
provides an adequate and efficacious alternative remedy, Dhruv Green Field Ltd.
v. Hukam Singh, (2002) 6 SCC 416.
► Jurisdiction of civil court.—Jurisdiction of civil court is plenary in nature,
unless the same is ousted, expressly or by necessary implication, it will have
jurisdiction to try all types of suits, Robust Hotels (P) Ltd. v. EIH Ltd., (2017) 1
SCC 622.
Ouster of jurisdiction of civil court cannot be inferred readily. Thus, an
arbitration clause in an agreement excluding jurisdiction of civil court by virtue of
Arbitration Act, has to be construed strictly, Vimal Kishor Shah v. Jayesh Dinesh
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Shah, (2016) 8 SCC 788 : (2016) 4 SCC (Civ) 303.
Jurisdiction of civil courts cannot be completely taken away in spite of either
an express or implied bar. Civil courts despite such bar continue to have
jurisdiction to examine a matter in which there is an allegation of noncompliance
with statutory provisions or any fundamental principle of judicial procedure, South
Delhi Municipal Corpn. v. Today Homes & Infrastructure (P) Ltd., (2020) 12
SCC 680.
► Jurisdiction of Revenue Court/Criminal Court.—Revenue Court does not
have jurisdiction of granting relief of cancellation of a deed on the ground of fraud
and misrepresentation, Narendra Kumar Mittal v. Nupur Housing Development
(P) Ltd., (2020) 20 SCC 158.
Appropriate forum and action for dispute about title to seized stolen goods, is
suit in competent Civil Court and not in criminal proceedings relating to
prosecution for the theft, Thamanna Shivalingappa Teli v. State of Karnataka,
(2005) 12 SCC 171.
► Premature suit.—Court has power to pass order regarding maintainability
of premature suit adjusting equities and satisfying ends of justice, as it may deem
fit in its discretion, Vithalbhai (P) Ltd. v. Union of India, (2005) 4 SCC 315.
► Burden of proof.—Onus lies on party seeking ouster of Civil Court's
jurisdiction, Sahebgouda v. Ogeppa, (2003) 6 SCC 151, See also Mahant Dooj
Dass v. Udasin Panchayati Bara Akhara, (2008) 12 SCC 181.
► Maintainability of suit.—Maintainability of suit is question of law. All civil
suits are maintainable unless barred either by expression provision or by
necessary implication of law, Jyoti Ltd. v. Bharat J. Patel, (2015) 14 SCC 566.
Claim in respect of subject-matter not covered in suit, is not maintainable.
Fresh suit has to be filed in respect such subject-matter, if maintainable, Ram
Dutt v. Dev Dutt, (2016) 6 SCC 718 : (2016) 3 SCC (Civ) 476.
Dispute principally being as to succession to property, turning on question of
legitimacy/legal status of parties concerned as legal heirs of deceased person
concerned could only be resolved vide a civil suit, R. Kasthuri v. M. Kasthuri,
(2018) 5 SCC 353.
► Leave to file another suit.—A Civil Court does not grant leave to file
another suit, Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600.
► Defamation Cases.—In absence of codified law for civil action, civil suit
claiming damages for defamation can be instituted under Section 9 CPC, unless
there is any specific bar, by taking recourse to Common Law of England which is
continuing law in force in India by virtue of Article 372 of the Constitution,
Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
► Duty of courts.—If a suit is barred by law, court is bound to take note of
the bar whether such question is raised by parties or not, Sasan Power Ltd. v.
North American Coal Corpn. (India) (P) Ltd., (2016) 10 SCC 813.
STATE AMENDMENTS
SECTION 9-A
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Maharashtra.—In its application to the State of Maharashtra,
Section 9-A inserted by Maharashtra Act 65 of 1977, S. 3 (19-12-1977)
and deleted by Maharashtra Act No. 61 of 2018, S. 2 (w.r.e.f. 27-6-
2018)]. Prior to deletion it read as:
“9-A. Where at the hearing of application relating to interim relief
in a suit, objection to jurisdiction is taken, such issue to be decided
by the Court as a preliminary issue.—(1) Notwithstanding anything
contained in this Code or any other law for the time being in force, if,
at the hearing of any application for granting or setting aside an
order granting any interim relief, whether by way of stay, injunction,
appointment of a receiver or otherwise, made in any suit, an
objection to the jurisdiction of the Court to entertain such suit is
taken by any of the parties to the suit, the Court shall proceed to
determine at the hearing of such application the issue as to the
jurisdiction as a preliminary issue before granting or setting aside
the order granting the interim relief. Any such application shall be
heard and disposed of by the Court as expeditiously as possible and
shall not in any case be adjourned to the hearing of suit.
(2) Notwithstanding anything contained in sub-section (1), at the
hearing of any such application, the Court may grant such interim
relief as it may consider necessary, pending determination by it of
the preliminary issue as to the jurisdiction.”
► Jurisdiction to entertain.—Objection as to jurisdiction to
entertain suit, to be decided by the court as a preliminary issue under
Section 9-A [as inserted by CPC (Maharashtra Amendment) Act, 1977].
The word “jurisdiction” in Section 9-A, does not include issue of bar of
limitation. The word “jurisdiction” in Section 9-A is qualified with the
expression “to entertain the suit”. Both the said expressions when
taken together give the meaning that court should have power or
inherent jurisdiction to receive suit for consideration on merits. Meaning
to be given to “jurisdiction to entertain” in Section 9-A is a narrow one
as to maintainability. It is only the competence of the court to receive a
suit for adjudication which is covered under Section 9-A. In a case
barred by limitation, court possesses jurisdiction to decide that issue.
Where court has no jurisdiction, it cannot decide that issue on merits at
all. Thus, question of limitation in no case can be said to be a question
of jurisdiction of court in the context of Section 9-A. Issue of limitation,
therefore, cannot be decided as a preliminary issue of jurisdiction under
Section 9-A. Kamalakar Eknath Salunkhe, (2015) 7 SCC 321, held, is
correctly decided and is affirmed. Foreshore Coop. Housing Society Ltd.,
(2015) 6 SCC 412 which took a contrary view, overruled, Nusli Neville
Wadia v. Ivory Properties, (2020) 6 SCC 557.
► Comparative scope of Section 9-A [as inserted by CPC
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(Maharashtra Amendment) Act, 1977] and Order 14 Rule 2 (as
amended w.e.f. 1-2-1977).—The scope of Section 9-A CPC is
different and limited as compared to Order 14 Rule 2 CPC. Under
Section 9-A, only jurisdiction to entertain has to be decided, where
maintainability of suit is decided concerning jurisdiction of court as a
pure question of law at a preliminary stage. On the other hand, under
Order 14 Rule 2 CPC, issues of law as to (i) jurisdiction of court, or (ii) a
bar to suit created by any law for the time being in force, are to be
decided as a preliminary issue. Scope of Section 9-A has been narrowed
down by legislature as compared to provisions of Order 14 Rule 2(2) by
not including in Section 9-A provisions as to “a bar created by any
other law for the time being in force”. Further held, only a pure
question of law and not a mixed question of law and fact can be
decided as a preliminary issue both under Section 9-A and Order 14
Rule 2. Recording of evidence at that stage is impermissible, Nusli
Neville Wadia v. Ivory Properties, (2020) 6 SCC 557.
► Comparative scope of Section 9-A [as inserted by CPC
(Maharashtra Amendment) Act, 1977] and Order 7 Rule 11(d).—
Under Order 7 Rule 11(d) CPC, plaint can be rejected on ground of
limitation where plaint averment itself indicates cause of action to be
barred by limitation and no further evidence is required to adjudicate
the issue: The stage at which Order 7 Rule 11(d) has to be applied, is
at the threshold and scope of Section 9-A CPC is somewhat limited and
different. Section 9-A is limited in its operation as to jurisdiction of
court to entertain a suit. The question of limitation in no case can be
said to be a question of jurisdiction of court in the context of Section 9-
A CPC, Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557.
► Section 9-A [as amended by CPC (Maharashtra Amendment) Act,
1977] and Order 14 Rule 2.—Section 9-A as introduced by the Maharashtra
Amendment Act, is mandatory in nature, including on issue of limitation. Word
“jurisdiction” under Section 9-A wide enough to include the issue of limitation,
Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai, (2015) 6 SCC 412.
► Section 9-A (as applicable in Maharashtra prior to its deletion in 2018)
and Order 14 Rule 2.—It is open to decide a preliminary issue only if it is purely
a question of law, and not a mixed question of law and fact requiring recording of
evidence. Thus, held, “jurisdiction” in Section 9-A does not include issue of
limitation as the same involves mixed questions of fact and law, Shyam Madan
Mohan Ruia v. Messer Holdings Ltd., (2020) 5 SCC 252.
► Comparative scope of Section 9-A [as inserted by CPC (Maharashtra
Amendment) Act, 1977] and Order 7 Rule 11(d).—Under Order 7 Rule 11(d)
CPC, plaint can be rejected on ground of limitation where plaint averment itself
indicates cause of action to be barred by limitation and no further evidence is
required to adjudicate the issue: The stage at which Order 7 Rule 11(d) has to be
applied, is at the threshold and scope of Section 9-A CPC is somewhat limited and
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different. Section 9-A is limited in its operation as to jurisdiction of court to
entertain a suit. The question of limitation in no case can be said to be a question
of jurisdiction of court in the context of Section 9-A CPC, Nusli Neville Wadia v.
Ivory Properties, (2020) 6 SCC 557.
► Jurisdiction to entertain.—Objection as to jurisdiction to entertain suit, to
be decided by the court as a preliminary issue under Section 9-A [as inserted by
CPC (Maharashtra Amendment) Act, 1977]. The word “jurisdiction” in Section 9-
A, does not include issue of bar of limitation. Kamalakar Eknath Salunkhe, (2015)
7 SCC 321, held, is correctly decided and is affirmed. Foreshore Coop. Housing
Society Ltd., (2015) 6 SCC 412 which took a contrary view, overruled, Nusli
Neville Wadia v. Ivory Properties, (2020) 6 SCC 557.
10. Stay of suit.—No Court shall proceed with the trial of any suit in
which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties, or between parties
under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in 30[India]
having jurisdiction to grant the relief claimed, or in any Court beyond
31 32
the limits of [India] established or continued by the [Central
33 34
Government] [* * *] and having like jurisdiction, or before the
[Supreme Court].
Explanation.—The pendency of a suit in a foreign court does not
35
preclude the Courts in [India] from trying a suit founded on the same
cause of action.
► Object.—The object underlying Section 10 is to avoid two parallel trials on
the same issue by two courts of concurrent jurisdiction and to avoid recording of
conflicting findings on issues which are directly and substantially in issue in a
previously instituted suit, National Institute of Mental Health & Neuro Sciences v.
C. Parmeshwara, (2005) 2 SCC 256.
Mere filing of an application under Section 10 CPC does not in any manner
put an embargo on the power of the court to examine the merits of the matter,
Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251.
► Proceedings before Labour Court.—The language of Section 10
suggests that it is referable to a suit instituted in the Civil Court and it cannot apply
to proceedings of another nature instituted under any other statute. The
proceedings before the Labour Court cannot be equated with the proceedings
before a Civil Court. They are not courts of concurrent jurisdiction, National
Institute of Mental Health & Neuro Sciences v. C. Parmeshwara, (2005) 2 SCC
256.
► Conditions.—The use of negative expression in Section 10, i.e. “no court
shall proceed with the trial of any suit” makes the provision mandatory and the
court in which the subsequent suit has been filed is prohibited from proceeding
with the trial of that suit if the conditions laid down in Section 10 of the Code are
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satisfied, Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 : (2013) 2
SCC (Civ) 601.
► Applicability.—For S. 10 to be attracted it is essential that entire subject-
matter in controversy must be the same between previous suit and subsequent
suit. Mere common grounds in previous suit and subsequent suit would not attract
S. 10, Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 : (2013) 2
SCC (Civ) 601.
► Effect of contravention.—Section 10 merely enacts a rule of procedure
and decree passed in contravention thereof not a nullity, Pukhraj D. Jain v. G.
Gopalakrishna, (2004) 7 SCC 251.
11. Res judicata.—No Court shall try any suit or issue in which the
matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent suit
or the suit in which such issue has been subsequently raised, and has
been heard and finally decided by such Court.
Explanation I.—The expression “former suit” shall denote a suit
which has been decided prior to the suit in question whether or not it
was instituted prior thereto.
Explanation II.—For the purposes of this section, the competence of
a Court shall be determined irrespective of any provisions as to a right
of appeal from the decision of such Court.
Explanation III.—The matter above referred to must in the former
suit have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.—Any matter which might and ought to have been
made ground of defence or attack in such former suit shall be deemed
to have been a matter directly and substantially in issue in such suit.
Explanation V.—Any relief claimed in the plaint, which is not
expressly granted by the decree, shall, for the purposes of this section,
be deemed to have been refused.
Explanation VI.—Where persons litigate bona fide in respect of a
public right or of a private right claimed in common for themselves and
others, all persons interested in such right shall, for the purposes of
this section, be deemed to claim under the persons so litigating.
36
[Explanation VII.—The provisions of this section shall apply to a
proceeding for the execution of a decree and references in this section
to any suit, issue or former suit shall be construed as references,
respectively, to a proceeding for the execution of the decree, question
arising in such proceeding and a former proceeding for the execution of
that decree.
Explanation VIII.—An issue heard and finally decided by a court of
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limited jurisdiction, competent to decide such issue, shall operate as
res judicata in a subsequent suit, notwithstanding that such court of
limited jurisdiction was not competent to try such subsequent suit or
the suit in which such issue has been subsequently raised.]
► Principle of Res Judicata.—The principle of res judicata envisages that a
judgment of a court of concurrent jurisdiction directly upon a point would create a
bar as regards a plea, between the same parties in some other matter in another
court, where the said plea seeks to raise afresh the very point that was determined
in the earlier judgment, Swamy Atmananda v. Sri Ramakrishna Tapovanam,
(2005) 10 SCC 51, See also Amarendra Komalam v. Usha Sinha, (2005) 11 SCC
251.
Section 11 generally comes into play in relation to civil suits. But apart from the
codified law, the principle of res judicata has been applied since long in various
other kinds of proceedings and situations by courts in England, Indian and other
countries, Ramchandra Dagdu Sonavane v. Vithu Hira Mahar, (2009) 10 SCC
273 : (2009) 4 SCC (Civ) 162.
History of doctrine, traced. Further held that while applying the principles of
res judicata the court should not be hampered by any technical rules of
interpretation, M. Nagabhushana v. State of Karnataka, (2011) 3 SCC 408 :
(2011) 1 SCC (Civ) 733.
Issue only collaterally or incidentally decided in earlier proceedings, held,
would not operate as res judicata in proceedings where the issue is directly and
substantially involved, Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393.
Law clarified regarding plea of res judicata, when may be decided as
preliminary issue, Jamia Masjid v. K.V. Rudrappa, (2022) 9 SCC 225.
► Nature and Scope.—Vague, cryptic and casual order in former
proceeding containing finding that was neither directly in issue nor properly
examined, cannot amount to res judicata, Ajay Arjun Singh v. Sharadendu Tiwari,
(2016) 6 SCC 576 : (2016) 3 SCC (Civ) 222.
Section 11 Explanation VI, held, not confined to cases covered by Order 1
Rule 8 but extends to include any litigation in which, apart from Order 1 Rule 8
altogether, parties are entitled to represent interested persons other than
themselves (such as suit by next friend of deity on behalf of deity/worshippers).
Provisions of Order 1 Rule 8 do not control the applicability of Section 11 Expln.
VI, M. Siddiq (Ram Janmabhumi Temple 5J) v. Suresh Das, (2020) 1 SCC 1.
► Object.—The object of the principle of res judicata as contended in
Section 11 CPC is to uphold the rule of conclusiveness of judgment, as to the
points decided earlier of fact, or of law, or of fact and law, in every subsequent
suit between the same parties, Swamy Atmananda v. Sri Ramakrishna
Tapovanam, (2005) 10 SCC 51.
► Extent and applicability.—Where previous suit was dismissed for non-
joinder of parties by giving liberty to plaintiff to file fresh suit and accordingly
subsequent suit filed joining other defendants also and claiming reliefs different
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from those claimed in previous suit, neither parties, nor subject-matter nor relief
claimed in two suits being the same, subsequent suit not barred by res judicata,
City Municipal Council, Bhalki v. Gurappa, (2016) 2 SCC 200 : (2016) 2 SCC
(Civ) 59.
Where former suit for possession of entire property was based on a settlement
deed, and, subsequent suit for partition claiming plaintiff's share in property was
based on her birth right, res judicata not attracted, Nagabhushanammal v. C.
Chandikeswaralingam, (2016) 4 SCC 434 : (2016) 2 SCC (Civ) 642.
When the claim in subsequent suit could not have been the subject-matter of
settlement between the parties, suit was not barred, Bharat Hydro Power Corpn.
Ltd. v. State of Assam, (2016) 12 SCC 598.
First application under Order 22 Rule 4 dismissed without adjudication on
merits, subsequent application under Order 1 Rule 10 not barred by res judicata,
Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya, (2017) 9
SCC 700.
► Applicabilty/Non-applicability of Res judicata.—Principle of res judicata
is not applicable in case of decisions relating to jurisdictional facts, Sonepat
Coop. Sugar Mills Ltd. v. Ajit Singh, (2005) 3 SCC 232 : 2005 SCC (L&S) 387.
Findings on issue(s) which actually fell for consideration in the previous
proceedings alone can operate as res judicata, Anil Kumar Modi v. Tarsem
Kumar Gupta, (2023) 2 SCC 201.
Res judicata is applicable to writ petitions, Ishwar Dutt v. Collector (LA),
(2005) 7 SCC 190.
The bar of res judicata or principles analogous thereto would not apply to a
writ of habeas corpus where the petitioner prays for setting him at liberty, T.P.
Moideen Koya v. State of Kerala, (2004) 8 SCC 106.
The principle of res judicata would apply only when the lis was inter partes and
had attained finality in respect of the issues involved, Union of India v. Pramod
Gupta, (2005) 12 SCC 1.
► Different stages of the same proceedings.—Principles of res judicata
apply in different stages of the same proceedings, Bhanu Kumar Jain v. Archana
Kumar, (2005) 1 SCC 787; Chabbil Das v. Pappu, (2006) 12 SCC 41.
The principle of res judicata applies as between two stages in the same
litigation so that if an issue has been decided at an earlier stage against a party, it
cannot be allowed to be reagitated by him at a subsequent stage in the same suit
or proceedings, C.V. Rajendran v. N.M. Muhammed Kunhi, (2002) 7 SCC 447.
► Rent control proceedings.—Ground of bona fide need is a recurring
cause of action as such landlord is not precluded from filing fresh proceedings for
eviction if on the date of the fresh suit his requirement is bona fide, N.R. Narayan
Swamy v. B. Francis Jagam, (2001) 6 SCC 473.
► Res judicata and Supreme Court Rules.—The Supreme Court Rules are
not technical rules of procedure and are fundamental to the administration of
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justice in all courts, based on the principle that there must be an end to litigation,
State of Haryana v. State of Punjab, (2004) 12 SCC 673.
► Res judicata and Order 2, Rule 2.—The doctrine of res judicata differs
from the principle underlying Order 2, Rule 2 in that the former places emphasis
on the plaintiff's duty to exhaust all available grounds in support of his claim, while
the latter requires the plaintiff to claim all reliefs emanating from the same cause of
action, Kunjan Nair Sivaraman Nair v. Narayanan Nair, (2004) 3 SCC 277.
Constructive res judicata deals with grounds of attack and defence which
ought to have been raised, but not raised, whereas Order 2, Rule 2 CPC relates to
reliefs which ought to have been claimed on the same cause of action but not
claimed, Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 : (2010) 4
SCC (Civ) 73.
► Res judicata and issue estoppel.—There is a distinction between “issue
estoppel” and “res judicata”. Res judicata debars a court from exercising its
jurisdiction to determine the lis if it has attained finality between the parties
whereas the doctrine of issue estoppel is invoked against a party, Bhanu Kumar
Jain v. Archana Kumar, (2005) 1 SCC 787.
► Competent court.—Finding on issue of title recorded by Small Cause
Court does not operates as res judicata and ultimately said issue has to be
adjudicated upon by competent Civil Court, Nirmal Jeet Singh Hoon v. Itriza
Hussain, (2010) 14 SCC 564 : (2012) 1 SCC (Civ) 759.
Order passed without jurisdiction is a nullity thus held, cannot operate as res
judicata, even if such order attains finality in favour of some parties by virtue of
not being appealed against, Union of India v. Assn. of Unified Telecom Service
Providers of India, (2011) 10 SCC 543.
Order without jurisdiction cannot constitute res judicata, Chandrabhai K. Bhoir
v. Krishna Arjun Bhoir, (2009) 2 SCC 315 : (2009) 1 SCC (Civ) 512.
The principle of res judicata would not apply where the judgment/order has
been passed by a court having no jurisdiction, Union of India v. Pramod Gupta,
(2005) 12 SCC 1.
► Binding precedent.—For principles of res judicata to apply the lis and
parties has to be the same. A binding precedent on the other hand arises when
the court determines a certain issue for a certain sets of facts but in a different lis.
Then if the material facts match in a later case, then, that issue stands determined
for that later case though the lis and parties may be different, Fida Hussain v.
Moradabad Development Authority, (2011) 12 SCC 615 : (2012) 2 SCC (Civ)
762.
► Applicability of bar.—Only ratio decidendi of a judgment would bar a
subsequent suit, Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas,
(2008) 11 SCC 753.
► Change in statutory law.—Change in law subsequent thereto (repeal of
statutory provision on which said judgment/order based) does not take away the
effect of the said judgment/order as between the parties thereto, State of
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Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 : 2005 SCC (L&S) 907.
► Applicability of Res judicata.—Only determinations which are essential or
fundamental to the substantive decision, and not collateral thereto, held, would
result in application of doctrine of res judicata. Scope of applicability of doctrine
of res judicata and effective test to distinguish between a fundamental or collateral
determination, explained, Yadaiah v. State of Telangana, (2023) 10 SCC 755
12. Bar to further suit.—Where a plaintiff is precluded by rules from
instituting a further suit in respect of any particular cause of action, he
shall not be entitled to institute a suit in respect of such cause of action
in any Court to which this Code applies.
13. When foreign judgment not conclusive.—A foreign judgment
shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any
of them claim litigating under the same title except—
(a) where it has not been pronounced by a Court of competent
jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded
on an incorrect view of international law or a refusal to
37
recognise the law of [India] in cases in which such law is
applicable;
(d) where the proceedings in which the judgment was obtained
are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in
38
force in [India].
► Effect of foreign judgment.—Judgment of foreign court affirming status
and bona fides of foreign couple for adopting an Indian child can be accepted
under Section 13 CPC, International Woollen Mills v. Standard Wool (U.K.) Ltd.,
(2001) 5 SCC 265.
► Presumption as to foreign judgment.—Indian court can examine whether
tests laid down under Sections 13 and 44-A CPC are satisfied, Bhavesh Jayanti
Lakhani v. State of Maharashtra, (2009) 9 SCC 551 : (2010) 1 SCC (Cri) 47.
► Burden of proof.—Burden of proving that foreign judgment is not on merits
lies on party so alleging, but in order to prove the point such party would not be
expected to do the impossible by leading evidence as to the state of mind of the
Judge who passed the decree, International Woollen Mills v. Standard Wool
(U.K.) Ltd., (2001) 5 SCC 265.
► Execution of Foreign judgment.—Once an order or decree is obtained
after following due judicial process by giving reasonable notice and opportunity to
all proper and necessary parties to put forth their case, executing court cannot
enquire into validity, legality or otherwise of said judgment, Alcon Electronics (P)
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Ltd. v. Celem S.A. of France, (2017) 2 SCC 253.
It is for the reciprocal advantage of courts of all nations to enforce foreign
rights as far as practicable. Recognition of substantive rights should not be
defeated by some vague assumed limitations of the court, Alcon Electronics (P)
Ltd. v. Celem S.A. of France, (2017) 2 SCC 253.
► Costs.—Although interest on costs is not available in India due to deletion
of Section 35(3), same does not mean that Indian courts cannot execute foreign
decree for interest on costs, Alcon Electronics (P) Ltd. v. Celem S.A. of France,
(2017) 2 SCC 253.
Costs imposed on the basis of indemnity are not a penalty or tax. Hence,
Explanation 2 to Section 44-A does not refer to costs as contemplated under
Section 35, Alcon Electronics (P) Ltd. v. Celem S.A. of France, (2017) 2 SCC
253.
14. Presumption as to foreign judgments.—The Court shall presume,
upon the production of any document purporting to be a certified copy
of a foreign judgment, that such judgment was pronounced by a Court
of competent jurisdiction, unless the contrary appears on the record;
but such presumption may be displaced by proving want of jurisdiction.
► Foreign judgment and res judicata.—Considerations involved in child
custody matters. Interest and welfare of the minor being paramount, a competent
court in this country is entitled and indeed duty-bound to examine the matter
independently, taking the foreign judgment, if any, only as an input for its final
adjudication, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 : (2011) 3 SCC
(Civ) 396.
Place of Suing
15. Court in which suits to be instituted.—Every suit shall be
instituted in the Court of the lowest grade competent to try it.
► Objection as to jurisdiction.—Objections on the ground of territorial or
pecuniary jurisdiction may not be entertained after issues have been settled,
unless a consequent failure of justice would ensue. The objection can, therefore,
be waived, Hindustan Petroleum Corporation Ltd v. Barun Sankar Chatterjee,
2012 SCC OnLine Cal 509 : AIR 2012 Cal 255 (259).
► Suit for infringement of trade mark.—A suit for infringement of trade
mark can be filed in the Court of District Judge and not in any Court inferior to the
Court of District Judge, Sanjay Kumar alias Mallu v. Manoj Kumar Sahu, 2008
SCC OnLine All 50 : AIR 2008 (NOC) 2270 : 2008 (4) All LJ 360 (All) (DB).
16. Suits to be instituted where subject-matter situate.—Subject to
the pecuniary or other limitations prescribed by any law, suits—
(a) for the recovery of immovable property with or without rent or
profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of
or charge upon immovable property,
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(d) for the determination of any other right to or interest in
immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or
attachment,
shall be instituted in the Court within the local limits of whose
jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for
wrong to, immovable property held by or on behalf of the defendant
may, where the relief sought can be entirely obtained through his
personal obedience, be instituted either in the Court within the local
limits of whose jurisdiction the property is situate, or in the Court
within the local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally works for gain.
39
Explanation.—In this section “property” means property situate in
[India.]
► Scope and applicability.—Section 16 CPC recognises a well-established
principle that actions against res or property should be brought in the forum where
such res is situate. A court within whose territorial jurisdiction the property is not
situated has no power to deal with and decide the rights or interests in such
property, Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791.
► Right of suitor.—Suitor can choose any one of the forums, if he is entitled
to maintain an action in two different forums. He is entitled to maintain a suit
before Civil Court, if its jurisdiction is not barred, Nahar Industrial Enterprises
Ltd. v. Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646 : (2009) 3
SCC (Civ) 481.
► Jurisdiction.—Suit for partition of immovable properties situated in different
States is maintainable in any court where any of the immovable properties is
situated, Paramjit Singh Dhillon v. Harinder Singh Ghuman, (2020) 20 SCC 443.
► Proviso.—The proviso to Section 16 is an exception to the main part of the
section which cannot be interpreted or construed to enlarge the scope of the
principal provision. It would apply only if the suit falls within one of the categories
specified in the main part of the section and the relief sought could entirely be
obtained by personal obedience of the defendant, Harshad Chiman Lal Modi v.
DLF Universal Ltd., (2005) 7 SCC 791.
17. Suits for immovable property situate within jurisdiction of
different Courts.—Where a suit is to obtain relief respecting, or
compensation for wrong to, immovable property situate within the
jurisdiction of different Courts, the suit may be instituted in any Court
within the local limits of whose jurisdiction any portion of the property
is situate:
Provided that, in respect of the value of the subject-matter of the
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suit, the entire claim is cognizable by such Court.
► Place of suing.—Suit in respect of immovable property or properties
situate in jurisdiction of different courts may be instituted in any court within
whose local limits of jurisdiction, any portion of property or one or more properties
may be located provided such suit is filed on one and same cause of action.
Expression “suit may be instituted” makes filing of suit in such case discretionary,
Shivnarayan v. Maniklal, (2020) 11 SCC 629.
18. Place of institution of suit where local limits of jurisdiction of
Courts are uncertain.—(1) Where it is alleged to be uncertain within the
local limits of the jurisdiction of which of two or more Courts any
immovable property is situate, any one of those Courts may, if satisfied
that there is ground for the alleged uncertainty, record a statement to
that effect and thereupon proceed to entertain and dispose of any suit
relating to that property, and its decree in the suit shall have the same
effect as if the property were situate within the local limits of its
jurisdiction:
Provided that the suit is one with respect to which the Court is
competent as regards the nature and value of the suit to exercise
jurisdiction.
(2) Where a statement has not been recorded under sub-section (1),
and an objection is taken before an Appellate or Revisional Court that a
decree or order in a suit relating to such property was made by a Court
not having jurisdiction where the property is situate, the Appellate or
Revisional Court shall not allow the objection unless in its opinion there
was, at the time of the institution of the suit, no reasonable ground for
uncertainty as to the Court having jurisdiction with respect thereto and
there has been a consequent failure of justice.
19. Suits for compensation for wrongs to person or movables.—
Where a suit is for compensation for wrong done to the person or to
movable property, if the wrong was done within the local limits of the
jurisdiction of one Court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the option of
the plaintiff in either of the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in
Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory
of B. B may sue A either in Calcutta or in Delhi.
20. Other suits to be instituted where defendants reside or cause of
action arises.—Subject to the limitations aforesaid, every suit shall be
instituted in a Court within the local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are
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more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at the
time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is
given, or the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid, acquiesce in
such institution; or
(c) the cause of action, wholly or in part, arises.
40
[* * *]
41
[Explanation].—A corporation shall be deemed to carry on business
42
at its sole or principal office in [India] or, in respect of any cause of
action arising at any place where it has also a subordinate office, at
such place.
Illustrations
(a) A is a tradesman in Calcutta. B carries on business in Delhi. B, by
his agent in Calcutta, buys goods of A and requests A to deliver them
to the East Indian Railway Company. A delivers the goods accordingly
in Calcutta. A may sue B for the price of the goods either in Calcutta,
where the cause of action has arisen, or in Delhi, where B carries on
business.
(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being
together at Benaras, B and C make a joint promissory note payable on
demand, and deliver it to A. A may sue B and C at Benaras, where the
cause of action arose. He may also sue them at Calcutta, where B
resides, or at Delhi, where C resides, but in each of these cases, if the
non-resident defendant objects, the suit cannot proceed without the
leave of the Court.
► Nature and scope.—Section 20 of the Code is a residuary provision and
covers those cases not falling within the limitations of Sections 15 to 19. The
opening words of the section, “subject to the limitations aforesaid” makes it
abundantly clear that the section takes within its sweep all personal actions,
Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791.
► Object.—Section 20(c) CPC leaves no room for doubt that a suit would lie
in a court within the local limits of whose jurisdiction the cause of action has
arisen, wholly or partly, Laxman Prasad v. Prodigy Electronic Ltd., (2008) 1 SCC
618 : (2008) 1 SCC (Civ) 367.
► Jurisdiction as to subject-matter.—Jurisdiction as to subject-matter, is
totally distinct and stands on a different footing. Where a court has no jurisdiction
over the subject-matter of the suit by reason of any limitation imposed by statute,
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charter or commission, it cannot take up the cause or matter. An order passed by
a court having no jurisdiction is a nullity, Harshad Chiman Lal Modi v. DLF
Universal Ltd., (2005) 7 SCC 791; See also Subhash Mahadevasa Habib v.
Nemasa Ambasa Dharmadas, (2007) 13 SCC 650.
► Cause of action.—Cause of action comprises bundle of facts which are
relevant for determination of lis between parties, A.V.M. Sales Corpn. v. Anuradha
Chemicals (P) Ltd., (2012) 2 SCC 315 : (2012) 1 SCC (Civ) 809.
The elements of a cause of action are: first, the breach of duty owing by one
person to another and; second, the damage resulting to the other from the breach,
or the fact or combination of facts which gives rise to a right to sue, SBI v. Ranjan
Chemicals Ltd., (2007) 1 SCC 97.
Cause of action not only refers to the infringement but also the material facts
on which the right (alleged to be infringed) is founded. It has to be decided in
each case whether the cause of action wholly or in part arises at a particular
place, Indian Performing Rights Society Ltd. v. Sanjay Dalia, (2015) 10 SCC
161.
► Territorial jurisdiction of court.—Territorial jurisdiction of the court cannot
be conferred on the basis of change of address subsequent to decision of the
court, Mohannakumaran Nair v. Vijayakumaran Nair, (2007) 14 SCC 426.
21. Objections to jurisdiction.—43[(1)] No objection as to the place of
suing shall be allowed by any Appellate or Revisional Court unless such
objection was taken in the Court of first instance at the earliest possible
opportunity and in all cases where issues are settled at or before such
settlement, and unless there has been a consequent failure of justice.
44
[(2) No objection as to the competence of a Court with reference to
the pecuniary limits of its jurisdiction shall be allowed by any Appellate
or Revisional Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity, and, in all cases where
issues are settled, at or before such settlement, and unless there has
been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with
reference to the local limits of its jurisdiction shall be allowed by any
Appellate or Revisional Court unless such objection was taken in the
executing Court at the earliest possible opportunity, and unless there
has been a consequent failure of justice.]
► Kinds of jurisdiction.—The jurisdiction of a court may be classified into
several categories. The important categories are: (i) territorial or local jurisdiction,
(ii) pecuniary jurisdiction, and (iii) jurisdiction over the subject-matter, Harshad
Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791.
The Code of Civil Procedure has made a distinction between lack of inherent
jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction.
Whereas an inherent lack of jurisdiction may make a decree passed by that court
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one without jurisdiction or void in law, a decree passed by a court lacking
territorial jurisdiction or pecuniary jurisdiction does not automatically become void,
Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas, (2007) 13 SCC
650.
► Objection as to territorial jurisdiction.—Ordinarily an appellate court
shall not, entertain an appeal on the ground of lack of territorial jurisdiction on the
part of the court below unless he has been prejudiced thereby, Mantoo Sarkar v.
Oriental Insurance Co. Ltd., (2009) 2 SCC 244 : (2009) 1 SCC (Civ) 482 : (2009)
1 SCC (Cri) 738.
So far as territorial and pecuniary jurisdiction are concerned, objection to such
jurisdiction has to be taken at the earliest possible opportunity and in any case at
or before settlement of issues. If such objection is not taken at the earliest, it
cannot be allowed to be taken at a subsequent stage, Harshad Chiman Lal Modi
v. DLF Universal Ltd., (2005) 7 SCC 791; See also Subhash Mahadevasa Habib
v. Nemasa Ambasa Dharmadas, (2007) 13 SCC 650.
45
[21-A. Bar on suit to set aside decree on objection as to place of
suing.—No suit shall lie challenging the validity of a decree passed in a
former suit between the same parties, or between the parties under
whom they or any of them claim, litigating under the same title, on any
ground based on an objection as to the place of suing.
Explanation.—The expression “former suit” means a suit which has
been decided prior to the decision in the suit in which the validity of the
decree is questioned, whether or not the previously decided suit was
instituted prior to the suit in which the validity of such decree is
questioned.]
► Nature and scope.—Expression “objection as to place of suing” covers
objection as to pecuniary jurisdiction, Subhash Mahadevasa Habib v. Nemasa
Ambasa Dharmadas, (2007) 13 SCC 650.
22. Power to transfer suits which may be instituted in more than one
Court.—Where a suit may be instituted in any one of two or more
Courts and is instituted in one of such Courts, any defendant, after
notice to the other parties, may, at the earliest possible opportunity
and in all cases where issues are settled at or before such settlement,
apply to have the suit transferred to another Court, and the Court to
which such application is made, after considering the objections of the
other parties (if any), shall determine in which of the several Courts
having jurisdiction the suit shall proceed.
► Transfer under inherent power.—Inherent power shall not be resorted to.
Sections 22 to 25 being exhaustive of the power of transfer, inherent power of
court can clearly not be invoked for transfer, Nahar Industrial Enterprises Ltd. v.
Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646 : (2009) 3 SCC
(Civ) 481.
23. To what Court application lies.—(1) Where the several Courts
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having jurisdiction are subordinate to the same Appellate Court, an
application under Section 22 shall be made to the Appellate Court.
(2) Where such Courts are subordinate to different Appellate Courts
but to the same High Court, the application shall be made to the said
High Court.
(3) Where such Courts are subordinate to different High Courts, the
application shall be made to the High Court within the local limits of
whose jurisdiction the Court in which the suit is brought is situate.
► Relative scope.—Sections 22, 24 and 25 deal with power of transfer
whereas, Section 23 merely provides forum and specified the court in which an
application for transfer may be made. Section 23 is not a substantive provision
vesting power in a particular court to order transfer, Durgesh Sharma v.
Jayshree, (2008) 9 SCC 648.
24. General power of transfer and withdrawal.—(1) On the
application of any of the parties and after notice to the parties and after
hearing such of them as desired to be heard, or of its own motion
without such notice, the High Court or the District Court may at any
stage—
(a) transfer any suit, appeal or other proceeding pending before it
for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any
Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court
subordinate to it and competent to try or dispose of the
same; or
(iii) retransfer the same for trial or disposal to the Court from
which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn
46
under sub-section (1), the Court which [is thereafter to try or dispose
of such suit or proceeding] may, subject to any special directions in the
case of an order of transfer, either retry it or proceed from the point at
which it was transferred or withdrawn.
47
[(3) For the purposes of this section,—
(a) Courts of Additional and Assistant Judges shall be deemed to
be subordinate to the District Court;
(b) “proceeding” includes a proceeding for the execution of a
decree or order.]
(4) The Court trying any suit transferred or withdrawn under this
section from a Court of Small Causes shall, for the purposes of such
suit, be deemed to be a Court of Small Causes.
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48
[(5) A suit or proceeding may be transferred under this section
from a Court which has no jurisdiction to try it.]
► Scope of transfer power.—The right of transfer though procedural in
nature, should not be construed liberally, Nahar Industrial Enterprises Ltd. v.
Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646 : (2009) 3 SCC
(Civ) 481.
► Exercise of power.—Section 24 CPC merely confers discretionary power.
A court acting under Section 24 CPC may or may not in its judicial discretion
transfer a particular case. Section 24 does not prescribe any ground for ordering
the transfer of a case, Jitendra Singh v. Bhanu Kumari, (2009) 1 SCC 130 :
(2009) 1 SCC (Civ) 48.
► Suo motu exercise.—Under Section 24 CPC, the High Court has
jurisdiction to suo motu withdraw a suit or appeal, pending in any court
subordinate to it.. Unless the High Court decides to transfer the suit or the appeal,
as the case may be, to some other court or the same court, it is obliged to try,
adjudicate and dispose of the same, Abdul Gafur v. State of Uttarakhand, (2008)
10 SCC 97.
► Fair trial.—If the court feels that the plaintiff or the defendant is not likely to
have a “fair trial” in the court from which he seeks to transfer a case, it is not only
the power, but the duty of the court to transfer the case, Kulwinder Kaur v. Kandi
Friends Education Trust, (2008) 3 SCC 659.
► Recording of reasons.—An order of transfer must reflect application of
mind by the court and the circumstances which weighed in taking the action,
Kulwinder Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659.
49
[25. Power of Supreme Court to transfer suits, etc.—(1) On the
application of a party, and after notice to the parties, and after hearing
such of them as desire to be heard, the Supreme Court may, at any
stage, if satisfied that an order under this section is expedient for the
ends of justice, direct that any suit, appeal or other proceeding be
transferred from a High Court or other Civil Court in one State to a High
Court or other Civil Court in any other State.
(2) Every application under this section shall be made by a motion
which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is
transferred shall, subject to any special directions in the order of
transfer, either retry it or proceed from the stage at which it was
transferred to it.
(4) In dismissing any application under this section, the Supreme
Court may, if it is of opinion that the application was frivolous or
vexatious, order the applicant to pay by way of compensation to any
person who has opposed the application such sum, not exceeding two
thousand rupees, as it considers appropriate in the circumstances of
the case.
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(5) The law applicable to any suit, appeal or other proceeding
transferred under this section shall be the law which the Court in which
the suit, appeal or other proceeding was originally instituted ought to
have applied to such suit, appeal or proceeding.]
► Nature and scope.—Section 25 is a self-contained code and comprises
substantive as well as procedural law allowing a party to move the court by an
application and also empowers the court to make an order of transfer of a case
from a Civil Court in one State to a Civil Court in another State. Sections 22 to 25
are exhaustive in nature, Durgesh Sharma v. Jayshree, (2008) 9 SCC 648.
► Considerations.—In deciding petition for transfer of matrimonial
proceedings convenience of wife is the prime consideration, Rajani Kishor
Pardeshi v. Kishor Babulal Pardeshi, (2005) 12 SCC 237.
Balance of convenience, or inconvenience to plaintiff or defendant or witness
and reasonable apprehension in mind of litigant that he may not get justice in the
court in which suit is pending, DAV Boys Senior Secondary School v. DAV
College Managing Committee, (2010) 8 SCC 401 : (2010) 3 SCC (Civ) 386.
Institution of Suits
26. Institution of suits.—50[(1)] Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed.
51
[(2) In every plaint, facts shall be proved by affidavit.
(3) Provided that such an affidavit shall be in the form and manner
as prescribed under Order VI of Rule 15A.]
► Institution of suits.—When statute requires filing of suit, it must be
instituted only in manner prescribed and in no other manner such as by filing
original petition, Sinnamani v. G. Vettivel, (2012) 5 SCC 759 : (2012) 3 SCC
(Civ) 392.
► Events happening after institution of suit.—Rights of parties, get
crystallised on the date of commencement of litigation. Right to relief should be
decided accordingly, Beg Raj Singh v. State of U.P., (2003) 1 SCC 726.
Summons and Discovery
27. Summons to defendants.—Where a suit has been duly instituted,
a summons may be issued to the defendant to appear and answer the
claim and may be served in manner prescribed 52[on such day not
beyond thirty days from the date of the institution of the suit].
► Summons to defendant.—The object of issuance of summons to
defendant to be served “on such day not beyond thirty days from the date of the
institution of the suit” is to prevent plaintiff delaying the issuance of summons by
not taking the steps necessary, Salem Advocate Bar Assn. v. Union of India,
(2003) 1 SCC 49.
► Due service of summons.—Requirement as to mentioning of a specific
“day, date, year and time” in summons for defendant's appearance in court, as
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contained in statutory format of summons prescribed in Appendix B CPC is
mandatory, Auto Cars v. Trimurti Cargo Movers (P) Ltd., (2018) 15 SCC 166.
28. Service of summons where defendant resides in another State.—
(1) A summons may be sent for service in another State to such Court
and in such manner as may be prescribed by rules in force in that
State.
(2) The Court to which such summons is sent shall, upon receipt
thereof, proceed as if it had been issued by such Court and shall then
return the summons to the court of issue together with the record (if
any) of its proceedings with regard thereto.
53
[(3) Where the language of the summons sent for service in
another State is different from the language of the record referred to in
sub-section (2), a translation of the record,—
(a) in Hindi, where the language of the Court issuing the
summons is Hindi, or
(b) in Hindi or English where the language of such record is other
than Hindi or English,
shall also be sent together with the record sent under that sub-
section.]
54
[29. Service of foreign summonses.—Summonses and other
processes issued by—
(a) any Civil or Revenue Court established in any part of India to
which the provisions of this Code do not extend, or
(b) any Civil or Revenue Court established or continued by the
authority of the Central Government outside India, or
(c) any other Civil or Revenue Court outside India to which the
Central Government has, by notification in the Official Gazette,
declared the provisions of this section to apply,
may be sent to the Courts in the territories to which this Code extends,
and served as if they were summonses issued by such Courts.]
30. Power to order discovery and the like.—Subject to such
conditions and limitations as may be prescribed, the Court may, at any
time, either of its own motion or on the application of any party,—
(a) make such orders as may be necessary or reasonable in all
matters relating to the delivery and answering of
interrogatories, the admission of documents and facts, and the
discovery, inspection, production, impounding and return of
documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required
either to give evidence or to produce documents or such other
objects as aforesaid;
(c) order any fact to be proved by affidavit.
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High Court Amendment
CALCUTTA.—In clause (a) omit the words “delivery and answering of
interrogatories, the admission of documents and facts, and the
discovery” after the words “matters relating to” and before the word
“inspection”. Cal. Gaz. Pt. I, dt. 20-4-1967.
► Nature and scope.—Court must give greater emphasis to the veracity of
pleadings and documents in order to ascertain the truth which is the foundation of
justice, Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira,
(2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126.
31. Summons to witness.—The provisions in Sections 27, 28 and 29
shall apply to summonses to give evidence or to produce documents or
other material objects.
High Court Amendment
CALCUTTA.—Omit figure ‘27’ — Cal. Gaz. Pt. I, dt. 20-4-1967.
32. Penalty for default.—The Court may compel the attendance of
any person to whom a summons has been issued under Section 30 and
for that purpose may—
(a) issue a warrant for his arrest;
(b) attach and sell his property;
55
(c) impose a fine upon him [not exceeding five thousand
rupees];
(d) order him to furnish security for his appearance and in default
commit him to the civil prison.
High Court Amendment
In clause (b) insert the word “immovable” before the word
“property” Cal. Gaz. Pt. I, dt. 20-4-1967.
Judgment and Decree
33. Judgment and decree.—The Court, after the case has been
heard, shall pronounce Judgment, and on such Judgment a decree shall
follow.
► “Decree”.—Decree or holder of court is normally binding on parties to it
unless it is shown to be without jurisdiction or vitiated by fraud/collusion or
avoidable on any legal ground, Som Dev v. Rati Ram, (2006) 10 SCC 788, See
also Thirunavukkarasu Mudaliar v. Gopal naidu, (2006) 12 SCC 390.
A decree is said to be a nullity if it is passed by a court having no inherent
jurisdiction. Merely because a court erroneously passes a decree or there is an
error while passing the decree, the decree cannot be called a nullity. The decree
to be called a nullity is to be understood in the sense that it is ultra vires the
powers of the court passing the decree and not merely voidable decree, Hiralal
Moolchand Doshi v. Barot Raman Lal Ranchhoddas, (1993) 2 SCC 458, 464 :
AIR 1993 SC 1449, See also Ramnik Vallabhdas Madhvani v. Taraben Pravinlal
Madhvani, (2004) 1 SCC 497.
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A conditional decree is self-operative, P.R. Yelumalai v. N.M. Ravi, (2015) 9
SCC 52 : (2015) 4 SCC (Civ) 309.
► “Judgment”.—If a party thinks that the happenings in court have been
wrongfully recorded in a judgment, it is incumbent upon the party, while the matter
is still fresh in the minds of the judges, to call the attention of the very judges who
have made the record, Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595;
Ramesh Chand Daga v. Rameshwari Bai, (2005) 4 SCC 772; A.V.G.P. Chettiar
& Sons v. T. Palanisamy Gounder, (2002) 5 SCC 337.
Judgment must administer law according to the provisions of law. It is the
bounden duty of Judges to discern legislative intention in the process of
adjudication. Justice administered according to individual's whim, desire,
inclination and notion of justice would lead to confusion, disorder and chaos,
Gurdev Kaur v. Kaki, (2007) 1 SCC 546.
The court while passing a judgment cannot take away the right of the
successful party indirectly which it cannot do directly, Dadu Dayalu Mahasabha,
Jaipur (Trust) v. Mahant Ram Niwas, (2008) 11 SCC 753.
► Construction of decrees/judgments.—It is not necessary that all clauses
mentioned in the provisions under which the decree is passed should be
incorporated in the decree. While interpreting the decree, it must be read as if all
the provisions applicable at the time of passing of the decree are incorporated in
the decree, Philomina Jose v. Federal Bank Ltd., (2006) 2 SCC 608.
Judgment must be construed upon reading the same as a whole. Attending
circumstances may also be taken into consideration. Direction issued by reason
of a judgment should not be expanded, U.P. SRTC v. Commr. of Police (Traffic),
(2009) 3 SCC 634 : (2009) 2 SCC (Cri) 164.
The judgment of a court should not be interpreted as a statute. The meaning of
the words used in a judgment must be found out from the backdrop of the fact of
each case, Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas,
(2008) 11 SCC 753.
► Requirements of judgments.—A court of law must base its decision on
appreciation of evidence brought on record by applying correct legal principles.
Surmises and conjectures alone cannot form basis of a judgment, Navanath v.
State of Maharashtra, (2009) 14 SCC 480 : (2009) 5 SCC (Civ) 417.
Judgment and decree granting relief with respect to property other than that
described in plaint, is unsustainable. More so when that property admittedly stood
in the name of another person, who was not party to suit nor was any relief
claimed against him, Arulmigu Chokkanatha Swamy Koil Trust v. Chandran,
(2017) 3 SCC 702.
A mere concealment or non-disclosure of relevant facts without intent to
deceive or a bald allegation of fraud without proof and intent to deceive, would not
render a decree obtained by a party as fraudulent. Fraud must not merely be
alleged but proved, Harjas Rai Makhija v. Pushparani Jain, (2017) 2 SCC 797.
► Findings of fact recorded by Civil Court if binding in criminal in trial, or
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vice versa.—The findings of fact recorded by the Civil Court do not have any
bearing so far as the criminal case is concerned and vice versa. Standard of
proof is different in civil and criminal cases. In civil cases it is preponderance of
probabilities while in criminal cases it is proof beyond reasonable doubt. There is
neither any statutory nor any legal principle that findings recorded by the court
either in civil or criminal proceedings shall be binding between the same parties
while dealing with the same subject-matter and both the cases have to be decided
on the basis of the evidence adduced therein, Kishan Singh v. Gurpal Singh,
(2010) 8 SCC 775 : (2010) 3 SCC (Civ) 583.
► Pleadings.—Decision on a premise that was not pleaded in plaint, not
proper, Jharkhand State Housing Board v. Anirudh Kumar Sahu, (2018) 18 SCC
330.
Interest
34. Interest.—(1) Where and in so far as a decree is for the payment
of money, the Court may, in the decree, order interest at such rate as
the Court deems reasonable to be paid on the principal sum adjudged,
from the date of the suit to the date of the decree, in addition to any
interest adjudged on such principal sum for any period prior to the
institution of the suit, 56[with further interest at such rate not
exceeding six per cent per annum as the Court deems reasonable on
such principal sum], from the date of the decree to the date of
payment, or to such earlier date as the Court thinks fit:
57
[Provided that where the liability in relation to the sum so
adjudged had arisen out of a commercial transaction, the rate of such
further interest may exceed six per cent per annum, but shall not
exceed the contractual rate of interest or where there is no contractual
rate, the rate at which moneys are lent or advanced by nationalised
banks in relation to commercial transactions.
Explanation I.—In this sub-section, “nationalised bank” means a
corresponding new bank as defined in the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).
Explanation II.—For the purposes of this section, a transaction is a
commercial transaction, if it is connected with the industry, trade or
business of the party incurring the liability.]
(2) Where such a decree is silent with respect to the payment of
further interest 58[on such principal sum] from the date of the decree to
the date of payment or other earlier date, the Court shall be deemed to
have refused such interest, and a separate suit therefor shall not lie.
► Applicability.—Section 34 is a general procedural provision. Its
applicability or inapplicability or extent of applicability would depend on the fact
situation of each case, Central Bank of India v. Ravindra, (2002) 1 SCC 367.
Section 34 CPC, as it stood before amendment by Act 104 of 1976, deals with
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the question of interest in three stages. First is, interest prior to the date of
institution of suit, the second stage is interest from the date of institution of suit till
the date of decree and the third stage is from the date of decree till realisation of
the decretal amount, Ramnik Vallabhdas Madhvani v. Taraben Pravinlal
Madhvani, (2004) 1 SCC 497.
In dealing with civil suits, courts will have to follow the provisions of CPC in
levying costs, Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141.
Section 34 does not apply to mortgage suits which are covered exclusively by
Order 34, Rule 11, N.M. Veerappa v. Canara Bank, (1998) 2 SCC 317.
► Interest under Consumer Protection Act.—Consumer Protection Act
does not contain any provision for grant of interest, but on account of a catena of
cases of the Supreme Court that interest can still be awarded, taking recourse to
Section 34 CPC, to do complete justice between the parties. That principle is
based upon justice, equity and good conscience, which would certainly authorise
the court to grant interest, otherwise, the very purpose of awarding compensation
to the appellant would be defeated, Rubi (Chandra) Dutta v. United India
Insurance Co. Ltd., (2011) 11 SCC 269 : (2011) 3 SCC (Civ) 658; Manalal
Prabhudayal v. Oriental Insurance Co. Ltd., (2009) 17 SCC 296 : (2011) 2 SCC
(Civ) 376.
► Award of costs as compensation.—Award of costs as compensation is
impermissible, Shamsu Suhara Beevi v. G. Alex, (2004) 8 SCC 569.
► “Court” meaning of.—“Court” does not include arbitral tribunal. Hence,
Section 34 inapplicable to arbitration proceedings, Bhagawati Oxygen Ltd. v.
Hindustan Copper Ltd., (2005) 6 SCC 462.
► Interest prior to filing suit.—Interest prior to the date of filing of suit/claim
can be awarded (a) where the contract provides for payment of interest, or (b)
where a statute applicable to the transaction/liability provides for payment of
interest, or (c) where the interest is payable as per the provisions of the Interest
Act, 1978, LIC v. S. Sindhu, (2006) 5 SCC 258.
► Interest on arrears of rent.—Interest on arrears of rent can be awarded
for entire period of pendency of suit including period when plaint was returned to
plaintiff for rectification of defects and represented after long delay, Central Coop.
Bank Ltd. v. S. Kamalaveni Sundaram, (2011) 1 SCC 790 : (2011) 1 SCC (Civ)
331.
► Future interest.—Future interest is not payable, in the absence of a
specific direction of the court to pay such interest is under Section 34(2) CPC,
where a decree is silent as to payment of further interest on the principal sum, it
shall be deemed to have been refused, Kerala SEB v. Kurien E. Kalathil, (2018) 4
SCC 793.
Costs
35. Costs.—(1) Subject to such conditions and limitations as may be
prescribed, and to the provisions of any law for the time being in force,
the costs of and incident to all suits shall be in the discretion of the
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Court, and the Court shall have full power to determine by whom or out
of what property and to what extent such costs are to be paid, and to
give all necessary directions for the purposes aforesaid. The fact that
the Court has no jurisdiction to try the suit shall be no bar to the
exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event,
the Court shall state its reasons in writing.
59
(3) [* * *]
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Section 35, in sub-section
(1), omit “Commercial”. [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f.
18-3-2020)].
Union Territory of Ladakh.—In its application to the Union
Territory of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O.
3774(E), dated 23-10-2020].
High Court Amendment
CALCUTTA.—Omit sub-section (2) Cal. Gaz. Pt I, dt. 20-4-1967.
► Nature and scope.—It is the bounden duty of the court to ensure that
dishonesty and any attempt to abuse the legal process must be effectively curbed
and one way to curb this tendency is to impose realistic costs, Indian Council for
Enviro-Legal Action v. Union of India, (2011) 8 SCC 161 : (2011) 4 SCC (Civ) 87.
► Object.—The provision for imposition of costs is to act as deterrent to
vexatious, frivolous and speculative litigations or defences, Vinod Seth v. Devinder
Bajaj, (2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212, See also Ashok Kumar Mittal v.
Ram Kumar Gupta, (2009) 2 SCC 656.
► Power of court to award costs.—Though Section 35 does not impose a
ceiling on costs that could be levied and gives discretion to court in the matter,
however, in awarding costs court cannot ignore any conditions or limitations in
CPC or in any rules, Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust,
(2012) 1 SCC 455 : (2012) 1 SCC (Civ) 275.
60
[35-A. Compensatory costs in respect of false or vexatious claims
61
or defences.—(1) If in any suit or other proceeding, [including an
62
execution proceeding [but excluding an appeal or a revision],] any
party objects to the claim or defence on the ground that the claim or
defence or any part of it is, as against the objector, false or vexatious to
the knowledge of the party by whom it has been put forward, and if
thereafter, as against the objector, such claim or defence is disallowed,
abandoned or withdrawn in whole or in part, the Court, 63[if it so thinks
fit], may, after recording its reasons for holding such claim or defence
to be false or vexatious, make an order for the payment to the objector
by the party by whom such claim or defence has been put forward, of
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costs by way of compensation.
(2) No Court shall make any such order for the payment of an
amount exceeding 64[three thousand rupees] or exceeding the limits of
its pecuniary jurisdiction, whichever amount is less:
Provided that where the pecuniary limits of the jurisdiction of any
Court exercising the jurisdiction of a Court of Small Causes under the
65
Provincial Small Cause Courts Act, 1887 (9 of 1887) [or under a
66
corresponding law in force in [any part of India to which the said Act
67
does not extend]] and not being a Court constituted [under such Act
or law], are less than two hundred and fifty rupees, the High Court may
empower such Court to award as costs under this section any amount
not exceeding two hundred and fifty rupees and not exceeding those
limits by more than one hundred rupees:
Provided, further, that the High Court may limit the amount which
any Court or class of Courts is empowered to award as costs under this
section.
(3) No person against whom an order has been made under this
section shall, by reason thereof, be exempted from any criminal liability
in respect of any claim or defence made by him.
(4) The amount of any compensation awarded under this section in
respect of a false or vexatious claim or defence shall be taken into
account in any subsequent suit for damages or compensation in respect
of such claim or defence.]
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Section 35-A, omit sub-
section (2). [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-2020)].
Union Territory of Ladakh.—In its application to the Union
Territory of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O.
3774(E), dated 23-10-2020].
Uttar Pradesh.—(1) In its application to the State of Uttar Pradesh,
in Section 35-A, for the existing sub-section (1) the following shall be
substituted:
“(1) If in any suit or other proceedings including proceedings in
execution, but not being an appeal or revision, the Court finds that the
claim or defence or any part thereof is false or vexatious to the
knowledge of the party by whom it has been put forward and if such
claim or defence or such part is disallowed, abandoned or withdrawn in
whole or in part, the Court may, after recording its reasons for holding
such claim or defence to be false or vexatious, make an order for the
payment to the successful party of costs by way of compensation
irrespective of the decisions on other issues in the case.” [Vide U.P. Act
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24 of 1954, Section 2 and Schedule, Item 5, Entry 1. (30-11-1954).]
(2) In Section 35-A, after sub-section (1), the following sub-section
shall be inserted, namely:—
“(1-A) The provisions of sub-section (1) shall mutatis mutandis apply
to an appeal where the appellate Court confirms the decision of the trial
court and the trial court has not awarded, or has awarded insufficient,
compensatory cost under that sub-section.” [Vide U.P. Act 57 of 1976,
S. 2 (1-1-1977)].
68
[35-B. Costs for causing delay.—(1) If, on any date fixed for the
hearing of a suit or for taking any step therein, a party to the suit—
(a) fails to take the step which he was required by or under this
Code to take on that date, or
(b) obtains an adjournment for taking such step or for producing
evidence or on any other ground,
the Court may, for reasons to be recorded, make an order requiring
such party to pay to the other party such costs as would, in the opinion
of the Court, be reasonably sufficient to reimburse the other party in
respect of the expenses incurred by him in attending the Court on that
date, and payment of such costs, on the date next following the date of
such order, shall be a condition precedent to the further prosecution
of—
(a) the suit by the plaintiff, where the plaintiff was ordered to pay
such costs,
(b) the defence by the defendant, where the defendant was
ordered to pay such costs.
Explanation.—Where separate defences have been raised by the
defendants or groups of defendants, payment of such costs shall be a
condition precedent to the further prosecution of the defence by such
defendants or groups of defendants as have been ordered by the Court
to pay such costs.
(2) The costs, ordered to be paid under sub-section (1), shall not, if
paid, be included in the costs awarded in the decree passed in the suit;
but, if such costs are not paid, a separate order shall be drawn up
indicating the amount of such costs and the names and addresses of
the persons by whom such costs are payable and the order so drawn up
shall be executable against such persons.]
► Whether directory or mandatory.—The provisions of Section 35-B CPC
are not mandatory but are only directory, Piaro Devi v. Anant Ram, 2008 SCC
OnLine HP 8 : AIR 2008 HP 107, 110.
If the costs imposed under Section 35-B are not paid, the consequences
mentioned therein would follow. However, Section 35-Bcannot come in the way of
the court's general power to extend time under Section 148 of the CPC, Manohar
Singh v. D.S. Sharma, (2010) 1 SCC 53 : (2010) 1 SCC (Civ) 7.
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Part II
Execution
General
69
[36. Application to orders.—The provisions of this Code relating to
the execution of decrees (including provisions relating to payment
under a decree) shall, so far as they are applicable, be deemed to apply
to the execution of orders (including payment under an order).]
High Court Amendment
CALCUTTA.—Insert the words “and of the Presidency Small Cause
Courts Act, 1882”, after the words “of this Code” and before the words
“relating to”; and the words “and except as therein otherwise
provided”, after the words “are applicable” and before the words “be
deemed to”. Cal. Gaz. Pt. I, dt. 20-4-1967.
37. Definition of Court which passed a decree.—The expression
“Court which passed a decree”, or words to that effect, shall, in relation
to the execution of decrees, unless there is anything repugnant in the
subject or context, be deemed to include,—
(a) where the decree to be executed has been passed in the
exercise of appellate jurisdiction, the Court of first instance,
and
(b) where the Court of first instance has ceased to exist or to have
jurisdiction to execute it, the Court which, if the suit wherein
the decree was passed was instituted at the time of making the
application for the execution of the decree, would have
jurisdiction to try such suit.
70
[Explanation.—The Court of first instance does not cease to have
jurisdiction to execute a decree merely on the ground that after the
institution of the suit wherein the decree was passed or after the
passing of the decree, any area has been transferred from the
jurisdiction of that Court to the jurisdiction of any other Court; but in
every such case, such other Court shall also have jurisdiction to execute
the decree, if at the time of making the application for execution of the
decree it would have jurisdiction to try the said suit.]
Courts by which Decrees may be executed
38. Court by which decree may be executed.—A decree may be
executed either by the Court which passed it, or by the Court to which
it is sent for execution.
► Nature and scope.—An application for enforcement of arbitral award need
not always be filed before the District Court, an arbitral award can be filed before
competent Civil Court having territorial and pecuniary jurisdiction, Bhoomatha
Para Boiled Rice & Oil Mill (M/s.) v. Maheshwari Trading Co., 2009 SCC OnLine
AP 808 : AIR 2010 AP 137 (AP) (DB).
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39. Transfer of decree.—(1) The Court which passed a decree may,
on the application of the decree-holder, send it for execution to another
71
Court [of competent jurisdiction],—
(a) if the person against whom the decree is passed actually and
voluntarily resides or carries on business, or personally works
for gain, within the local limits of the jurisdiction of such other
Court, or
(b) if such person has not property within the local limits of the
jurisdiction of the Court which passed the decree sufficient to
satisfy such decree and has property within the local limits of
the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property
situate outside the local limits of the jurisdiction of the Court
which passed it, or
(d) if the Court which passed the decree considers for any other
reason, which it shall record in writing, that the decree should
be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it
for execution to any subordinate court of competent jurisdiction.
72
[(3) For the purposes of this section, a Court shall be deemed to
be a court of competent jurisdiction if, at the time of making the
application for the transfer of decree to it, such Court would have
jurisdiction to try the suit in which such decree was passed.]
73
[(4) Nothing in this section shall be deemed to authorise the Court
which passed a decree to execute such decree against any person or
property outside the local limits of its jurisdiction.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Section 39 for sub-section (3), the following sub-section shall be
substituted, namely:—
“(3) For the purposes of this section, a Court shall be deemed to
be a Court of competent jurisdiction if the amount or value of the
subject-matter of the suit wherein the decree was passed does not
exceed the pecuniary limits, if any, of its ordinary jurisdiction at the
time of making the application for the transfer of decree to it,
notwithstanding that it had otherwise no jurisdiction to try the
suit.” [Vide U.P. Act 31 of 1978, S. 2, w.e.f. 1-8-1978.]
► Nature and scope.—Section 39 does not authorise the court to execute
the decree outside its jurisdiction, but it does not dilute the other provisions giving
such power on compliance with the conditions stipulated in those provisions,
Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344.
► Territorial jurisdiction of court.—It is only the court in whose jurisdiction
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the property is situate that can execute the decree. Section 39(4) as inserted by
Act 22 of 2002 makes it clear that it is no longer a matter of discretion for the
court which passed the decree either to proceed with the execution of the decree
itself or to transfer it for execution to the court within whose jurisdiction the
property is situate, Mohit Bhargava v. Bharat Bhushan Bhargava, (2007) 4 SCC
795, 799—801.
40. Transfer of decree to Court in another State.—Where a decree is
sent for execution in another State, it shall be sent to such Court and
executed in such manner as may be prescribed by rules in force in that
State.
41. Result of execution proceedings to be certified.—The Court to
which a decree is sent for execution shall certify to the Court which
passed it the fact of such execution, or where the former Court fails to
execute the same the circumstances attending such failure.
74
42. Powers of Court in executing transferred decree.— [(1)] The
Court executing a decree sent to it shall have the same powers in
executing such decree as if it had been passed by itself. All persons
disobeying or obstructing the execution of the decree shall be
punishable by such Court in the same manner as if it had passed the
decree. And its order in executing such decree shall be subject to the
same rules in respect of appeal as if the decree had been passed by
itself.
75
[(2) Without prejudice to the generality of the provisions of sub-
section (1), the powers of the Court under that sub-section shall
include the following powers of the Court which passed the decree,
namely:—
(a) power to send the decree for execution to another Court under
Section 39;
(b) power to execute the decree against the legal representative
of the deceased judgment-debtor under Section 50;
(c) power to order attachment of a decree.
(3) A Court passing an order in exercise of the powers specified in
sub-section (2) shall send a copy thereof to the Court which passed the
decree.
(4) Nothing in this section shall be deemed to confer on the Court to
which a decree is sent for execution any of the following powers,
namely:—
(a) power to order execution at the instance of the transferee of
the decree;
(b) in the case of a decree passed against a firm, power to grant
leave to execute such decree against any person, other than
such a person as is referred to in clause (b), or clause (c), of
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sub-rule (1) of Rule 50 of Order XXI.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh,
Section 42 shall stand substituted as under and shall be deemed to
have been substituted w.e.f. 2-12-1968:
“42. Power of Court in executing transferred decree.—(1) The
Court executing a decree sent to it shall have the same powers in
executing such decree as if it had been passed by itself. All persons
disobeying or obstructing the decree shall be punishable by such Court
in the same manner as if it had passed the decree, and its order in
executing such decree shall be subject to the same rules in respect of
appeal as if the decree had been passed by itself.
(2) Without prejudice to the generality of the provisions of sub-
section (1), the powers of the Court under that sub-section shall
include the following powers of the Court which passed the decree
namely:—
(a) power to send the decree for execution to another Court under
Section 39;
(b) power to execute the decree against the legal representative of
the deceased judgment-debtor under Section 50;
(c) power to order attachment of a decree;
(d) power to decide any question relating to the bar of limitation to
the executability of the decree;
(e) power to record payment or adjustment under Rule 2 of Order
XXI;
(f) power to order stay of execution under Rule 29 of Order XXI;
(g) in the case of a decree passed against a firm, power to grant
leave to execute such decree against any person other than a
person as is referred to in clause (b) or clause (c) of sub-rule (1)
of Rule 50 of Order XXI.
(3) A Court passing an order in exercise of the powers specified in
sub-section (2) shall send a copy thereof to the Court which passed the
decree.
(4) Nothing in this section shall be deemed to confer on the Court to
which a decree is sent for execution, the power to order execution at
the instance of the transferee of a decree.” [Vide U.P. Civil Laws
(Amend.) Act, 1970 (14 of 1970), S. 2 (8-4-1970)].
76
[43. Execution of decrees passed by Civil Courts in places to which
this Code does not extend.—Any decree passed by any Civil Court
established in any part of India to which the provisions of this Code do
not extend, or by any Court established or continued by the authority of
the Central Government outside India, may, if it cannot be executed
within the jurisdiction of the Court by which it was passed, be executed
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in the manner herein provided within the jurisdiction of any Court in
the territories to which this Code extends.]
77
[44. Execution of decrees passed by Revenue Courts in places to
which this Code does not extend.—The State Government may, by
notification in the Official Gazette, declare that the decrees of any
Revenue Court in any part of India to which the provisions of this Code
do not extend, or any class of such decrees, may be executed in the
State as if they had been passed by Courts in that State.]
78
[44-A. Execution of decrees passed by Courts in reciprocating
territory.—(1) Where a certified copy of a decree of any of the superior
79
courts of [* * *] any reciprocating territory has been filed in a District
80
Court, the decree may be executed in [India] as if it had been passed
by the District Court.
(2) Together with the certified copy of the decree shall be filed a
certificate from such superior court stating the extent, if any, to which
the decree has been satisfied or adjusted and such certificate shall, for
the purposes of proceedings under this section, be conclusive proof of
the extent of such satisfaction or adjustment.
(3) The provisions of Section 47 shall as from the filing of the
certified copy of the decree apply to the proceedings of a District Court
executing a decree under this section, and the District Court shall
refuse execution of any such decree, if it is shown to the satisfaction of
the court that the decree falls within any of the exceptions specified in
clauses (a) to (f) of Section 13.
81
[Explanation 1.—“Reciprocating territory” means any country or
territory outside India which the Central Government may, by
notification in the Official Gazette, declare to be a reciprocating territory
for the purposes of this section; and “superior courts”, with reference to
any such territory, means such Courts as may be specified in the said
notification.
Explanation 2.—“Decree” with reference to a superior court means
any decree or Judgment of such Court under which a sum of money is
payable, not being a sum payable in respect of taxes or other charges
of a like nature or in respect of a fine or other penalty, but shall in no
case include an arbitration award, even if such an award is enforceable
as a decree or Judgment.]]
► Foreign decree and judgments.—Decree and judgment granted by
foreign court can be said to be on merits only if such court has considered the
case on merits by looking into the evidence led by plaintiff and documents proved
before it, as per its rules, International Woollen Mills v. Standard Wool (U.K.)
Ltd., (2001) 5 SCC 265.
► Enforcement of Foreign judgments.—Section 44-A has been inserted to
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give effect to the policy contained in Foreign Judgments (Reciprocal
Enforcement) Act, 1933 by conferring an independent right on a foreign decree-
holder who obtained a decree from a court in reciprocating territory for
enforcement of said decree/order in India. For the purpose of Section 44-A,
England is a reciprocating territory, Alcon Electronics (P) Ltd. v. Celem S.A. of
France, (2017) 2 SCC 253.
► Limitation for execution of foreign court decree in India.—Section 44-A
does not indicate period of limitation for execution. Limitation period would be that
prescribed in foreign court decree. Failure to execute within that period would
result in loss of right to execute but if decree-holder takes steps-in-aid to execute
decree in foreign country concerned and decree is not fully satisfied, then he can
file petition in India within 3 years as prescribed under Article 137 of the Limitation
Act, 1963. Limitation would then start running from date of passing decree by
foreign court, Bank of Baroda v. Kotak Mahindra Bank Ltd., (2020) 17 SCC 798.
82
[45. Execution of decrees outside India.—So much of the foregoing
sections of this Part as empowers a Court to send a decree for execution
to another Court shall be construed as empowering a Court in any State
83
to send a decree for execution to any Court established [* * *] by the
84
authority of the Central Government [outside India] to which the
State Government has by notification in the Official Gazette declared
this section to apply.]
STATE AMENDMENTS
SECTION 45-A
Pondicherry (Union Territory).—In its application to Union
Territory of Pondicherry after Section 45, insert the following:
“45-A. Execution of decrees, etc., passed or made before the
commencement of the Code in Pondicherry.—Any judgment, decree
or order passed or made before the commencement of this Code by
any Civil Court in the Union Territory of Pondicherry, shall, for the
purpose of execution, be deemed to have been passed or made
under this Code:
Provided that nothing contained in this section shall be construed
as extending the period of limitation to which any proceeding in
respect of such judgment, decree or order may be subject.” [Vide
Act 26 of 1968, Section 3(i) and Schedule, Part II (w.e.f. 5-9-
1968)].
46. Precepts.—(1) Upon the application of the decree-holder the
Court which passed the decree may, whenever it thinks fit, issue a
precept to any other Court which would be competent to execute such
decree to attach any property belonging to the judgment-debtor and
specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the
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property in the manner prescribed in regard to the attachment of
property in execution of a decree:
Provided that no attachment under a precept shall continue for more
than two months unless the period of attachment is extended by an
order of the Court which passed the decree or unless before the
determination of such attachment the decree has been transferred to
the Court by which the attachment has been made and the decree-
holder has applied for an order for the sale of such property.
Questions to be determined by Court executing Decree
47. Questions to be determined by the Court executing decree.—(1)
All questions arising between the parties to the suit in which the decree
was passed, or their representatives, and relating to the execution,
discharge or satisfaction of the decree, shall be determined by the
Court executing the decree and not by a separate suit.
85
(2) [* * *]
(3) Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this
section, be determined by the Court.
86
[Explanation I.—For the purposes of this section, a plaintiff whose
suit has been dismissed and a defendant against whom a suit has been
dismissed are parties to the suit.
87
Explanation II.—(a) For the purposes of this section, a purchaser of
property at a sale in execution of a decree shall be deemed to be a
party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such
property to such purchaser or his representative shall be deemed to be
questions relating to the execution, discharge or satisfaction of the
decree within the meaning of this section.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Section 47, Explanation II inserted by the U.P. Civil Laws (Reforms and
Amendment) Act, 1954 (U.P. Act 24 of 1954), shall be omitted.—U.P.
Act 57 of 1976, S. 3 (1-1-1977).
► Maintainability of application.—An application under Section 47 can be
made at any stage after grant of decree subject to the question of limitation,
Sushila Devi v. Ram Veer Singh, (2009) 16 SCC 244.
► Execution of decree.—In execution proceedings, court may not be
bothered with whether disobedience is wilful or not and court is bound to execute
decree irrespective of consequences, Kanwar Singh Saini v. High Court of Delhi,
(2012) 4 SCC 307 : (2012) 2 SCC (Cri) 423 : (2012) 2 SCC (Civ) 497.
The executing court cannot go behind the decree of a court of competent
jurisdiction except in the decrees void ab initio without jurisdiction, Darshan Singh
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v. State of Punjab, (2007) 14 SCC 262.
► Objections.—Where decree directs delivery only of symbolic possession
by persons in possession, other than the judgment-debtor, such persons are
within their rights to object to execution proceedings if attempts are made to
physically dispossess them or other persons put into possession by them, Ratan
Lal Jain v. Uma Shankar Vyas, (2002) 2 SCC 656.
► Question of collusion.—Whether a decree has been obtained by
collusion, such question did not and could not have arisen before the executing
court, Mohd. Masthan v. Society of Congregation of the Bros. of the Sacred
Heart, (2006) 9 SCC 344; see also Kumar Dhirendra Mullick v. Tivoli Park
Apartments (P) Ltd., (2005) 9 SCC 262.
► Powers of executing court.—Powers available under Section 47 CPC are
quite different and much narrower than those available in appea1/revision or
review. Executing court can neither travel behind decree nor sit in appeal over the
same or pass any order jeopardising rights of parties thereunder, Brakewel
Automotive Components (India) (P) Ltd. v. P.R. Selvam Alagappan, (2017) 5
SCC 371.
Executing court cannot travel beyond scope of decree/order. Any order
passed by executing court by travelling beyond decree/order under execution
would render such orders as without jurisdiction, S. Bhaskaran v. Sebastian,
(2019) 9 SCC 161, See also Rajasthan Udyog v. Hindustan Engineering &
Industries Ltd., (2020) 6 SCC 660.
► Power of executing court to award interest.—Executing court does not
have power to award interest if not mentioned in decree, State of Punjab v.
Harvinder Singh, (2008) 3 SCC 394.
► Consent decree.—A consent decree has been held to be a contract with
the imprimatur of the court superadded. It is something more than a mere contract
and has the elements of both a command and a contract, Manish Mohan Sharma
v. Ram Bahadur Thakur Ltd., (2006) 4 SCC 416.
► Objection to executability of decree.—Objection that decree is void or
voidable can be raised under Section 47, State of Orissa v. Ashok Transport
Agency, (2002) 9 SCC 28.
► Applicability of constructive res judicata.—The principles of constructive
res judicata will be applicable even in execution proceedings, Lagan Jute
Machineries Co. Ltd. v. Candlewood Holdings Ltd., (2007) 8 SCC 487.
► Limitation.—There is no limitation period prescribed for filing objection
under Section 47, Arun Lal v. Union of India, (2010) 14 SCC 384 : (2012) 1 SCC
(Civ) 612.
► Objection to territorial jurisdiction of court.—Executing court has no
jurisdiction to entertain objection raised before executing court under Section 47
as to validity of decree sought to be executed on ground of lack of territorial
jurisdiction of court which passed decree, Sneh Lata Goel v. Pushplata, (2019) 3
SCC 594.
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Limit of Time for Execution
48. Execution barred in certain cases.—88[* * *]
Transferees and Legal Representatives
49. Transferee.—Every transferee of a decree shall hold the same
subject to the equities (if any) which the judgment-debtor might have
enforced against the original decree-holder.
50. Legal representative.—(1) Where a judgment-debtor dies before
the decree has been fully satisfied, the holder of the decree may apply
to the Court which passed it to execute the same against the legal
representative of the deceased.
(2) Where the decree is executed against such legal representative,
he shall be liable only to the extent of the property of the deceased
which has come to his hands and has not been duly disposed of; and,
for the purpose of ascertaining such liability, the Court executing the
decree may, of its own motion or on the application of the decree-
holder, compel such legal representative to produce such accounts as it
thinks fit.
► Execution proceedings against legal representatives.—Section 50 is
not confined to a particular kind of decree. Decree for injunction can also be
executed against legal representatives of the deceased judgment-debtor,
Prabhakara Adiga v. Gowri, (2017) 4 SCC 97.
Procedure in Execution
51. Powers of Court to enforce execution.—Subject to such
conditions and limitations as may be prescribed, the Court may, on the
application of the decree-holder, order execution of the decree—
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any
property;
89
(c) by arrest and detention in prison [for such period not
exceeding the period specified in Section 58, where arrest and
detention is permissible under that section];
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may
require:
90
[Provided that, where the decree is for the payment of money,
execution by detention in prison shall not be ordered unless, after
giving the judgment-debtor an opportunity of showing cause why he
should not be committed to prison, the Court, for reasons recorded in
writing, is satisfied—
(a) that the judgment-debtor, with the object or effect of
obstructing or delaying the execution of the decree,—
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(i) is likely to abscond or leave the local limits of the
jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was
passed, dishonestly transferred, concealed, or removed any
part of his property, or committed any other act of bad faith
in relation to his property, or
(b) that the judgment-debtor has, or has had since the date of
the decree, the means to pay the amount of the decree or
some substantial part thereof and refuses or neglects or has
refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor
was bound in a fiduciary capacity to account.
Explanation.—In the calculation of the means of the judgment-
debtor for the purposes of clause (b), there shall be left out of account
any property which, by or under any law or custom having the force of
law for the time being in force, is exempt from attachment in execution
of the decree.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Section 51, after clause (b), the following shall be added as a new
clause (bb):
“(bb) by transfer other than sale, by attachment or without
attachment of any property.” [Vide U.P. Act 24 of 1954, Section 2
and Schedule, Item 5, Entry 4 (w.e.f. 30-11-1954)].
High Court Amendment
CALCUTTA.—In clause (b) omit the words “or by sale without
attachment” between the words “sale” and “of any”.
In the proviso omit the words “for reasons recorded in writing” after
the words “the Court” and before the words “is satisfied”.
Add the proviso—
“Provided also that the Court of Small Causes of Calcutta shall
have no power to order execution of a decree by attachment and sale
of immovable property or by appointing a receiver in respect of such
property.” Cal. Gaz. Pt. I, 20-4-1967.
► Nature and scope.—Section 51 of the Code gives an option to the
creditor, of enforcing the decree either against the person or the property of the
debtor; and nowhere it has been laid down that execution against the person of the
debtor shall not be allowed unless and until the decree-holder has exhausted his
remedy against the property. By virtue of Order 21 Rule 30 CPC also
simultaneous execution both against the property and person of the judgment-
debtor is allowed. But still the discretion in the Court to order simultaneous
execution must be exercised in a judicious manner. (see Order 21, Rule 21),
Shyam Singh v. Collector, Distt. Hamirpur, 1993 Supp (1) SCC 693.
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► By attachment and sale of property.—Amendment of attachment order to
limit attachment period to “six months” made in suit register by office note after 20
years without notice to judgment creditor, allegedly on basis of some private
clarification by the then Presiding Officer of courtis unauthorised and liable to be
ignored, C.S. Mani v. B. Chinnasamy Naidu, (2010) 9 SCC 513 : (2010) 3 SCC
(Civ) 869.
► Arrest and detention to enforce compliance.—Satisfaction of any one of
the preconditions is enough to order arrest and detention to enforce compliance
with court order imposing financial liability, Subrata Roy Sahara v. Union of India,
(2014) 8 SCC 470 : (2014) 3 SCC (Cri) 712.
52. Enforcement of decree against legal representative.—(1) Where a
decree is passed against a party as the legal representative of a
deceased person, and the decree is for the payment of money out of
the property of the deceased, it may be executed by the attachment
and sale of any such property.
(2) Where no such property remains in the possession of the
judgment-debtor and he fails to satisfy the Court that he has duly
applied such property of the deceased as is proved to have come into
his possession, the decree may be executed against the judgment-
debtor to the extent of the property in respect of which he has failed so
to satisfy the Court in the same manner as if the decree had been
against him personally.
53. Liability of ancestral property.—For the purposes of Section 50
and Section 52, property in the hands of a son or other descendant
which is liable under Hindu law for the payment of the debt of a
deceased ancestor, in respect of which a decree has been passed, shall
be deemed to be property of the deceased which has come to the
hands of the son or other descendant as his legal representative.
54. Partition of estate or separation of share.—Where the decree is
for the partition of an undivided estate assessed to the payment of
revenue to the Government, or for the separate possession of a share of
such an estate, the partition of the estate or the separation of the share
shall be made by the Collector or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with the law (if
any) for the time being in force relating to the partition, or the separate
possession of shares, of such estates.
STATE AMENDMENTS
Karnataka.—In its application to the State of Karnataka, for Section
54, substitute the following:
“54. Partition of estate or separation of share.—Where the decree
is for the partition of an undivided estate assessed to the payment of
revenue to the Government or for the separate possession of a share
of such an estate, the partition of the estate or the separation of the
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share of such an estate shall be made by the Court in accordance
with the law if any, for the time being in force relating to the
partition or the separate possession of shares and if necessary on the
report of a revenue officer, not below the rank of Tahsildar or such
other person as the Court may appoint as Commissioner in that
behalf.” [Vide Karnataka Act 36 of 1998, S. 2 (w.e.f. 1-2-2001).]
► Nature and scope.—Proceedings under this section are not execution
proceedings. The said provision must be read in the context of Order 26, Rule 13
CPC and/or Section 51, Order 21, Rule 11 thereof, Bikoba Deora Gaikwad v.
Hirabai Marutirao Ghorgare, (2008) 8 SCC 198.
► Nature of partition.—Partition is really a process by which joint enjoyment
of the property is transformed into an enjoyment severally. Each co-sharer has an
antecedent title and therefore there is no conferment of a new title, Vasantiben
Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376.
► Preliminary decree in suit for partition.—Preliminary decree for partition
crystallises rights of parties seeking partition to the extent declared and equities
remain to be worked out in final decree proceedings. Till final decree is passed,
no question of limitation arises against right to claim partition as per preliminary
decree, Venu v. Ponnusamy Reddiar, (2018) 15 SCC 254.
Arrest and Detention
55. Arrest and detention.—(1) A judgment-debtor may be arrested
in execution of a decree at any hour and on any day, and shall, as soon
as practicable, be brought before the Court, and his detention may be
in the civil prison of the district in which the Court ordering the
detention is situate, or, where such civil prison does not afford suitable
accommodation, in any other place which the State Government may
appoint for the detention of persons ordered by the Courts of such
district to be detained:
Provided, firstly, that, for the purpose of making an arrest under this
section, no dwelling-house shall be entered after sunset and before
sunrise:
Provided, secondly, that no outer door of a dwelling-house shall be
broken open unless such dwelling-house is in the occupancy of the
judgment-debtor and he refuses or in any way prevents access thereto,
but when the officer authorised to make the arrest has duly gained
access to any dwelling-house, he may break open the door of any room
in which he has reason to believe the judgment-debtor is to be found:
Provided, thirdly, that, if the room is in the actual occupancy of a
woman who is not the judgment-debtor and who according to the
customs of the country does not appear in public, the officer authorised
to make the arrest shall give notice to her that she is at liberty to
withdraw, and, after allowing a reasonable time for her to withdraw and
giving her reasonable facility for withdrawing, may enter the room for
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the purpose of making the arrest:
Provided, fourthly, that, where the decree in execution of which a
judgment-debtor is arrested, is a decree for the payment of money and
the judgment-debtor pays the amount of the decree and the costs of
the arrest to the officer arresting him, such officer shall at once release
him.
(2) The State Government may, by notification in the Official
Gazette, declare that any person or class of persons whose arrest might
be attended with danger or inconvenience to the public shall not be
liable to arrest in execution of a decree otherwise than in accordance
with such procedure as may be prescribed by the State Government in
this behalf.
(3) Where a judgment-debtor is arrested in execution of a decree for
the payment of money and brought before the Court, the Court shall
inform him that he may apply to be declared an insolvent, and that he
91
[may be discharged] if he has not committed any act of bad faith
regarding the subject of the application and if he complies with the
provisions of the law of insolvency for the time being in force.
(4) Where a judgment-debtor expresses his intention to apply to be
declared an insolvent and furnishes security, to the satisfaction of the
Court, that he will within one month so apply, and that he will appear,
when called upon, in any proceeding upon the application or upon the
decree in execution of which he was arrested, the Court 92[may release]
him from arrest, and, if he fails so to apply and to appear, the Court
may either direct the security to be realised or commit him to the civil
prison in execution of the decree.
High Court Amendment
CALCUTTA.—In clause (1) insert the words “Calcutta or” after the
words “Civil prison of” and before the words “the district in which”; and
omit clauses (3) and (4), Cal. Gaz. Pt. I, dt. 20-4-1967.
► Exemption from arrest.—Warrants of arrest could not be issued against
judgment-debtor in execution proceedings in land acquisition matter, State of
Bihar v. Gauri Shankar Mishra, (2005) 11 SCC 500.
► Duty of court to inform judgment debtor to apply to be declared
insolvent.—When a judgment-debtor is arrested in execution of a decree for the
payment of money and brought before the court, the court shall inform him that he
may apply to be declared an insolvent, and that he may be discharged if he has
not committed any act of bad faith regarding the subject of the application and if
he complies with the provisions of the law of insolvency for the time being in force,
and if he expresses his intention to apply to be declared as insolvent, he is
required to furnish security. The above situation arises only after arrest of the
judgment debtor but not before that, P. Bhaskar Rao v. K. Sreenivasa Rao, 2012
SCC OnLine AP 331 : AIR 2013 AP 4 (6).
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56. Prohibition of arrest or detention of women in execution of decree
for money.—Notwithstanding anything in this Part, the Court shall not
order the arrest or detention in the civil prison of a woman in execution
of a decree for the payment of money.
57. Subsistence allowance.—The State Government may fix scales,
graduated according to rank, race and nationality, of monthly
allowances payable for the subsistence of judgment-debtors.
High Court Amendment
CALCUTTA.—Substitute the words “The High Court may, subject to the
approval of the State Government” for “The State Government may”.
Omit the word “monthly” between the words “of and allowances”. Cal.
Gaz. Pt. I, dt. 20-4-1967.
58. Detention and release.—(1) Every person detained in the civil
prison in execution of a decree shall be so detained,—
(a) where the decree is for the payment of a sum of money
exceeding 93[94[five thousand rupees], for a period not
exceeding three months, and,]
95
[(b) where the decree is for the payment of a sum of money
exceeding two thousand rupees, but not exceeding five
thousand rupees, for a period not exceeding six weeks:]
Provided that he shall be released from such detention before the
96
expiration of the [said period of detention]—
(i) on the amount mentioned in the warrant for his detention
being paid to the officer in charge of the civil prison, or
(ii) on the decree against him being otherwise fully satisfied, or
(iii) on the request of the person on whose application he has
been so detained, or
(iv) on the omission by the person, on whose application he has
been so detained, to pay subsistence allowance:
Provided, also, that he shall not be released from such detention
under clause (ii) or clause (iii), without the order of the Court.
97
[(1-A) For the removal of doubts, it is hereby declared that no
order for detention of the judgment-debtor in civil prison in execution
of a decree for the payment of money shall be made, where the total
98
amount of the decree does not exceed [two thousand rupees].]
(2) A judgment-debtor released from detention under this section
shall not merely by reason of his release be discharged from his debt,
but he shall not be liable to be re-arrested under the decree in
execution of which he was detained in the civil prison.
High Court Amendment
CALCUTTA.—In sub-rule (1)—for the words “(a) where the decree is
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for the payment of a sum of money exceeding fifty rupees, for a period
of six months and, (b) in any other case for a period of six weeks;”
substitute “for a period not exceeding six months”.
In the first proviso for the words “said period of six month or six
weeks, as the case may be” substitute “period fixed by the Court”. Cal.
Gaz. Pt. I, dt. 20-4-1967.
59. Release on ground of illness.—(1) At any time after a warrant for
the arrest of a judgment-debtor has been issued the Court may cancel
it on the ground of his serious illness.
(2) Where a judgment-debtor has been arrested, the Court may
release him if, in its opinion, he is not in a fit state of health to be
detained in the civil prison.
(3) Where a judgment-debtor has been committed to the civil
prison, he may be released therefrom—
(a) by the State Government, on the ground of the existence of
any infectious or contagious disease, or
(b) by the committing Court, or any Court to which that Court is
subordinate, on the ground of his suffering from any serious
illness.
(4) A judgment-debtor released under this section may be
rearrested, but the period of his detention in the civil prison shall not in
the aggregate exceed that prescribed by Section 58.
Attachment
60. Property liable to attachment and sale in execution of decree.—
(1) The following property is liable to attachment and sale in execution
of a decree, namely, lands, houses or other buildings, goods, money,
bank-notes, cheques, bills of exchange, hundis, promissory notes,
Government securities, bonds or other securities for money, debts,
shares in a corporation and save as hereinafter mentioned, all other
saleable property, movable or immovable, belonging to the judgment-
debtor, or over which, or the profits of which, he has a disposing power
which he may exercise for his own benefit, whether the same be held in
the name of the judgment-debtor or by another person in trust for him
or on his behalf:
Provided that the following particulars shall not be liable to such
attachment or sale, namely:—
(a) the necessary wearing-apparel, cooking vessels, beds and
bedding of the judgment-debtor, his wife and children, and
such personal ornaments as, in accordance with religious
usage, cannot be parted with by any woman;
(b) tools of artisans, and, where the judgment-debtor is an
agriculturist, his implements of husbandry and such cattle and
seed-grain as may, in the opinion of the Court, be necessary to
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enable him to earn his livelihood as such, and such portion of
agricultural produce or of any class of agricultural produce as
may have been declared to be free from liability under the
provisions of the next following section;
(c) houses and other buildings (with the materials and the sites
thereof and the land immediately appurtenant thereto and
necessary for their enjoyment) belonging to 99[an agriculturist
or a labourer or a domestic servant] and occupied by him;
(d) books of account;
(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to pensioners of the
100
Government [or of a local authority or of any other
employer], or payable out of any service family pension fund
notified in the Official Gazette by 101[the Central Government
or the State Government] in this behalf, and political pensions;
102
[(h) the wages of labourers and domestic servants, whether
103
payable in money or in kind; [* * *];
104 105 106 107
[(i) salary to the extent of [the first [ [one thousand]
108
rupees and two-thirds of the remainder]] [in execution of
any decree other than a decree for maintenance]:
109
[Provided that where any part of such portion of the salary
as is liable to attachment has been under attachment, whether
continuously or intermittently, for a total period of twenty-four
months, such portion shall be exempt from attachment until
the expiry of a further period of twelve months, and, where
such attachment has been made in execution of one and the
same decree, shall, after the attachment has continued for a
total period of twenty-four months, be finally exempt from
attachment in execution of that decree;]
110
[(ia) one-third of the salary in execution of any decree for
maintenance];
111
[(j) the pay and allowances of persons to whom the Air Force
Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or
the Navy Act, 1957 (62 of 1957), applies;]
(k) all compulsory deposits and other sums in or derived from any
112
fund to which the Provident Funds Act, [1925] (19 of 1925),
for the time being applies in so far as they are declared by the
said Act not to be liable to attachment;
113
[(ka) all deposits and other sums in or derived from any fund
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to which the Public Provident Fund Act, 1968 (23 of 1968), for
the time being applies, in so far as they are declared by the
said Act as not to be liable to attachment;
(kb) all moneys payable under a policy of insurance on the life of
the judgment-debtor;
(kc) the interest of a lessee of a residential building to which the
provisions of law for the time being in force relating to control
of rents and accommodation apply;]
114 115
[(l) any allowance forming part of the emoluments of any
[servant of the Government] or of any servant of a railway
company or local authority which the 116[appropriate
Government] may by notification in the Official Gazette declare
to be exempt from attachment, and any subsistence grant or
117
allowance made to [any such servant] while under
suspension;]
(m) an expectancy of succession by survivorship or other merely
contingent or possible right or interest;
(n) a right to future maintenance;
(o) any allowance declared by 118[any Indian law] to be exempt
from liability to attachment or sale in execution of a decree;
and
(p) where the judgment-debtor is a person liable for the payment
of land-revenue, any movable property which, under any law
for the time being applicable to him, is exempt from sale for
the recovery of an arrear of such revenue.
119
[Explanation I.—The moneys payable in relation to the matters
mentioned in clauses (g), (h), (i), (ia), (j), (l) and (o) are exempt from
attachment or sale, whether before or after they are actually payable,
and, in the case of salary, the attachable portion thereof is liable to
attachment, whether before or after it is actually payable.]
120 121
[ [Explanation II.—In clauses (i) and (ia)], “salary” means the
total monthly emoluments, excluding any allowance declared exempt
from attachment under the provisions of clause (l), derived by a person
from his employment whether on duty or on leave.]
122
[Explanation123[III].—In clause (I) “appropriate Government”
means—
124
(i) as respects any [person] in the service of the Central
125
Government, or any servant of [a Railway Administration] or
of a cantonment authority or of the port authority of a major
port, the Central Government;
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126
(ii) [* * *]
127
(iii) as respects any other [servant of the Government] or a
128
servant of any other [* * *] local authority, the State
Government.]
129
[Explanation IV.—For the purposes of this proviso, “wages”
includes bonus, and “labourer” includes a skilled, unskilled or semi-
skilled labourer.
Explanation V.—For the purposes of this proviso, the expression
“agriculturist” means a person who cultivates land personally and who
depends for his livelihood mainly on the income from agricultural land,
whether as owner, tenant, partner or agricultural labourer.
Explanation VI.—For the purposes of Explanation V, an agriculturist
shall be deemed to cultivate land personally, if he cultivates land—
(a) by his own labour, or
(b) by the labour of any member of his family, or
(c) by servants or labourers on wages payable in cash or in kind
(not being as a share of the produce), or both.]
130
[(1-A) Notwithstanding anything contained in any other law for
the time being in force, an agreement by which a person agrees to
waive the benefit of any exemption under this section shall be void.]
(2) Nothing in this section shall be deemed 131[* * *] to exempt
houses and other buildings (with the materials and the sites thereof
and the lands immediately appurtenant thereto and necessary for their
enjoyment) from attachment or sale in execution of decrees for rent of
132
any such house, building, site or land. [* * *]
133
[* * *]
STATE AMENDMENTS
Andhra Pradesh.—(1) In its application to the Andhra area of the
State of Andhra Pradesh in clause (g) of the proviso to sub-section (1)
of Section 60, the words “or of a local authority” shall be inserted, after
the words “stipends and gratuities allowed to the pensioners of the
Government” [Vide Code of Civil Procedure (Andhra Pradesh) (Andhra
Area) Amendment Act (XXXIV of 1950). (w.e.f. 2-1-1951)].
Note.—The title of Madras Amendment Act (XXXIV of 1950) has
been thus amended by the Andhra Pradesh Act (IX of 1961).
(2) In its application to the whole of the State of Andhra Pradesh, in
the proviso to sub-section (1) of Section 60,—
A.(i) after clause (k) the following clause shall be inserted, namely:
“(kk) amounts payable under policies issued in pursuance of the Rules
for the Andhra Pradesh Government Life Insurance Department.”
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(ii) after Explanation 2, the following Explanation shall be inserted,
namely:
“Explanation 2-A.—Where any sum payable to a Government servant is
exempt from attachment, under the provisions of clause (kk), such sum
shall remain exempt from attachment notwithstanding the fact that
owing to the death of the Government servant it is payable to some
other person”—Code of Civil Procedure (Andhra Pradesh) (Telangana
Area) Amendment Act (XI of 1953) (9-6-1953) originally the Code of
Civil Procedure (Hyderabad Amendment) Act (XI of 1953). This Act has
been amended and extended to the entire State of Andhra Pradesh by
the Code of Civil Procedure (Andhra Pradesh Unification and
Amendment) Act (X of 1962). (7-4-1962).
B.(i) after clause (kk), the following clause shall be inserted,
namely:—
“(kkk) amounts payable under the Andhra Pradesh State Employees'
Family Benefit Fund Rules”,
(ii) in Explanation 2-A, for the expression “clause (kk)”, the
expression “clauses (kk) and (kkk)” shall be substituted. [Vide
A.P. Act 24 of 1979, S. 2. (w.e.f. 5-9-1979)].
(3) In its application to the Telengana area of the State of Andhra
Pradesh, in the proviso to sub-section (i) of Section 60—
(i) after clause (g) the following clause shall be inserted, namely:
“(gg) pension granted or continued by the Central Government, the
Government of Pre-reorganisation Hyderabad State or any other State
Government on account of past services or present infirmities or as a
compassionate allowance, and”;
(ii) in Explanation 2-A, for the word, brackets and letter “clause
(kk)” the words, brackets and letters “clause (gg) or clause (kk)”
shall be substituted. [Vide Andhra Pradesh Act (XVIII of 1953),
originally the Code of Civil Procedure (Hyderabad Second
Amendment) Act (XVIII of 1953)].
Calcutta.—Add the provisos after sub-section (1) “Provided that
nothing in this section shall be taken as conferring on the Court of
Small Causes of Calcutta, any jurisdiction to attach and sell immovable
property in execution of a decree”.
“Provided also that this section shall, so far as the Court mentioned
in the last preceding proviso is concerned, apply only to decrees
obtained in suits instituted after the 31st of May, 1937, and the law
applicable to suits instituted up to that date shall be the law which was
heretofore in inforce that Court”. [Vide Cal. Gaz. Pt. I, dt. 20-4-1967].
(Chandigarh) Union Territory.—In its application to Union
Territory of Chandigarh, amendments in the section are the same as in
Punjab. [Vide Punjab Reorganisation Act, 1966 (31 of 1966), Section
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88 (1-11-1966)].
Delhi.—As in Punjab.
Gujarat.—In its application to the State of Gujarat, in sub-section
(1) of Section 60—
(a) after clause (g) of the proviso, the following new clause shall be
inserted, namely:
“(gg) stipends and gratuities allowed to pensioners of a local authority.”
(b) in Explanation 1, after the brackets and letter “(g)” the brackets
and letters “(gg)” shall be inserted [Vide Bombay Act 60 of 1948,
Section 2 (30-11-1948)].
Himachal Pradesh.—(1) In its application to the State of Himachal
Pradesh, in Section 60, sub-section (1)—
(i) at the end of clause (c) add the following words, namely:
“or compensation paid for such houses and buildings (including
compensation for the materials and the sites and the lands referred to
above) acquired for a public purpose;” and;
(ii) after clause (c) insert the following, namely:—
“(cc) compensation paid for agricultural lands belonging to
agriculturists and acquired for a public purpose;” [Vide Code of Civil
Procedure (Himachal Pradesh Amendment) Act, 1956 (6 of 1956),
Section 2 (w.e.f. 17-5-1956)].
(2) Same as in Punjab except that:—
(a) in sub-section (4) the words “as defined in Punjab Alienation of
Land Act, 1900” omitted;
(b) sub-section (5) omitted;
(c) sub-section (6) renumbered as sub-section (5). [Vide H.P. Act 31
of 1978, S. 21 (1-4-1979)].
Karnataka.—In its application to the State of Karnataka except
Bellary district, in the proviso to sub-section (1) after clause (p) the
following clause shall be added, namely:
“(pp) where the judgment-debtor is a servant of the State
Government who has insured his life under the rules in force relating
to the official branch of the Mysore Government Life Insurance
Department,—
(1) in the case of insurance effected prior to the ninth day of May,
1911, the whole of the bonus payable or paid thereunder to such
servant, or in the event of his death to his nominee or other
person or persons entitled to such bonus under the said rules;
and
(2) in the case of insurance effected on or after the ninth day of May,
1911, and such insurance is compulsory, then the bonus in
respect of the compulsory premia payable or paid to such servant,
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or in the event of his death to his nominee or other person or
persons entitled to such bonus under the said rules”. [Vide Code
of Civil Procedure (Mysore Amendment) Act (XIV of 1952) (with
effect from 1-4-1951)].
Kerala.—(1) In its application to the State of Kerala, in clause (g) of
the proviso to sub-section (1), after the words “stipends and gratuities
allowed to pensioners of the Government”, insert the words “or of a
local authority”. [Vide Kerala Act 13 of 1957, Section 3 (1-10-1958)
(Repealed in Malabar Distt.)].
(2) After clause (g) insert the following:
“(gg) all moneys payable to the beneficiaries under the Family
Benefit Scheme for the employees of the Government of
Kerala;” [Vide Kerala Act 1 of 1988, S. 2 (5-1-1988)].
Maharashtra.—In its application to the State of Maharashtra, in
Section 60 of the principal Act, in sub-section (1), in the proviso—
(a) after clause (g), the following clause shall be inserted, namely:
“(gg) in the Hyderabad area of the State of Maharashtra, any pension
granted or continued by the Central Government or the Government of
the former State of Hyderabad or any other State Government, on
account of past services or present infirmities or as a compassionate
allowance, which is not covered by clause (g);”
(b) after clause (kb), the following clause shall be inserted, namely:
“(kbb) the amounts payable under the policies issued in pursuance of
the Rules for the Hyderabad State Life Insurance and Provident Fund,
which are not covered under clause (ka) or (kb).
Explanation.—Where any sum payable to a Government servant is
exempt from attachment under this clause or clause (gg) such sum
shall remain exempt from attachment, notwithstanding the fact that
owing to the death of the Government servant the sum is payable to
some other person;” [Vide Mah. Act 65 of 1977, Section 6 (19-12-
1977)].
Pondicherry (Union Territory).—In its application to Union
Territory of Pondicherry amendment in the section is the same as in
Tamil Nadu. [Vide Pondicherry (Extension of Laws) Act, 1968 (26 of
1968), Section 3(i) and Schedule, Part II (w.e.f. 5-9-1968)].
Punjab, Haryana and Chandigarh.—In its application to the State
of Punjab including the Pepsu area thereof as it was immediately before
the 1st November, 1956—
(a) In sub-section (1), in the proviso—
(i) in clause (c), for the words “occupied by him” the following
words shall be deemed to be substituted, viz.:
“not proved by the decree-holder to have been let out on rent or let to
persons other than his father, mother, wife, son, daughter, daughter-in
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-law, brother, sister or other dependants or left vacant for a period of a
year or more;”
(ii) after clause (c), the following clauses shall be deemed to be
inserted, viz.:
“(cc) milch animals, whether in milk or in calf, kids, animals used for
the purposes of transport or draught cart and open spaces or enclosures
belonging to an agriculturist and required for use in case of need for
tying cattle parking carts or stacking fodder or manure;
(ccc) one main residential house and other buildings attached to it
(with the material and the sites thereof and the land immediately
appurtenant thereto and necessary for their enjoyment) belonging to a
judgment-debtor other than an agriculturist and occupied by him:
Provided that the protection afforded by this clause shall not extend to
any property specifically charged with the debt sought to be recorded.”
(b) After sub-section (2), the following sub-section shall be deemed
to be inserted, viz.:
“(3) Notwithstanding any other law for the time being in force an
agreement by which a debtor agrees to waive any benefit of
any exemption under this section shall be void.
(4) For the purposes of this section the word ‘agriculturist’ shall
include every person whether as owner, tenant, partner or
agricultural labourer who depends for his livelihood mainly on
income from agricultural land as defined in the Punjab
Alienation of Land Act, 1900.
(5) Every member of a tribe notified as agricultural under the
Punjab Alienation of Land Act, 1900, and every member of a
scheduled caste shall be presumed to be an agriculturist until
the contrary is proved.
(6) No order for attachment shall be made unless the Court is
satisfied that the property sought to be attached is not exempt
from attachment or sale.” [Vide Punjab Relief of Indebtedness
Act, VII of 1934, Section 35 (as amended by Punjab Acts 12 of
1940 and 6 of 1942 (9-4-1934) and 44 of 1960) (30-12-
1960)].
Rajasthan.—In its application to the State of Rajasthan, in the
Proviso to sub-section (1) of Section 60—
(i) in clause (b), after the words “Agriculturist” the words “his milch
cattle and those likely to calve within two years” shall be inserted.
[Vide Rajasthan Act 19 of 1958 (18-4-1958)].
(ii) after clause (k) insert the following:
“(kk) moneys payable under Life Insurance Certificates issued in
pursuance of the Rajasthan Government Servants Insurance Rules,
1953”;
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(iii) after Explanation 3 insert the following Explanation:
“Explanation 4.—Where any money payable to a Government servant of
the State is exempt from attachment under the provision contained in
clause (kk), such money shall remain exempt from the attachment
notwithstanding the fact that owing to the death of a Government
servant it is payable to some other person.” [Vide Rajasthan Act 16 of
1957, Section 2 (6-6-1957)].
Tamil Nadu.—In its application to the State of Tamil Nadu including
the Kanyakumari district and the Shencottah taluk of the Tirunelveli
district, and the added territories the amendment made in Section 60 is
the same as that of Kerala [Vide Code of Civil Procedure (Madras
Amendment) Act, 1950 (XXXIV of 1950), Section 2 (w.e.f. 2-1-1951)
and Madras Act XXII of 1957, Section 3 (18-12-1957) and Mad. (A.T.)
A.L.O., 1961 (w.e.f. 1-4-1960)].
Uttar Pradesh.—In its application to the State of Uttar Pradesh, add
the following Explanation (1-A) after Explanation 1 in Section 60, sub-
section (1):
“Explanation 1-A.—Particulars mentioned in clause (c) are exempt
from sale in execution of a decree whether passed before or after the
commencement of the Code of Civil Procedure (United Provinces)
(Amendment) Act, 1948, for enforcement of a mortgage or charge
thereon.” [Vide Code of Civil Procedure (United Provinces)
(Amendment) Act, 1948 (U.P. Act 35 of 1948), Section 2 (28-8-
1948)].
The following allowances payable to any public officer in the service
of the U.P. Government shall be exempt from attachment by order of a
Court, namely:—
(i) All kinds of travelling allowances;
(ii) All kinds of conveyance allowances;
(iii) All allowances granted for meeting the cost of—
(a) uniform; and
(b) rations.
(iv) All allowances granted as compensation for higher cost of living
in localities considered by Government to be expensive localities
including hill stations;
(v) All house rent allowances;
U.P. Government (Judicial Department) Notification No. 2156 VII-362,
dt. 17-1-1941;
(vi) All allowances granted to provide relief against increased cost of
living.—U.P. Govt. (Judl) Deptt. Notification No. 2692/VII, dt. 15-
7-1949.
► Gratuity.—Amounts representing gratuity, the provident fund and other
compulsory deposits, which a Government servant is entitled to, are exempted
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from attachment until they are actually paid to the Government servant who is
entitled to on retirement or otherwise and the natures of the dues, Gudapati
Hanumaiajh v. Y. Lakshminarasamma, 2009 SCC OnLine AP 82 : AIR 2009 AP
129, 133.
► Stipends, gratuities and political pensions.—Retirement benefits cannot
be attached both when it is in hands of employer and also when it reaches hands
of employee as such attachment is exempted under Code, K. Murugesan v. E.
Ulaganathan, 2009 SCC OnLine Mad 676 : AIR 2009 Mad 169, 170.
61. Partial exemption of agricultural produce.—The State
134
Government [* * *] may, by general or special order published in
the Official Gazette, declare that such portion of agricultural produce, or
of any class of agricultural produce, as may appear to the State
Government to be necessary for the purpose of providing until the next
harvest for the due cultivation of the land and for the support of the
judgment-debtor and his family, shall, in the case of all agriculturists or
of any class of agriculturists, be exempted from liability to attachment
or sale in execution of a decree.
62. Seizure of property in dwelling-house.—(1) No person executing
any process under this Code directing or authorising seizure of movable
property shall enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless
such dwelling-house is in the occupancy of the judgment-debtor and he
refuses or in any way prevents access thereto, but when the person
executing any such process has duly gained access to any dwelling-
house, he may break open the door of any room in which he has reason
to believe any such property to be.
(3) Where a room in a dwelling-house is in the actual occupancy of a
woman who, according to the customs of the country, does not appear
in public, the person executing the process shall give notice to such
woman that she is at liberty to withdraw; and, after allowing reasonable
time for her to withdraw and giving her reasonable facility for
withdrawing, he may enter such room for the purpose of seizing the
property, using at the same time every precaution, consistent with
these provisions, to prevent its clandestine removal.
High Court Amendment
CALCUTTA.—In sub-rule (2) omit the words “unless such dwelling
house is in the occupancy of the judgment-debtor and he refuses or in
any way prevents access thereto”, after the words “be broken open”
and before the words “but when the person”.
Add the proviso after sub-rule (2)—
“Provided that the Court may, after service of such notice as it
thinks proper, direct the breaking open of an outer door of a dwelling
-house in possession of the judgment-debtor who prevents access
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thereto”. Cal. Gaz. Pt. I, dt. 20-4-1967.
63. Property attached in execution of decrees of several Courts.—(1)
Where property not in the custody of any Court is under attachment in
execution of decrees of more Courts than one, the Court which shall
receive or realise such property and shall determine any claim thereto
and any objection to the attachment thereof shall be the Court of
highest grade, or, where there is no difference in grade between such
Courts, the Court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any
proceeding taken by a Court executing one of such decrees.
135
[Explanation.—For the purposes of sub-section (2), “proceeding
taken by a Court” does not include an order allowing, to a decree-holder
who has purchased property at a sale held in execution of a decree, set
off to the extent of the purchase price payable by him.]
High Court Amendment
CALCUTTA.—Add as sub-section (3)—
(3) “For the purposes of this section the Court of Small Causes of
Calcutta shall be deemed to be of the same grade as a district Court”.
Cal. Gaz. Pt. I, dt. 20-4-1967.
136
64. Private alienation of property after attachment to be void.—
[(1)] Where an attachment has been made, any private transfer or
delivery of the property attached or of any interest therein and any
payment to the judgment-debtor of any debt, dividend or other monies
contrary to such attachment, shall be void as against all claims
enforceable under the attachment.
137
[(2) Nothing in this section shall apply to any private transfer or
delivery of the property attached or of any interest therein, made in
pursuance of any contract for such transfer or delivery entered into and
registered before the attachment.]
Explanation.—For the purposes of this section, claims enforceable
under an attachment include claims for the rateable distribution of
assets.
► Incidental proceeding and a supplemental proceeding.—The distinction
between an incidental proceeding and a supplemental proceeding is evident.
Incidental power is to be exercised in aid to the final proceedings. A supplemental
proceeding is initiated with a view to prevent the ends of justice from being
defeated, G.L. Vijain v. K. Shankar, (2006) 13 SCC 136.
► Restitution.—Bona fide purchaser's right not to be affected by restitution
proceedings distinguished in situations where: (1) the court is considering an
interim order on the stay on such sale during pendency of main issues, and (2)
sale consideration has been partly paid and delivery has not been taken by the
third party purchaser, Woods Beach Hotels Ltd. v. Mapusa Urban Coop. Bank of
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Goa Ltd., (2009) 13 SCC 748.
► Private transfer.—Private alienation of property after attachment is not
permissible, Arvind Kumar v. Uma Shanker, 2009 SCC OnLine All 412 : AIR 2009
(NOC) 2741 (All); (2009) 5 All LJ 358.
Sale
65. Purchaser's title.—Where immovable property is sold in
execution of a decree and such sale has become absolute, the property
shall be deemed to have vested in the purchaser from the time when
the property is sold and not from the time when the sale becomes
absolute.
66. Suit against purchaser not maintainable on ground of purchase
being on behalf of plaintiff.—138[* * *]
NOTES ► The Statement of Objects and Reasons to the Benami
Transactions (Prohibition) Act, 1988 provides:
“To implement the recommendations of the Fifty-seventh Report
of the Law Commission on Benami Transactions, the President
promulgated the Benami Transactions (Prohibition of the Right to
Recover Property) Ordinance, 1988, on the 19th May, 1988.
2. The Ordinance provided that no suit, claim or action to enforce
any right in respect of any property held benami shall lie and no
defence based on any right in respect of any property held benami shall
be allowed to any suit, claim or action. It, however, made two
exceptions regarding property held by a coparcener in a Hindu
undivided family for the benefit of the coparceners and property held by
a trustee or other person standing in a fiduciary capacity for the benefit
of another person. It also repealed Section 82 of the Indian Trusts Act,
1882, Section 66 of the Code of Civil Procedure and Section 281-A of
the Income Tax Act, 1961.
* * *”
67. Power for State Government to make rules as to sales of land in
execution of decrees for payment of money.—139[(1)] The State
140
Government [* * *] may, by notification in the Official Gazette,
make rules for any local area imposing conditions in respect of the sale
of any class of interests in land in execution of decrees for the payment
of money, where such interests are so uncertain or undetermined as, in
the opinion of the State Government, to make it impossible to fix their
value.
141
[(2) When on the date on which this Code came into operation in
any local area, any special rules as to sale of land in execution of
decrees were in force therein, the State Government may, by
notification in the Official Gazette, declare such rules to be in force, or
142
may [* * *] by a like notification, modify the same.
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Every notification issued in the exercise of the powers conferred by
this sub-section shall set out the rules so continued or modified.]
143
[(3) Every rule made under this section shall be laid, as soon as
may be after it is made, before the State Legislature.]
Delegation to Collector of Power to execute Decrees against Immovable
Property
68. Power to prescribe rules for transferring to Collector execution of
certain decrees.—144[* * *]
69. Provisions of Third Schedule to apply.—145[* * *]
70. Rule of procedure.—146[* * *]
147
71. Collector deemed to be acting judicially.— [* * *]
72. Where Court may authorize Collector to stay public sale of land.
148
— [* * *]
Distribution of Assets
73. Proceeds of execution-sale to be rateably distributed among
decree-holders.—(1) Where assets are held by a Court and more
persons than one have, before the receipt of such assets, made
application to the Court for the execution of decrees for the payment of
money passed against the same judgment-debtor and have not
obtained satisfaction thereof, the assets, after deducting the costs of
realisation, shall be rateably distributed among all such persons:
Provided as follows:—
(a) where any property is sold subject to a mortgage or charge,
the mortgagee or incumbrancer shall not be entitled to share in
any surplus arising from such sale;
(b) where any property liable to be sold in execution of a decree is
subject to a mortgage or charge, the Court may, with the
consent of the mortgagee or incumbrancer, order that the
property be sold free from the mortgage or charge, giving to
the mortgagee or incumbrancer the same interest in the
proceeds of the sale as he had in the property sold;
(c) where any immovable property is sold in execution of a decree
ordering its sale for the discharge of an incumbrance thereon,
the proceeds of sale shall be applied—
first, in defraying the expenses of the sale;
secondly, in discharging the amount due under the decree;
thirdly, in discharging the interest and principal monies due
on subsequent incumbrances (if any); and
fourthly, rateably among the holders of decrees for the
payment of money against the judgment-debtor, who have,
prior to the sale of the property, applied to the Court which
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passed the decree ordering such sale for execution of such
decrees, and have not obtained satisfaction thereof.
(2) Where all or any of the assets liable to be rateably distributed
under this section are paid to a person not entitled to receive the same,
any person so entitled may sue such person to compel him to refund
the assets.
(3) Nothing in this section affects any right of the Government.
High Court Amendment
CALCUTTA.—Omit clause (c) of the proviso in sub-rule (1). Cal. Gaz.
Pt. I, dt. 20-4-1967.
Resistance to Execution
74. Resistance to execution.—Where the Court is satisfied that the
holder of a decree for the possession of immovable property or that the
purchaser of immovable property sold in execution of a decree has been
resisted or obstructed in obtaining possession of the property by the
judgment-debtor or some person on his behalf and that such resistance
or obstruction was without any just cause, the Court may, at the
instance of the decree-holder or purchaser, order the judgment-debtor
or such other person to be detained in the civil prison for a term which
may extend to thirty days and may further direct that the decree-holder
or purchaser be put into possession of the property.
High Court Amendment
CALCUTTA.—Omit the words “that the holder of a decree for the
possession of immovable property or” after the words “Court is
satisfied”; and the word “immovable” before “property”; insert the
words “referred to in Section 28 of the Presidency Small Cause Courts
Act, 1882”, after the word “property” and before the words “sold in
execution” omit the words “decree-holder or” between the words “at
the instance of the” and “purchaser”; Omit the words “decree-holder
or” between the words “direct that the” and “purchaser”. Cal Gaz. Pt. I
dt. 20-4-1967.
Part III
Incidental Proceedings
Commissions
75. Power of Court to issue commissions.—Subject to such
conditions and limitations as may be prescribed, the Court may issue a
commission—
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
149
[(e) to hold a scientific, technical, or expert investigation;
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(f) to conduct sale of property which is subject to speedy and
natural decay and which is in the custody of the Court pending
the determination of the suit;
(g) to perform any ministerial act.]
76. Commission to another Court.—(1) A commission for the
examination of any person may be issued to any Court (not being a
High Court) situate in a State other than the State in which the Court of
issue is situate and having jurisdiction in the place in which the person
to be examined resides.
(2) Every Court receiving a commission for the examination of any
person under sub-section (1) shall examine him or cause him to be
examined pursuant thereto, and the commission, when it has been duly
executed, shall be returned together with the evidence taken under it
to the Court from which it was issued, unless the order for issuing the
commission has otherwise directed, in which case the commission shall
be returned in terms of such order.
77. Letter of request.—In lieu of issuing a commission the Court may
issue a letter of request to examine a witness residing at any place not
150
within [India].
151
[78. Commissions issued by foreign Courts.—Subject to such
conditions and limitations as may be prescribed, the provisions as to
the execution and return of commissions for the examination of
witnesses shall apply to commissions issued by or at the instance of—
(a) Courts situate in any part of India to which the provisions of
this Code do not extend; or
(b) Courts established or continued by the authority of the Central
Government outside India; or
(c) Courts of any State or country outside India.]
For Section 79 to 95 click here
For Section 96 to 131 click here
For Section 132 to 158 click here
For Schedule 1 (Order 1 to 10) click here
For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 1 (Order 41 to 51) click here
For Schedule 2 to 5 click here
———
1.
As amended upto Act 34 of 2019 (w.e.f. 31-10-2019).
2.
Subs. by Act 104 of 1976, S. 2 (w.e.f. 1-2-1977).
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3.
In its application to the State of Sikkim, except for Ss. 123 and 124, the Code has been
extended to Sikkim — See Gazatte of India, 18-10-1982, Pt. II, S. 3(ii), Extra., p. 2 and 1-9-
1984 appointed as the date on which the Code shall come into force in Sikkim — See Gazatte
of India, 13-10-1984, Pt. II, S. 3(ii), Extra., p. 2.
This Act has been amended in its application to Assam by Assam Acts 2 of 1941 and 3
of 1953; to Tamil Nadu by Madras Act 34 of 1950, Madras A.O. 1950, and Tamil Nadu Act
15 of 1970; to Punjab by Punjab Act 7 of 1934; to Uttar Pradesh by U.P. Acts 4 of 1925,
35 of 1948, 24 of 1954, 17 of 1970, 57 of 1976 and 31 of 1978; to Karnataka by Mysore
Act 14 of 1955; to Kerala by Kerala Act 13 of 1957; to Rajasthan by Rajasthan Act 19 of
1958; to Maharashtra by Maharashtra Act 22 of 1960 and 25 of 1970; it has been
extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and by notification under Ss.
5 and 5-A of the Schedule Districts Act, 1874 (14 of 1874), also to the following
Scheduled Districts:—
(1) The district of Jalpaiguri, Cachar (excluding the North Cachar Hills), Goalpara
(including the Eastern Duars), Kamrup, Darrang, Nowgong (excluding the Mikir Hill
Tracts) Sibsagar (excluding the Mikir Hill Tracts) and Lakhimpur (excluding the
Dibrugarh Frontier Tracts) : Gazette of India, 1909, Pt. 1, p. 5 and ibid, 1914, Pt. I, p.
1690.
(2) The District of Darjeeling and the District of Hazaribagh, Ranchi, Palamau and
Manbhum in Chota Nagpur : Calcutta Gazette, 1909, Pt. I, p. 25 and Gazette of India,
1909, Pt. I, p. 33.
(3) The province of Kumaon and Garhwal and the Tarai Parganas (with modifications) :
U.P. Gazette, 1909, Pt. I, p. 3 and Gazette of India, 1909, Pt. I, p. 31.
(4) The Pargana of Jaunsar-Bawar in Dehradun and the Scheduled portion of the Mirzapur
District : U.P. Gazette, 1909, Pt. I, p. 4 and Gazette of India, 1909, Pt. I, p. 32.
(5) Coorg : Gazette of India, 1909, Pt. I, p. 32.
(6) Scheduled Districts in the Punjab : Gazette of India, 1909, Pt. I, p. 33.
(7) Sections 36 to 43 to all the Scheduled Districts in Madras, Gazette of India, 1909, Pt.
I, p. 152.
(8) Scheduled Districts in the C.P., except so much as is already in force and so much as
authorizes the attachment and sale of immovable property in execution of a decree,
not being a decree directing the sale of such property : Gazette of India, 1909, Pt. I,
p. 239.
(9) Ajmer-Merwara except Ss. 1 and 155 to 158 : Gazette of India, 1909, Pt. II, p. 480.
(10) Pargana Dhalbhum, the Municipality of Chaibassa in the Kolhan and the Porahat
Estate in the District of Singhbhum : Calcutta, Gazette of India, 1909, Pt. I, p. 453
and Gazette of India, 1909, Pt. I, p. 443.
Under S. 3(3)(a) of the Sonthal Parganas Settlement Regulation (3 of 1872), Ss. 38 to
42 and 156 and Rules 4 to 9 in Order XXI in the First Schedule have been declared to be
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in force in the Sonthal Parganas and the rest of the Code for the trial of suits referred to
in S. 10 of the Sonthal Parganas Justice Regulation, 1893 (5 of 1893) : see Calcutta,
Gazette, 1909, Pt. I, p. 45.
It has been declared to be in force in Panth Piploda by the Panth Piploda Laws
Regulation, 1929 (1 of 1929), S. 2; in the Khondmals District by the Khondmals Laws
Regulation, 1936 (4 of 1936), S. 3 and Sch. and in the Angul District by the Angul Laws
Regulation, 1936 (5 of 1936), S. 3 and Sch.
It has been extended to the District of Koraput and Gunjam Agency by Orissa
Regulation, (5 of 1951) S. 2.
It has been extended to the State of Manipur (w.e.f. 1-1-1957) by Act 30 of 1950, S. 3
to the whole of the Union Territory of Lakshadweep (w.e.f. 1-10-1967) by Regulation 8 of
1965, S. 3 and Sch. : to Goa, Daman and Diu (w.e.f. 15-6-1966) by Act 30 of 1965, S. 3;
to Dadra and Nagar Haveli (w.e.f. 1-7-1965) by Reg. 6 of 1963, S. 2 and Sch. 1 and to
the State of Sikkim (w.e.f. 1-9-1984), vide Notification No. S.O. 599(E), dated 13-8-
1984, Gazette of India, Extraordinary, Part II, S. 3.
4.
The words “the State of Jammu and Kashmir” omitted by Act 34 of 2019, Ss. 95, 96 and
Sch. V (w.e.f. 31-10-2019).
5.
L.M. & A. Islands (Laws) Regulation, 1965 (8 of 1965) and L.M.A. Islands (Civil Courts)
Regulation, 1965 (9 of 1965) are in force in that territory. These islands now form part of
Lakshadweep Union Territory — See Act 34 of 1973 (1-11-1973).
6.
The words and figures “Section 47 or” omitted by Act 104 of 1976, S. 3 (w.e.f. 1-2-1977).
7.
Subs. by Act 2 of 1951, S. 4 (w.e.f. 1-4-1951).
8.
Ins. by Act 2 of 1951, S. 4 (w.e.f. 1-4-1951).
9.
Ins. by Act 2 of 1951, S. 4 (w.e.f. 1-4-1951).
10.
Ins. by Act 42 of 1953, S. 4 and Sch. III (w.e.f. 23-12-1953).
11.
Now made applicable in the Union Territory of Jammu and Kashmir. [Vide S.O. 1123(E), dt.
18-3-2020 (w.e.f. 18-3-2020)].
12.
Subs. for “the Indian Civil Service” by Act 104 of 1976, S. 3 (w.e.f. 1-2-1977).
13.
Subs. for “or naval” by Act 35 of 1934, S. 2 and Sch. (w.e.f. 8-9-1934).
14.
Subs. for “His Majesty” by the A.O. 1950.
15.
The words “including His Majesty's Indian Marine Service” omitted by Act 35 of 1934, S. 2
(w.e.f. 8-9-1934).
16.
Omitted by Act 2 of 1951, S. 4 (w.e.f. 1-4-1951). Earlier inserted by the A.O. 1950
(w.e.f. 26-1-1950). Prior to omission it read as:
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“(21) ‘State’ means a Part A State or a Part C State, and ‘States’ means all the
territories for the time being comprised within Part A States and Part C States.”
17.
The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, S. 2
and Sch. I, Part I (w.e.f. 14-9-1920).
18.
The words “with the sanction aforesaid” omitted by Act 38 of 1920, S. 2 and Sch. 1, Pt. I
(w.e.f. 14-9-1920).
19.
Ins. by Act 4 of 1941, S. 2 and Sch. III (w.e.f. 1-8-1941).
20.
Subs. for “under that Act” by Act 4 of 1941, S. 2 and Sch. III (w.e.f. 1-8-1941).
21.
Ins. by Act 2 of 1951, S. 5 (w.e.f. 1-4-1951).
22.
Subs. for “Part B States” by A.O. (No. 2) 1956 (w.e.f. 1-11-1956).
23.
Subs. by Act 1 of 1926, S. 3. Prior to substitution it read as:
“so far as they relate to injunctions and interlocutory orders”
24.
Subs. for “77 and 155 to 158” by Act 104 of 1976, S. 4 (w.e.f. 1-2-1977).
25.
Sections 2, 3, 10 to 14, 28 to 37, 42 to 53, 55 to 60, 62 to 64, 73, 74, 78 to 85, 87, 88,
94, 95, 132 to 136, 139, 141 to 149, 151 and 153, as amended up to 1-1-1965 extended to
all suits and proceedings in the Court of Small Causes, Calcutta subject to certain
modifications and adaptations — See Calcutta Gazatte, 20-4-1967, Pt. I, p. 757.
26.
Ins. by Act 1 of 1914, S. 2.
27.
For instance of such direction, see the Calcutta Gazette, 1910, Pt. I, p. 814 and dt. 20-4
-1967.
28.
Explanation renumbered as Explanation I by Act 104 of 1976, S. 5 (w.e.f. 1-2-1977).
29.
Ins. by Act 104 of 1976, S. 5 (w.e.f. 1-2-1977).
30.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
31.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
32.
Subs. for “the Governor General in Council” by the A.O. 1937.
33.
The words “or the Crown Representative” omitted by the A.O. 1948.
34.
Subs. for “His Majesty in Council” by A.O. 1950 (w.e.f. 26-1-1950).
35.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
36.
Ins. by Act 104 of 1976, S. 6 (w.e.f. 1-2-1977).
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37.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
38.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
39.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
40.
Omitted by Act 104 of 1976, S. 7 (w.e.f. 1-2-1977). Prior to omission it read as:
“Explanation I.—Where a person has a permanent dwelling at one place and also a
temporary residence at another place, he shall be deemed to reside at both places in
respect of any cause of action arising at the place where he has such temporary
residence.”
41.
Subs. for “Explanation II” by Act 104 of 1976, S. 7 (w.e.f. 1-2-1977).
42.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
43.
Section 21 renumbered as Section 21(1) by Act 104 of 1976, S. 8 (w.e.f. 1-2-1977).
44.
Ins. by Act 104 of 1976, S. 8 (w.e.f. 1-2-1977).
45.
Ins. by Act 104 of 1976, S. 9 (w.e.f. 1-2-1977).
46.
Subs. for “thereafter tries such suit” by Act 104 of 1976, S. 10 (w.e.f. 1-2-1977).
47.
Subs. by Act 104 of 1976, S. 10 (w.e.f. 1-2-1977).
48.
Ins. by Act 104 of 1976, S. 10 (w.e.f. 1-2-1977).
49.
Subs. by Act 104 of 1976, S. 11 (w.e.f. 1-2-1977).
50.
Section 26 renumbered as Section 26(1) by Act 46 of 1999, S. 2 (w.e.f. 1-7-2002).
51.
Ins. by Act 46 of 1999, S. 2 (w.e.f. 1-7-2002).
52.
Ins. by Act 46 of 1999, S. 3 (w.e.f. 1-7-2002).
53.
Ins. by Act 104 of 1976, S. 12 (w.e.f. 1-5-1977).
54.
Subs. by Act 2 of 1951, S. 6 (w.e.f. 1-4-1951).
55.
Subs. for “not exceeding five hundred rupees” by Act 46 of 1999, S. 4 (w.e.f. 1-7-2002).
56.
Subs. by Act 66 of 1956, S. 2 (w.e.f. 1-1-1957).
57.
Ins. by Act 104 of 1976, S. 13 (w.e.f. 1-7-1977).
58.
Subs. for “on such aggregate sum as aforesaid” by Act 66 of 1956, S. 2 (w.e.f. 1-1-
1957).
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59.
Omitted by Act 66 of 1956, S. 3 (w.e.f. 1-1-1957).
60.
Ins. by Act 9 of 1922, S. 2.
61.
Subs. for “not being an appeal” by Act 66 of 1956, S. 4 (w.e.f. 1-1-1957).
62.
Subs. for “excluding an appeal” by Act 104 of 1976, S. 14(i) (w.e.f. 1-2-1977).
63.
Subs. by Act 66 of 1956, S. 4 (w.e.f. 1-2-1957).
64.
Subs. for “one thousand rupees” by Act 104 of 1976, S. 14(ii) (w.e.f. 1-2-1977).
65.
Ins. by Act 2 of 1951, S. 7(i) (w.e.f. 1-4-1951).
66.
Subs. for “a Part B State” by A.O. (No. 2), 1956.
67.
Subs. for “under that Act” by Act 2 of 1951, S. 7(ii) (w.e.f. 1-4-1951).
68.
Ins. by Act 104 of 1976, S. 15 (w.e.f. 1-2-1977).
69.
Subs. by Act 104 of 1976, S. 16 (w.e.f. 1-2-1977).
70.
Ins. by Act 104 of 1976, S. 17 (w.e.f. 1-2-1977).
71.
Ins. by Act 104 of 1976, S. 18 (w.e.f. 1-2-1977).
72.
Ins. by Act 104 of 1976, S. 18 (w.e.f. 1-2-1977).
73.
Ins. by Act 22 of 2002, S. 2 (w.e.f. 1-7-2002).
74.
Section 42 renumbered as Section 42(1) by Act 104 of 1976, S. 19 (w.e.f. 1-2-1977).
75.
Ins. by Act 104 of 1976, S. 19 (w.e.f. 1-2-1977).
76.
Subs. by Act 2 of 1951, S. 8 (w.e.f. 1-4-1951).
77.
Subs. by Act 2 of 1951, S. 9 (w.e.f. 1-4-1951).
78.
Ins. by Act 8 of 1937, S. 2.
79.
The words “the United Kingdom or” omitted by Act 71 of 1952, S. 2(a) (w.e.f. 1-3-1953).
80.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
81.
Subs. for Explanations I to III by Act 71 of 1952, S. 2(b) (w.e.f. 1-3-1953).
82.
Subs. by the A.O. 1937.
83.
The words “or continued” omitted by the A.O. 1948.
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84.
Subs. for “in any Indian State” by the A.O. 1950 (w.e.f. 26-1-1950).
85.
Omitted by Act 104 of 1976, S. 20 (w.e.f. 1-2-1977). Prior to omission it read as:
“(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a
proceeding under this section as a suit or a suit as a proceeding and may, if necessary,
order payment of any additional court-fees.”
86.
Subs. by Act 104 of 1976, S. 20 (w.e.f. 1-2-1977).
87.
Subs. by Act 104 of 1976, S. 20 (w.e.f. 1-2-1977).
88.
Omitted by Act 36 of 1963, S. 28 (w.e.f. 1-1-1964). Prior to omission it read as:
“48. Execution barred in certain cases.—(1) Where an application to execute a decree
not being a decree granting an injunction has been made, no order for the execution of
the same decree shall be made upon any fresh application presented after the expiration
of twelve years from—
(a) the date of the decree sought to be executed; or
(b) where the decree or any subsequent order directs any payment of money or the
delivery of any property to be made at a certain date or at recurring periods, the date
of the default in making the payment or delivery in respect of which the applicant
seeks to execute the decree.
(2) Nothing in this section shall be deemed—
(a) to preclude the Court from ordering the execution of a decree upon an application
presented after the expiration of the said term of twelve years, where the judgment-
debtor has, by fraud or force prevented the execution of the decree at some time
within twelve years immediately before the date of the application; or
(b) to limit or otherwise affect the operation of Article 180 of the second schedule to the
Indian Limitation Act, 1877 (15 of 1877).”
89.
Ins. by Act 104 of 1976, S. 21 (w.e.f. 1-2-1977).
90.
Ins. by Act 21 of 1936, S. 2.
91.
Subs. for “will be discharged” by Act 3 of 1921, S. 2.
92.
Subs. for “shall release” by Act 3 of 1921, S. 2.
93.
Subs. by Act 104 of 1976, S. 22 (w.e.f. 1-2-1977).
94.
Subs. for “one thousand rupees” by Act 46 of 1999, S. 5 (w.e.f. 1-7-2002).
95.
Subs. by Act 46 of 1999, S. 5 (w.e.f. 1-7-2002).
96.
Subs. by Act 104 of 1976, S. 22 (w.e.f. 1-2-1977).
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97.
Ins. by Act 104 of 1976, S. 22 (w.e.f. 1-2-1977).
98.
Subs. for “five hundred rupees” by Act 46 of 1999, S. 5 (w.e.f. 1-7-2002).
99.
Subs. for “an agriculturist” by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
100.
Ins. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
101.
Subs. for “Governor General in Council” by the A.O. 1937.
102.
Subs. by Act 9 of 1937, S. 2. The amendments made by that section have no effect in
respect of any proceedings arising out of a suit instituted before 1st June, 1937; see Act 9
of 1937, S. 3.
103.
Omitted Act 5 of 1943, S. 2. Prior to omission it read as:
“and salary, to the extent of the first hundred rupees and one-half the remainder of
such salary”.
104.
Subs. by Act 5 of 1943, S. 2, for the former clause and proviso.
105.
Subs. for “the first hundred rupees” by Act 26 of 1963, S. 2.
106.
Subs. for “two hundred rupees and one-half the remainder” by Act 104 of 1976, S. 23
(w.e.f. 1-2-1977).
107.
Subs. for “four hundred” by Act 46 of 1999, S. 6 (w.e.f. 1-7-2002).
108.
Ins. by Act 66 of 1956, S. 6 (w.e.f. 1-1-1957).
109.
Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
110.
Ins. by Act 66 of 1956, S. 6 (w.e.f. 1-1-1957).
111.
Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
112.
Subs. for “1897” by Act 9 of 1937, S. 2.
113.
Ins. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
114.
Subs. by Act 9 of 1937, S. 2.
115.
Subs. for “public officer” by Act 5 of 1943, S. 2.
116.
Subs. for “Governor General in Council” by the A.O. 1937.
117.
Subs. for “any such officer or servant” by Act 5 of 1943, S. 2.
118.
Subs. by the A.O. 1937. Prior to substitution it read as:
“any law passed under the Indian Councils Acts, 1861 and 1892”.
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119.
Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
120.
Ins. by Act 9 of 1937, S. 2.
121.
Subs. for “Explanation 2.—in clauses (h) and (i)” by Act 104 of 1976, S. 23 (w.e.f. 1-2-
1977).
122.
Ins. by the A.O. 1937.
123.
Subs. for “3” by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
124.
Subs. for “public officer” by Act 5 of 1943, S. 2.
125.
Subs. for “a Federal Railway” by the A.O. 1950 (w.e.f. 29-1-1950).
126.
Omitted by the A.O. 1948. Prior to omission it read as:
“(ii) as respect any person employed in connection with the exercise of the functions of
the Crown in its relations with Indian States, the Crown Representative; and”
127.
Subs. for “public officer” by Act 5 of 1943, S. 2.
128.
The words “railway or” omitted by the A.O. 1950 (w.e.f. 29-1-1950).
129.
Ins. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
130.
Ins. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
131.
The brackets and letter “(a)” omitted by Act 10 of 1914, S. 3 and Sch. II (w.e.f. 17-3-
1914).
132.
The word “or” omitted by Act 10 of 1914, S. 3 and Sch. II (w.e.f. 17-3-1914).
133.
Omitted by Act 10 of 1914, S. 3 and Sch. II (w.e.f. 17-3-1914).
134.
The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, S. 2
and Sch. I, Pt. I (w.e.f. 14-9-1920).
135.
Ins. by Act 104 of 1976, S. 24 (w.e.f. 1-2-1977).
136.
Section 64 renumbered as Section 64(1) by Act 22 of 2002, S. 3 (w.e.f. 1-7-2002).
137.
Ins. by Act 22 of 2002, S. 3 (w.e.f. 1-7-2002).
138.
Omitted by the Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988) S. 7 (w.e.f.
19-5-1988). Prior to omission it read as:
“66. Suit against purchaser not maintainable on ground of purchase being of behalf of
plaintiff.—(1) No suit shall be maintained against any person claming title under a
purchase certified by the Court in such manner as may be prescribed on the ground that
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the purchase was made on behalf of the plaintiff or on behalf of some one through whom
the plaintiff claims.
(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any
purchaser certified as aforesaid was inserted in the certificate fraudulently or without the
consent of the real purchaser or interfere with the right of a third person to proceed
against that property, though ostensibly sold to the certified purchaser, on the ground
that it is liable to satisfy a claim of such third person against the real owner.”
139.
Section 67 renumbered as Section 67(1) by Act 1 of 1914, S. 3.
140.
The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, S. 2
and Sch. I, Pt. I (w.e.f. 14-9-1920).
141.
Ins. by Act 1 of 1914, S. 3.
142.
The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, S. 2
and Sch. I, Pt. I (w.e.f. 14-9-1920).
143.
Ins. by Act 20 of 1983, S. 2 and Sch. (w.e.f. 15-3-1984).
144.
Omitted by Act 66 of 1956, S. 7 (w.e.f. 1-1-1957). Prior to omission it read as:
“68. Power to prescribe rules for transferring to Collector execution of certain decrees.
—The State Government may declare, by notification in the local official Gazette that in
any local area the execution of decrees in cases in which a Court has ordered any
immoveable property to be sold, or the execution of any particular kind of such decrees,
or the execution of decrees ordering the sale of any particular kind of, or interest in,
immoveable property, shall be transferred to the Collector.”
145.
Omitted by Act 66 of 1956, S. 7 (w.e.f. 1-1-1957). Prior to omission it read as:
“69. Provisions of Third Schedule to apply.—The Provisions set forth in the Third
Schedule shall apply to all cases in which the execution of a decree has been transferred
under the last preceding section.”
146.
Omitted by Act 66 of 1956, S. 7 (w.e.f. 1-1-1957). Prior to omission it read as:
“70. Rule of procedure.—(1) The Local Government may make rules consistent with the
aforesaid provisions—
(a) for the transmission of the decree from the Court to the Collector, and for regulating,
the procedure of the Collector and his subordinates in executing the same and for
retransmitting the decree from the Collector to the Court;
(b) conferring upon the Collector or any gazetted subordinate of the Collector all or any
of the powers which the Court might exercise in the execution of the decree if the
execution thereof had not been transferred to the Collector;
(c ) providing for orders made by the Collector or any gazetted subordinate of the
Collector, or orders made on appeal with respect to such orders, being subject to
appeal to, and revision by, superior revenue-authorities as nearly as may be as the
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orders made by the Court, or orders made on appeal with respect to such orders
would be subject to appeal to, and revision by, appellate or revisional Courts under
this Code or other law for the time being in force if the decree had not been
transferred to the Collector.
(2) Jurisdiction of Civil Courts barred—A power conferred by rules made under sub-
section (1) upon the Collector or any gazetted subordinate of the Collector, or upon any
appellate or revisional authority, shall not he exercisable by the Court or by any Court in
exercise of any appellate or revisional Jurisdiction which it has with respect to decrees or
orders of the Court.”
147.
Omitted by Act 66 of 1956, S. 7 (w.e.f. 1-1-1957). Prior to omission it read as:
“71. Collector deemed to be acting judicially.—In executing a decree transferred to the
Collector under Section 68 the Collector and his subordinates shall be deemed to be
acting judicially.”
148.
Omitted by Act 66 of 1956, S. 7 (w.e.f. 1-1-1957). Prior to omission it read as:
“72. Where Court may authorize Collector to stay public sale of land.—(1) Where in any
local area in which no declaration under Section 68 is in force the property attached
consists of land or of a share in land and the Collector represents to the Court that the
public sale of the land or share is objectionable and that satisfaction of the decree may
be made within a reasonable period by a temporary alienation of the land or share the
Court may authorize the Collector to provide for such: satisfaction in the manner re-
commended by him instead of proceeding to a sale of the land or share.
(2) In every such case the provisions of Sections 69 to 71 and of any rules made in
pursuance thereof shall apply so far as they are applicable.”
149.
Ins. by Act 104 of 1976, S. 26 (w.e.f. 1-2-1977).
150.
Subs. for “the States” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
151.
Subs. by Act 2 of 1951, S. 11 (w.e.f. 1-4-1951).
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Section 79 to 95)
CONTENTS
Section 1 to 78
PART IV
SUITS IN PARTICULAR CASES
Suits by or against the Government or Public Officers in their Official
Capacity
79. Suits by or against Government
80. Notice
81. Exemption from arrest and personal appearance
82. Execution of decree
Suits by Aliens and by or against Foreign Rulers, Ambassadors and
Envoys
83. When aliens may sue
84. When foreign States may sue
85. Persons specially appointed by Government to prosecute or
defend on behalf of foreign Rulers
86. Suits against foreign Rulers, Ambassadors and Envoys
87. Style of foreign Rulers as parties to suits
87-A. Definitions of “foreign State” and “Ruler”
Suits against Rulers of former Indian States
87-B. Application of Sections 85 and 86 to Rulers of former Indian
States
Interpleader
88. Where interpleader suit may be instituted
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PART V
SPECIAL PROCEEDINGS
89. Settlement of disputes outside the Court
Special Case
90. Power to state case for opinion of Court
Public nuisances and other wrongful acts affecting the public
91. Public nuisances and other wrongful acts affecting the public
92. Public charities
93. Exercise of powers of Advocate-General outside presidency-
towns
PART VI
SUPPLEMENTAL PROCEEDINGS
94. Supplemental proceedings
95. Compensation for obtaining arrest, attachment or injunction
on insufficient grounds
Section 96 to 131
Section 132 to 158
Schedule 1 (Order 1 to 10)
Schedule 1 (Order 11 to 20)
Schedule 1 (Order 21 to 30)
Schedule 1 (Order 31 to 40)
Schedule 1 (Order 41 to 51)
Schedule 2 to 5
———
Part IV
Suits in Particular Cases
Suits by or against the Government or Public Officers in their Official
Capacity
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152
[79. Suits by or against Government.—In a suit by or against the
Government, the authority to be named as plaintiff of defendant, as the
case may be, shall be—
153
(a) in the case of a suit by or against the Central Government,
[the Union of India], and
(b) in the case of a suit by or against a State Government, the
State.]
► Suit by or against Government.—Though as a rule an act of State can be
challenged in a duly constituted suit, if a third party claims title from such act of
State, nullity of such title can be pleaded as a defence, Bajranglal Shivchandrai
Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272.
80. Notice.—154[(1)] 155[Save as otherwise provided in sub-section
(2), no suit shall be instituted] against the Government (including the
Government of the State of Jammu and Kashmir) or against a public
officer in respect of any act purporting to be done by such public officer
in his official capacity, until the expiration of two months next after
156
notice in writing has been [delivered to, or left at the office of—]
157
(a) in the case of a suit against the Central Government,
[except where it relates to a railway,] a Secretary to that
Government;
158 159
[ [(b)] in the case of a suit against the Central Government
where it relates to a railway, the General Manager of that
railway;]
160
(b) [* * *]
161
[(bb) in the case of a suit against the Government of the State
of Jammu and Kashmir, the Chief Secretary to that
Government or any other officer authorised by that Government
in this behalf;]
(c) in the case of a suit against 162[any other State Government],
a Secretary to that Government or the Collector of the district;
163
[* * *]
164
(d) [* * *]
and, in the case of a public officer, delivered to him or left at his office,
stating the cause of action, the name, description and place of
residence of the plaintiff and the relief which he claims; and the plaint
shall contain a statement that such notice has been so delivered or left.
165
[(2) A suit to obtain an urgent or immediate relief against the
Government (including the Government of the State of Jammu and
Kashmir) or any public officer in respect of any act purporting to be
done by such public officer in his official capacity, may be instituted,
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with the leave of the Court, without serving any notice as required by
sub-section (1); but the Court shall not grant relief in the suit, whether
interim or otherwise, except after giving to the Government or public
officer, as the case may be, a reasonable opportunity of showing cause
in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the
parties, that no urgent or immediate relief need be granted in the suit,
return the plaint for presentation to it after complying with the
requirements of sub-section (1).
(3) No suit instituted against the Government or against a public
officer in respect of any act purporting to be done by such public officer
in his official capacity shall be dismissed merely by reason of any error
or defect in the notice referred to in sub-section (1), if in such notice—
(a) the name, description and the residence of the plaintiff had
been so given as to enable the appropriate authority or the
public officer to identify the person serving the notice and such
notice had been delivered or left at the office of the appropriate
authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had
been substantially indicated.]
STATE AMENDMENTS
Madhya Pradesh.—In its application to the State of Madhya
Pradesh, in Section 80,—
(i) in sub-section (1), for the words, brackets and figures “sub-
section (2)”, the words, brackets and figures “sub-section (2) or
sub-section (4)” shall be substituted;
(ii) after sub-section (3), the following sub-section shall be inserted,
namely:—
“(4) Where in a suit or proceeding referred to in Rule 3-B of Order 1,
the State is joined as a defendant or non-applicant or where the court
orders joinder of the State as defendant or non-applicant in exercise of
powers under sub-rule (2) of Rule 10 of Order 1 such suit on
proceeding shall not be dismissed by reason of omission of the plaintiff
or applicant to issue notice under sub-section (1).” [Vide M.P. Act 29 of
1984, S. 3 (w.e.f. 14-8-1984)].
► Nature.—Notice under this section is not necessary when suit is filed
against Municipal Council as the same is not a public officer, and no notice is
necessary when a suit is filed against a Municipality, City Municipal Council,
Bhalki v. Gurappa, (2016) 2 SCC 200 : (2016) 2 SCC (Civ) 59.
► Service of notice.—Service of notice is a condition precedent for the
institution of a suit against the Government or a public officer. It imposes a
statutory and unqualified obligation and in absence thereof, suit is not
maintainable, except where Section 80(2) applies, State of A.P. v. Pioneer
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Builders, (2006) 12 SCC 119, See also Sant Prasad v. Kausla Nand Sinha,
(2017) 9 SCC 655.
► Object of notice period.—The two months' period mentioned in Section 80
has been provided for so that the Government shall examine the claim put up in the
notice and has sufficient time to send a suitable reply, Salem Advocate Bar Assn.
(2) v. Union of India, (2005) 6 SCC 344.
► Leave of court.—Suit can be instituted against Government without
complying with the requirement of serving notice under Section 80(1), only with
the leave of the court as enjoined under Section 80(2). If the leave is refused and
plaint is returned, there is no suit pending before the court and without the suit
being registered Court cannot grant any interim relief at that stage, Bajaj
Hindustan Sugar & Industries Ltd. v. Balrampur Chini Mills Ltd., (2007) 9 SCC
43.
► Substantial compliance.—Notice does not have to state section under
which it is made so long as the ingredients of Section 80(3) CPC are met, for
compliance with requirements of Section 80, Y. Savarimuthu v. State of T.N.,
(2019) 13 SCC 142.
81. Exemption from arrest and personal appearance.—In a suit
instituted against a public officer in respect of any act purporting to be
done by him in his official capacity—
(a) the defendant shall not be liable to arrest nor his property to
attachment otherwise than in execution of a decree, and
(b) where the Court is satisfied that the defendant cannot absent
himself from his duty without detriment to the public service, it
shall exempt him from appearing in person.
166
82. Execution of decree.— [(1) Where, in a suit by or against the
Government or by or against a public officer in respect of any act
purporting to be done by him in his official capacity, a decree is passed
against the Union of India or a State or, as the case may be, the public
officer, such decree shall not be executed except in accordance with the
provisions of sub-section (2).]
(2) Execution shall not be issued on any such decree unless it
remains unsatisfied for the period of three months computed from the
167
date of [such decree].
168
[(3) The provisions of sub-sections (1) and (2) shall apply in
relation to an order or award as they apply in relation to a decree, if the
order or award—
(a) is passed or made against the 169[Union of India] or a State or
a public officer in respect of any such act as aforesaid, whether
by a Court or by any other authority, and
(b) is capable of being executed under the provisions of this Code
or of any other law for the time being in force as if it were a
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decree.]
170
[Suits by Aliens and by or against Foreign Rulers, Ambassadors and
Envoys
83. When aliens may sue.—Alien enemies residing in India with the
permission of the Central Government, and alien friends, may sue in
any Court otherwise competent to try the suit, as if they were citizens
of India, but alien enemies residing in India without such permission,
or residing in a foreign country, shall not sue in any such Court.
Explanation.—Every person residing in a foreign country, the
Government of which is at war with India and carrying on business in
that country without a licence in that behalf granted by the Central
Government, shall, for the purpose of this section, be deemed to be an
alien enemy residing in a foreign country.
84. When foreign States may sue.—A foreign State may sue in any
competent Court:
Provided that the object of the suit is to enforce a private right
vested in the Ruler of such State or in any officer of such State in his
public capacity.
85. Persons specially appointed by Government to prosecute or
defend on behalf of foreign Rulers.—(1) The Central Government may,
at the request of the Ruler of a foreign State or at the request of any
person competent in the opinion of the Central Government to act on
behalf of such Ruler, by order, appoint any persons to prosecute or
defend any suit on behalf of such Ruler, and any persons so appointed
shall be deemed to be the recognised agents by whom appearances,
acts and applications under this Code may be made or done on behalf
of such Ruler.
(2) An appointment under this section may be made for the purpose
of a specified suit or of several specified suits, or for the purpose of all
such suits as it may from time to time be necessary to prosecute or
defend on behalf of such Ruler.
(3) A person appointed under this section may authorise or appoint
any other persons to make appearances and applications and do acts in
any such suit or suits as if he were himself a party thereto.
86. Suits against foreign Rulers, Ambassadors and Envoys.—(1) No
171
[* * *] foreign State may be sued in any Court otherwise competent
to try the suit except with the consent of the Central Government
certified in writing by a Secretary to that Government:
Provided that a person may, as a tenant of immovable property, sue
without such consent as aforesaid 172[a foreign State] from whom he
holds or claims to hold the property.
(2) Such consent may be given with respect to a specified suit or to
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several specified suits or with respect to all suits of any specified class
or classes, and may specify, in the case of any suit or class of suits, the
173
Court in which [the foreign State] may be sued, but it shall not be
174
given, unless it appears to the Central Government that [the foreign
State]—
(a) has instituted a suit in the Court against the person desiring
175
to sue [it], or
(b) by 176[itself] or another, trades within the local limits of the
jurisdiction of the Court, or
(c) is in possession of immovable property situate within those
limits and is to be sued with reference to such property or for
money charged thereon, or
177
(d) has expressly or impliedly waived the privilege accorded to
[it] by this section.
178
[(3) Except with the consent of the Central Government, certified
in writing by a Secretary to that Government, no decree shall be
executed against the property of any foreign State.]
(4) The preceding provisions of this section shall apply in relation
to—
179
[(a) any Ruler of a foreign State;]
180
[(aa)] any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
181
(c) any such member of the staff [of the foreign State or the
staff or retinue of the Ambassador] or Envoy of a foreign State
or of the High Commissioner of a Commonwealth country as
the Central Government may, by general or special order,
specify in this behalf,
182
[as they apply in relation to a foreign State.]
183
[(5) The following persons shall not be arrested under this Code,
namely:—
(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;
(d) any such member of the staff of the foreign State or the staff
or retinue of the Ruler, Ambassador or Envoy of a foreign State
or of the High Commissioner of a Commonwealth Country, as
the Central Government may, by general or special order,
specify in this behalf.
(6) Where a request is made to the Central Government for the grant
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of any consent referred to in sub-section (1), the Central Government
shall, before refusing to accede to the request in whole or in part, give
to the person making the request a reasonable opportunity of being
heard.]
► Nature.—The provisions of Section 86 CPC are mandatory, Prem Lala
Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551.
► Commercial transactions.—Sovereign immunity is not available to
contractual and commercial activities and obligations undertaken by foreign State
or its instrumentality in India. Hence, no bar to proceed against a foreign country
or its instrumentality under CP Act, 1986 or Carriage by Air Act, 1972 for
deficiency of service. Section 86 CPC is modification and restriction of principle
of foreign sovereign immunity, Ethiopian Airlines v. Ganesh Narain Saboo,
(2011) 8 SCC 539 : (2011) 4 SCC (Civ) 217.
87. Style of foreign Rulers as parties to suits.—The Ruler of a foreign
State may sue, and shall be sued, in the name of his State:
Provided that in giving the consent referred to in Section 86, the
Central Government may direct that the Ruler may be sued in the name
of an agent or in any other name.
High Court Amendment
CALCUTTA.—Omit the words “and shall be sued”, after the words
“Ruling Chief may sue” and before the words “in the name of”; omit the
proviso. Cal. Gaz. Pt. I, dt. 20-4-1967.
184
[87-A. Definitions of “foreign State” and “Ruler”.—(1) In this Part,
—
(a) “foreign State” means any State outside India which has been
recognised by the Central Government; and
(b) “Ruler”, in relation to a foreign State, means the person who
is for the time being recognised by the Central Government to
be the head of that State.
(2) Every Court shall take judicial notice of the fact—
(a) that a State has or has not been recognised by the Central
Government;
(b) that a person has or has not been recognised by the Central
Government to be the head of a State.]
Suits against Rulers of former Indian States
185
[87-B. Application of Sections 85 and 86 to Rulers of former
186
Indian States.— [(1) In the case of any suit by or against the Ruler of
any former Indian State which is based wholly or in part upon a cause
of action which arose before the commencement of the Constitution or
any proceeding arising out of such suit, the provisions of Section 85
and sub-sections (1) and (3) of Section 86 shall apply in relation to
such Ruler as they apply in relation to the Ruler of a foreign State.]
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(2) In this section—
(a) “former Indian State” means any such Indian State as the
Central Government may, by notification in the Official Gazette,
187
specify for the purposes of this section; [* * *]
188
[(b) “commencement of the Constitution” means the 26th day
of January, 1950; and
(c) “Ruler”, in relation to a former Indian State, has the same
meaning as in Article 363 of the Constitution.]]
Interpleader
88. Where interpleader suit may be instituted.—Where two or more
persons claim adversely to one another the same debt, sum of money
or other property, movable or immovable, from another person, who
claims no interest therein other than for charges or costs and who is
ready to pay or deliver it to the rightful claimant, such other person
may institute a suit of interpleader against all the claimants for the
purpose of obtaining a decision as to the person to whom the payment
or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all
parties can properly be decided, no such suit of interpleader shall be
instituted.
Part V
Special Proceedings
189
[* * *]
190
[89. Settlement of disputes outside the Court.—Where it appears
to the Court that the dispute between the parties may be settled and
there exists elements of settlement which may be acceptable to the
parties, the Court may—
(a) refer the dispute to arbitration, and thereafter, the provisions
of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall
apply as if the proceedings for arbitration were referred for
settlement under the provisions of that Act; or
(b) refer the parties to mediation, to the court-annexed mediation
centre or any other mediation service provider or any mediator,
as per the option of the parties, and thereafter the provisions of
the Mediation Act, 2023 shall apply as if the proceedings for
mediation were referred for settlement under the provisions of
that Act; or
(c) refer the dispute to Lok Adalat, in accordance with the
provisions of sub-section (1) of Section 20 of the Legal Services
Authorities Act, 1987 (39 of 1987) and thereafter, all other
provisions of that Act shall apply in respect of the dispute;
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(d) effect compromise between the parties and shall follow such
procedure as deemed fit for judicial settlement.]
► Settlement of disputes outside court through Alternative Dispute
Resolution.—If conciliation, mediation or judicial settlement through Lok Adalat or
deemed Lok Adalat, prove not to be successful despite all efforts, the matter will
ultimately go to trial. It was clarified that if parties choose arbitration, however,
then provisions of the Arbitration and Conciliation Act, 1996 become applicable
and the case goes outside the judicial system, Salem Advocate Bar Assn. v.
Union of India, (2003) 1 SCC 49.
ADR rules have been framed under Part X CPC to supplement rules made
under Family Courts Act, 1984, Salem Advocate Bar Assn. (2) v. Union of India,
(2005) 6 SCC 344.
► Nature.—Section 89 merely enables court to refer suit to either of the ADR
processes. Where there are no negotiations for a settlement nor parties arrive at a
settlement, there cannot be an order by court rendering a decision in exercise of
power under Section 89, Shyamalika Das v. GRIDCO, (2010) 15 SCC 268 :
(2013) 1 SCC (Civ) 1177.
► Reference to ADR processes.—Having a hearing after completion of
pleadings, to consider recourse to ADR process under Section 89, is mandatory.
But actual reference to an ADR process in all cases is not mandatory, Afcons
Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC
24 : (2010) 3 SCC (Civ) 235.
► Settlement of disputes by reference to arbitration.—Reference to
arbitration under Section 89 is not appointment of arbitrator under Section 8 of
1940 Act, but consent order referring disputes to arbitrators appointed by parties,
Milkfood (P) Ltd. v. GMC Ice Cream (P) Ltd., (2011) 12 SCC 573 : (2012) 2
SCC (Civ) 727.
Reference of dispute between government corporations to arbitration is based
on concession/agreement. Power of court to forge ahead based even on a
diffident concession, due to public interest at stake, Northern Coalfields Ltd. v.
Heavy Engg. Corpn. Ltd., (2016) 8 SCC 685 : (2016) 4 SCC (Civ) 143.
Where parties agreed to reference of disputes and differences between them
to arbitration in pending suit, inclusion of additional issues in arbitration that were
not part of lis in civil suit, permissible, Union of India v. Titagarh Capital (P) Ltd.,
(2015) 16 SCC 143 : (2016) 3 SCC (Civ) 641.
Reference of dispute for arbitration in the absence of a written memo/joint
application, not permissible, even when the counsel of the parties consent to the
same. For reference of the parties to arbitration, oral consent given by the
counsel without a written memo of instructions does not fulfil the requirement
under Section 89 CPC, Kerala SEB v. Kurien E. Kalathil, (2018) 4 SCC 793.
► Unsuccessful mediation.—An unsuccessful mediation would not amount to
a concluded contract, Moti Ram v. Ashok Kumar, (2011) 1 SCC 466 : (2011) 1
SCC (Civ) 334.
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► Settlement of disputes outside court.—True intendment of Section 89 is
legally arrived at settlement of disputes outside court without intervention of courts,
and not necessarily by only the modes prescribed in Section 89, nor necessarily
upon direction of court. Settlement of disputes outside court and refund of court
fees is permissible even in cases in which parties, without any reference by court,
privately agree to settle their dispute outside modes contemplated under Section
89 CPC and such settlement is legally arrived at, High Court of Madras v. M.C.
Subramaniam, (2021) 3 SCC 560.
Alternative Dispute Resolution Rules
(1)
Bihar
Noti. No. B/Estt. (H.C.)—06-03/2008/5252/J, dt. 24-10-2008.
—In exercise of the powers conferred by Section 89 and Section 122
read with Section 126 and 127 of the Code of Civil Procedure, 1908
(Act 5 of 1908) the following rules made by the High Court, Patna and
approved by the State Government is hereby published namely:—
1. Title and Commencement.—(i) These rules may be called Civil
Procedure (Alternative Dispute Resolution) (Bihar) Rules, 2008.
(ii) They shall come into force from the date of their publication in
the Official Gazette.
2. Procedure for directing parties to opt for alternative mode
of settlement.—(a) The Court shall, after recording admissions and
denials at the first hearing of the suit under Rule 1 of Order 10, and
where it appears to the Court that there exists elements of settlement
which may be acceptable to the parties, formulate the terms of
settlement and give them to the parties for their observations under
sub-section (1) of Section 89, and parties shall submit to the Court
their responses within thirty days of the first hearing.
(b) At the next hearing, which shall be not later than thirty days of
the receipt of responses, the Court may reformulate the terms of a
possible settlement and shall direct the parties to opt for one of the
modes of settlement of disputes outside the Court as specified in
clauses (a) to (d) of sub-section (1) of Section 89 read with Rule 1-A of
Order 10 in the manner stated hereunder:
“Provided that the Court in the exercise of such power, shall not
refer any dispute to arbitration or to judicial settlement by a person
or institution without the written consent of all the parties to the
suit.”
3. Persons authorised to take decision for the Union of India,
State Government and others.—(i) For purpose of Rule 2, the Union
of India or the Government of a State or a Union Territory, all local
authorities, all Public Sector Undertakings, all statutory corporations
and all public authorities shall nominate a person or persons or group of
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persons who are authorised to take a final decision as to the mode of
alternative dispute resolution in which it proposes to opt in the event of
direction by the Court under Section 89 and such nomination shall be
communicated to the High Court within the period of three months
from the date of commencement of these rules and the High Court shall
notify all the subordinate courts in this behalf as soon as such
nomination is received from such Government or authorities.
(ii) Where such person or persons or group of persons have not been
nominated as aforesaid, such party as referred to in clause (1) shall, if
it is a plaintiff, file along with plaint or if it is a defendant file, file along
with or before filing of the written statement, a memo into the Court,
nominating a person or persons or group of persons who is or are
authorised to take a final decision as to the mode of alternative dispute
resolution which the party prefers to adopt in the event of the Court
directing the party to opt for one or other mode of alternative dispute
resolution.
4. Court to give guidelines to parties while giving direction to
opt.—(1) Before directing the parties to exercise option under clause
(b) of Rule 2, the Court shall give such guidance as it deems fit to the
parties, by drawing their attention to the relevant factors which parties
will have to take into account before they exercise their option as to the
particular mode of settlement, namely:—
(i) that it will be to the advantage of the parties, so far as time
and expense are concerned, to opt for one or the other of these
modes of settlement referred to in Section 89 rather than seek
a trial on the disputes arising in the suit;
(ii) that, where there is no relationship between the parties which
requires to be preserved, it may be in the interest of the
parties to seek reference of the matter of arbitration as
envisaged in clause (a) of sub-section (1) of Section 89;
(iii) that where there is a relationship between the parties which
requires to be preserved, it may be in the interest of parties to
seek reference of the matter to conciliation or mediation, as
envisaged in clause (b) or (d) of sub-section (1) of Section 89;
Explanation.—Dispute arising in matrimonial, maintenance and
child custody matters shall, among others, be treated as cases
where a relationship between the parties has to be preserved;
(iv) that, where parties are interested in a final settlement which
may lead to a compromise, it will be in the interests of the
parties to seek reference of the matter to Lok Adalat or to
judicial settlement as envisaged in clause (c) of sub-section (1)
of Section 89;
(v) the difference between the different modes of settlement
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namely, arbitration, conciliation, mediation and judicial
settlement as explained below:—
Settlement by “Arbitration” means the process by which an
arbitrator appointed by parties or by the Court, as the case may be,
adjudicates the disputes between the parties to the suit and passes an
award by the application of the provisions of the Arbitration and
Conciliation Act, 1996 (26 of 1996), insofar as they refer to arbitration.
Settlement by “Conciliation” means the process by which a
conciliator who is appointed by parties or by the Court, as the case may
be, conciliates the disputes between the parties to the suit by the
application of the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) in so far as they relate to conciliation, and in
particular, in exercise of his power under Sections 67 and 73 of that
Act, by making proposals for settlement of the dispute and by
formulating or reformulating the terms of a possible settlement and has
a greater role than a mediator.
Settlement by “Mediation” means the process by which a
mediator appointed by parties or by the Court, as the case may be,
mediates the disputes between the parties to the suit by the
application of the provisions of the Mediation Rules, 2003 in Part II, and
in particular, by facilitating discussion between the parties directly or
by communicating with each other through the mediator, by assisting
parties in identifying issues, reducing misunderstandings, clarifying
priorities, exploring areas of compromise, generating options in an
attempt to solve the dispute and emphasising that it is the parties own
responsibility for making decisions which affect them.
Settlement in “Lok Adalat” means settlement by Lok Adalat as
contemplated by the Legal Services Authority Act, 1987.
“Judicial Settlement” means a final settlement by way of
compromise entered into before a suitable institution or person to
which the Court has referred the dispute and which institution or
persons are deemed to be the Lok Adalats under the provisions of the
Legal Services Authority Act, 1987 (39 of 1987) and where after such
reference, the provisions of the said Act, apply as if the dispute was
referred to a Lok Adalat under the provisions of that Act.
5. Procedure for reference by the Court to the different modes
of settlements.—(i) Where all parties to the suit decide to exercise
their option and to agree for settlement by arbitration, they shall apply
to the Court, within thirty days of the direction of the Court under
clause (b) of Rule 2 and the Court shall, within thirty days of the said
application, refer the matter to arbitration and thereafter the provisions
of the Arbitration and Conciliation Act, 1996 (26 of 1996) which are
applicable after the stage of making of the reference to arbitration
under that Act, shall apply as if the proceedings were referred for
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settlement by way of arbitration under the provisions of that Act.
(ii) Where all the parties to the suit decide to exercise their option
and to agree for settlement by the Lok Adalat of where one of the
parties applies for reference to Lok Adalat the procedure envisaged
under the Legal Services Act, 1987 and in particular by Section 20 of
that Act, shall apply.
(iii) Where all the parties to the suit decide to exercise their option
and to agree for judicial settlement, they shall apply to the Court within
thirty days of the direction under clause (b) of Rule 2 and then the
Court shall, within thirty days of the application, refer the matter to a
suitable institution or person and such institution or person shall be
deemed to be a Lok Adalat and thereafter the provisions of the Legal
Services Authority Act, 1987 (39 of 1987) which are applicable after
the stage of making of the reference to Lok Adalat under that Act shall
apply as if the proceedings were referred for settlement under the
provisions of that Act.
(iv) Where none of the parties are willing to agree to opt or agree to
refer the dispute to arbitration, or Lok Adalat, or to judicial settlement,
within thirty days of the direction of the Court under clause (b) of Rule
2, they shall consider if they could agree for reference to conciliation or
mediation, within the same period.
(v)(a) Where all the parties opt and agree for conciliation, they shall
apply to the Court, within thirty days of the direction under clause (b)
of Rule 2 and the Court shall, within thirty days of the application refer
the matter to conciliation and thereafter the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) which are applicable
after the stage of making of the reference to conciliation under that Act,
shall apply, as if the proceedings were referred for settlement by way of
conciliation under the provisions of that Act.
(b) Where all the parties opt and agree for mediation, they shall
apply to the Court, within thirty days of the direction under clause (b)
of Rule 2 and the Court shall, within thirty days of the application, refer
the matter to mediation and then the Bihar Civil Procedure (Mediation)
Rule, 2008 in Part II shall apply.
(vi) Where under clause (d) all the parties are not able to opt and
agree for conciliation or mediation, one or more parties may apply to
the Court within thirty days of the direction under clause (b) of Rule 2,
seeking settlement through conciliation or mediation, as the case may
be, and in that event, the Court shall within a further period of thirty
days issue notice to the other parties to respond to the application, and
(a) in case all the parties agree for conciliation, the Court shall
refer the matter to conciliation and thereafter, the provision of
the Arbitration and Conciliation Act, 1996 which are applicable
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after the stage of making of the reference to conciliation under
that Act, shall apply.
(b) in case all the parties agree for mediation, the Court shall
refer the matter to mediation in accordance with the Bihar Civil
Procedure (Mediation) Rules, 2008 in Part II shall apply.
(c) in case all the parties do not agree and where it appears to the
Court there exists elements of a settlement which may be
acceptable to the parties and that there is a relationship
between the parties which has to be preserved, the Court shall
refer the matter to conciliation or mediation, as the case may
be, in case the dispute is referred to conciliation, the provisions
of Arbitration and Conciliation Act, 1996 which are applicable
after the stage of making of the reference to conciliation under
that Act shall and in case the dispute is referred to mediation,
the provisions of the Bihar Civil Procedure (Mediation) Rules,
2008 shall apply.
(vii)(a) Where none of the parties apply for reference either to
arbitration, or Lok Adalat, or judicial settlement or for conciliation or
mediation, within thirty days of the direction under clause (b) of Rule 2,
the Court shall, within a further period of thirty days, issue notices to
the parties or their representatives fixing the matter for hearing on the
question of making a reference either to conciliation or mediation.
(b) After hearing the parties of their representatives on the day so
fixed the Court shall, if there exists elements of a settlement which
may be acceptable to the parties is relationship between the parties
which has to be preserved, refer the matter to conciliation or mediation.
In case the dispute is referred to conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 which are applicable after the
stage of the making of the reference to conciliation under that Act shall
and in case the dispute is referred to mediation, the provisions of the
Bihar Civil Procedure (Mediation) Rules, 2008, shall apply.
(viii)(a) No next friend or guardian for the suit shall, without the
leave of the Court, expressly recorded in the proceedings of the Court,
opt for any one of the modes of alternative dispute resolution nor shall
enter into any settlement on behalf of a minor or person under
disability with reference to the suit in which he acts as mere friend or
guardian.
(b) Where an application is made to the Court for leave to enter into
a settlement initiated into in the alternative dispute resolution
proceedings on behalf of a minor or other persons under disability and
such minor or other person under disability is represented by counsel or
pleader, the counsel or pleader shall file a certificate along with the said
application to the effect that the settlement is, in his opinion, for the
benefit of the minor or other person under disability. The decree of the
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Court based on the settlement to which the minor or other person
under disability is a party, shall refer to the sanction of the Court
thereto and shall set out the terms of the settlement.
6. Referral to the Court and appearance before the Court upon
failure of attempts to settle disputes by conciliation or judicial
settlement or mediation.—(i) Where a suit has been referred for
settlement for conciliation, mediation or judicial settlement and has not
been settled or where it is felt that it would not be proper in the
interests of justice to proceed further with the matter, the suit shall be
referred back again to the Court with a direction to the parties to
appear before the Court on a specific date.
(ii) Upon reference of the matter back to the Court under sub-rule
(1) or under sub-section (5) of Section 20 of the Legal Services
Authority Act, 1987, the Court shall proceed with the suit in accordance
with law.
7. Training in alternative methods of resolution of disputes,
and preparation of manual.—(i) The High Court shall take steps to
have training courses conducted in places where the High Court and
District Courts or Courts or Courts of equal status are located, by
requesting the bodies recognised by the High Court or Universities
imparting legal education or retired Faculty Members or other person
who, according to the High Court are well versed in the techniques of
alternative methods of resolution of dispute, to conduct training courses
for lawyers and judicial officers.
(ii)(a) The High Court shall nominate a Committee of Judges, faculty
members including retired persons belonging to the above categories
senior members of the Bar, other members of the Bar specially qualified
in the techniques of alternative dispute resolution, for the purpose
referred to in clause (i) and for the purpose of preparing a detailed
manual of procedure for alternative dispute resolution to be used by the
Court in the State as well as by the arbitrators or authority or person in
case of judicial settlement or conciliators or mediators.
(b) The said manual shall described the various methods of
alternative dispute resolution, the manner in which any one of the said
method is to be opted for, the suitability of any particular method for
any particular type of dispute and shall specifically deal with the role of
above persons in disputes which are commercial or domestic in nature
or which relate to matrimonial, maintenance and child custody matters.
(iii) The High Court and the District Courts shall periodically conduct
seminars and workshops on the subject of alternative dispute resolution
procedure throughout the State or States over which the High Court
has jurisdiction with a view to bring awareness of such procedures and
to impart training to lawyers and judicial officers.
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(iv) Persons, who have experience in the matter of alternative
dispute resolution procedures and in particular in regard to conciliation
and mediation, shall be given preference in the matter of empanelment
of purposes conciliation or mediation.
8. Applicability of this rules to other proceedings.—The
provisions of these Rules may be applied to proceeding before the
Courts, including Family Courts constituted under Family Courts Act
(66 of 1984), while dealing with matrimonial, maintenance, and child
custody disputes, wherever necessary, in addition to the rules framed
under the Family Courts Act (66 of 1984).
(2)
Maharashtra
Noti No. P. 1601/2007.—In exercise of the rule making power
under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and
clause (d) of sub-section (2) of Section 89 of the said Code, the High
Court of Judicature at Bombay is hereby issuing the following Rules:—
PART I
ALTERNATIVE DISPUTE RESOLUTION RULES
1. These rules in Part I shall be called the Civil Procedure-Alternative
Dispute Resolution Rules, 2006.
2. Procedure for directing parties to opt for alternative modes
of settlement.—(a) The Court shall, after recording admissions and
denials at the first hearing of the suit under Rule 1 of Order 10, and
where it appears to the Court that there exist elements of a settlement
which may be acceptable to the parties, formulate the terms of
settlement and give them to parties for their observations under sub-
section (1) of Section 89, and the parties shall submit to the Court their
responses within thirty days of the first hearing.
(b) At the next hearing, which shall be not later than thirty days of
the receipt of responses, the Court may reformulate the terms of a
possible settlement and shall direct the parties to opt for one of the
modes of settlement of disputes outside the Court as specified in
clauses (a) to (d) of sub-section (1) of Section 89 read with Rule 1-A of
Order 10, in the manner stated hereunder:
Provided that the Court, in the exercise of such power, shall not refer
any dispute to arbitration or to judicial settlement including settlement
through Lok Adalats without the written consent of all the parties to the
suit.
3. Persons authorised to take decision for the Union of India,
State Governments and others.—(1) For the purpose of Rule 2, the
Union of India or the Government of a State or Union Territory, all local
authorities, all Public Sector Undertakings, all statutory corporations
and all public authorities shall nominate a person or persons or group of
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persons who are authorised to take a final decision as to the mode of
alternative dispute resolution in which it proposes to opt in the event of
direction by the Court under Section 89 and sub-nomination shall be
communicated to the High Court within the period of three months
from the date of commencement of these rules and the High Court shall
notify all the subordinate courts in this behalf as soon as such
nomination is received from such Government or authorities.
(2) Where such person or persons or group of persons have not been
nominated as aforesaid, such party as referred to in clause (1) shall, if
it is a plaintiff, file along with the plaint or if it is a defendant file, along
with or before the filing of the written statement, a memo into the
Court, nominating a person or persons or group of persons who is or are
authorised to take a final decision as to the mode of alternative dispute
resolution, which the party prefers to adopt in the event of the Court
directing the party to opt for one or other mode of alternative dispute
resolution.
3-A. Where the suit is filed by or against the party not referred to in
Rule 3, plaintiff along with the plaint should file memo nominating a
person by name or post who is authorised to take a final decision as to
the mode of alternative dispute resolution which it proposes to adopt or
if it is the defendant, file along with the written statement, a memo
into the Court, nominating a person or persons or group of person
authorised to take the final decision as to the mode of alternative
dispute resolution, which the party prefers to adopt in the event of the
Court directing the party to opt for one or other mode of alternative
dispute resolution.
4. Court to give guidance to parties while giving direction to
opt.—(a) Before directing the parties to exercise option under clause
(b) of Rule 2, the Court shall give such guidance as it deems fit to the
parties, by drawing their attention to relevant factors which parties will
have to take into account, before they exercise their option as to the
particular mode of settlement, namely:—
(i) that it will to the advantage of the parties, so far as time and
expense are concerned, to opt for one or other of these modes
of settlement referred to in Section 89 rather than seek a trial
on the disputes arising in the suit;
(ii) that, where there is no relationship between the parties which
requires to be reserved, it may be in the interest of the parties
to seek reference of the matter of arbitration as envisaged in
clause (a) of sub-section (1) of Section 89;
(iii) that, where there is a relationship between the parties which
requires to be preserved, it may be in the interest of parties to
seek reference of the matter to conciliation or mediation, as
envisaged in clauses (b) or (d) of sub-section (1) of Section
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89;
Explanation.—Disputes arising in matrimonial, maintenance
and child custody matters shall, among others, be treated as
cases where a relationship between the parties has to be
preserved;
(iv) that, where parties are interested in a final settlement which
may lead to compromise, it will be in the interest of the parties
to seek reference of the matter to Lok Adalat or to judicial
settlement as envisaged in clause (c) of sub-section (1) of
Section 89;
(v) the difference between the different modes of settlement as
explained below:—
Settlement by “Arbitration” means the process by which an
arbitrator appointed by parties or by the Court, as the case may be,
adjudicates the disputes between the parties to the suit and passes an
award by the application of the provisions of the Arbitration and
Conciliation Act, 1996 (26 of 1996) insofar as they refer to arbitration.
Settlement by “Conciliation” means the process by which a
conciliator who is appointed by parties or by the Court, as the case may
be, conciliates the disputes between the parties to the suit by the
application of the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) insofar as they relate to conciliation, and in
particular, in exercise of his powers under Section 67 and 72 of that
Act, by making proposals for a settlement of the dispute and by
formulating or reformulating the terms of a possible settlement; and
has a greater role than a mediator.
Settlement by “Mediation” means the process by which a
mediator appointed by parties or by the Court, as the case may be,
mediates the dispute between the parties to the suit by the application
of the provisions of the Mediation Rules, 2006 in Part II, and in
particular, by facilitating discussion between parties directly or by
communicating with each other through the mediator, by assisting
parties in identifying issues, reducing misunderstandings, clarifying
priorities, exploring areas of compromise, generating options in an
attempt to solve the dispute and emphasising that it is the parties own
responsibility for making decisions which affect them.
Settlement in Lok Adalat means settlement by Lok Adalat as
contemplated by the Legal Services Authority Act, 1987.
“Judicial settlement” means a final settlement by way of
compromise entered into before a suitable institution or person to
which the Court has referred the dispute and which institution or
person are deemed to be the Lok Adalats under the provisions of the
Legal Services Authority Act, 1987 (39 of 1987) and where after such
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reference, the provisions of the said Act apply as if the dispute was
referred to a Lok Adalat under the provisions of that Act.
5. Procedure for reference by the Court to the different modes
of settlement.—(a) Where all parties to the suit decide to exercise
their option and to agree for settlement by arbitration, they shall apply
to the Court, within thirty days of the direction of the Court under
clause (b) of Rule 2 and the Court shall, within thirty days of the said
application, refer the matter to arbitration and thereafter the provisions
of the Arbitration and Conciliation Act, 1996 (26 of 1996) which are
applicable after the stage of making the reference to arbitration under
that Act, shall apply as if the proceedings were referred for settlement
by way of arbitration under the provisions of that Act.
(b) Where all the parties to the suit decide to exercise their option
and to agree for settlement by the Lok Adalat or where one of the
parties applies for reference to Lok Adalat, the procedure envisaged
under the Legal Services Act, 1987 and in particular by Section 20 of
that Act, shall apply.
(c) Where all the parties to the suit decide to exercise their option
and to agree for judicial settlement, they shall apply to the Court within
thirty days of the direction under clause (b) of Rule 2 and then the
Court shall, within thirty days of the application, refer the matter to a
suitable institution or person and sub institution or person shall be
deemed to be a Lok Adalat and thereafter the provisions of the Legal
Services Authority Act, 1987 (39 of 1987) which are applicable after
the stage of making of the reference to Lok Adalat under that Act, shall
apply as if the proceedings were referred for settlement under the
provisions of that Act.
(d) Where all the parties to the suit decide to exercise to their option
and agree for settlement by mediation, they shall apply to the Court
within thirty days of the direction of the Court under clause (b) Rule 2
and the Court shall, within thirty days of the said application, refer the
matter to mediation and thereafter, the provision of Civil Procedure
Mediation Rules (Part II) shall apply.
(e)(i) Where all the parties opt and agree for conciliation, they shall
apply to the Court, within thirty days of the direction under clause (b)
of Rule 2 and the Court shall, within thirty days of the application refer
the matter to the conciliation and thereafter the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) which are applicable
after the stage of making of the reference to conciliation under that Act,
shall apply, as if the proceedings were referred for settlement by way of
conciliation under the provisions of that Act;
(ii) Where all the parties opt and agree for mediation, they shall
apply to the Court, within thirty days of the direction under clause (b)
of Rule 2 and the Court shall, within thirty days of the application, refer
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the matter to mediation and then the Mediation Rules, 2006 in Part II
shall apply.
(f) Where all the parties are not able to opt and agree for conciliation
or mediation, one or more parties may apply to the Court within thirty
days of the direction under clause (b) of Rule 2, seeking settlement
through conciliation or mediation, as the case may be, and in that
event, the Court shall, within a further period of thirty days issue notice
to the other parties to respond to the application, and:—
(i) in case all the parties agree for conciliation, the Court shall
refer the matter to conciliation and thereafter, the provisions of
the Arbitration and Conciliation Act, 1996 which are applicable
after the stage of making of the reference to conciliation under
that Act, shall apply.
(ii) in case all the parties agree for mediation, the Court shall refer
the matter to the mediation in accordance with the Civil
Procedure — Mediation Rules, 2006 in Part II shall apply.
(iii) in case all the parties do not agree and where it appears to
the Court that there exist elements of a settlement which
maybe acceptable to the parties and that there is a relationship
between the parties which has to be preserved, the Court shall
refer the matter to conciliation or mediation, as the case may
be. In case the dispute is referred to conciliation, the provisions
of the Arbitration and Conciliation Act, 1996 which are
applicable after the stage of making of the reference to
conciliation under that Act shall and in case the dispute is
referred to mediation, the provisions of the Civil Procedure —
Mediation Rules, 2006, shall apply.
(g)(i) Where none of the parties apply for reference either to
arbitration, or Lok Adalat, or judicial settlement, or for conciliation or
mediation, within thirty days of the direction under clause (b) of Rule 2,
the Court shall, within a further period of thirty days, issue notices to
the parties or their representatives fixing the matter for hearing on the
question of making a reference either to conciliation or mediation.
(ii) After hearing the parties or their representatives on the day so
fixed the Court shall, if there exist elements of a settlement which may
be acceptable to the parties and there is a relationship between the
parties which has to be preserved, refer the matter to conciliation or
mediation. In case the dispute is referred to conciliation, the provisions
of the Arbitration and Conciliation Act, 1996 which are applicable after
the stage of making of the reference to conciliation under that Act shall
and in case the dispute is referred to mediation, the provisions of the
Civil Procedure—Mediation Rules, 2006, shall apply.
(h)(i) No next friend or guardian for the suit shall, without the leave
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of the Court, expressly recorded in the proceedings of the Court, opt for
any one of the modes of alternative dispute resolution nor shall enter
into any settlement on behalf of a minor or person under disability with
reference to the suit in which he acts as mere friend or guardian.
(ii) Where an application is made to the Court for leave to enter into
a settlement initiated into the alternative dispute resolution
proceedings 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 a certificate along with the said
application to the effect that the settlement is, in his opinion, for the
benefit of the minor or other person under disability. The decree of the
Court based on the settlement to which the minor or other person
under disability is a party, shall refer to the sanction of the Court
thereto and shall set out the terms of the settlement.
5-A. Nothing in these rules shall affect the power of the Court to
refer the parties to any of the alternative dispute resolution mode
specified in clauses (a) to (d) of sub-section (1) of Section 89 by
consent of the parties at any stage of proceedings.
6. Referral to the Court and appearance before the Court upon
failure of attempts to settle disputes by conciliation or judicial
settlement or mediation.—(1) Where a suit has been referred for
settlement for conciliation, mediation or judicial settlement including
settlement through Lok Adalat and has not been settled or where it is
felt that it would not be proper in the interest of justice to proceed
further with the matter, the suit shall be referred back again to the
Court within a direction to the parties to appear before the Court on a
specific date.
(2) Upon the reference of the matter back to the Court under sub-
rule (1) or under sub-section (5) of Section 20 of the Legal Services
Authority Act, 1987, the Court shall proceed with the suit in accordance
with law.
7. Training in alternative methods of resolution of disputes
and preparation of manual.—(a) The High Court shall take steps to
have training courses conducted in places where the High Court and the
District Courts or Courts of equals status are located, by requesting
bodies recognised by the High Court or the universities imparting legal
education or retired faculty members or other persons who, according
to the High Court are well versed in the techniques of alternative
method of resolution of dispute, to conduct training courses for lawyers
and judicial officers.
(b)(i) The High Court shall nominate a Committee of Judges, faculty
members including retired persons belonging to the above categories,
senior members of the Bar, other members of the Bar specially qualified
in the techniques of alternative dispute resolution, for the purpose
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referred to in clause (a) and for the purpose of preparing a detailed
manual of procedure for alternative dispute resolution to be used by the
Courts in the State as well as by the arbitrators, or authority or person
in the case of judicial settlement or conciliators or mediators.
(ii) The said manual shall describe the various methods of alternative
dispute resolution, the manner in which any one of the said methods is
to be opted for, the suitability of any particular method for any
particular type of dispute and shall specifically deal with the role of the
above persons in disputes which are commercial or domestic in nature
or which relate to matrimonial, maintenance and child custody matters.
(c) The High Court and the District Courts shall periodically conduct
seminars and workshops on the subject of a alternative dispute
resolution procedure throughout the State or States over which the
High Court has jurisdiction with a view to bring awareness of such
procedures and to impart training to lawyers and judicial officers.
(d) Persons who have experience in the matter of alternative dispute
resolution procedures, and in particular in regard to conciliation and
mediation, shall be given preference in the matter empanelment for
purposes of conciliation or mediation.
8. Applicability to other proceedings.—The provisions of these
rules may be applied to proceedings before the Court, including Family
Courts constituted under the Family Courts Act (66 of 1984), while
dealing with matrimonial, maintenance and child custody disputes,
wherever necessary, in addition to the rules framed under the Family
Courts Act (66 of 1984).
PART II
CIVIL PROCEDURE MEDIATION RULES
1. These Rules in Part II shall be called the Civil Procedure Mediation
Rules, 2006.
2. Appointment of mediator.—(a) Parties to a suit may all agree
on the name of the sole mediator for mediating between them.
(b) Where, there are two sets of parties and are unable to agree on a
sole mediator, each set of parties shall nominate a mediator.
(c) Where parties agree on a sole mediator under clause (a) or where
parties nominate more than one mediator under clause (b), the
mediator need not necessarily be from the panel of mediators referred
to in Rule 3 nor bear the qualifications referred to in Rule 4 but should
not be a person who suffers from the disqualifications referred to in
Rule 5.
(d) Where there are more than two sets of parties having diverse
interests, each set shall nominate a person on its behalf and the said
nominees shall select the sole mediator and failing unanimity in that
behalf, the Court shall appoint a sole mediator.
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3. Panel of mediators.—(a) The High Court shall, for the purpose of
appoint mediators between parties in suits and other proceeding
prepare separate panels of mediators for the principal seat and each
Bench and publish the same on its notice board, within thirty days of
the coming into force of these Rules, with copy to the respective Bar
Associations.
(b)(i) The Courts of the Principal District and Sessions Judge in each
District or the Courts of the Principal Judge of the City Civil Court or
Courts of equal status and Family Courts shall, for the purposes of
appointing mediators to mediate between the parties in suits filed on
their original side, prepare a panel of mediators, within a period of 60
days of the commencement of these rules, after obtaining of the
approval of the High Court to the names included in the panel, and
shall publish the same on their respective notice board.
(ii) Copies of the said panels referred to in clause (i) shall be
forwarded to all the Courts of equivalent jurisdiction or Courts
subordinate to the Courts referred to in sub-clause (i) and to the Bar
Associations attached to each of the Courts.
(c) The consent of the persons whose names are included in the
panel shall be obtained before empanelling them.
(d) The panel of names shall contain a detailed Annexure giving
details of the qualifications of the mediators and their professional or
technical experience in different fields.
4. Qualifications of persons to be empanelled under Rule 3.—
The following shall be treated as qualified and eligible for being enlisted
in the panel of mediators under Rule 3, namely,—
(a) (i) Retired Judges of the Supreme Court of India;
(ii) Retired Judges of the High Court;
(iii) Retired District and Sessions Judges or retired Judges of
the City Civil Court or Courts of equivalent status.
(b) Legal practitioners with at least 15 years standing at the Bar
at the level of the Supreme Court or the High Court; or the
District Courts or Courts of equivalent status;
(c) Experts or other professional with at least 15 years standing;
or retired senior bureaucrats or retired senior executives;
(d) Institutions which are themselves experts in mediation and
have been recognised as such by the High Court, provided the
names of its members are approved by the High Court initially
or whenever there is change in membership.
5. Disqualification of persons.—The following persons shall be
deemed to be disqualified for being empanelled as mediators,—
(i) any person who has been adjudged as insolvent or is declared
of unsound mind; or
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(ii) any person against whom criminal charges involving moral
turpitude are framed by a criminal court and are pending; or
(iii) any person who has been convicted by a criminal court for
any offence involving moral turpitude;
(iv) any person against whom disciplinary proceeding or charges
relating to moral turpitude have been initiated by the
appropriate disciplinary authority which are pending or have
resulted in a punishment;
(v) any person who is interested or connected with the subject-
matter of dispute or is related to any one of the parties or to
those who represent them, unless such objection is waived by
all the parties in writing;
(vi) any legal practitioner who has or is appearing for any of the
parties in the suit or in other suit or proceedings;
(vii) such other categories of persons as may be notified by the
High Court.
6. Venue for conducting mediation.—The mediator shall conduct
the mediation at one or other of the following places,—
(i) Venue of the Lok Adalat or permanent Lok Adalat;
(ii) any place identified by the High Court;
(iii) any place identified by the District Judge or Principal Judge,
City Civil Court or Principal Judge, Family Court, within the
court precincts for the purpose of conducting mediation;
(iv) any place identified by the Bar Association or State Bar
Council for the purpose of mediation, within the premises of
the Bar Association or State Bar Council, as the case may be;
(v) any other place as may be agreed upon by the parties subject
to the approval of the Court.
7. Preference.—The Court shall, while nominating any person from
the panel of mediators referred to in Rule 3, consider his suitability for
resolving the particular class of dispute involved in the suit and shall
give preference to those who have proven record of successful
mediation or who have special qualification or experience in mediation.
8. Duty of mediator to disclose certain facts.—(a) When a
person is approached in connection with his possible appointment as a
mediator, the person shall disclose in writing to the parties, any
circumstances likely to give rise to a justifiable doubt as to his
independence or impartiality.
(b) Every mediator shall, from the time of his appointment and
throughout the continuance of the mediation proceedings, without
delay, disclose to the parties in writing, about the existence of any of
the circumstances referred to in clause (a).
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9. Cancellation of appointment.—Upon information furnished by
the mediator under Rule 8 or upon any other information received from
the parties or other persons, if the Court, in which the suit is filed, is
satisfied, after conducting such inquiry as it deems fit, and after giving
a hearing to the mediator, that the said information has raised a
justifiable doubt as to the mediator's independence or impartiality, it
shall cancel the appointment by a reasoned order and replace him by
another mediator.
10. Removal or deletion from panel.—A person whose name is
placed in the panel referred to in Rule 3 may be removed or his name
be deleted from the said panel, by the Court which empanelled him, if:
(i) he resigns or withdraws his name from the panel for any
reason;
(ii) he is declared insolvent or is declared of unsound mind;
(iii) he is a person against whom criminal charges involving moral
turpitude are framed by a criminal court and are pending;
(iv) he is a person who has been convicted by a criminal court for
any offence involving moral turpitude;
(v) he is a person against whom disciplinary proceedings on
charges relating to moral turpitude have been initiated by
appropriate disciplinary authority which are pending or have
resulted in a punishment;
(vi) he exhibits or displays conduct, during the continuance of the
mediation proceedings, which is unbecoming of a mediator;
(vii) the Court which empanelled, upon receipt of information, if it
is satisfied, after conducting such inquiry as it deems fit, is of
the view, that it is not possible or desirable to continue the
name of that person in the panel:
Provided that, before removing or deleting his name, under clauses
(vi) and (vii), the Court shall hear the mediator whose name is
proposed to be removed or deleted from the panel and shall pass a
reasoned order.
11. Procedure of mediation.—(a) The parties may agree on the
procedure to be followed by the mediator in the conduct of the
mediation proceedings.
(b) Where he parties do not agree on any particular procedure to be
followed by the mediator, the mediator shall follow the procedure
hereinafter mentioned, namely:
(i) he shall fix, in consultation with the parties, a time schedule,
the dates and the time of each mediation session, where all
parties have to be present;
(ii) he shall hold the mediation conference in accordance with the
provisions of Rule 6;
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(iii) he may conduct joint or separate meetings with the parties;
(iv) each party shall, ten days before a sessions, provide to the
mediator a brief memorandum setting forth the issues, which
according to it, need to be resolved, and its position in respect
to these issues and all information reasonably required for the
mediator to understand the issue; such memoranda shall also
be mutually exchanged between the parties;
(v) each party shall furnish to the mediator, copies of pleadings or
documents or such other information as may be required by
him in connection with the issues to be resolved:
Provided that where the mediator is of the opinion that he
should look into any original document, the Court may permit
him to look into the original document before such officer of the
Court and on such date or time as the Court may fix.
(vi) each party shall furnish to the mediator such other
information as may be required by him in connection with the
issues to be resolved.
(c) Where there is more than one mediator, the mediator nominated
by each party shall first confer with the party that nominated him and
shall thereafter interact with the other mediators, with a view to
resolving the disputes.
12. The mediator not bounded by Evidence Act, 1872 or Code
of Civil Procedure, 1908.—The mediator shall not be bound by the
Code of Civil Procedure, 1908 or the Evidence Act, 1872 but shall be
guided by principles of fairness and justice, having regard to the rights
and obligations of the parties, usages of trade, if any, and the nature of
the dispute.
13. Non-attendance of parties at sessions or meetings on due
dates.—(a) The parties shall be present personally or may be
represented by their counsel or power-of-attorney holders at the
meetings or sessions notified by the mediator.
(b) If a party fails to attend a sessions or a meeting notified by the
mediator, other parties or the mediator can apply to the Court in which
the suit is filed, to issue appropriate directions to that party to attend
before the mediator and if the Court finds that a party is absenting
himself before the mediator without sufficient reason, the Court may
take action against the said party by imposition of costs.
(c) The parties not resident in India, may be represented by their
counsel or power-of-attorney holders at the sessions or meetings.
(d) For the purpose of clauses (a) and (c) where the parties are
represented by counsel or power of attorney, as the case may be, such
counsel or power of attorney shall have authority to settle and
compromise.
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14. Administrative assistance.—In order to facilitate the conduct
of mediation proceedings, the parties, or the mediator with the consent
of the parties, may arrange for administrative assistance by a suitable
institution or person.
15. Offer of settlement by parties.—(a) Any party to the suit may,
“without prejudice”, offer a settlement to the other party at any stage
of the proceedings, with notice to the mediator.
(b) Any party to the suit may make a, “with prejudice” offer, to the
other party at any stage of the proceedings, with notice to the
mediator.
16. Role of mediator.—The mediator shall attempt to facilitate
voluntary resolution of the dispute by the parties, and communicate the
view of each party to the other, assist them in identifying issues,
reducing misunderstandings, clarifying priorities, exploring areas of
compromise and generating options in an attempt to solve the dispute,
emphasising that it is the responsibility of the parties to take decisions
which effect them; he shall not impose any terms of settlement on the
parties.
17. Parties alone responsible for taking decision.—The parties
must understand that the mediator any facilitates in arriving at a new
decision to resolve disputes and that he will not and cannot impose any
settlement nor does the mediator give any warranty that the mediation
will result in a settlement. The mediator shall not impose any decision
on the parties.
18. Time-limit for completion of mediation.—On the expiry of
sixty days from the date fixed for the first appearance of the parties
before the mediator, the mediation shall stand terminated unless the
Court, which referred the matter, either suo moto, or upon request by
the mediator or any of the parties, and upon hearing all the parties, if
of the view that extension of time is necessary or may be useful; but
such extension shall not beyond a further period of thirty days.
19. Parties to act in good faith.—While no one can be compelled
to commit to settle his case in advance of mediation, all parties shall
commit to participate in the proceedings in good faith with the
intention to settle the dispute, if possible.
20. Confidentiality, disclosure and inadmissibility of
information.—(1) When a mediator receives confidential information
concerning the dispute from any party, he shall disclose the substance
of that information to the other party, if permitted in writing by the first
party.
(2) When a party gives information to the mediator subject to a
specific condition that it be kept confidential, the mediator shall not
disclose that information to the other party, nor shall the mediator
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voluntarily divulge any information regarding the documents or what is
conveyed to him orally as to what transpired during the mediation.
(3) Receipt or perusal, or preparation of records, reports or other
documents by the mediator, or receipt of information orally by the
mediator while serving in that capacity, shall be confidential and the
mediator shall not be compelled to divulge information regarding the
documents nor in regards to the oral information nor as to what
transpired during the mediation.
(4) Parties shall maintain confidentiality in respect of events that
transpired during mediation and shall not rely on or introduce the said
information in any proceedings, as to:
(a) views expressed by a party in the course of the mediation
proceedings;
(b) documents obtained during the mediation which were
expressly required to be treated as confidential or other notes,
drafts or information given by parties or mediators;
(c) proposals made or views expressed by the mediator;
(d) admission made by a party in the course of mediation
proceedings;
(e) the fact that a party had or had not indicated willingness to
accept a proposal.
(5) There shall be no stenographic or audio or video recording of the
mediation proceedings.
(6) A mediator may maintain personal record regarding dates fixed
by him and the progress of the mediation for his personal use.
21. Privacy.—Mediation sessions and meetings are private; only the
concerned parties or their counsel or power-of-attorney holders can
attend. Other persons may attend only with the permission of the
parties or with the consent of the mediator.
22. Immunity.—Notwithstanding anything contained in any other
law for the time being in force and subject to the provisions of the
Contempt of Courts Act, no court shall entertain or continue any civil or
criminal proceedings against any person who is or was a mediator
appointed by the Court, for any act, thing or word committed, done or
spoken by him when, or in the course of, acting or purporting to act in
the discharge of his officially delegated function as mediator, nor shall
he be summoned by any party to the suit to appear in a court of law to
testify in regard to information received by him or action taken by him
or in respect of drafts or records prepared by him or shown to him
during the mediation proceedings.
23. Communication between mediator and the Court.—(a) In
order to preserve the confidence of parties in the Court and the
neutrality of the mediator, there should be no communication between
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the mediator and the Court, except as stated in clauses (b) and (c) of
this Rule.
(b) If any communication between the mediator and the Court is
necessary, it shall be in writing and copies of the same shall be given to
the parties or their counsel or power of attorney.
(c) Communication between the mediator and the Court shall be
limited to communication by the mediator,—
(i) with the Court about the failure of party to attend;
(ii) with the Court with the consent of the parties;
(iii) regarding his assessment that the case is not suited for
settlement through mediation;
(iv) that the parties have settled the dispute or disputes.
24. Settlement Agreement.—(1) Where an agreement is reached
between the parties in regard to all the issues in the suit or some of the
issues, the same shall be reduced to writing and signed by the parties
or their power-of-attorney holder. If any counsel have represented the
parties, they shall attest the signature of their respective clients.
(2) The agreement of the parties so signed and attested shall be
submitted to the mediator who shall, with a covering letter signed by
him, forward the same to the Court in which the suit is pending.
(3) Where no agreement is arrived at between the parties, before the
time-limit stated in Rule 18 or where, the mediator is of the view that
no settlement is possible, he shall report the same to the said court in
writing:
Provided that wherever the mediation fails, the mediator shall not
express any opinion on the merits or demerits of the matter, conduct of
the parties, the nature of process or causes which led to failure of
mediation.
25. Court to fix a date for recording settlement and passing
decree.—(1) Within seven days of the receipt of any settlement, the
Court shall issue notice to the parties fixing a day for recording the
settlement, such date not being beyond a further period of fourteen
days from the date of receipt of settlement, and the Court shall record
the settlement, if it is not collusive.
(2) The Court shall then pass a decree in accordance with the
settlement so recorded, if the settlement disposed of all the issues in
the suit.
(3) If the settlement disposes of only certain issues arising in the
suit, the Court shall record the settlement on the date fixed for
recording the settlement and (i) if the issues are servable from other
issues and if a decree could be passed to the extent of the settlement
covered by those issues, the Court may pass a decree straightaway in
accordance with the settlement on those issues without waiting for a
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decision of the Court on the other issues which are not settled, (ii) if
the issues are not servable, the Court shall wait for a decision of the
Court on the other issues which are not settled.
26. Fee of mediator and costs.—(1) At the time of referring the
disputes to mediation, the Court shall, after consulting the mediator
and the parties, fix the fee of the mediator.
(2) As far as possible a consolidated sum may be fixed rather than
for each session or meeting;
(3) Where there are two mediators as in clause (b) of Rule 2, the
Court shall fix the fee payable to the mediators which shall be shared
equally by the two sets of parties.
(4) The expenses of the mediation including the fee of the mediator,
costs of administrative assistance, and other ancillary expenses
concerned, shall be borne equally by the various contesting parties or
as may be otherwise directed by the Court.
(5) Each party shall bear the costs for production of witnesses on his
side including experts, or for production of documents.
(6) The mediator may, before the commencement of mediation,
direct the parties to deposit equal sums, tentatively, to the extent of
40% of the probable costs of the mediation, as referred to in clauses
(1), (3) and (4). The remaining 60% shall be deposited with the
mediator, after the conclusion of mediation. For the amount of cost paid
to the mediator, he shall issue the necessary receipts and a statement
of account shall be filed, by the mediator in the Court.
(7) The expenses of mediation including fees, if not paid by the
parties, the Court shall, on the application of the mediator or parties,
direct the concerned parties to pay, and if they do not pay, the
mediator or the parties, as the case may be, shall recover the said
amount as if there was a decree.
(8) Where a party is entitled to legal aid under Section 12 of the
Legal Services Authority Act, 1987, the amount of fee payable to the
mediator and costs shall be paid by the concerned Legal Services
Authority under that Act.
27. Ethics to be followed by mediator.—The mediator shall,
(1) followed and observe these rules strictly and with due
diligence;
(2) not carry on any activity or conduct which could reasonably be
considered as conduct unbecoming of a mediator;
(3) uphold the integrity and fairness of the mediation process;
(4) ensure that the parties involved in the mediation and fairly
informed and have an adequate understanding of the
procedural aspects of the process;
(5) satisfy himself/herself that he/she is qualified to undertake
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and complete the assignment in a professional manner;
(6) disclose any interest or relationship likely to affect impartiality
or which might seek an appearance of partiality of bias;
(7) avoid, while communicating with the parties, any impropriety
or appearance of impropriety;
(8) be faithful to the relationship of trust and confidentiality
imposed in the office of mediator;
(9) conduct all proceedings related to the resolutions of a dispute,
in accordance with the applicable law;
(10) recognise that mediation is based on principles of self-
determination by the parties and that mediation process relied
upon the ability of parties to reach a voluntary, undisclosed
agreement;
(11) maintain the reasonable expectations of the parties as to
confidentiality;
(12) refrain from promises or guarantees of results.
28. Transitory provisions.—Until a panel of mediators is prepared
as provided in Rule 3(a) and Rule 3(b)(i), the Court may nominate a
mediator of their choice if the mediator belongs to the various classes
of persons referred to in Rule 4 and is duly qualified and is not
disqualified, taking into account the suitability of the mediator for
resolving the particular dispute.
(3)
Uttar Pradesh
PART I
ALTERNATIVE DISPUTE RESOLUTION RULES
Noti. No. 404/VII-Nyaya-7-2009-5/2008, dated August 13,
2009.—In exercise of the rule making power conferred under Part X of
the Code of Civil Procedure, 1908 and clause (d) of sub-section (2) of
Section 89 of the said Code, and all other powers enabling it in this
behalf, the High Court of Judicature at Allahabad makes the following
rules:
1. Title and commencement.—(1) These rules may be called the
Uttar Pradesh Civil Procedure Alternative Dispute Resolution Rules,
2009.
(2) They shall come into force from the date of their publication in
the Official Gazette.
2. Definition.—In these Rules, unless the context otherwise
requires:
(a) “Code” means the Code of Civil Procedure, 1908 as amended
from time to time.
(b) “Court” means for the purpose of these Rules the District
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Court and every Civil Court of a grade inferior to that of a
District Court.
(c) “Settlement by Arbitration” means the process by which an
arbitrator appointed by parties or by the Court, as the case
may be, adjudicates the disputes between the parties to the
suit and passes an award by the application of the provisions of
the Arbitration and Conciliation Act, 1996 (26 of 1996), in so
far as they refer to arbitration.
(d) “Settlement by Conciliation” means the process by which a
conciliator who is appointed by parties or by the Court, as the
case may be, conciliates the disputes between the parties to
the suit by the application of the provisions of the Arbitration
and Conciliation Act, 1996 (26 of 1996) in so far as they relate
to conciliation, and in particular, in exercise of his powers
under Sections 67 and 73 of that Act, by making proposals for
a settlement of the dispute and by formulating or reformulating
the terms of a possible settlement and has a greater role than
a mediator.
(e) “Settlement by Mediation” means the process by which a
mediator appointed by parties or by the Court, as the case may
be, mediates the dispute between the parties to the suit by the
application of the provisions of the Uttar Pradesh Civil
Procedure Mediation Rules, 2009 and in particular, by
facilitating discussion between parties directly or by
communicating with each other through the mediator, by
assisting parties in identifying issues, reducing
misunderstandings, clarifying priorities, exploring areas of
compromise, generating options in an attempt to solve the
dispute and emphasising that it is the parties' own
responsibility for making decisions which affect them.
(f) “Settlement in Lok Adalat” means settlement by Lok Adalat as
contemplated by the Legal Services Authority Act, 1987.
(g) “Judicial Settlement” means a final settlement by way of
compromise entered into before a suitable institution or person
to which the Court has referred the dispute and which
institution or person are deemed to be the Lok Adalats under
the provisions of the Legal Service Authority Act, 1987 (39 of
1987) and where after such reference, the provisions of the
said Act apply as if the dispute was referred to a Lok Adalat
under the provisions of that Act.
3. Procedure for directing parties to opt for alternative modes
of settlement.—(a) The Court shall, after recording admissions and
denials at the first hearing of the suit under Rule 1 of Order 10, and
where it appears to the Court that there exist elements of a settlement
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which may be acceptable to the parties, formulate the terms of
settlement and give them to the parties for their observations under
sub-section (1) of Section 89, as the parties shall submit to the Court
their responses within thirty days of the first hearing.
(b) At the next hearing, which shall be not later than thirty days of
the receipt of responses, the Court may reformulate the terms of a
possible settlement and shall direct the parties to opt for one of the
modes of settlement of disputes outside the Court as specified in
clauses (a) to (d) of sub-section (1) of Section 89 read with Rule 1-A of
Order 10, in the manner stated hereunder:
Provided that the Court, in the exercise of such power, shall not refer
any dispute to an arbitration or to judicial settlement by a person or
institution without the written consent of all the parties to the suit.
Explanation.—For the purpose of this rule the words “terms of
settlement” and the words “terms of possible settlement” mean a
summary of the dispute or summary of the remaining dispute,
respectively.
4. Persons authorised to take decision for the Union of India,
State Governments and others.—(i) For the purpose of Rule 3, the
Union of India or the Government of a State or Union Territory, all local
authorities, all Public Sector Undertakings, all statutory corporations
and all public authorities shall nominate a person or persons or group of
persons who are authorised to take a final decision as to the mode of
alternative dispute resolution in which it proposes to opt in the event of
direction by the Court under Section 89 and such nomination shall be
communicated to the High Court within the period of three months
from the date of commencement of these Rules and the High Court
shall notify all the subordinate courts in this behalf as soon as such
nomination is received from such Government or authorities.
(ii) Where such person or persons or group of persons have not been
nominated as aforesaid, such party as referred to in clause (i) shall, if it
is a plaintiff, file along with the plaint or if it is a defendant file, along
with or before the filing of the written statement, a memo into the
Court, nominating a person or persons or group of persons who is or are
authorised to take a final decision as to the mode of alternative dispute
resolution, which the party prefers to adopt in the event of the Court
directing the party to opt for one or other mode of alternative dispute
resolution.
5. Court to give guidance to parties while giving direction to
opt.—(a) Before directing the parties to exercise option under sub-rule
(b) of Rule 3, the Court shall give such guidance as it deems fit to the
parties, by drawing their attention to the relevant factors which parties
will have to take into account, before they exercise their option as to
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the particular mode of settlement, namely:
(i) that it will be to the advantage of the parties, so far as time
and expense are concerned, to opt for one or other of these
modes of settlement referred to in Section 89 rather than seek
a trial on the disputes arising in the suit;
(ii) that, where there is no relationship between the parties which
requires to be preserved, it may be in the interest of the
parties to seek reference of the matter of arbitration as
envisaged in clause (a) of sub-section (1) of Section 89;
(iii) that, where there is a relationship between the parties which
requires to be preserved, it may be in the interest of parties to
seek reference of the matter to conciliation or mediation, as
envisaged in clause (b) or (d) of sub-section (1) of Section 89.
Explanation.—Disputes arising in matrimonial, maintenance
and child custody matters shall, among others, be treated as
cases where a relationship between the parties has to be
preserved;
(iv) that, where parties are interested in a final settlement which
may lead to a compromise, it will be in the interests of the
parties to seek reference of the matter to Lok Adalat or to
judicial settlement as envisaged in clause (c) of sub-section (1)
of Section 89.
6. Procedure for reference by the Court to the different modes
of settlement.—(a) Where all parties to the suit except pro forma
parties that is to say the parties by or against whom no relief has been
sought, decide to exercise their option and to agree for settlement by
arbitration, they shall apply to the Court, within thirty days of the
direction of the Court under sub-rule (b) of Rule 3 and the Court shall,
within thirty days of the said application, refer the matter to arbitration
and hereafter the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) which are applicable after the stage of making of the
reference to arbitration under that Act, shall apply as if the proceedings
were referred for settlement by way of arbitration under the provisions
of that Act;
(b) Where it is considered desirable to exercise the option for
settlement by the Lok Adalat, the procedure envisaged under the Legal
Services Authority Act, 1987 and in particular by Section 20 of that Act,
shall apply;
(c) Where all the parties to the suit decide to exercise their option
and to agree for judicial settlement, they shall apply to the Court within
thirty days of the direction under sub-rule (b) of Rule 3 and then the
Court shall, within thirty days of the application, refer the matter to a
suitable institution or person and such institution or person shall be
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deemed to be a Lok Adalat and thereafter the provisions of the Legal
Services Authority Act, 1987 (39 of 1987) which are applicable after
the stage of making of the reference to Lok Adalat under that Act, shall
apply as if the proceedings were referred for settlement under the
provisions of that Act;
(d) Where none of the parties are willing to agree to opt or agree to
refer the dispute to arbitration, or Lok Adalat, or to judicial settlement,
within thirty days of the direction of the Court, under sub-rule (b) of
Rule 3, they shall consider if they could agree for reference to
conciliation or mediation, within the same period;
(e)(i) Where all the parties opt and agree for conciliation, they shall
apply to the Court, within thirty days of the direction under sub-rule (b)
of Rule 3 and the Court shall, within thirty days of the application refer
the matter to conciliation and thereafter the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) which are applicable
after the stage of making of the reference to conciliation under that Act,
shall apply, as if the proceedings were referred for settlement by way of
conciliation under the provisions of that Act;
(e)(ii) Where all the parties opt and agree for mediation, they shall
apply to the Court, within thirty days of the direction under sub-rule (b)
of Rule 3 and the Court shall, with thirty days of the application, refer
the matter to mediation and then the Uttar Pradesh Civil Procedure
Mediation Rules, 2009 shall apply;
(f) Where under clause (d), all the parties are not able to opt and
agree for conciliation or mediation, one or more parties may apply to
the Court within thirty days of the direction under sub-rule (b) of Rule
3, seeking settlement through conciliation or mediation, as the case
may be, and in that event, the Court shall, within a further period of
thirty days issue notice to the other parties to respond to the
application, and
(i) in case all the parties agree for conciliation, the Court shall
refer the matter to conciliation and thereafter, the provisions of the
Arbitration and Conciliation Act, 1996 which are applicable after the
stage of making of the reference to conciliation under that Act, shall
apply.
(ii) in case all the parties agree for mediation, the Court shall refer
the matter to mediation in accordance with the Uttar Pradesh Civil
Procedure Mediation Rules, 2009 shall apply.
(iii) in case all the parties do not agree and where it appears to
the Court that there exist elements of a settlement, which may be
acceptable to the parties and that there is a relationship between the
parties, which has to be preserved, the Court shall refer the matter
to conciliation or mediation, as the case may be. In case the dispute
is referred to conciliation, the provisions of the Arbitration and
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Conciliation Act, 1996 which are applicable after the stage of making
of the reference to conciliation under that Act shall (sic apply) and in
case the dispute is referred to mediation, the provisions of the Uttar
Pradesh Civil Procedure Mediation Rules, 2009 shall apply;
(g)(i) Where none of the parties apply for reference either to
arbitration, or Lok Adalat, or judicial settlement, or for conciliation or
mediation, within thirty days of the direction under sub-rule (b) of Rule
3, the Court shall, within a further period of thirty days, issue notices to
the parties or their representatives fixing the matter for hearing on the
question of making a reference either to conciliation or mediation.
(g)(ii) After hearing the parties or their representatives on the day
so fixed the Court shall, if there exist elements of a settlement which
may be acceptable to the parties and there is a relationship between
the parties which has to be preserved, refer the matter to conciliation or
mediation. In case the dispute is referred to conciliation, the provisions
of the Arbitration and Conciliation Act, 1996 which are applicable after
the stage of making of the reference to Conciliation under that Act shall
and in case the dispute is referred to mediation, the provisions of the
Uttar Pradesh Civil Procedure Mediation Rules, 2009 shall apply;
(h)(i) No next friend or guardian for the suit shall, without the leave
of the Court, expressly recorded in the proceedings of the Court, opt for
any one of the modes of alternative dispute resolution nor shall enter
into any settlement on behalf of a minor or person under disability with
reference to the suit in which he acts as mere friend or guardian.
(h)(ii) Where an application is made to the Court for leave to enter
into a settlement initiated into in the alternative dispute resolution
proceedings 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 a certificate along with the said
application to the effect that the settlement is, in his opinion, for the
benefit of the minor or other person under disability. The decree of the
Court based on the settlement to which the minor or other person
under disability is a party, shall refer to the sanction of the Court
thereto and shall set out the terms of the settlement.
7. Referral to the Court and appearance before the Court upon
failure of attempts to settle disputes by conciliation or judicial
settlement or mediation.—(1) Where a suit has been referred for
settlement for conciliation, mediation or judicial settlement and has not
been settled or where it is felt that it would not be proper in the
interests of justice to proceed further with the matter, the suit shall be
referred back again to the Court with a direction to the parties to
appear before the Court on a specific date.
(2) Upon the reference of the matter back to the Court under sub-
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rule (1) or under sub-section (5) of Section 20 of the Legal Services
Authority Act, 1987, the Court shall proceed with the suit in accordance
with law.
8. Training in alternative methods of resolution of disputes
and preparation of manual.—(a) The High Court shall take steps to
have training courses conducted in places where the High Court and the
District Courts or Courts of equal status are located, by requesting
bodies recognized by the High Court or the Universities imparting legal
education or retired Faculty Members or other persons who, according
to the High Court are well versed in the techniques of alternative
methods of resolution of dispute, to conduct training courses for
lawyers and judicial officers.
(b)(i) The High Court shall nominate a committee of judges, faculty
members including retired persons belonging to the above categories,
senior members of the Bar, other members of the Bar specially qualified
in the techniques of alternative dispute resolution, for the purpose
referred to in clause (a) and for the purpose of preparing a detailed
manual of procedure for alternative dispute resolution to be used by the
Courts in the State as well as by the arbitrators, or authority or person
in the case of judicial settlement or conciliators or mediators.
(b)(ii) The said manual shall describe the various methods of
alternative dispute resolution, the manner in which any one of the said
methods is to be opted for, the suitability of any particular method for
any particular type of dispute and shall specifically deal with the role of
the above persons in disputes which are commercial or domestic in
nature or which relate to matrimonial, maintenance and child custody
matters.
(c) The High Court and the District Courts shall periodically conduct
seminars and workshops on the subject of alternative dispute resolution
procedures throughout the State or States over which the High Court
has jurisdiction with a view to bring awareness of such procedures and
to impact training to judicial officers and lawyers.
(d) Persons who have experience in the matter of alternative dispute
resolution procedures, and in particular in regard to conciliation and
mediation, shall be given preference in the matter of empanelment for
purposes of conciliation or mediation.
9. Applicability to other proceedings.—The provisions of these
rules may be applied to proceedings before the Courts, including Family
Courts constituted under the Family Courts Act (66 of 1984), while
dealing with matrimonial, maintenance and child custody disputes,
wherever necessary, in addition to the rules framed under the Family
Courts Act (66 of 1984).
PART II
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CIVIL PROCEDURE MEDIATION RULES
Noti. No. 1253/VII-Nyaya-2-2009-319-08, dated August 13,
2009.—In exercise of the rule making power conferred under Part X of
the Code of Civil Procedure, 1908 and clause (d) of sub-section (2) of
Section 89 of the said Code, and all other powers enabling it in this
behalf, the High Court of Judicature at Allahabad makes the following
rules.
1. Short title and commencement.—(i) These rules may be called
the Uttar Pradesh Civil Procedure Mediation Rules, 2009.
(ii) They shall come into force from the date of their publication in
the Official Gazette.
2. Extent.—These rules shall apply to all court annexed mediation
with regard to any suit or other proceeding filed/pending in any court
subordinate to the High Court of Judicature at Allahabad. The mediation
in respect of any suit or other proceeding may be referred to the
Mediation and Conciliation Centre set up in the district. Upon such a
reference being made to the Mediation and Conciliation Centre, these
rules will apply.
3. Appointment of mediator from the panel under Rule 4 by
agreement of the parties.—(a) Parties to a suit may all agree on the
name of the sole mediator for mediating between them.
(b) Where there are two sets of parties and are unable to agree on a
sole mediator, each set of parties shall nominate a mediator.
(c) Where there are more than two sets of parties having diverse
interests, each set shall nominate a person on its behalf and the said
nominees shall select the sole mediator and failing unanimity in that
behalf, the Court shall appoint a sole mediator.
4. Panel of mediators.—(a)(i) The District and Sessions Judge in
each district shall, for the purpose of appointing mediator to mediate
between parties in suits or other proceedings, prepare a panel of
mediators, within a period of sixty days of the commencement of these
rules, after obtaining the approval of the High Court to the names
included in the panel, and shall publish the approved list of mediators
on their respective notice board with copy to each Bar Association in
the District Courts.
(ii) Copies of the said panels referred to in clause (a) (i) shall be
forwarded to all the outlying courts subordinate to the District and
Sessions Judge concerned and to the Bar Associations attached to each
of the outlying courts.
(b) The consent of the persons whose names are included in the
panel shall be obtained before empanelling them on pro forma as set
out in Schedule 1.
(c) The panel of names shall contain detailed annexure giving details
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of the qualifications of the mediators and their professional or technical
experience in different fields.
(d) The panel of mediator appointed under clause (a) shall normally
be for a period of three years from the date of appointment and further
extension of the panel of mediators or any mediator shall be at the
discretion of the District and Sessions Judge with the prior approval of
the High Court.
(e) The District and Sessions Judge with prior approval of the High
Court, may in his discretion, from time to time, add or delete any
person in the panel of mediator.
5. Qualifications of persons to be empanelled under Rule 4.—
The following persons shall be treated as qualified and eligible for being
enlisted in the panel of mediators under Rule 4, namely:
(a) Retired on superannuation District and Sessions Judges and
retired on superannuation Additional District and Sessions
Judge of the Uttar Pradesh Higher Judicial Service;
(b) Legal practitioners with at least fifteen years standing at the
Bar at the level of the Supreme Court or the High Court or the
District Courts;
(c) Experts or other professionals with at least fifteen years
standing;
(d) Persons and institutions who/which are themselves experts in
the mediation and have been approved and recognised by the
High Court.
6. Disqualifications of persons.—The following persons shall be
deemed to be disqualified for being empanelled as mediators:—
(i) any person who has been adjudged as insolvent or is declared
of unsound mind; or
(ii) any person against whom criminal charges involving moral
turpitude are framed by a criminal court and are pending; or
(iii) any person who has been convicted by a criminal court for
any offence involving moral turpitude;
(iv) any person against whom disciplinary proceedings or charges
relating to moral turpitude have been initiated by the
appropriate disciplinary authority, which are pending or have
resulted in a punishment;
(v) any person who is interested or connected with the subject
matter of dispute or is related to any one of the parties or to
those who represent them, unless such objection is waived by
all the parties in writing;
(vi) any legal practitioner who has or is appearing for any of the
parties in the suit or in any other suit or proceedings;
(vii) such other categories of persons as may be notified by the
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High Court.
7. Venue for conducting mediation.—The mediator shall conduct
the mediation at one or other of the following places:—
(i) Venue of the Lok Adalat or permanent Lok Adalat;
(ii) any place identified by the District Judge within the court
precincts for the purpose of conducting mediation;
(iii) any place identified by the Bar Association or State Bar
Council for the purpose of mediation, within the premises of
the Bar Association or State Bar Council, as the case may be;
(iv) any other place as may be agreed upon by the parties subject
to the approval of the Court.
8. Preference.—The Court shall, while nominating any person from
the panel of mediators referred to in Rule 4, consider his suitability for
resolving the particular class of dispute involved in the suit and shall
give preference to those who have proven record of successful
mediation or who have special qualification or experience in mediation.
9. Duty of mediator to disclose certain facts.—(a) When a
person is approached in connection with his proposed/possible
appointment as a mediator, he shall disclose in writing any
circumstances likely to give rise to a justifiable doubt as to his
independence or impartiality;
(b) Every mediator shall, from the time of his appointment and
throughout the continuance of the mediation proceedings, without
delay, disclose to the parties in writing about the existence of any of
the circumstances referred to in clause (a).
10. Cancellation of appointment.—Upon information furnished by
the mediator under Rule 9 or upon any other information received from
the parties or other persons, if the Court, in which the suit or other
proceeding is pending is satisfied, after conducting such inquiry as it
deems fit, and after giving a hearing to the mediator, that the said
information has raised a justifiable doubt as to the mediator's
independence or impartiality, it shall cancel the appointment by a
reasoned order and replace him by another mediator subject to
approval of the High Court.
11. Renewal or deletion from panel.—A person whose name is
placed in the panel referred to in Rule 4, may be removed or his name
be deleted from the said panel, by the Court which empanelled him, if:
—
(i) he resigns or withdraws his name from the panel for any
reason;
(ii) he is declared insolvent or is declared of unsound mind;
(iii) he is a person against whom criminal charges involving moral
turpitude are framed by criminal court and are pending;
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(iv) he is a person who had been convicted by a criminal court for
any offence involving moral turpitude;
(v) he is a person against whom disciplinary proceedings on
charges relating to moral turpitude have been initiated by
appropriate disciplinary authority which are pending or have
resulted in a punishment;
(vi) he exhibits or displays conduct, during the continuance of the
mediation proceedings, which is unbecoming of a mediator;
(vii) the Court, which empanelled, upon receipt of information, if
it is satisfied, that it is not possible or desirable to continue the
name of that person in the panel:
Provided that, before removing or deleting his name, under clause
(vi) and (vii), the court concerned shall hear the mediator whose name
is proposed to be removed or deleted from the panel and shall pass a
reasoned order which shall be given effect to after its approval by the
District and Sessions Judge concerned.
12. Procedure of mediation.—(a) The parties may agree on the
procedure to be followed by the mediator in the conduct of the
mediation proceedings.
(b) Where the parties do not agree on any particular procedure to be
followed by the mediator, the mediator shall follow the procedure
hereinafter mentioned, namely:—
(i) he shall fix, in consultation with the parties, a time schedule,
the dates and the time of each mediation session, where all
parties have to be present;
(ii) he shall hold the mediation conference in accordance with the
provisions of Rule 7;
(iii) he may conduct joint or separate meetings with the parties;
(iv) each party shall, ten days before a session, provide to the
mediator a brief memorandum setting forth the issues, which
according to it, need to be resolved, and its position in respect
to those issues and all information reasonably required for the
mediator to understand the issue; such memoranda shall also
be mutually exchanged between the parties;
(v) each party shall furnish to the mediator, copies of pleadings or
documents or such other information as may be required by
him in connection with the issues to be resolved:
Provided that where the mediator is of the opinion that he
should look into any original document, the Court may permit
him to look into the original document before such officer of the
Court and on such date or time as the Court may fix;
(vi) each party shall furnish to the mediator such other
information as may be required by him in connection with the
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issues to be resolved.
(c) Where there is more than one mediator, the mediator nominated
by each party shall first confer with the party that nominated him and
shall thereafter interact with the other mediators, with a view to
resolving the disputes.
13. Mediator not bound by Evidence Act, 1872 or Code of Civil
Procedure, 1908.—The mediator shall not be bound by the Code of
Civil Procedure, 1908 or the Evidence Act, 1872, but shall be guided by
principles of fairness and justice, have regard to the rights and
obligations of the parties, usages of trade, if any, and the nature of the
dispute.
14. Non-attendance of parties at sessions or meetings on due
dates.—(a)(i) The parties residing in India shall be present personally
or may be represented by their power of attorney holders at the
meetings or sessions notified by the mediator.
(ii) The parties not resident in India may be represented by their
counsel or power of attorney holders at the sessions or meetings.
(b) If a party fails to attend a session or a meeting notified by the
mediator, other parties or the mediator can apply to the Court in which
the suit is filed, to issue appropriate directions to that party to attend
before the mediator and if the Court finds that a party is absenting
himself before the mediator without sufficient reason, the Court may
take action against the said party by imposition of costs.
15. Administrative assistance.—In order to facilitate the conduct
of mediation proceedings, the parties, or the mediator with the consent
of the parties, may arrange for administrative assistance by a suitable
institution or person:—
(a) Offer of settlement by parties.—Any party to the suit may,
‘without prejudice’ offer a settlement to the other party at any
stage of the proceedings, with notice to the mediator.
(b) Any party to the suit may make a, ‘with prejudice’ offer, to the
other party at any stage of the proceedings, with notice to the
mediator.
17. Role of mediator.—The mediator shall attempt to facilitate
voluntary resolution of the dispute by the parties and communicate the
view of each party to the other, assist them in identifying issues,
reducing misunderstandings, clarifying priorities exploring areas of
compromise and generating options in an attempt solve the dispute,
emphasising that it is the responsibility of the parties to take decision
which affect them; he shall not impose any terms of settlement on the
parties.
18. Parties alone responsible for taking decision.—The parties
must understand that the mediator only facilitate in arriving at a
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decision to resolve disputes and that he will not and cannot impose any
settlement nor does the mediator give any warranty that the mediation
will result in a settlement. The mediator shall not impose any decision
on the parties.
19. Time-limit for completion of mediation.—On the expiry of
sixty days from the date fixed for the first appearance of the parties
before the mediator, the mediation shall stand terminated, unless the
Court, which referred the matter, either suo moto or upon request by
the mediator or any of the parties, and upon hearing all the parties, is
of the view that extension of time is necessary or may be useful; but
such extension shall not be beyond a further period of thirty days.
20. Parties to act in good faith.—While no one can be compelled
to commit to settle his case in advance of mediation, all parties shall
commit to participate in the proceedings in good faith with the
intention to settle the dispute, if possible.
21. Confidentiality disclosure and inadmissibility of
information.—(1) When a mediator receives confidential information
concerning that dispute from any party, he shall disclose the substance
of the information to the other party, if permitted in writing by the first
party.
(2) When a party gives information to the mediator subject to a
specific condition that it be kept confidential, the mediator shall not
disclose that information to the other party, nor shall the mediator
voluntarily divulge any information regarding the documents or what is
conveyed to him orally as to what transpired during the mediation.
(3) Receipt or perusal, or preparation of records, reports or other
documents by the mediator, or receipt of information orally by the
mediator while serving in that capacity, shall be confidential and the
mediator shall not be compelled to divulge information regarding the
documents nor in regard to the oral information nor as to what
transpired during the mediation.
(4) Parties shall maintain confidentially (sic confidentiality) in
respect of events that transpired during mediation and shall not rely on
or introduce the said information in any other proceedings as to:—
(a) views expressed by a party in the course of the mediation
proceedings;
(b) documents obtained during the mediation which were
expressly required to be treated as confidential or other notes,
drafts or information given by parties or mediators;
(c) proposals made or views expressed by the mediator;
(d) admission made by a party in the course of mediation
proceedings;
(e) the fact that a party had or had not indicated willingness to
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accept a proposal.
(5) There shall be no stenographic or audio or video recording of the
mediation proceedings.
22. Privacy.—Mediation sessions and meetings are private; only the
concerned parties of their counsel or power of attorney holders can
attend. Other persons may attend only with the permission of the
parties or with the consent of the mediator.
23. Immunity.—No mediator shall be held liable for anything bona
fide done or omitted to be done by him during the mediation
proceedings for any civil or criminal action nor shall he be summoned
by any party to the suit to appear in a court of law to testify in regard
to information received by him or action taken by him or in respect of
drafts or records prepared by him or shown to him during the mediation
proceedings.
24. Communication between mediator and the Court.—(a) In
order to preserve the confidence of parties in the Court and the
neutrality of the mediator, there should be no communication between
the mediator and the Court, except as stated in clauses (b) and (c) of
this rule.
(b) If any communication between the mediator and the Court is
necessary, it shall be in writing and copies of the same shall be given to
the parties or their counsel or power of attorney.
(c) Communication between the mediator and the Court shall be
limited to:
(i) Communication by the mediator with the court concerned
about the failure of party to attend;
(ii) with the court concerned with the consent of the parties;
(iii) regarding his assessment that the case is not suited for
settlement through mediation;
(iv) that the parties:
(a) have settled the dispute or disputes; or
(b) have failed to arrive at a settlement; or
(c) are not willing for a settlement through mediation.
25. Settlement Agreement.—(1) Where an agreement is reached
between the parties in regard to all the issues in the suit or some of the
issues, the same shall be reduced to writing and signed by the parties
or their power-of-attorney holder. If any counsel have represented the
parties, they shall attest the signature of their respective clients.
(2) The agreement of the parties so signed and attested shall be
submitted to the mediator who shall, with a covering letter signed by
him, forward the same to the Court in which the suit is pending.
(3) Where no agreement is arrived at between the parties, before the
time limit stated in Rule 18 or where, the mediator is of the view that
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no settlement is possible, he shall report the same to the said court in
writing.
(4) The mediator shall fix the date on which the parties to the
litigation should appear before the court concerned and within that
period he shall,—
(a) submit the agreement where an agreement is reached
between the parties; or
(b) report the result of his efforts in settling the disputer to the
Court.
26. Court to fix a date for recording settlement and passing
decree.—(1) On the parties appearing before the Court on the date
fixed by the mediator, or such other day, not being beyond seven days
from the date fixed by the mediator, the court concerned shall hear the
parties and if it is satisfied that the parties have settled their disputes
voluntarily and that the settlement is not collusive, then it shall pass a
decree in accordance with the settlement so recorded, if the settlement
disposes of all the issues the suit.
(2)(i) If the settlement disposes of only certain issues arising in the
suit or proceeding, the Court shall record the settlement in respect of
those issues if they are severable from other issues and if a decree
could be passed to the extent of the settlement covered by those
issues, then the Court may pass a decree straightaway in accordance
with the settlement on those issues without waiting for a decision of
the Court on the other issues which are not settled.
(ii) If the issues are not severable, then in that event, the Court shall
wait for a decision of the Court on the other issues, which are not
settled.
27. Fee of mediator and costs.—(1) At the time of referring the
disputes to mediation, the Court shall, after consulting the mediator
and the parties, fix the fee of the mediator.
(2) As far as possible a consolidated sum may be fixed rather than
for each session or meeting.
(3) Where there are two mediators as in clause (b) of Rule 3, the
Court shall fix the fee payable to the mediators, which shall be shared
equally by the two sets of parties.
(4) The expense of the mediation including the fee of the mediator,
costs of administrative assistance and other ancillary expenses
concerned, shall be borne equally by the various contesting parties or
as may be otherwise directed by the Court.
(5) Each party shall bear the costs for production of witnesses on his
side including experts, or for production of documents.
(6) The mediator may before the commencement of mediation,
direct the parties to deposit equal sums, tentatively to the extent of
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40% of the probable costs of the mediation, as referred to in clauses
(1), (3) and (4). The remaining 60% shall be deposited with the
mediator, after the conclusion of mediation. For the amount of cost paid
to the mediator, he shall issue the necessary receipts and a statement
of account shall be filed, by the mediator in the Court.
(7) The expense of mediation including fee, if not paid by the
parties, the Court shall on the application of the mediator or parties,
direct the concerned parties to pay, and if they do not pay, the Court
shall recover the said amounts as if there was a decree for the said
amount.
(8) Where a party is entitled to legal aid under Section 12 of the
Legal Services Authority Act, 1987, the concerned Legal Services
Authority under that Act shall pay the amount of fee and costs payable
to the mediator.
28. Ethics to be followed by mediator.—The mediator shall:
(1) Follow and observe these rules strictly and with due diligence;
(2) Not carry on any activity or conduct which could reasonably be
considered as conduct unbecoming of a mediator;
(3) Uphold the integrity and fairness of the mediation process;
(4) Ensure that the parties involved in the mediation are fairly
informed and have an adequate understanding of the
procedural aspects of the process;
(5) Satisfy himself/herself that he/she is qualified to undertake
and complete the assignment in a professional manner;
(6) Disclose any interest or relationship likely to affect impartiality
or which might seek an appearance of partiality or bias;
(7) Avoid, while communicating with the parties, any impropriety
or appearance of impropriety;
(8) Be faithful to the relationship of trust and confidentiality
imposed in the office of mediator;
(9) Conduct all proceedings related to the resolutions of dispute,
in accordance with the applicable law;
(10) Recognise that mediation is based on principles of self-
determination by the parties and that mediation process relies
upon the ability of parties to reach a voluntary, undisclosed
agreement;
(11) Maintain the reasonable expectations of the parties as to
confidentiality;
(12) Refrain from promises or guarantees of results.
29. Transitory provisions.—Until a panel of mediator is prepared
by the District Court, the Courts referred to in Rule 4, may nominate a
mediator of their choice if the mediator belongs to the various classes
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of persons referred to in Rule 5 and is duly qualified and is not
disqualified, taking into account the suitability of the mediator for
resolving the particular dispute.
SCHEDULE 1
……………. Judgeship Mediation and Conciliation Center
(Consent to be furnished for Empanelment)
Name:
Father's name:
ADDRESS: (a) Office:
(b) Residence:
Telephone No. (a) Office:
(b) Residence:
Academic Qualifications:
Professional Qualifications and Experience:
Technical experience, if any:
Special qualification or experience in mediation:
Enrolment number with date and the Bar Council:
I ………………….., do hereby submit that I am willing to be empanelled
as a mediator in …………….judgeship and give my consent for my
empanelment under Rule 4 of the Uttar Pradesh Civil Procedure
Mediation Rules, 2007. I assure that during my term as mediator, I
shall follow ethics as prescribed in Rule 28 of the said Rules while
performing my duties as mediator.
Full Signature
Date
SCHEDULE 2
………………. Judgeship Mediation and Conciliation Center
(Case sheet furnished by the Court to the centre)
1. Date of Referral:
2. Name of the Presiding Officer referring the matter:
3. Case Number:
4. Category of Case:
5. Name of Parties:
6. Contact information of Parties:
7. Names and Contact Information of Counsel:
8. List of documents annexed to case sheet:
(To be prepared and signed by the Reader of the court concerned)
SCHEDULE 3
…………………. Judgeship Mediation and Conciliation Center
(Written notice to the parties and their counsel)
1. The referral of the case by the Court for mediation.
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2. The date of referral.
3. Information about the process of mediation.
4. Name of the mediator.
5. That the parties may object to the mediator appointed giving their
reasons for doing so within a fixed time.
6. Date and time of mediation session.
(To be prepared, signed and issued by the seniormost clerk in the
centre in consultation with the mediator)
SCHEDULE 4
………………….. Judgeship Mediation and Conciliation Center
(Information Sheet furnished to the Parties)
Case Name:
Case Number:
Name of Mediator:
1. This mediation is being conducted with the purpose of arriving
at an acceptable resolution by setting the dispute in a co-
operative manner. Parties should participate in this in good
faith.
2. The mediator will inform the parties of the time and date of the
mediation sessions.
3. (a) The parties residing in India agree to—
(i) attend the mediation sessions personally; or
(ii) be represented at the mediation sessions by their
constituted attorney with authority to settle the dispute.
(Strike off whichever is not applicable)
(b) The parties not resident in India agree to be represented at
the mediation sessions by their constituted attorney or
counsel with authority to settle the dispute.
4. The mediator shall respect the confidentiality of information
that the parties request him/her to keep confidential.
5. The parties shall not rely or introduce as evidence in any
proceedings the view, suggestions or admissions expressed or
made by a party, the proposals made by the mediator and
indication of acceptance by a party during the course of the
mediation proceedings.
6. The parties agree not to call the mediator as a witness or as an
expert in any proceeding relating in any way to the dispute,
which is the subject of mediation.
7. If the parties reach a settlement, they shall sign an agreement
to that effect and this shall be filed into the Court.
8. The entire process is a voluntary process and until parties reach
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settlement and sign an agreement, any party is free to opt out
of the process.
9. If the parties fail to reach settlement, the matter shall be
referred back to the Court.
(To be signed and dated by each party and the learned counsel
identifying them)
SCHEDULE 5
…………………… Judgeship Mediation and Conciliation Center
(Settlement Agreement)
This Settlement Agreement entered into on ……………… between ……….
……………… identified by Sri …………………. ………………….. Advocate and
……………………….. identified by Sri …………………. ………………….. Advocate
Whereas
1. Disputes and differences had arisen between the parties hereto
and ……………. (case no.) was filed on ……………. (date of
institution) before …………………. (give particulars of the court
concerned).
2. The matter was referred to mediation vide an order dated
……………………… passed by ……………………….. (name and
designation of the Presiding Officer concerned).
3. The parties agreed that Sri ………………………………. (name of the
Mediator) would act as their Mediator.
4. Meetings were held during the process of Mediation from
…………………. to ……………… and the parties have with the
assistance of the mediator voluntarily arrived at an amicable
solution resolving the abovementioned disputes and
differences.
5. The parties hereto confirm and declare that they have
voluntarily and of their own free will arrived at this
Settlement/Agreement in the presence of the Mediator.
6. The following settlement has been arrived at between the
parties hereto:
A ………………..
B ………………..
C ……………….
7. By signing this agreement the parties hereto state that they
have no further claims or demands against each other with
respect to …………………. (Case No.) and the parties hereto
through the, process of Mediation in this regard have amicably
settled all disputes and differences.
Parties full signature with date
Counsel's full signature with date:
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(Additions/alterations in the form as per requirement are permitted)
SCHEDULE 6
…………… Judgeship, Mediation and
Conciliation Center Report to Court
1. Court Case No.:
2. Referred by:
3. Date of Referral:
4. Mediators: (a)
(b)
(c)
5. Date (s) of Mediation Sessions:
(i) Mediation completed, Agreement enclosed
Or
(ii) Mediation completed, no. agreement.
Or
(iii) Parties not willing for the Mediation.
6. The parties have been directed to appeal before the Court
on…………………..
Signed by Mediator (s)
Dated:
(4)
West Bengal
Noti. No. 4679-G, dt. 6th December, 2006.—In exercise of the
rule-making power under Part X of the Code of Civil Procedure, 1908 (5
of 1908) and clause (d) of sub-section (2) of Section 89 of the said
Code, the High Court at Calcutta is hereby framing the following Rules:
PART I
ALTERNATIVE DISPUTE RESOLUTION RULES
1. Title.—These rules in Part I shall be called the Civil Procedure
191
Alternative Dispute Resolution Rules, 2006.
2. Procedure for directing parties to opt for alternative modes
of settlement.—(a) The Court shall, after recording admissions and
denials at the first hearing of the suit under Rule 1 Order 10 and where
it appears to the Court that there exist elements of a settlement which
may be acceptable to the parties, formulate the terms of settlement
and, give them to the parties for their observations under sub-section
(1) of Section 89, and the parties shall submit to the Court their
responses within thirty days of the first hearing:
Provided that the response may include settlement by the parties on
terms other than those formulated by the Court and unless unlawful,
the Court may act upon such settlement.
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(b) At the next hearing, which shall be not later than thirty days of
the receipt of responses, the Court may reformulate the terms of a
possible settlement and shall direct the parties to opt for one of the
modes of settlement of disputes outside the Court as specified in
clauses (a) to (d) of sub-section (1) of Section 89 read with Rule 1-A of
Order 10 in the manner stated hereunder:
Provided that the Court, in the exercise of such power, shall not refer
any dispute to arbitration or to judicial settlement by a person or
institution without the written consent of all the parties to the suit.
3. Persons authorised to take decision for the Union of India,
State Governments and others.—(1) For the purpose of Rule 2, the
Union of India or the Government of a State or a Union Territory, all
local authorities, all public sector undertakings, all statutory
corporations and all public authorities shall nominate a person or
persons or group of persons who are authorised to take a final decision
as to the mode of alternative dispute resolution in which it proposes to
opt in the event of direction by the Court under Section 89 and such
nomination shall be communicated to the High Court within the period
of three months from the date of commencement of these rules and the
High Court shall notify all the subordinate courts in this behalf as soon
as such nomination is received from such Government or authorities.
(2) Where such person or persons or group of persons have not been
nominated as aforesaid, such party as referred to in clause (1) shall, if
it is a plaintiff, file along with the plaint or if it is a defendant, file along
with or before the filing of the written statement, a memo into the
Court, nominating a person or persons or group of persons who is or are
authorised to take a final decision as to the mode of alternative dispute
resolution, which the party refers to adopt in the event of the Court
directing the party to opt for one or other mode of alternative dispute
resolution.
4. Court to give guidance to parties while giving direction to
opt.—(a) Before directing the parties to exercise option under clause
(b) of Rule 2, the Court shall give such guidance as it deems fit to the
parties, by drawing their attention to the relevant factors which parties
will have to take into account, before they exercise their option as to
the particular mode of settlement, namely:
(i) that it will be to the advantage of the parties, so far as time
and expense are concerned, to opt for one or other of these
modes of settlement referred to in Section 89 rather than seek
a trial on the disputes arising in the suit;
(ii) that, where there is no relationship between the parties which
requires to be preserved, it may be in the interest of the
parties to seek reference of the matter of arbitration as
envisaged in clause (a) of sub-section (1) of Section 89;
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(iii) that, where there is a relationship between the parties which
requires to be preserved, it may be in the interest of parties to
seek reference of the matter to conciliation or mediation, as
envisaged in clause (b) or (d) of sub-section (1) of Section 89;
Explanation.—Disputes arising out of matrimonial, maintenance
and child custody matters shall, among others, be treated as
the cases where a relationship between the parties has to be
preserved.
(iv) that, where parties are interested in a final settlement which
may lead to a compromise, it will be in the interests of the
parties to seek reference of the matter to the Lok Adalat or to
judicial settlement as envisaged in clause (c) of sub-section (1)
of Section 89;
(v) the difference between the different modes of settlement,
namely, arbitration, conciliation, mediation and judicial
settlement is explained below:
Settlement by “arbitration” means the process by which an
arbitrator appointed by the parties or by the Court, as the case may be,
adjudicates the disputes between the parties to the suit and passes an
award by the application of the provisions of the Arbitration and
Conciliation Act, 1996 (26 of 1996), insofar as they refer to arbitration.
Settlement by “conciliation” means the process by which a
conciliator who is appointed by the parties or by the Court, as the case
may be, conciliates the disputes between the parties to the suit by the
application of the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) insofar as they relate to conciliation, and in
particular, in exercise of his powers under Sections 67 and 73 of that
Act, by making proposals for a settlement of the dispute and by
formulating or reformulating the terms of a possible settlement and has
a greater role than that of a mediator.
Settlement by “mediation” means the process by which a
mediator appointed by the parties or by the Court, as the case may be,
mediates the dispute between the parties to the suit by the application
of the provisions of the Mediation Rules, 2006 in Part II, and in
particular, by facilitating discussion between parties directly or by
communicating with each other through the mediator, by assisting
parties in identifying issues, reducing misunderstandings, clarifying
priorities, exploring areas of compromise, generating options in an
attempt to solve the dispute and emphasising that it is the parties' own
responsibility for making decisions which affect them.
Settlement in the Lok Adalat means settlement by the Lok Adalat
as contemplated by the Legal Services Authorities Act, 1987.
“Judicial settlement” means a final settlement by way of
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compromise entered into before a suitable institution or person to
which the Court has referred the dispute and such institution or person
is deemed to be the Lok Adalats under the provisions of the Legal
Services Authorities Act, 1987 (39 of 1987) and where after such
reference, the provisions of the said Act apply as if the dispute was
referred to a Lok Adalat under the provisions of that Act.
5. Procedure for reference by the Court to the different modes
of settlement.—(a) Where all the parties to the suit decide to exercise
their option and to agree for settlement by arbitration, they shall apply
to the Court, within thirty days of the direction of the Court under
clause (b) of Rule 2 and the Court shall, within thirty days of the said
application, refer the matter to arbitration and thereafter the provisions
of the Arbitration and Conciliation Act, 1996 (26 of 1996) which are
applicable after the stage of making of the reference to arbitration
under that Act, shall apply as if the proceedings were referred for
settlement by way of arbitration under the provisions of that Act.
(b) Where all the parties to the suit decide to exercise their option
and to agree for settlement by the Lok Adalat or where one of the
parties applies for reference to the Lok Adalat, the procedure envisaged
under the Legal Services Authorities Act, 1987 and in particular, by
Section 20 of that Act, shall apply.
(c) Where all the parties to the suit decide to exercise their option
and to agree on a judicial settlement, they shall apply to the Court
within thirty days of the direction under clause (b) of Rule 2 and then,
the Court shall, within thirty days of the application, refer the matter to
a suitable institution or person and such institution or person shall be
deemed to be a Lok Adalat and thereafter, the provisions of the Legal
Services Authorities Act, 1987 (39 of 1987) which are applicable after
the stage of making of the reference to the Lok Adalat under that Act,
shall apply as if the proceedings were referred for settlement under the
provisions of that Act.
(d) Where none of the parties are willing to agree to opt or agree to
refer the dispute to arbitration, or the Lok Adalat, or to a judicial
settlement, within thirty days of the direction of the Court under clause
(b) of Rule 2, they shall consider if they could agree for a reference to
conciliation or mediation, within the same period.
(e)(i) Where all the parties opt and agree for conciliation, they shall
apply to the Court, within thirty days of the direction under clause (b)
of Rule 2 and the Court shall, within thirty days of the application refer
the matter to conciliation and thereafter the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) which are applicable
after the stage of making of the reference to conciliation under that Act
shall apply, as if the proceedings were referred for settlement by way of
conciliation under the provisions of that Act.
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(ii) Where all the parties opt and agree for mediation, they shall
apply to the Court, within thirty days of the direction under clause (b)
of Rule 2 and the Court shall, within thirty days of the application, refer
the matter to mediation and then, the Mediation Rules, 2003 in Part II
shall apply.
(f) Where under clause (d), all the parties are not able to opt and
agree for conciliation or mediation, one or more of the parties may
apply to the Court within thirty days of the direction under clause (b) of
Rule 2, seeking settlement through conciliation or mediation, as the
case may be, and in that event, the Court shall, within a further period
of thirty days, issue notice to the other parties to respond to the
application, and
(i) In case all the parties agree for conciliation, the Court shall
refer the matter to conciliation and thereafter, the provisions of
the Arbitration and Conciliation Act, 1996 which are applicable
after the stage of making of the reference to conciliation under
that Act, shall apply.
(ii) In case all the parties agree for mediation, the Court shall
refer the matter to mediation in accordance with the Civil
Procedure Mediation Rules, 2003 in Part II shall apply.
(iii) In case all the parties do not agree and where it appears to
the Court that there exist elements of a settlement which may
be acceptable to the parties and that there is a relationship
between the parties which has to be preserved, the Court shall
refer the matter to conciliation or mediation, as the case may
be. In case the dispute is referred to conciliation, the provisions
of the Arbitration and Conciliation Act, 1996 which are
applicable after the stage of making of the reference to
conciliation under that Act shall and in case the dispute is
referred to mediation, the provisions of the Civil Procedure
Mediation Rules, 2003, shall apply.
(g) (i) Where none of the parties apply for reference either to
arbitration or the Lok Adalat, or judicial settlement, or for conciliation or
mediation, within thirty days of the direction under clause (b) of Rule 2,
the Court shall, within a further period of thirty days, issue notices to
the parties or their representatives fixing the matter for hearing on the
question of making a reference either to conciliation or mediation.
(ii) After hearing the parties or their representatives on the day so
fixed, the Court shall, if there exist elements of a settlement which may
be acceptable to the parties and there is a relationship between the
parties which has to be preserved, refer the matter to conciliation or
mediation. In case the dispute is referred to conciliation, the provisions
of the Arbitration and Conciliation Act, 1996 which are applicable after
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the stage of making of the reference to conciliation under that Act shall
apply and in case the dispute is referred to mediation, the provisions of
the Civil Procedure Mediation Rules, 2006 shall apply.
(h) (i) No next friend or guardian for the suit shall, without the leave
of the Court expressly recorded in the proceedings of the Court, opt for
any one of the modes of alternative dispute resolution nor shall he
enter into any settlement on behalf of a minor or person under
disability with reference to the suit in which he acts as mere next friend
or guardian.
(ii) Where an application is made to the Court for leave to enter into
a settlement through the alternative dispute resolution proceedings on
behalf of a minor or other person under legal disability and such minor
or other person under disability is represented by a counsel or a
pleader, the counsel or the pleader shall file a certificate along with the
said application to the effect that the settlement is, in his opinion, for
the benefit of the minor or other person under disability. The decree of
the Court based on the settlement to which the minor or other person
under legal disability is a party, shall refer to the sanction of the Court
thereto and shall set out the terms of the settlement.
6. Referral to the Court and appearance before the Court upon
failure of attempts to settle disputes by conciliation or judicial
settlement or mediation.—(1) Where a suit has been referred for
settlement for conciliation, mediation or judicial settlement and has not
been settled or where it is felt that it would not be proper in the
interest of justice to proceed further with the matter, the suit shall, be
referred back again to the Court with a direction to the parties to
appear before the Court on a specific date.
(2) Upon the reference of the matter back to the Court under sub-
rule (1) or under sub-section (5) of Section 20 of the Legal Services
Authorities Act, 1987, the Court shall proceed with the suit in
accordance with law.
7. Training in alternative methods of resolution of disputes,
and preparation of manual.—(a) The High Court shall take steps to
have training courses conducted in places where the High Court and the
District Courts or Courts of equal status are located, by requesting any
institution recognised by the High Court or the universities imparting
legal education or retired faculty members thereof or other persons
who, according to the High Court, are well versed in the techniques of
alternative methods of resolution of disputes, to conduct training
courses for the lawyers and the judicial officers.
(b) (i) The High Court shall nominate a Committee of Judges, faculty
members including retired persons belonging to the above categories,
senior members of the Bar, other members of the Bar specially qualified
in the techniques of alternative dispute resolution, for the purpose
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referred to in clause (a) and for the purpose of preparing a detailed
manual of procedure for alternative dispute resolution to be used by the
Courts in the State as well as by the arbitrators, or authority or person
in the case of judicial settlement or the conciliators or the mediators.
(ii) The said manual shall describe the various methods of alternative
dispute resolution, the manner in which any one of the said methods is
to be opted for, the suitability of any particular method for any
particular type of dispute and shall specifically deal with the role of the
above persons in the disputes which are commercial or domestic in
nature or which relate to matrimonial, maintenance and child custody
matters.
(c) The High Court and the District Courts shall periodically conduct
seminars and workshops on the subject of alternative dispute resolution
procedures throughout the State or States over which the High Court
has jurisdiction with a view to bring awareness of such procedures and
to impart training to the lawyers and the judicial officers.
(d) Persons who have experience in the matter of alternative dispute
resolution procedures, and in particular, in regard to conciliation and
mediation, shall be given preference in the matter of empanelment for
the purposes of conciliation or mediation.
8. Applicability to other proceedings.—The provisions of these
Rules may be applied to the proceedings before the Courts, including
the Family Courts constituted under the Family Courts Act (66 of
1984), while dealing with the matrimonial, maintenance and child-
custody disputes, wherever necessary, in addition to the rules framed
under the Family Courts Act (66 of 1984).
9. Until the manual referred to in Rule 7 is prepared by the High
Court, the Courts mentioned in Rule 2, may nominate the person
indicated in Rule 5 hereof of its choice provided such person has the
requisite qualification and is otherwise suitable.
PART II
CIVIL PROCEDURE MEDIATION RULES
1. Title.—These rules in Part II shall be called the Civil Procedure
Mediation Rules, 2006.
2. Appointment of mediator.—(a) Parties to a suit may all agree
on the name of the sole mediator for mediating between them.
(b) Where, there are two sets of parties and are unable to agree on a
sole mediator, each set of parties shall nominate a mediator.
(c) Where parties agree on a sole mediator under clause (a) or where
parties nominate more than one mediator under clause (b), the
mediator need not necessarily be from the panel of the mediators
referred to in Rule 3 nor should he possess the qualifications referred to
in Rule 4 but he should not be a person who suffers from the
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disqualifications referred to in Rule 5.
(d) Where there are more than two sets of parties having diverse
interests, each set shall nominate a person on its behalf and the said
nominees shall select the sole mediator and failing unanimity in that
behalf, the Court shall appoint a sole mediator.
3. Panel of mediators.—(a) The High Court shall, for the purpose of
appointing mediators between the parties in suits filed on its original
side, prepare a panel of mediators and publish the same on its notice
board, within thirty days of the coming into force of these rules, with a
copy to the Bar Association, Bar Library Club and the Incorporated Law
Society.
(b) (i) The Courts of the Principal District and Sessions Judge in each
district or the Courts of the Principal Judge of the City Civil Court or the
courts of equal status shall, for the purposes of appointing mediators to
mediate between parties in suits filed on their original side, prepare a
panel of mediators, within a period of sixty days of the commencement
of these rules. After obtaining the approval of the High Court to the
names included in the panel, the same shall be published on the
respective notice boards.
(ii) Copies of the said panels referred to in clause (i) shall be
forwarded to all the courts of equivalent jurisdiction or courts
subordinate to the courts referred to in sub-clause (i) and to the Bar
Associations attached to each of the courts.
(c) The consent of the persons whose names are included in the
panel shall be obtained before empanelling them.
(d) The panel of names shall contain a detailed annexure giving
details of the qualifications of the mediators and their professional or
technical experience in different fields.
4. Qualifications of persons to be empanelled under Rule 3.—
The following persons shall be treated as qualified and eligible for being
enlisted in the panel of mediators under Rule 3, namely:
(a) (i) Retired Judges of the Supreme Court of India;
(ii) Retired Judges of the High Court;
(iii) Retired District and Sessions Judges or retired Judges of
the City Civil Court or courts of equivalent status.
(b) Legal practitioners with at least fifteen years' standing at the
Bar at the level of the Supreme Court or the High Court or the
District Courts or the courts of equivalent status;
(c) Experts or other professionals with at least fifteen years'
standing;
(d) Institutions which are themselves experts in mediation and
have been recognised as such by the High Court, provided the
names of its members are approved by the High Court initially
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or whenever there is chance in membership.
5. Disqualifications of persons.—The following persons shall be
deemed to be disqualified for being empanelled as mediators:
(i) any person who has been adjudged as insolvent or is declared
of unsound mind, or
(ii) any person against whom criminal charges involving moral
turpitude are framed by a criminal court and are pending, or
(iii) any person who has been convicted by a criminal court for
any offence involving moral turpitude,
(iv) any person against whom disciplinary proceedings or charges
relating to moral turpitude have been initiated by the
appropriate disciplinary authority which are pending or have
resulted in a punishment,
(v) any person who is interested or connected with the subject-
matter of dispute or is related to any one of the parties or to
those who represent them, unless such objection is waived by
all the parties in writing,
(vi) any legal practitioner who has or is appearing for any of the
parties in the suit or in any other suit or proceedings,
(vii) such other categories of persons as may be notified by the
High Court.
6. Venue for conducting mediation.—The mediator shall conduct
the mediation at one or other of the following places:
(i) Venue of the Lok Adalat or permanent Lok Adalal.
(ii) any place specified by the District Judge within the court
precincts for the purpose of conducting mediation.
(iii) any place specified by the Bar Association or State Bar
Council for the purpose of mediation, within the premises of
the Bar Association or State Bar Council, as the case may be.
(iv) any other place as may be agreed upon by the parties subject
to the approval of the Court.
7. Preference.—The Court shall, while nominating any person from
the panel of mediators referred to in Rule 3, consider his suitability for
resolving the particular class of dispute involved in the suit and shall
give preference to those who have proven-record of successful
mediation or who have special qualification or experience in mediation.
8. Duty of mediator to disclose certain facts.—(a) When a
person is approached in connection with his possible appointment as a
mediator, the person shall disclose in writing to the parties any
circumstances likely to give rise to a justifiable doubt as to his
independence or impartiality.
(b) Every mediator shall, from the time of his appointment and
throughout the continuance of the mediation proceedings, without
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delay, disclose to the parties in writing about the existence of any of
the circumstances referred to in clause (a).
9. Cancellation of appointment.—Upon information furnished by
the mediator under Rule 8 or upon any other information received from
the parties or other persons, if the Court, in which the suit is filed, is
satisfied after conducting such inquiry, as it deems fit, and after giving
a hearing to the mediator, that the said information has raised a
justifiable doubt as to the mediator's independence or impartiality, it
shall cancel the appointment by a reasoned order and replace him by
another mediator.
10. Removal or deletion from panel.—A person, whose, name is
placed in the panel referred to in Rule 3, may be removed or his name
may be deleted from the said panel, by the Court which empanelled
him, if:
(i) he resigns or withdraws his name from the panel for any
reason; or
(ii) he is declared insolvent or is declared of unsound mind; or
(iii) he is a person against whom criminal charges involving moral
turpitude are framed by a criminal court and are pending; or
(iv) he is a person who has been convicted by a criminal court for
any offence involving moral turpitude; or
(v) he is a person against whom disciplinary proceedings on
charges relating to moral turpitude have been initiated by the
appropriate disciplinary authority which are pending or have
resulted in a punishment; or
(vi) he exhibits or displays conduct, during the continuance of the
mediation proceedings, which is unbecoming of a mediator; or
(vii) the Court which empanelled, upon receipt of information, if it
is satisfied, after conducting such inquiry as it deems fit, is of
the view that it is not possible or desirable to continue the
name of that person in the panel:
Provided that, before removing or deleting his name, under clauses
(vi) and (vii), the Court shall hear the mediator whose name is
proposed to be removed or deleted from the panel and shall pass a
reasoned order.
11. Procedure of mediation.—(a) The parties may agree on the
procedure to be followed by the mediator in the conduct of the
mediation proceedings.
(b) Where the parties do not agree on any particular procedure to be
followed by the mediator, the mediator shall follow the procedure
hereinafter mentioned, namely:
(i) he shall fix, in consultation with the parties, a time-schedule,
the dates and the time of each mediation-session, where all
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parties have to be present;
(ii) he shall hold the mediation-conference in accordance with the
provisions of Rule 6;
(iii) he may conduct joint or separate meetings with the parties;
(iv) each party shall, ten days before a session, provide to the
mediator a brief note setting forth the issues, which according
to it, need to be resolved, and its position in respect to those
issues and all information reasonably required for the mediator
to understand the issue; such memoranda shall also be
mutually exchanged between the parties;
(v) each party shall furnish to the mediator, copies of pleadings or
documents or such other information as may be required by
him in connection with the issues to be resolved:
Provided that where the mediator is of the opinion that he
should look into any original document, the Court may permit
him to look into the original document before such officer of the
Court and on such date or time as the Court may fix;
(vi) each party shall furnish to the mediator such other
information as may be required by him in connection with the
issues to be resolved.
(c) Where there is more than one mediator, the mediator nominated
by each party shall first confer with the party that nominated him and
shall thereafter interact with the other mediators, with a view to
resolving the disputes.
12. Mediator not bound by the Evidence Act, 1872 or the Code
of Civil Procedure, 1908.—The mediator shall not be bound by the
Code of Civil Procedure, 1908 of the Evidence Act, 1872, but shall be
guided by the principles of fairness and justice, having regard to the
rights and obligations of the parties, usages of trade, if any, and the
nature of the dispute.
13. Non-attendance of parties at sessions or meetings on due
dates.—(a) The parties shall be present personally or may be
represented by their counsel or power-of-attorney holders at the
meetings or sessions notified by the mediator.
(b) If a party fails to attend a session or a meeting notified by the
mediator, other parties or the mediator can apply to the Court in which
the suit is filed, to issue appropriate directions to that party to attend
before the mediator and if the Court finds that a party is absenting
himself before the mediator without sufficient reason, the Court may
take action against the said party by imposition of costs.
(c) The parties not resident in India may be represented by their
counsel or power-of-attorney holders at the sessions or meetings.
14. Administrative assistance.—In order to facilitate the conduct
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of mediation proceedings, the parties, or the mediator with the consent
of the parties, may arrange for administrative assistance by a suitable
institution or person.
15. Offer of settlement by parties.—Any party to the suit may,
“without prejudice”, offer a settlement to the other party at any stage
of the proceedings, with notice to the mediator.
16. Role of the mediator.—The mediator shall attempt to facilitate
voluntary resolution of the dispute by the parties, and communicate the
view of each party to the other, assist them in identifying issues,
reducing misunderstandings, clarifying priorities, exploring areas of
compromise and generating options in an attempt to solve the dispute,
emphasising that it is the responsibility of the parties to take decisions
which affect them; he shall not impose any terms of settlement on the
parties.
17. Parties alone responsible for taking decision.—The parties
must understand that the mediator only facilitates in arriving at a
decision to resolve disputes and that he will not and cannot impose any
settlement nor does the mediator give any warranty that the mediation
will result in a settlement. The mediator shall not impose any decision
on the parties.
18. Time-limit for completion of mediation.—On the expiry of
sixty days from the date fixed for the first appearance of the parties
before the mediator, the mediation shall stand terminated, unless the
Court, which referred the matter, either suo motu, or upon request by
the mediator or any of the parties, and upon hearing all the parties, is
of the view that extension of time is necessary or may be useful; but
such extension shall not be beyond a further period of thirty days.
19. Parties to act in good faith.—While no one can be compelled
to commit to settle his case in advance of mediation, all parties shall
commit to participate in the proceedings in good faith with the
intention to settle the dispute, if possible.
20. Confidentiality, disclosure and inadmissibility of
information.—(1) When a mediator receives confidential information
concerning the dispute from any party, he shall disclose the substance
of that information to the other party, if permitted in writing by the first
party.
(2) When a party gives information to the mediator subject to a
specific condition that it should be kept confidential, the mediator shall
not disclose that information to the other party, nor shall the mediator
voluntarily divulge any information regarding any document or what is
conveyed to him orally or as to what transpired during the mediation.
(3) Receipts or perusal, or preparation of records, reports or other
documents by the mediator, or receipt of information orally by the
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mediator while serving in that capacity, shall be confidential and the
mediator shall not be compelled to divulge any information regarding
the documents nor in regard to the oral information nor as to what
transpired during the mediation.
(4) Parties shall maintain confidentiality in respect of the events that
transpired during mediation and shall not rely on or introduce the said
information in any other proceedings as to:
(a) views expressed by a party in the course of the mediation
proceedings;
(b) documents obtained during the mediation which were
expressly required to be treated as confidential or other notes,
drafts or information given by the parties or the mediators;
(c) proposals made or views expressed by the mediator;
(d) admission made by a party in course of the mediation
proceedings;
(e) the fact that a party had or had not indicated willingness to
accept a proposal.
(5) There shall be no stenographic or audio or video recording of the
mediation proceedings.
21. Privacy.—Mediation sessions and meetings are private; only the
parties or their counsel or power-of-attomey holders concerned can
attend. Other persons may attend only with the permission of the
parties and with the consent of the mediator.
22. Immunity.—No mediator shall be held liable for anything bona
fide done or omitted to be done by him during the mediation
proceedings for civil or criminal action nor shall he be summoned by
any party to the suit to appear in a court of law to testify in regard to
any information received by him or action taken by him or in respect of
drafts or records prepared by him or shown to him during the mediation
proceedings.
23. Communication between mediator and the Court.—(a) In
order to preserve the confidence of parties in the Court and the
neutrality of the mediator, there should be no communication between
the mediator and the Court, except as stated in clauses (b) and (c) of
this Rule.
(b) If any communication between the mediator and the Court is
necessary, it shall be in writing and the copies of the same shall be
given to the parties or their counsel or the constituted attorney
representing such party.
(c) Communication between the mediator and the Court shall be
restricted to the following matters:
(i) about the failure of the party to attend;
(ii) regarding the assessment of the mediator that the case is not
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suited for settlement through mediation;
(iii) the information that the parties have settled the dispute or
disputes;
(iv) such other matters as the parties may agree in writing as
provided in clause (b) above.
24. Settlement agreement.—(1) Where an agreement is reached
between the parties in regard to all the issues in the suit or some of the
issues, the same shall be reduced to writing and signed by the parties
or their constituted attorney representing them. If any counsel have
represented the parties, they shall attest the signature of their
respective clients.
(2) The agreement of the parties so signed and attested shall be
submitted to the mediator who shall, with a covering letter signed by
him, forward the same to the Court in which the suit is pending.
(3) Where no agreement is arrived at between the parties before the
time-limit stated in Rule 18 or where, the mediator is of the view that
no settlement is possible, he shall report the same to the said court in
writing.
25. Court to fix a date for recording settlement and passing
decree.—(1) Within seven days of the receipt of any settlement, the
Court shall issue notice to the parties fixing a day for recording the
settlement, such date not being beyond a further period of fourteen
days from the date of receipt of settlement, and the Court shall record
the settlement, if it is not illegal or opposed to public policy or
collusive.
(2) The Court shall then pass a decree in accordance with the
settlement so recorded, if the settlement disposes of all the issues in
the suit.
(3) If the settlement disposes of only certain issues arising in the
suit, the Court shall record the settlement on the date fixed for
recording the settlement; and
(i) If the issues are severable from the other issues and if a decree
could be passed to the extent of the settlement covered by those
issues, the Court may pass a decree straightaway in accordance with
the settlement on those issues without waiting for a decision of the
Court on the other issues which are not settled.
(ii) If the issues are not severable, the Court shall wait for a decision
of the Court on the other issues which are not settled.
26. Fees of the mediator and costs.—(1) At the time of referring
the disputes to mediation, the Court shall, after consulting the mediator
and the parties, fix the fees of the mediator.
(2) As far as possible a consolidated sum may be fixed rather than
for each session or meeting.
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(3) Where there are two mediators as in clause (b) of Rule 2, the
Court shall fix the fees payable to the mediators which shall be shared
equally by the two sets of parties.
(4) The expenses of the mediation including the fees of the
mediator, costs of administrative assistance, and other ancillary
expenses concerned, shall be borne equally by the various contesting
parties or as may be otherwise directed by the Court.
(5) Each party shall bear the costs for production of witnesses on his
side including that of experts, or for production of documents.
(6) The mediator may, before the commencement of the mediation,
direct the parties to deposit equal sums, tentatively, to the extent of
30% of the probable costs of the mediation, as referred to in clauses
(1), (3) and (4). The remaining 70% shall be deposited with the
mediator, after the conclusion of mediation. For the amount of costs
paid to the mediator, he shall issue the necessary receipts and a
statement of account shall be filed by the mediator in the Court.
(7) In the event the expenses of the mediation including the fees are
not paid by the parties, the Court shall, on the application of the
mediator or the parties, direct the parties concerned to pay, and if they
do not pay, the Court shall recover the said amount as if there was a
decree for the said amount.
(8) Where a party is, entitled to the legal aid under Section 12 of the
Legal Services Authorities Act, 1987, the amount of the fees payable to
the mediator and costs shall be paid by the Legal Services Authority
concerned under that Act.
27. Ethics to be followed by the mediator.—The mediator shall:
(1) follow and observe these rules strictly and with due diligence;
(2) not carry on any activity or conduct which could reasonably be
considered as conduct unbecoming of a mediator;
(3) uphold the integrity and fairness of the mediation process;
(4) ensure that the parties involved in the mediation are fairly
informed and have an adequate understanding of the
procedural aspects of the process;
(5) satisfy himself/herself that he/she is qualified to undertake
and complete the assignment in a professional manner;
(6) disclose any interest or relationship likely to affect impartiality
or which might seek an appearance of partiality or bias;
(7) avoid, while communicating with the parties, any impropriety
or appearance of impropriety;
(8) be faithful to the relationship of trust and confidentiality
reposed in the office of the mediator;
(9) conduct all proceedings related to the resolutions of a dispute
in accordance with the applicable law;
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(10) recognise that the mediation is based on the principle of self-
determination by the parties and that the mediation process
relies upon the ability of the parties to reach a voluntary,
undisclosed agreement;
(11) maintain the reasonable expectations of the parties as to
confidentiality;
(12) refrain from promises or guarantees of results.
28. Transitory provisions.—Until a panel of the mediators is
prepared by the High Court and the District Court, the Courts referred
to in Rule 3, may nominate a mediator of their choice if the mediator
belongs to the various classes of persons referred to in Rule 4 and is
duly qualified and is not disqualified, taking into account the suitability
of the mediator for resolving the particular dispute.
Note.—They shall apply to all civil courts throughout the territories
in relation to which, the High Court, Calcutta, exercises its jurisdiction,
w.e.f. 7-12-2006.
Special Case
90. Power to state case for opinion of Court.—Where any persons
agree in writing to state a case for the opinion of the Court, then the
Court shall try and determine the same in the manner prescribed.
192
[Public nuisances and other wrongful acts affecting the public]
91. Public nuisances and other wrongful acts affecting the public.—
193
[(1) In the case of a public nuisance or other wrongful act affecting,
or likely to affect, the public, a suit for a declaration and injunction or
for such other relief as may be appropriate in the circumstances of the
case, may be instituted,—
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or more persons, even
though no special damage has been caused to such persons by
reason of such public nuisance or other wrongful act.]
(2) Nothing in this section shall be deemed to limit or otherwise
affect any right of suit which may exist independently of its provisions.
► Nature and scope.—Section 91(1) of the CPC is not exhaustive of the
remedies that are available to a party even in case of a public nuisance or other
wrongful act affecting or likely to affect the public, Dilip Kaushal v. State of M.P.,
2008 SCC OnLine MP 260 : AIR 2008 MP 324, 327 (FB).
194
92. Public charities.—(1) In the case of any alleged breach of any
express or constructive trust created for public purposes of a charitable
or religious nature, or where the direction of the Court is deemed
necessary for the administration of any such trust, the Advocate-
General, or two or more persons having an interest in the trust and
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having obtained the 195[leave of the Court,] may institute a suit,
whether contentious or not, in the principal Civil Court of original
jurisdiction or in any other Court empowered in that behalf by the State
Government within the local limits of whose jurisdiction the whole or
any part of the subject-matter of the trust is situate to obtain a
decree—
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
196
[(cc) directing a trustee who has been removed or a person
who has ceased to be a trustee, to deliver possession of any
trust property in his possession to the person entitled to the
possession of such property;]
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the
interest therein shall be allocated to any particular object of the
trust;
(f) authorising the whole or any part of the trust property to be
let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case
may require.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of
197 198
1863), [or by any corresponding law in force in [the territories
which, immediately before the 1st November, 1956, were comprised in
Part B States]], no suit claiming any of the reliefs specified in sub-
section (1) shall be instituted in respect of any such trust as is therein
referred to except in conformity with the provisions of that sub-section.
199
[(3) The Court may alter the original purposes of an express or
constructive trust created for public purposes of a charitable or religious
nature and allow the property or income of such trust or any portion
thereof to be applied cypres in one or more of the following
circumstances, namely:—
(a) where the original purposes of the trust, in whole or in part,—
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out
according to the directions given in the instrument creating
the trust or, where there is no such instrument, according to
the spirit of the trust; or
(b) where the original purposes of the trust provide a use for a
part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other
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property applicable for similar purposes can be more effectively
used in conjunction with, and to that end can suitably be made
applicable to any other purpose, regard being had to the spirit
of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid
down by reference to an area which then was, but has since
ceased to be, a unit for such purposes; or
(e) where the original purposes, in whole or in part, have, since
they were laid down,—
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective
method of using the property available by virtue of the trust,
regard being had to the spirit of the trust.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Section 92, in sub-section (1), after clause (b) the following shall be
added as a new clause (bb):—
“(bb) for delivery of possession of any trust property against a
person who has ceased to be trustee or has been removed.” [Vide
U.P. Act 24 of 1954, Section 2 and Schedule, Item 5, Entry 5 (w.e.f.
30-11-1954)].
► Cause of action.—Any action which according to members of a trust is
illegal can be subject-matter of challenge before appropriate forum, Appaji Gowda
v. Vokkaligara Sangha, (2009) 17 SCC 99 : (2011) 2 SCC (Civ) 112.
► Applicability.—Section 92 applies when relief(s) claimed under Section 92
(1) is in representative capacity for vindication of public rights, Vidyodaya Trust v.
Mohan Prasad R, (2008) 4 SCC 115, See also Swami Shivshankargiri Chella
Swami v. Satya Gyan Niketan, (2017) 4 SCC 771.
Section 92 applies only when a public trust is created, Kuldip Chand v.
Advocate General to Govt. of H.P., (2003) 5 SCC 46.
► Representative suit.—A suit under Section 92 CPC is a representative
suit and as such binds not only the parties named in the suit title but all those who
share common interest and are interested in the trust. It is for that reason that
Explanation VI to Section 11 CPC constructively bars by res judicata the entire
body of interested persons from reagitating the matters directly and substantially
in issue in an earlier suit under Section 92 CPC, Shiromani Gurdwara
Parbandhak Committee v. Mahant Harnam Singh C., (2003) 11 SCC 377.
While deciding on a scheme for administration in a representative suit filed
under Section 92, court may, if title is contested, have to decide if property in
respect of which scheme of administration and management is sought, belongs to
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trust, Jamia Masjid v. K.V. Rudrappa, (2022) 9 SCC 225.
► Applicability of prescribed procedure.—Section 92 contemplates: (i) a
suit against a trust either for removing any trustee; (ii) appointing new trustee; or
(iii) vesting any property in a trustee, etc. It confers right on a person in case of
any alleged breach of any express or constructive trust created for a public
purpose of a charitable or religious nature, Ghat Talab Kaulan Wala v. Gopal
Dass, (2020) 13 SCC 50.
► Leave to institute suit.—Three conditions are required to be satisfied in
order to invoke Section 92 and to maintain an action under Section 92 namely: (i)
the Trust in question is created for public purposes of a charitable or religious
nature; (ii) there is a breach of trust or a direction of court is necessary in the
administration of such a Trust; and (iii) the relief claimed is one or other of the
reliefs as enumerated in Section 92, Ashok Kumar Gupta v. Sitalaxmi Sahuwala
Medical Trust, (2020) 4 SCC 321.
There is precondition for grant of leave of court to institute suit alleging breach
of trust, that plaint must be annexed with application. It is the duty of court to
ensure that precondition is complied with. In absence of plaint, leave cannot be
granted by court, Swami Shivshankargiri Chella Swami v. Satya Gyan Niketan,
(2017) 4 SCC 771.
► Maintainability.—A suit will lie under Section 92 where two or more
persons having interest in trust make out a case of alleged breach of any trust
created for public purposes or for directions of court for administration of trust, T.
Varghese George v. Kora K. George, (2012) 1 SCC 369 : (2012) 1 SCC (Civ)
238.
► Appeal.—Appeal would be maintainable at instance of executive member of
a trust, Appaji Gowda v. Vokkaligara Sangha, (2009) 17 SCC 99 : (2011) 2 SCC
(Civ) 112.
► Necessary and proper parties.—In suit relating to management of trust
and properties of trust, trust concerned is not only a proper party but also
necessary party, Sudhir G. Angur v. M. Sanjeev, (2006) 1 SCC 141.
► Ambit of suit filed under the section.—Trustees of a trust are entitled to a
wide discretion in administration of trust. A disagreement with exercise of
discretion by trustees, however passionate said disagreement might be, does not
necessarily lead to a conclusion of maladministration in relation to trust, unless the
exercise of discretion is perverse, Aurobindo Ashram Trust v. R. Ramanathan,
(2016) 6 SCC 126 : (2016) 3 SCC (Civ) 82.
93. Exercise of powers of Advocate-General outside presidency-
towns.—The powers conferred by Sections 91 and 92 on the Advocate-
General may, outside the presidency-towns, be, with the previous
sanction of the State Government, exercised also by the Collector or by
such officer as the State Government may appoint in this behalf.
Part VI
Supplemental Proceedings
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94. Supplemental proceedings.—In order to prevent the ends of
justice from being defeated the Court may, if it is so prescribed,—
(a) issue a warrant to arrest the defendant and bring him before
the Court to show cause why he should not give security for his
appearance, and if he fails to comply with any order for security
commit him to the civil prison;
(b) direct the defendant to furnish security to produce any
property belonging to him and to place the same at the
disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience
commit the person guilty thereof to the civil prison and order
that his property be attached and sold;
(d) appoint a receiver of any property and enforce the
performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the
Court to be just and convenient.
High Court Amendment
CALCUTTA.—Add proviso—
Provided that the Court of Small Causes of Calcutta shall have no
power to order attachment of immovable property or to appoint a
receiver of such property. Cal Gaz. Pt. I, dt. 20-4-1967.
► Interim relief.—So far as the Indian law is concerned, the source of a
court's power to grant interim relief is traceable to Section 94 and in exceptional
cases Section 151 CPC, Bharat Aluminium Co. v. Kaiser Aluminium Technical
Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810.
► Exercise of power.—Moulding of relief can at best be resorted to at the
time of consideration of final relief in the main suit and not at an interlocutory
stage. There is marked distinction between moulding of relief and grant of
mandatory injunction at interlocutory stage, Samir Narain Bhojwani v. Aurora
Properties & Investments, (2018) 17 SCC 203.
95. Compensation for obtaining arrest, attachment or injunction on
insufficient grounds.—(1) Where, in any suit in which an arrest or
attachment has been effected or a temporary injunction granted under
the last preceding section,—
(a) it appears to the Court that such arrest, attachment or
injunction was applied for on insufficient grounds, or
(b) the suit of the plaintiff fails and it appears to the Court that
there was no reasonable or probable ground for instituting the
same,
the defendant may apply to the Court, and the Court may, upon such
application, award against the plaintiff by its order such amount, not
200
exceeding [fifty] thousand rupees, as it deems a reasonable
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201
compensation to the defendant for the [expense or injury (including
injury to reputation) caused to him]:
Provided that a Court shall not award, under this section, an amount
exceeding the limits of its pecuniary jurisdiction.
(2) An order determining any such application shall bar any suit for
compensation in respect of such arrest, attachment or injunction.
For Section 1 to 78 click here
For Section 96 to 131 click here
For Section 132 to 158 click here
For Schedule 1 (Order 1 to 10) click here
For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 1 (Order 41 to 51) click here
For Schedule 2 to 5 click here
———
152.
Subs. by the A.O. 1948.
153.
Subs. for “the Dominion of India” by the A.O. 1950 (w.e.f. 26-1-1950).
154.
Section 80 renumbered as Section 80(1) by Act 104 of 1976, S. 27 (w.e.f. 1-2-1977).
155.
Subs. for “No suit shall be instituted”by Act 104 of 1976, S. 27 (w.e.f. 1-2-1977).
156.
Subs. by the A.O. 1937. Prior to substitution it read as:
“in the case of the Secretary of State in Council, delivered to, or left at the office of a
Secretary to the L.G. or the Collector of the District”
157.
Ins. by Act 6 of 1948, S. 2.
158.
Ins. as clause (aa) by Act 6 of 1948, S. 2.
159.
Clause (aa) relettered as clause (b) by the A.O. 1948.
160.
Former clause (b) omitted by A.O. 1948. Prior to omission it read as:
“(b) in the case of a suit against the Crown Representative, the Political Secretary;”
161.
Ins. by Act 26 of 1963, S. 3 (w.e.f. 5-6-1964).
162.
Subs. for “a State Government” by Act 26 of 1963, S. 3 (w.e.f. 5-6-1964).
163.
The word “and” omitted by the A.O. 1948.
164.
Omitted by A.O. 1948. Prior to omission it read as:
“(d) in the case of a suit against the Secretary of State, a Secretary to the Central
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Government, the Political Secretary and a Secretary to the Provincial Government of the
Province where the suit is instituted,”
165.
Ins. by Act 104 of 1976, S. 27 (w.e.f. 1-2-1977).
166.
Subs. by Act 104 of 1976, S. 28(i) (w.e.f. 1-2-1977).
167.
Subs. for “such report” by Act 104 of 1976, S. 28(ii) (w.e.f. 1-2-1977).
168.
Ins. by Act 32 of 1949, S. 2.
169.
Subs. for “Dominion of India” by the A.O. 1950 (w.e.f. 26-1-1950).
170.
Subs. by Act 2 of 1951, S. 12 (w.e.f. 1-4-1951).
171.
The words “Ruler of a” omitted by Act 104 of 1976, S. 29(i)(a) (w.e.f. 1-2-1977).
172.
Subs. for “a Ruler” by Act 104 of 1976, S. 29(i)(b) (w.e.f. 1-2-1977).
173.
Subs. for “the Ruler” by Act 104 of 1976, S. 29(ii)(a) (w.e.f. 1-2-1977).
174.
Subs. for “the Ruler” by Act 104 of 1976, S. 29(ii)(a) (w.e.f. 1-2-1977).
175.
Subs. for “him” by Act 104 of 1976, S. 29(ii)(b) (w.e.f. 1-2-1977).
176.
Subs. for “himself” by Act 104 of 1976, S. 29(ii)(c ) (w.e.f. 1-2-1977).
177.
Subs. for “him” by Act 104 of 1976, S. 29(ii)(d) (w.e.f. 1-2-1977).
178.
Subs. by Act 104 of 1976, S. 29(iii) (w.e.f. 1-2-1977).
179.
Ins. by Act 104 of 1976, S. 29(iv)(a) (w.e.f. 1-2-1977).
180.
Clause (a) relettered as clause (aa) by Act 104 of 1976, S. 29(iv)(a) (w.e.f. 1-2-1977).
181.
Subs. by Act 104 of 1976, S. 29(iv)(b) (w.e.f. 1-2-1977).
182.
Subs. by Act 104 of 1976, S. 29(iv)(c ) (w.e.f. 1-2-1977).
183.
Ins. by Act 104 of 1976, S. 29(v) (w.e.f. 1-2-1977).
184.
Ins. by Act 2 of 1951, S. 12 (w.e.f. 1-4-1951).
185.
Ins. by Act 2 of 1951, S. 12 (w.e.f. 1-4-1951).
186.
Subs. by Act 54 of 1972, S. 3 (w.e.f. 9-9-1972).
187.
The word “and” omitted by Act 54 of 1972, S. 3 (w.e.f. 9-9-1972).
188.
Subs. by Act 54 of 1972, S. 3 (w.e.f. 9-9-1972).
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189.
Sub-heading “Arbitration” omitted by Act 32 of 2023, S. 59 and Sch. IV(i) (w.e.f. the
date to be notified).
190
Subs. by Act 32 of 2023, S. 59 and Sch. IV(ii) (w.e.f. the date to be notified). Prior to
substitution it read as:
“89. Settlement of disputes outside the Court.—(1) Where it appears to the court that
there exist elements of a settlement which may be acceptable to the parties, the Court
shall formulate the terms of settlement and give them to the parties for their observations
and after receiving the observations of the parties, the court may reformulate the terms
of a possible settlement and refer the same for—
(a) arbitration;
(b) conciliation;
(c ) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred—
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were
referred for settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the
provisions of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987
(39 of 1987) and all other provisions of that Act shall apply in respect of the dispute
so referred to the Lok Adalat;
(c ) for judicial settlement, the Court shall refer the same to a suitable institution or
person and such institution or person shall be deemed to be a Lok Adalat and all the
provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the
dispute were referred to a Lok Adalat under the provisions of that Act;
(d) for mediation, the Court shall effect a compromise between the parties and shall
follow such procedure as may be prescribed.”
191.
Published in the Kolkata Gazette, Extra., Pt. I, dt. 7-12-2006 (w.e.f. 7-12-2006).
192.
Subs. by Act 104 of 1976, S. 30 (w.e.f. 1-2-1977).
193.
Subs. by Act 104 of 1976, S. 30 (w.e.f. 1-2-1977).
194.
Not applicable to any religious trust in Bihar, see Bihar Act 1 of 1951.
195.
Subs. for “consent in writing of the Advocate-General” by Act 104 of 1976, S. 31 (w.e.f.
1-2-1977).
196.
Ins. by Act 66 of 1956, S. 9 (w.e.f. 1-1-1957).
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197.
Ins. by Act 2 of 1951, S. 13 (w.e.f. 1-4-1951).
198.
Subs. for “a Part B State” by the A.O. (No. 2) Order, 1956.
199.
Ins. by Act 104 of 1976, S. 31 (w.e.f. 1-2-1977).
200.
Subs. for “one” by Act 46 of 1999, S. 8 (w.e.f. 1-7-2002).
201.
Subs. for “expense or injury caused to him” by Act 104 of 1976, S. 32 (w.e.f. 1-2-1977).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Section 96 to 131)
CONTENTS
Section 1 to 78
Section 79 to 95
PART VII
APPEALS
Appeals from Original Decrees
96. Appeal from original decree
97. Appeal from final decree where no appeal from preliminary
decree
98. Decision where appeal heard by two or more Judges
99. No decree to be reversed or modified for error or irregularity
not affecting merits or jurisdiction
99-A. No order under Section 47 to be reversed or modified unless
decision of the case is prejudically affected
Appeals from Appellate Decrees
100. Second appeal
100-A. No further appeal in certain cases
101. Second appeal on no other grounds
102. No second appeal in certain cases
103. Power of High Court to determine issues of fact
Appeals from Orders
104. Orders from which appeal lies
105. Other orders
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106. What Courts to hear appeals
General Provisions relating to Appeals
107. Powers of Appellate Court
108. Procedure in appeals from appellate decrees and orders
Appeals to the Supreme Court
109. When appeals lie to the Supreme Court
110. Value of subject-matter
111. Bar of certain appeals
111-A. Appeals to Federal Court
112. Savings
PART VIII
REFERENCE, REVIEW AND REVISION
113. Reference to High Court
114. Review
115. Revision
PART IX
SPECIAL PROVISIONS RELATING TO THE HIGH COURTS NOT BEING THE COURT OF
A JUDICIAL COMMISSIONER
116. Part to apply only to certain High Courts
117. Application of Code to High Courts
118. Execution of decree before ascertainment of costs
119. Unauthorized persons not to address Court
120. Provisions not applicable to High Court in original civil
jurisdiction
PART X
RULES
121. Effect of rules in First Schedule
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122. Power of certain High Courts to make rules
123. Constitution of Rule Committees in certain States
124. Committee to report to High Court
125. Power of other High Courts to make rules
126. Rules to be subject to approval
127. Publication of rules
128. Matters for which rules may provide
129. Power of High Courts to make rules as to their original civil
procedure
130. Power of other High Courts to make rules as to matters other
than procedure
131. Publication of rules
Section 132 to 158
Schedule 1 (Order 1 to 10)
Schedule 1 (Order 11 to 20)
Schedule 1 (Order 21 to 30)
Schedule 1 (Order 31 to 40)
Schedule 1 (Order 41 to 51)
Schedule 2 to 5
———
Part VII
Appeals
Appeals from Original Decrees
96. Appeal from original decree.—(1) Save where otherwise
expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie from every decree passed by any
Court exercising original jurisdiction to the Court authorised to hear
appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the
consent of parties.
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202
[(4) No appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognizable by Courts of Small Causes,
when the amount or value of the subject-matter of the original suit
203
does not exceed [ten] thousand rupees.]
► Nature and maintainability.—An appeal cannot be filed in anticipation.
The doctrine of eclipse has no application in a case of this nature. An appeal
preferred in terms of Section 96 CPC must conform to the requirements contained
in Order 41 thereof, Rekha Mukherjee v. Ashish Kumar Das, (2005) 3 SCC 427.
Court of first appeal can reappreciate the entire evidence and come to a
different conclusion from trial court, Jagannath v. Arulappa, (2005) 12 SCC 303.
Filing of appeal would not amount to automatic stay of execution of decree,
Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461.
An appeal is continuation of the suit and decision taken by appellate court
relates back unless contrary intention is shown, Inderchand Jain v. Motilal, (2009)
14 SCC 663 : (2009) 5 SCC (Civ) 461.
A decree passed by an appellate court would be construed to be a decree
passed by the Court of the first instance. An appeal is virtually a rehearing of the
matter. The appellate court possesses the same powers and duties as the original
Court. Ramankutty v. Avara, (1994) 2 SCC 642.
► Scope of right of first appeal.—A statutory right of appeal conferred on a
suitor cannot be curbed on ground of public policy if the same is not in derogation
of or contrary to any other statutory provision, either expressly or by necessary
implication, Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787.
The bar to an appeal against consent decree in Section 96(3) is based on the
broad principle of estoppel, K.C. Dora v. Guntreddi Annamanaidu, (1974) 1 SCC
567.
► Locus standi to file appeal.—Only a party aggrieved can file the appeal,
Baldev Singh v. Surinder Mohan Sharma, (2003) 1 SCC 34.
Appeal by person who was not a party to the civil suit or in first appeal is not
maintainable when the judgment in appeal is not adverse to any party in the suit,
Lakshmi Sreenivasa Cooperative Building Society Ltd. v. Puvvada Rama, (2018)
9 SCC 251.
Person prejudicially or adversely affected by judgment and decree is entitled to
file appeal. Such person can also file cross-objection which is also one form of
appeal and it takes place of cross-appeal, Pharez John Abraham v. Arul Jothi
Sivasubramaniam K., (2020) 13 SCC 711.
► Proper mode of disposal.—Litigants' right to be heard on facts and law in
first appeal, being a valuable right, first appeal should not be disposed of in limine,
Union of India v. K.V. Lakshman, (2016) 13 SCC 124.
► Powers of Appellate Court.—First appellate court is the final court of
facts. Hence, its judgment must reflect application of mind, Laliteshwar Prasad
Singh v. S.P. Srivastava, (2017) 2 SCC 415.
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► Compromise decree.—Independent suit filed by stranger to compromise
challenging lawfulness of such compromise decree is not maintainable of separate
suit. Person questioning lawfulness of compromise must approach the same court
which recorded compromise, Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC
629.
► Challenge to compromise decree.—Challenge to compromise decree is
not permissible except on ground of fraud. Such challenge can be by way of fresh
suit, or review petition, Ved Pal v. Prem Devi, (2018) 9 SCC 496.
97. Appeal from final decree where no appeal from preliminary
decree.—Where any party aggrieved by a preliminary decree passed
after the commencement of this Code does not appeal from such
decree, he shall be precluded from disputing its correctness in any
appeal which may be preferred from the final decree.
98. Decision where appeal heard by two or more Judges.—(1) Where
an appeal is heard by a Bench of two or more Judges, the appeal shall
be decided in accordance with the opinion of such Judges or of the
majority (if any) of such Judges.
(2) Where there is no such majority which concurs in a judgment
varying or reversing the decree appealed from, such decree shall be
confirmed:
Provided that where the Bench hearing the appeal is 204[composed of
two or other even number of Judges belonging to a Court consisting of
more Judges than those constituting the Bench], and the Judges
composing the Bench differ in opinion on a point of law, they may state
the point of law upon which they differ and the appeal shall then be
heard upon that point only by one or more of the other Judges, and
such point shall be decided according to the opinion of the majority (if
any) of the Judges who have heard the appeal, including those who
first heard it.
205
[(3) Nothing in this section shall be deemed to alter or otherwise
affect any provision of the letters patent of any High Court.]
► Object and purpose of Section 98(2).—The benevolent purpose of
Section 98(2), held, is to put an end to litigation by confirming the decree of the
subordinate Court where the Bench is equally, divided and there is no question of
law to be referred to one or more Judges, P.V. Hemalatha v. Kattamkandi
Puthiya Maliackal Saheeda, (2002) 5 SCC 548.
99. No decree to be reversed or modified for error or irregularity not
affecting merits or jurisdiction.—No decree shall be reversed or
substantially varied, nor shall any case be remanded, in appeal on
account of any misjoinder 206[or non-joinder] of parties or causes of
action or any error, defect or irregularity in any proceedings in the suit,
not affecting the merits of the case or the jurisdiction of the Court:
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207
[Provided that nothing in this section shall apply to non-joinder of
a necessary party.]
208
[99-A. No order under Section 47 to be reversed or modified
unless decision of the case is prejudically affected.—Without prejudice
to the generality of the provisions of Section 99, no order under Section
47 shall be reversed or substantially varied, on account of any error,
defect or irregularity in any proceeding relating to such order, unless
such error, defect or irregularity has prejudically affected the decision of
the case.]
Appeals from Appellate Decrees
209
[100. Second appeal.—(1) Save as otherwise expressly provided
in the body of this Code or by any other law for the time being in force,
an appeal shall lie to the High Court from every decree passed in appeal
by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree
passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall
precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the
respondent shall, at the hearing of the appeal, be allowed to argue that
the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take
away or abridge the power of the Court to hear, for reasons to be
recorded, the appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves such question.]
NOTES.—(1) The jurisdiction of Kerala High Court has been extended
to the Union Territory of Lakshadweep Islands—See Act 37 of 1956,
Section 60 (1-11-1956) and 34 of 1973.
(2) Kerala amendment to old S. 100 superseded by Act 104 of 1976
(w.e.f. 1-2-1977) VideAIR 1982 Ker 298.
► General principles, Nature and scope.—The word substantial, as
qualifying “question of law”, means—of having substance, essential, real, of sound
worth, important or considerable. It is to be understood as something in
contradistinction with—technical, of no substance or consequence, or academic
merely. The legislature has chosen not to qualify the scope of “substantial
question of law” by suffixing the words “of general importance” as has been done
in many other provisions such as Section 109 CPC and Article 133(1)(a) of the
Constitution, Gurdev Kaur v. Kaki, (2007) 1 SCC 546.
Framing of substantial question of law at the time of disposal of second appeal
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by High Court and deciding appeal without hearing contesting respondent, not
proper. Under such conditions, recall of judgment under Order 41 Rule 21,
permissible, Surat Singh v. Siri Bhagwan, (2018) 4 SCC 562.
The existence of a substantial question of law is the sine qua non for the
exercise of the jurisdiction under the amended provisions of Section 100 CPC.
The jurisdiction of the High Court is now confined to entertain only such appeals
as involved substantial question of law specifically set out in the memorandum of
appeal and formulated by the High Court, Thiagarajan v. Venugopalaswamy B.
Koil, (2004) 5 SCC 762 : Dharmarajan v. Valliammal, (2008) 2 SCC 741.
A second appeal, or for that matter, any appeal is not a matter of right. The
right of appeal is conferred by statute. A second appeal only lies on a substantial
question of law. If statute confers a limited right of appeal, the court cannot
expand the scope of the appeal, Nazir Mohamed v. J. Kamala, (2020) 19 SCC
57.
► Applicability of Section 100(5) proviso.—Proviso is operative only in
exceptional cases and for strong and convincing reasons, Mehboob-Ur-Rehman
v. Ahsanul Ghani, (2019) 19 SCC 415, See also Gian Dass v. Gram Panchayat,
Village Sunner Kalan, (2006) 6 SCC 271.
► Findings of Fact, High Court's Interference.—High Court can interfere
with findings of fact when findings recorded by courts below are found to be
perverse. Re-appreciation of evidence is permissible in exceptional
circumstances, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC 158 : (2011) 1
SCC (Civ) 63.
When lower courts have concurrently erred in not appreciating oral and
documentary evidence properly, High Court was at liberty to reappreciate
evidence and record its own conclusion reversing orders passed by lower courts,
Ramlal v. Phagua, (2006) 1 SCC 168.
Where perversity in findings of first appellate court, was only substantial
question of law framed and pressed before High Court. Weighty evidence as
rightly appreciated by trial court was also ignored by first appellate court. It was
held that High Court was well within its jurisdiction under Section 100 CPC in
restoring decree of eviction passed by trial court, Fateh Singh v. Hari Chand,
(2017) 5 SCC 175.
Judgment and decree passed by High Court in second appeal allowing the
claim of plaintiff by reversing the concurrent judgments and decrees of courts
below without adverting to finding of trial court or setting aside reasoning given by
trial court, was not proper, hence, set aside, Arulmigu Chokkanatha Swamy Koil
Trust v. Chandran, (2017) 3 SCC 702.
► Findings of fact.—Interference with findings of fact, and reappreciation of
evidence in second appeal, not permissible, in the absence of material
irregularities/perversity, Ramathal v. Maruthathal, (2018) 18 SCC 303.
► New case.—No amount of evidence can be looked into, upon a plea which
was never put forward in the pleadings. A question which did arise from the
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pleadings and which was not the subject-matter of an issue, cannot be decided by
the court. A court cannot make out a case not pleaded, Bachhaj Nahar v. Nilima
Mandal, (2008) 17 SCC 491 : (2009) 5 SCC (Civ) 927.
► Substantial question of law.—Disposal of second appeal without
formulating substantial question of law is impermissible, Bokka Subba Rao v.
Kukkala Balakrishna, (2008) 3 SCC 99 : (2008) 1 SCC (Civ) 786.
Questions relating to admissibility and contents of unregistered partition deed
are substantial questions of law, Uma Pandey v. Munna Pandey, (2018) 5 SCC
376.
Deciding the second appeal on substantial questions of law formulated in the
judgment alone and which questions were not framed at admission stage, does not
meet the requirements of Section 100(5) proviso, Vijay Arjun Bhagat v. Nana
Laxman Tapkire, (2018) 6 SCC 727.
Substantial questions of law should be considered in light of contentions and
answered with reference to questions raised therein giving reasons therefore. If
High Court considers that the substantial questions require modification, alteration
or deletion it can do so after providing a hearing. High Court cannot merely make
a brief reference to the substantial questions of law and dispose of the same
without answering them, Gajaraba Bhikhubha Vadher v. Sumara Umar Amad,
(2020) 11 SCC 114.
Mere error in framing a question of law would not render a judgment in second
appeal liable to be set aside, if it is found that a substantial question of law existed
and such substantial question of law has in fact been answered by High Court,
Illoth Valappil Ambunhi v. Kunhambu Karanavan, (2020) 18 SCC 317.
► Substantial question of law, question of law and question of fact.—To
be ‘substantial’, a question of law must be debatable, not previously settled, and
must have a material bearing on the decision of the case and/or the rights of the
parties before it, if answered either way. To be a question of law ‘involved in the
case’, there must be first, a foundation for it laid in the pleadings, and the question
should emerge from the sustainable findings of fact, arrived at by courts of facts,
and it must be necessary to decide that question of law for a just and proper
decision of the case. Whether a question of law is a substantial one and whether
such question is involved in the case or not, would depend on the facts and
circumstances of each case, Nazir Mohamed v. J. Kamala, (2020) 19 SCC 57.
► Manner of Disposal.—Framing of substantial question of law is not
required, if appeal was dismissed at admission stage, Hari Narayan Bansal v.
Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Palam, (2015) 16 SCC 540.
The cursory disposal of the second appeal in limine by the High Court without
mentioning the facts, the submissions of the appellant, the points arising in
appeals and legal principles applicable to the case, cannot be countenanced,
Bismillah Be v. Majeed Shah, (2017) 2 SCC 274.
Disposal of second appeal by High Court, with a view to meet the ends of
justice and avoid any further litigation between the parties concerned, without
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dealing with all substantial questions of law framed by it, proper, Poonnamma
Jagadamma v. Narayanan Nair, (2017) 6 SCC 778.
► Interim Order/Interim Relief.—No interim order/interim relief can be
granted, unless second appeal is duly admitted upon formulation of substantial
question(s) of law, Raghavendra Swamy Mutt v. Uttaradi Mutt, (2016) 11 SCC
235 : (2016) 4 SCC (Civ) 645.
► Second appea1/Letters patent appeal — Essential ingredients.—
Essential ingredients of judgment in second appea1/letters patent appeal are: (i)
factual narration of case as set up by parties; (ii) findings of two lower courts as to
how they dealt with issues arising in their respective jurisdiction; (iii) arguments
advanced by parties in light of applicable legal principles; (iv) discussion,
appreciation, reasons and categorical findings on issues as to why findings of two
lower courts be upheld or reversed; (v) application of judicial mind; and (vi)
passing of reasoned order as parties must know as to why one of them won and
other lost. In absence of these principles, exercise of power is contrary to Order
41 Rule 31, G. Saraswathi v. Rathinammal, (2018) 3 SCC 340.
► Reappreciation of entire evidence.—When High Court discusses
evidence while proceeding to answer substantial question of law formulated by it,
that would not amount to reappreciation of entire evidence, Rengan Ambalam v.
Sk. Dawood, (2019) 6 SCC 399.
Where conclusion is drawn by first appellate court in judicial manner, same
cannot be alleged to be vitiated by error of law or procedure so as to call for
interference by High Court on reappreciation of entire evidence on record,
Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641.
210
[100-A. No further appeal in certain cases.—Notwithstanding
anything contained in any Letters Patent for any High Court or in any
instrument having the force of law or in any other law for the time
being in force, where any appeal from an original or appellate decree or
order is heard and decided by a Single Judge of a High Court, no
further appeal shall lie from the judgment and decree of such Single
Judge.]
► Object.—The whole purpose of introducing Section 100-A was to reduce
number of appeals, as public in India was being harassed by numerous appeals
provided in the statute, Mohd. Saud v. Sk. Mahfooz, (2010) 13 SCC 517 : (2010)
4 SCC (Civ) 958.
Under Section 100-A (as substituted by Act 22 of 2002), no further appeal to
lie where an appeal from an original or appellate decree or order has been heard
by a Single Judge of High Court, it was held that provision would not cause any
prejudice to litigants, Salem Advocate Bar Assn. v. Union of India, (2003) 1 SCC
49.
101. Second appeal on no other grounds.—No second appeal shall lie
except on the grounds mentioned in Section 100.
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211
[102. No second appeal in certain cases.—No second appeal shall
lie from any decree, when the subject-matter of the original suit is for
recovery of money not exceeding twenty-five thousand rupees.]
STATE AMENDMENTS
Uttar Pradesh.—(1) In its application to the State of Uttar Pradesh,
in Section 102, for the words “five hundred rupees” occurring at the
end of the section the words “two hundred rupees” shall be substituted.
[Vide U.P. Act 24 of 1954, Section 2 and Schedule, Item 5, Entry 6
(w.e.f. 30-11-1954). Superseded by Act 104 of 1976].
(2) In Section 102 for the words “twenty five thousand rupees”, the
words “fifty thousand rupees” shall be substituted.[Vide U.P. Act 16 of
2019, S. 2, dt. 29-11-2019].
► Nature and scope.—The nature of the suit as disclosed by the plaint is the
determining fact, Ashok Kumar v. Sant Singh, 2009 SCC OnLine Chh 73 : AIR
2009 Chh 44.
212
[103. Power of High Court to determine issues of fact.—In any
second appeal, the High Court may, if the evidence on the record is
sufficient, determine any issue necessary for the disposal of the appeal,
—
(a) which has not been determined by the lower Appellate Court
or both by the Court of first instance and the lower Appellate
Court, or
(b) which has been wrongly determined by such Court or Courts
by reason of a decision on such question of law as is referred to
in Section 100.]
► Power of High Court to determine issue.—Powers under Section 103
CPC can be exercised by the High Court only if the core issue involved in the
case is not decided by the trial court or the appellate court and the relevant
material is available on record to adjudicate upon the said issue, Municipal
Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216 : (2010) 4 SCC (Civ)
861.
► Determination of questions of fact.—Principles clarified relating to scope
of power of High Court to determine question(s) of fact. Narayan Sitaramji
Badwaik v. Bisaram, (2021) 15 SCC 234
Appeals from Orders
104. Orders from which appeal lies.—(1) An appeal shall lie from the
following orders, and save as otherwise expressly provided in the body
of this Code or by any law for the time being in force, from no other
orders:—
213
(a) [* * *]
214
(b) [* * *]
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215
(c) [* * *]
216
(d) [* * *]
217
(e) [* * *]
218
(f) [* * *]
219
[(ff) an order under Section 35-A;]
220
[(ffa) an order under Section 91 or Section 92 refusing leave
to institute a suit of the nature referred to in Section 91 or
Section 92, as the case may be;]
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a
fine or directing the arrest or detention in the civil prison of any
person except where such arrest or detention is in execution of
a decree;
(i) any order made under rules from which an appeal is expressly
allowed by rules:
221
[Provided that no appeal shall lie against any order specified in
clause (ff) save on the ground that no order, or an order for the
payment of a less amount, ought to have been made.]
(2) No appeal shall lie from any order passed in appeal under this
section.
► Bar on further appeal.—Section 104 read with Order 43, Rule 1 CPC
confers additional powers of appeal to a larger Bench within the High Court.
Section 104(2) only bars appeals against orders passed in appeal under the
section and does not bar appeals permitted by any law in force, P.S. Sathappan
v. Andhra Bank Ltd., (2004) 11 SCC 672.
► Appeal against interlocutory order.—A litigant is not bound to appeal
against every interlocutory order passed against him, once final order passed,
orders affecting the decision can be challenged, Kores (India) Ltd. v. Bank of
Maharashtra, (2009) 17 SCC 674 : (2011) 2 SCC (Civ) 617.
Bar under Section 104(2) would not apply if appeal against an order is
provided for under any other law, Subal Paul v. Malina Paul, (2003) 10 SCC 361.
105. Other orders.—(1) Save as otherwise expressly provided, no
appeal shall lie from any order made by a Court in the exercise of its
original or appellate jurisdiction; but, where a decree is appealed from,
any error, defect or irregularity in any order, affecting the decision of
the case, may be set forth as a ground of objection in the memorandum
of appeal.
(2) Notwithstanding anything contained in sub-section (1), where
any party aggrieved by an order of remand 222[* * *] from which an
appeal lies does not appeal therefrom, he shall thereafter be precluded
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from disputing its correctness.
► Order of remand.—Section 105(2) is not applicable to Supreme Court,
Kores (India) Ltd. v. Bank of Maharashtra, (2009) 17 SCC 674 : (2011) 2 SCC
(Civ) 617.
Where remand order is not appealable, it can be challenged in appeal from the
final decision, Sankaranarayanan Potti v. K. Sreedevi, (1998) 3 SCC 751.
► Appeals to Supreme Court.—Where no appeal as against order of
remand has been filed appeal against the order under Article 136 of the
Constitution would be maintainable, Mangal Prasad Tamoli v. Narvadeshwar
Mishra, (2005) 3 SCC 422.
106. What Courts to hear appeals.—Where an appeal from any order
is allowed it shall lie to the Court to which an appeal would lie from the
decree in the suit in which such order was made, or where such order is
made by a Court (not being a High Court) in the exercise of appellate
jurisdiction, then to the High Court.
General Provisions relating to Appeals
107. Powers of Appellate Court.—(1) Subject to such conditions and
limitations as may be prescribed, an Appellate Court shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be
taken.
(2) Subject as aforesaid, the Appellate Court shall have the same
powers and shall perform as nearly as may be the same duties as are
conferred and imposed by this Code on Courts of original jurisdiction in
respect of suits instituted therein.
► Powers of appellate court.—Appellate court possesses power to admit
appeal in part if parts thereof are severable, Bolin Chetia v. Jogadish Bhuyan,
(2005) 6 SCC 81.
Whether such powers include powers conferred upon the trial court by a
particular statute, held, they must be ascertained from the particular statute.
Vasant Ganesh Damle v. Shrikant Trimbak Datar, (2002) 4 SCC 183.
► New case.—The High Court although has a wide power in terms of Section
107 CPC but it could not have gone outside the pleadings and made out a new
case, Ishwar Dutt v. Collector (LA), (2005) 7 SCC 190.
► Power to make interim orders.—Where appellate court grants permission
to withdraw suit, its effect would be that the interim order granted would cease to
exist, Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC
741.
108. Procedure in appeals from appellate decrees and orders.—The
provisions of this Part relating to appeals from original decrees shall, so
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far as may be, apply to appeals—
(a) from appellate decrees, and
(b) from orders made under this Code or under any special or
local law in which a different procedure is not provided.
Appeals to the Supreme Court
223
109. When appeals lie to the Supreme Court.— [Subject to the
provisions in Chapter IV of Part V of the Constitution and such rules as
may, from time to time, be made by the Supreme Court regarding
appeals from the Courts of India, and to the provisions hereinafter
contained, an appeal shall lie to the Supreme Court from any judgment,
decree or final order in a civil proceeding of a High Court, if the High
Court certifies—
(i) that the case involves a substantial question of law of general
importance; and
(ii) that in the opinion of the High Court the said question needs
to be decided by the Supreme Court.]
110. Value of subject-matter.—224[* * *]
225
111. Bar of certain appeals.— [* * *]
226
111-A. Appeals to Federal Court.— [* * *]
227
112. Savings.— [(1) Nothing contained in this Code shall be
deemed—
(a) to affect the powers of the Supreme Court under Article 136 or
any other provision of the Constitution, or
(b) to interfere with any rules made by the Supreme Court, and
for the time being in force, for the presentation of appeals to
that Court, or their conduct before that Court.]
(2) Nothing herein contained applies to any matter of criminal or
admiralty or vice-admiralty jurisdiction, or to appeals from orders and
decrees of Prize Courts.
Part VIII
Reference, Review and Revision
113. Reference to High Court.—Subject to such conditions and
limitations as may be prescribed, any Court may state a case and refer
the same for the opinion of the High Court, and the High Court may
make such order thereon as it thinks fit:
228
[Provided that where the Court is satisfied that a case pending
before it involves a question as to the validity of any Act, Ordinance or
Regulation or of any provision contained in an Act, Ordinance or
Regulation, the determination of which is necessary for the disposal of
the case, and is of opinion that such Act, Ordinance, Regulation or
provision is invalid or inoperative, but has not been so declared by the
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High Court to which that Court is subordinate or by the Supreme Court,
the Court shall state a case setting out its opinion and the reasons
therefor, and refer the same for the opinion of the High Court.
Explanation.—In this section “Regulation” means any Regulation of
the Bengal, Bombay, or Madras Code or Regulation as defined in the
General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act
of a State.]
STATE AMENDMENTS
Andhra Pradesh.—In its application to the State of Andhra Pradesh,
in the Explanation, after the words “any Regulation of the Bengal,
Bombay or Madras Code” the words “or any Regulation of the Madras
Code” in force in the State of Andhra as it existed immediately before
the 1st November, 1956, are inserted by the Andhra Adaptation of Laws
(Second Amendment) Order, 1954 (1-10-1953) and the Andhra
Pradesh Adaptation of Laws (Amendment) Order, 1957 (1-11-1956).
Pondicherry.—See Tamil Nadu as it falls within jurisdiction of the
Madras High Court. See Section 9 of Act 49 of 1962 (w.e.f. 6-11-1962).
Tamil Nadu.—In its application to the State of Tamil Nadu, in the
Explanation, after the words “any Regulation of the Bengal, Bombay or
Madras Code” insert the words “or any Regulation of the Madras Code in
force in the territories specified in the Second Schedule to the Andhra
Pradesh and Madras (Alteration of Boundaries) Act, 1959 (LVI of
1959)”. [Vide Madras (Added Territories) A.L.O. 1961 (1-4-1960)].
114. Review.—Subject as aforesaid, any person considering himself
aggrieved—
(a) by a decree or order from which an appeal is allowed by this
Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this
Code, or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed
the decree or made the order, and the Court may make such
order thereon as it thinks fit.
► Nature and Scope.—Review of an order permissible if any grounds
mentioned under Order 41 Rule 1 made out. Mere erroneous decision is
distinguished from decision which could be characterised as vitiated by error
apparent. Review is not appeal in disguise where erroneous decision reheard and
corrected but lies for patent error. Error which is not self-evident and has to be
detected by process of reasoning, can hardly be called as error apparent on face
of record, Sasi v. Aravindakshan Nair, (2017) 4 SCC 692.
► Withdrawal of review application at appellate stage.—If party intends to
withdraw a review application, and that too at the appellate stage, it must make out
proper grounds therefor so as to enable court to apply its own mind thereupon.
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This might be imperative as third party interest might have been created, Rekha
Mukherjee v. Ashish Kumar Das, (2005) 3 SCC 427.
► Review of interim order after passing of final order.—Interim order
having merged with the final order, review of interim order is not maintainable,
Jaipur Municipal Corpn. v. C.L. Mishra, (2005) 8 SCC 423.
► Re-appreciation of evidence by review court.—Re-appreciation of
evidence by review court held, is beyond scope of its review jurisdiction,
Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461.
115. Revision.—229[(1)] The High Court may call for the record of
any case which has been decided by any Court subordinate to such
High Court and in which no appeal lies thereto, and if such subordinate
court appears—
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity,
the High Court may make such order in the case as it thinks fit:
230
[Provided that the High Court shall not, under this section, vary or
reverse any order made, or any order deciding an issue, in the course of
a suit or other proceeding, except where the order, if it had been made
in favour of the party applying for revision, would have finally disposed
of the suit or other proceedings.]
231
[(2) The High Court shall not, under this section, vary or reverse
any decree or order against which an appeal lies either to the High
Court or to any Court subordinate thereto.]
232
[(3) A revision shall not operate as a stay of suit or other
proceeding before the Court except where such suit or other proceeding
is stayed by the High Court.]
233
[Explanation.—In this section, the expression “any case which has
been decided” includes any order made, or any order deciding an issue,
in the course of a suit or other proceeding.]
NOTES ► No appeal or civil revision application under Section 115
shall lie from order of a Commercial Division or finding of a Commercial
Court that it has jurisdiction to hear a commercial dispute under this
Act vide Section 12 of Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015 (4 of 2016).
STATE AMENDMENTS
Madhya Pradesh.—In its application to the State of Madhya Pradesh
for Section 115 of the principal Act, the following section shall be
substituted, namely:—
“115. Revision.—The High Court may call for the record of any
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case which has been decided by any Court subordinate to such High
Court and in which no appeal lies thereto, and if such subordinate
court appears—
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or
reverse any order made or any order deciding an issue, in the course
of a suit or other proceeding, except where—
(a) the order, if it had been made in favour of the party applying for
the revision, would have finally disposed of the suit or proceeding;
or
(b) the order, if allowed to stand, would occasion a failure of justice
or cause irreparable injury to the party against whom it was
made.
(2) The High Court shall not, under this section, vary or reverse
any decree or order against which an appeal lies either to the High
Court or to any court subordinate thereto.
Explanation.—In this section, the expression ‘any case which has
been decided’ includes any order made, or any order deciding an
issue, in the course of a suit or other proceeding.” [Vide M.P. Act 4 of
1994, Ss. 2 and 3 (16-3-1994). Earlier S. 115 in M.P. was
substituted by M.P. Act 29 of 1984, S. 4].
Orissa.—In its application to the State of Orissa, for Section 115,
the following section shall be substituted, namely:—
“115. Revision.—The High Court, in cases arising out of original
suits or other proceedings of the value exceeding one lakh rupees,
and the District Court, in any other case including a case arising out
of an original suit or other proceedings instituted before the
commencement of the Code of Civil Procedure (Orissa Amendment)
Act, 1991, may call for the record of any case which has been
decided by any Court subordinate to the High Court or the District
Court, as the case may be, and in which no appeal lies thereto, and
if such subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity, the High Court or the District Court, as the
case may be, may make such order in the case as it thinks fit:
Provided that in respect of cases arising out of original suits or
other proceedings of any valuation decided by the District Court, the
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High Court alone shall be competent to make an order under this
section:
Provided further that the High Court or the District Court shall not,
under this section, vary or reverse any order, including an order
deciding an issue, made in the course of a suit or other proceedings,
except where—
(i) the order, if so varied or reversed, would finally dispose of the
suit or other proceedings; or
(ii) the order, if allowed to stand, would occasion a failure of justice
or cause irreparable injury to the party against whom it was
made.
Explanation.—In this section, the expression ‘any case which has
been decided’ includes any order deciding an issue in the course of a
suit or other proceeding.”—
In this regard S. 3 of the Amending Act provides:
“3. Saving.—The amendment made by this Act shall not affect the
validity, invalidity, effect or consequence of anything already done or
suffered, or any jurisdiction already exercised, and any proceeding
instituted or commenced in the High Court under Section 115 of the
Code of Civil Procedure, V of 1908 prior to the commencement of
this Act shall, notwithstanding such amendment, continue to be
heard and decided by such Court.” [Vide Orissa Act 26 of 1991, Ss. 2
and 3 (7-11-1991)].
Uttarakhand.—In its application to the State of Uttarakhand, for
Section 115, the following section shall be substituted, namely:—
‘115. Revision.—(1) A superior court may revise an order passed
in a case decided in an original suit or other proceeding by a
subordinate court where no appeal lies against the order and where
the subordinate court has—
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material
irregularity.
(2) A revision application under sub-section (1), when filed in the
High Court, shall contain a certificate on the first page of such
application, below the title of the case, to the effect that no revision
in the case lies to the district court but lies only to the High Court
either because of valuation or because the order sought to be revised
was passed by the district court.
(3) The superior court shall not, under this section, vary or
reverse any order made except where—
(i) the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other
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proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice
or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other
proceeding before the court except where such suit or other
proceeding is stayed by the superior court.
Explanation I.—In this section—
(i) the expression “superior court” means—
(a) the district court, where the valuation of a case decided by a
court subordinate to it does not exceed five lakh rupees;
(b) the High Court, where the order sought to be revised was
passed in a case decided by the district court or where the
value of the original suit or other proceedings in a case decided
by a court subordinate to the district court exceed five lakh
rupees;
(ii) the expression “order” includes an order deciding an issue in any
original suit or other proceedings.
Explanation II.—The provisions of this section shall also be
applicable to orders passed, before or after the commencement of
this section, in original suits or other proceedings instituted before
such commencement.
Explanation III.—The provisions of this section shall not be
applicable to the revisions already filed in the High Court before the
commencement of this section.’. [Vide Uttaranchal Act 1 of 2006, S.
2, w.e.f. the date to be notified]
Uttar Pradesh.—In its application to the State of Uttar Pradesh, for
Section 115 the following section shall be substituted and be deemed
to have been substituted with effect from July 1, 2002, namely:—
“115. Revision.—(1) A superior court may revise an order passed
in a case decided in an original suit or other proceeding by a
subordinate court where no appeal lies against the order and where
the subordinate court has—
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material
irregularity.
(2) A revision application under sub-section (1), when filed in the
High Court, shall contain a certificate on the first page of such
application, below the title of the case, to the effect that no revision
in the case lies to the district court but lies only to the High Court
either because of valuation or because the order sought to be revised
was passed by the district court.
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(3) The superior court shall not, under this section, vary or
reverse any order made except where,—
(i) the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other
proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice
or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other
proceeding before the court except where such suit or other
proceeding is stayed by the superior court.
Explanation I.—In this section,—
(i) the expression ‘superior court’ means—
(a) the district court, where the valuation of a case decided by a
234
court subordinate to it does not exceed [twenty-five lakh
rupees];
(b) the High Court, where the order sought to be revised was
passed in a case decided by the district court or where the
value of the original suit or other proceedings in a case decided
by a court subordinate to the district court exceed five lakh
rupees;
(ii) the expression ‘order’ includes an order deciding an issue in any
original suit or other proceedings.
Explanation II.—The provisions of this section shall also be
applicable to orders passed, before or after the commencement of
this section, in original suits or other proceedings instituted before
235
such commencement. [Vide U.P. Act 14 of 2003 , S. 2]
SECTION 115-A
West Bengal.—In its application to the State of West Bengal after
Section 115 insert the following.—
“115-A. District Court's powers of revision.—(1) A District Court
may exercise all or any of the powers which may be exercised by the
High Court under Section 115.
(2) Where any proceeding by way of revision is commenced
before a District Court in pursuance of the provisions of sub-section
(1), the provisions of Section 115 shall, so far as may be, apply to
such proceeding and references in the said section to the High Court
shall be construed as references to the District Court.
(3) Where any proceeding for revision is commenced before the
District Court, the decision of the District Court on such proceeding
shall be final and no further proceeding by way of revision shall be
entertained by the High Court or any other Court.
(4) If any application for revision has been made by any party
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either to the High Court under Section 115 or to the District Court
under this section, no further application by the same party shall be
entertained by the other of them.
(5) A Court of an Additional Judge shall have and may exercise all
the powers of a District Court under this section in respect of any
proceeding which may be transferred to it by or under any general or
special order of the District Court.”. [Vide W.B. Act 15 of 1988
(w.e.f. 1-2-1989)].
► Nature and scope.—Revision is part of appellate jurisdiction although,
strict sensu, doctrine of merger may not apply in such a case, Soni Dineshbhai
Manilal v. Jagjivan Mulchand Chokshi, (2007) 13 SCC 293.
Revision is a detailed, exhaustive judgment, in which every bit of available
evidence and relevant circumstances have been taken into consideration and
assessed with objectivity, consistently with the relevant legal principles, cannot be
upset by High court in exercise of revisional jurisdiction, Akhileshwar Kumar v.
Mustaqim, (2003) 1 SCC 462.
Revision does not lie against a finding alone, where ultimate decision in
impugned order is in favour of person aggrieved by the finding, Nalakath
Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1.
► Interlocutory orders.—An order directing issue of notice on a temporary
injunction application under Order XXXIX, Rule 1 CPC is definitely not an order,
which though may come within the ambit of “case decided” but it would not
amount to dispose of the injunction application or terminate the proceedings of the
temporary injunction. Revision does not lie against such order, Mohd. Rais Khan
v. Naseeb Ullah Khan, AIR 2006 All 166, 168.
► Material irregularity.—Words “material irregularity in exercise of
jurisdiction”words do not cover either error of fact or of law, Madanlal v.
Shyamlal, (2002) 1 SCC 535.
► U.P. Amendment.—Order 39 Rule 3 imposes a duty on the court before
granting an injunction to issue notice to the party. It is a procedural provision, a
step in the case. The court, in the event, arrives at a conclusion that the grant of
ex parte injunction would be defeated by delay, can in the case of urgency
proceed to grant an injunction under Order 39, Rule 1 or Order 39, Rule 2. If the
injunction is granted or rejected, it would be appealable under Order 43, Ram
Dhani v. Raja Ram, 2011 SCC OnLine All 2223 : AIR 2011 All 121 (131) (DB).
► Orissa Amendment.—Under Orissa Amendment to Section 115 CPC, an
express power is conferred on High Court or the District Court, as the case may
be, being the Revisional Courts, to vary or reverse an order of the court
subordinate thereto only when it would finally dispose of the suit or other
proceedings or if the impugned order is allowed to stand would occasion a failure
of justice or cause irreparable injury to the party against whom it was made, Frost
(International) Ltd. v. Milan Developers&Builders (P) Ltd., (2022) 8 SCC 633.
Part IX
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Special Provisions Relating to the236[High Courts] 237[Not being the
Court of a Judicial Commissioner]
116. Part to apply only to certain High Courts.—This Part applies only
238
to High Courts [not being the Court of a Judicial Commissioner].
117. Application of Code to High Courts.—Save as provided in this
Part or in Part X or in rules, the provisions of this Code shall apply to
such High Courts.
118. Execution of decree before ascertainment of costs.—Where any
such High Court considers it necessary that a decree passed in the
exercise of its original civil jurisdiction should be executed before the
amount of the costs incurred in the suit can be ascertained by taxation,
the Court may order that the decree shall be executed forthwith, except
as to so much thereof as relates to the costs;
and, as to so much thereof as relates to the costs, that the decree
may be executed as soon as the amount of the costs shall be
ascertained by taxation.
119. Unauthorized persons not to address Court.—Nothing in this
Code shall be deemed to authorize any person on behalf of another to
address the Court in the exercise of its original civil jurisdiction, or to
examine witnesses, except where the Court shall have in the exercise of
the power conferred by its charter authorized him so to do, or to
interfere with the power of the High Court to make rules concerning
advocates, vakils and attorneys.
120. Provisions not applicable to High Court in original civil
jurisdiction.—(1) The following provisions shall not apply to the High
Court in the exercise of its original civil jurisdiction, namely, Sections
16, 17 and 20.
239
(2) [* * *]
Part X
Rules
121. Effect of rules in First Schedule.—The rules in the First
Schedule shall have effect as if enacted in the body of this Code until
annulled or altered in accordance with the provisions of this Part.
122. Power of certain High Courts to make rules.—240[High Courts
241 242
[not being the Court of a Judicial Commissioner]] [* * *] may,
from time to time after previous publication, make rules regulating
their own procedure and the procedure of the Civil Courts subject to
their superintendence, and may by such rules annul, alter or add to all
or any of the rules in the First Schedule.
Case Flow Management Rules
(1)
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Calcutta High Court
243
Noti. No. 4680-G, dt. 6-12-2006 .—In exercise of the power
conferred by Part X of the Code of Civil Procedure, 1908 (5 of 1908)
and all other powers, the Calcutta High Court hereby makes the
following Rules, in regard to case flow management in the subordinate
courts.
Rules for trial courts and Appeal before subordinate courts
I. Original Suit : Division of Civil Suits into Tracks.—(1) Based
on the nature of the disputes, the nature and quantum of evidence to
be recorded and the time likely to be taken for the completion of the
various types of the suits, the suits shall be channelled into three
different tracks.
Track 1—shall include simple suit for Recovery of Money;
Matrimonial suits including suits for Custody, Maintenance, Eviction,
Uncontested Probate, Administration and Succession; Proceedings
under the Arbitration and Conciliation Act.
Track 2—shall include Commercial suit; Title suit of all nature
including Partition and Mortgage suit; suit based on Negotiable
Instruments; suit involving disputes as regards Trademarks, Copyrights
and other intellectual property right matters.
Track 3—shall include all other suits.
Efforts shall be made ordinarily to complete the suits in Track 1
within the period of twelve months, Track 2, within eighteen months
and the suits in Track 3, within twenty-four months.
It will be for the Judge concerned to make an appropriate
assessment as to the track to which any case can be assigned.
(2) Once in two months, the registry/administrative staff of each
Court will prepare a report as to the stage and progress of the case and
place the report before the Court. When the matters are listed on each
day, the Judge concerned may take such decision as he may deem fit in
the presence of the counsel/parties in regard to each case for removing
any obstacles in the service of summons and completion of the
pleadings etc. with a view to make the case ready for disposal.
(3) The Judge, referred to in clause (2) above, may shift a case from
one track to another depending upon circumstances of the case.
(4) Where computerisation is available, the data will be fed into the
computer once in two months in such a manner that the Judge,
referred to in clause (2) above, will be able to ascertain the position
and the stage of every case in every track from the computer screen.
Where computerisation is not available, the monitoring must be done
manually.
(5) The Judge, referred to in clause (2) above, shall monitor and
control the flow of progress of every case, either from the computer or
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from the register or data placed before him in the above manner or in
some other manner he may innovate.
Fixation of time-limits while issuing Notice.—(a) Whenever a
notice is issued in a suit, the same should indicate that the written
statement shall be filed on a date which is not beyond 30 days. The
matter will be listed on the expiry of eight weeks from the date of issue
of the notice or so soon, as the business of the Court will permit.
(b) The notice referred in clause (a) shall be accompanied by a
legible and distinct complete copy of the plaint and all its
annexures/enclosures and copies of the interlocutory applications, if
any.
(c) If interlocutory application is filed along with the plaint, and if an
ex parte interim order is not passed and the Court is desirous of
hearing the defendant, it may while sending the notice along with the
plaint, fix and earlier date for the hearing of the application depending
upon the urgency of the interim relief.
Procedure on the Grant of Interim Orders.—(a) If an ex parte
interim order is granted, the defendants will have the option of moving
appropriate applications for vacating the interim order even before the
returnable date indicated in the notice and if such an application is
filed, it shall be listed as soon as possible, even, before the returnable
date.
(b) If the Court passes an ad interim ex parte order on an
interlocutory application and the objection by the defendants is filed,
and if, thereafter, the plaintiff fails to file the rejoinder within the time
granted by the Court without good reason, the Court shall proceed to
dispose of the matter forthwith. The plaintiff may, if he so chooses,
waive his right to file a rejoinder.
Referral to Alternative Dispute Resolution.—When the suit
reaches the stage under Order 10 of the Code of Civil Procedure, the
Court shall explore the possibility of settlement outside Court in terms
of Section 89(1) of the Code of Civil Procedure by following the
procedure laid down in Alternative Dispute Resolution and Mediation
Rules.
Procedure on the failure of Alternative Dispute Resolution.—
(a) On the filing of report by the Mediator under the Mediation Rules
that efforts at Mediation have failed, or a similar report by the
Conciliator under the provisions of the Arbitration and Conciliation Act,
1996, or a report of “no settlement” in the Lok Adalat under the
provisions of the Legal Services Authority Act, 1987, the suit shall be
placed before the Court within a period of 14 days. Thereafter, the suit
shall proceed for disposal from the stage of Order 11 of the Code of
Civil Procedure. The suit shall be listed before the Court within 21 days
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thereafter for framing of issues.
(b) When the suit is listed after the failure of the attempts at
conciliation, arbitration or Lok Adalat, as the case may be, the Judge
may nevertheless inquire at any subsequent stage whether it is still
possible for the parties to resolve the dispute.
Miscellaneous Applications.—The proceedings in a suit shall not
be stayed merely because of the filing of any Miscellaneous Application
in the course of suit unless the Court in its discretion expressly thinks it
necessary to stay the proceedings in the suit.
Filing of written notes of submissions.—Both the plaintiffs and
the defendants shall be required to submit their written notes of
submissions within three days of the conclusion of the hearing of the
suit.
II. Appeals to subordinate courts:
Fixation of time-limits in interlocutory matters.—Whenever a
notice is issued by the appellate court in connection with the
interlocutory matters, the notice should indicate the date by which the
reply should be filed. The rejoinder, if any, should be filed within two
weeks of receipt of the reply or earlier, if the Court so directs. If there
are more parties than one who are the respondents, each one of the
respondent should comply with this requirement within the time-limit
and the rejoinder may be fixed within one week from the receipt of the
last reply or even earlier, if the Court so directs.
Steps for completion of all formalities.—The appeal shall be
placed before the Court from time to time to make the appeal ready for
hearing.
Procedure on Grant of Interim Orders.—(a) If an interim order is
granted at the first hearing by the Court in cases where the
respondents did not appear at the first hearing, the respondents will
have the option of moving appropriate application and if such
application is filed, it shall be listed as soon as possible, even, before
the returnable date.
(b) If the Court passes an ad interim ex parte order, and if the reply
is filed by the respondent and if, without good reason, the appellant
fails to file the rejoinder, Court shall proceed to dispose of the matter
forthwith. The appellant may, however, waive his right to file the
rejoinder. Unless the Court otherwise directs, such choice shall be
conveyed to the registry on or before the date fixed for filing of the
rejoinder. Such communication of option by the applicant to the
registry will be deemed to be the completion of the pleadings.
Filing of written notes of submissions.—Both the appellants and
the respondents shall be required to submit their written notes of
submissions within three days of the conclusion of the hearing of the
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appeal.
Costs.—Awarding of costs must be treated generally as mandatory.
Costs should invariably follow the events and reasons must be assigned
by the appellate court for not awarding costs. If any of the parties have
unreasonably protracted the proceedings, the Judge shall have the
discretion to impose exemplary costs after taking into account the costs
that might have been imposed at the time of adjournments granted by
the appellate court in course of the proceedings.
III. Criminal Trials in the subordinate courts.—(a) Criminal
Trials should be classified on the basis of nature of offences, sentence
to be imposed and on consideration of the fact whether the accused is
on bail or in jail.
(b) (i) Cases involving capital punishment or imprisonment for life,
under the N.D.P.S. Act, under Sections 376, 395 and 397 of the Indian
Penal Code, relating to terrorism or offences against the State
enumerated in Chapter VI of the Indian Penal Code and cases where
any accused being continuously in jail/Correctional Home for more than
three months is facing trial from the jail or Correctional Home should be
placed in Track 1.
(ii) Cases in which large number of persons are involved, such as,
cases of mass cheating, economic offences, illicit liquor tragedy, food
adulteration and the cases of adulterated, spurious or misbranded
drugs and the cases under the Prevention of Corruption Act should be
placed in Track 2.
(iii) All other cases should be placed in Track 3.
(c) Endeavour should be made to complete the cases in Track 1
within 9 months, the cases in Track 2 within 12 months and the cases
in Track 3 within 15 months from the date of framing the charge or
taking the plea.
IV. Criminal Appeals to the subordinate courts.—(a) Where the
appellate court has not suspended the sentence under Section 389 of
the Code of Criminal Procedure, effort shall be made to hear and
dispose of the appeal within six weeks.
(b) Efforts shall be made to hear and dispose of all other criminal
appeals within three months.
Filing of written notes of submissions.—Both the appellants and
the respondents shall be required to submit their written notes of
submissions within three days of the conclusion of the hearing of the
appeal.
Note.—They shall apply to all civil courts throughout the territories
in relation to which, the High Court, Calcutta, exercises its jurisdiction,
w.e.f. 7-12-2006.
(2)
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Himachal Pradesh High Court
HIGH COURT OF HIMACHAL PRADESH CASE FLOW MANAGEMENT
244
(SUBORDINATE COURTS) RULES, 2005
Noti. No. HHC/Rules/C.P. ADR/05, dt. 19-12-2005.—In exercise
of the powers conferred by Part X of the Code of Civil Procedure, 1908
(5 of 1908), Section 29 of Himachal Pradesh Courts Act, 1976 (23 of
1976) and all other powers enabling it, the High Court of Himachal
Pradesh hereby makes the following Rules, in regard to case flow
management in the subordinate courts in the State of Himachal
Pradesh.
1. Title.—(1) These Rules shall be called High Court of Himachal
Pradesh Case Flow Management (Subordinate Courts) Rules, 2005.
(2) These Rules shall come into force from the date of publication of
the Official Gazette.
2. Division of civil suits and appeals into tracks.—(1) Based on
the nature of dispute the quantum of evidence to be recorded and the
time likely to be taken for the competition of suit, the suits shall be
channelled into different tracks. Track 1 may include suits for
maintenance, divorce and child custody and visitation rights, grant of
letters of administration and succession certificate and simple suits for
rent or for eviction (upon notice under Section 106 of Transfer of
Property Act). Track 2 may consist of money suits and suits based
solely on negotiable instruments. Track 3 may include suits concerning
partition and like property disputes, trademarks, copyrights and other
intellectual property matters. Track 4 may relate to other matters. All
efforts shall be taken to complete the suits in Track 1 within a period of
9 months, Track 2 within 12 months and suits in Track 3 and 4 within
24 months.
Note.—It will be for the judge concerned to make an appropriate
assessment as to which track any case can be assigned.
(2) Once in a month, the administrative staff of each Court shall …
service of summons, completion of pleadings etc. with a view to make
the case ready for disposal.
(3) The Judge referred to in clause (2) above may shift a case from
one track to another depending upon the complexity and other
circumstances of the case.
(4) Where computerisation is available, the monthly data will be fed
into the computer in such a manner that the judge referred to in clause
(2) above, will be able to ascertain the position and the stage of every
case in every track from the computer screen. Over a period, all cases
pending in his Court will be covered. Where computerisation is not
available, the monitoring must be done manually.
The judge referred to in clause (2) above, shall monitor and control
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the flow or progress of every case, either from the computer or from the
register or data placed before him in the above manner or in some
other manner he may innovate.
ORIGINAL SUIT
3. Fixation of time-limits white issuing notice.—The following
time-limits while issuing notice shall be observed.—
(a) Wherever notice is issued in a suit, the notice should indicate
that the Code prescribes a maximum of 30 days for filing
written statement (which for special reasons may be extended
up to 80 days) and, therefore, the defendants may prepare the
written statement expeditiously and that the matter will be
listed for that purpose on the expiry of eight weeks from the
date of issue of notice (so that it can be a definite date). After
the written statement is filed, the replication (if any, proposed
and permitted), should be filed within six weeks of receipt of
the written statement. If there are more than one defendant,
each one of the defendants should comply with this
requirement within the time-limit.
(b) The notice referred to in clause (a) shall be accompanied by a
complete copy of the plaint and all its annexure/enclosures and
copies of the interlocutory application, if any.
(c) If interlocutory applications are filed along with the plaint and
if an ex parte interim order is not passed and the Court is
desirous of hearing the respondent, it may, while sending the
notice along with the plaint, fix an earlier date for the hearing
of the application (than the date for filing written statement)
depending upon the urgency for interim relief.
4. Service of Summons/notice and completion of pleadings.—
In this connection the following guidelines shall be observed:
(a) Summons may be served as indicated in clause (3) of Rule 9
of Order V of the Code of Civil Procedure, 1908.
(b) In the case of service of summons by the plaintiff or a courier
where a return is filed that the defendant has refused notice,
the return will be accompanied by an undertaking that the
plaintiff or the courier, as the case may be, is aware that if the
return is found to be false, he can be punished for perjury or
summarily dealt with for contempt of court for abuse of the
provisions of the Code. Where the plaintiff comes forward with
a return of “refusal” the provisions of Order 9-A Rule (4) CPC
will be followed by re-issue of summons through Court.
(c) If it has not been possible to effect service of summons under
Rule 9 of Order 5 CPC, the provisions of Rule 17 of Order 5 CPC
shall apply and the plaintiff shall within 7 days from the date of
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its inability to serve the summons, to request the Court to
permit substituted service. The dates for filing the written
statement and replication, if any, shall accordingly stand….
… sometimes almost two hours of the best part of the day when the
judge is fresh. After such work, the Court is left with very limited time
to deal with cases listed before it. Formal listing should be first before a
senior officer of the Court to be nominated by the District Judge in
respect of each court under his administrative control, one or two days
before the listing in Court. He may give dates in routine matters for
compliance with earlier orders of Court. Cases will be listed before Court
only where an order of the Court is necessary or where an order
prescribing the consequences of default or where a peremptory order or
an order as to costs is required to be passed on the judicial side. Cases
which have to be adjourned as a matter of routine for taking steps in
the suit or proceeding should not be unnecessarily listed before Court.
Where parties/counsel are not attending before the court-officer or are
defiant or negligent, their cases may be placed before the Court. Listing
of cases on any day before a Court should be based on a reasonable
estimate of time and number of cases that can be disposed of by the
Court in a particular day. The Courts shall, therefore, dispense with the
practice of calling all the cases listed adjourned to any particular day.
Cases wilt be first listed before a nominated senior officer of the Court,
nominated for the purpose.
6. Procedure on the grant of interim orders.—The following
guidelines shall be observed by the subordinate courts:—
(a) If an interim order is granted at the first hearing by the Court
the defendants would have the option of moving appropriate
applications for vacating the interim order even before the
returnable date indicated in the notice and if such an
application is filed, it shall be listed as soon as possible even
before the returnable date.
(b) If the Court passes an ad interim ex parte order in an
interlocutory application, and the reply by the defendants is
filed, and if, thereafter, the plaintiff fails to file the rejoinder (if
any) without good reason for the delay, the Court has to
consider whether the stay or interim order passed by the Court
should be vacated and shall list the case with that purpose.
This is meant to prevent parties taking adjournment with a
view to have undue benefit of the ad interim orders. The
plaintiff may, if he so chooses, also waive his right to file a
rejoinder. A communication of option by the plaintiff not to file
a rejoinder, made to the Court Officer will be deemed to be the
completion of pleadings in the interlocutory application.
7. Reference to Alternate Dispute Resolution.—In the hearing
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before the Court, after completion of pleadings, time-limit for discovery
and inspection, and admission and denials, of documents shall be four
weeks. After the completion of admission and denial of documents by
the parties, the suit shall be listed before the Court (for examination of
parties under Order 10 of the Civil Procedure Code. A joint statement of
admitted facts shall be filed before the said date). The Court shall
thereafter, follow the procedure prescribed under the Alternative
Dispute Resolution and Mediation Rules, 2002.
8. Procedure on the failure of Alternate Dispute Resolution.—
(1) On the filing of report by the mediator under the Mediation Rules
that efforts at mediation have failed or a report by the conciliator under
the provisions of the Arbitration and Conciliation Act, 1996, or a report
of no settlement in the Lok Adalat under the provisions of the Legal
Services Authority Act, 1987 the suit shall be listed before the Court
Officer within a period of 14 days. At the said hearing before the Court
Officer, all the parties shall submit the draft issues proposed by them.
The suit shall be listed before the Court within 14 days thereafter for
framing of issues.
(2) When the suit is listed after failure of the attempts at
conciliation, arbitration or Lok Adalat, the judge may merely inquire
whether it is still possible for the parties to resolve the dispute This
should invariably be done by the judge at the first hearing when the
matter comes back on failure of conciliation, mediation or Lok Adalat …
examination of each witness being by affidavit and the witness being
then cross-examined or re-examined. The parties shall keep the
affidavit in chief examination ready whenever the witness's examination
is taken up. As far as possible, evidence must be taken up day by day
as stated in clause (a) of proviso to Rule 2 of Order 17, The parties shall
also indicate the likely duration for the evidence to be completed, and
for the arguments to be thereafter heard. The judge shall ascertain the
availability of time of the Court and will list the matter for trial on a
date when the trial can go on from day to day and conclude the
evidence. The possibility of further negotiation and settlement should
be kept open and if such a settlement takes place, it should be open to
the parties to move the Court Officer for getting the matter listed at an
earlier date for disposal.
9. Reference to Commissioner for recording of evidence.—
Regarding referring the matter for recording of evidence to the
Commissioner, the following instruction shall be observed:
(a) The High Court shall after conducting an examination of
eligible advocates on the subjects of the Code of Civil
Procedure and Evidence Act, shall appoint them as
Commissioners for recording evidence. They shall be ranked
according to the marks secured by them in such examination.
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(b) It is not necessary that in every case the Court should appoint
a Commissioner for recording evidence. Only if the recording of
evidence is likely to take a long time, or there are any other
special grounds, should the Court consider appointing a
Commissioner for recording the evidence. The Court should
direct that the matter be listed for arguments fifteen days after
the Commissioner files his report with the evidence.
Note.—The Court may initially fix a specific period for the
completion of the recording of the evidence by the
Commissioner and direct the matter to be listed on the date of
expiry of the period, so that Court may know whether the
parties are co-operating with the Commissioner and whether
the recording of evidence is getting unnecessarily prolonged.
(c) Commissioners should file an undertaking in Court upon their
appointment that they will keep the records handed over to
them and those that may be filed before them, safe and shall
not allow any party to inspect them in the absence of the
opposite party/counsel. If there is delay of more than one
month on the dates fixed for recording evidence, it is advisable
for them to return the file to the Court and take it back on the
eve of the adjourned date.
10. Costs.—So far as awarding of costs at the time of judgment is
concerned, awarding of costs must be treated generally as mandatory
in as much as the liberal attitude of the Courts in directing the parties
to bear their own costs had led parties to file a number of frivolous
cases in the Courts or to raise frivolous and unnecessary issues. Cost
should invariably follow the event. Where a party succeeds ultimately
on one issue or point but loses on number of other issues or points
which were unnecessarily raised, costs must be appropriately
apportioned. Special reasons must be assigned if costs are not being
awarded. Costs should be assessed according to rules in force, if any of
the parties has unreasonably protracted the proceedings, the judge
should consider exercising discretion to impose exemplary costs after
taking into account the expense incurred for the purpose of attendance
on the adjourned dates.
11. Proceedings for perjury.—If the trial Judge, while delivering
the judgment, is of the view that any of the parties or witnesses have
wilfully and deliberately uttered blatant falsehood, he shall consider (at
least in some grave cases) whether it is a fit case where prosecution
should be initiated for perjury and order prosecution accordingly…
beyond the control of the party, as required by clause (b) or proviso to
Rule 2 of Order 17. The Court shall impose costs as specified in Rule 2
of Order 17.
MISCELLANEOUS APPLICATIONS
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13. The proceedings in a suit shall not be stayed merely because of
the filing of Miscellaneous Application in the course of suit unless the
Court in its discretion expressly thinks it necessary to stay the
proceedings in the suit.
FIRST APPEALS TO SUBORDINATE COURTS
14. Service of Notice of Appeal.—(1) First appeals being appeals
on question of fact and law, Courts are generally inclined to admit the
appeal and it is only in exceptional cases that the appeal is rejected at
the admission stage under Rule 11 of Order 41 CPC. In view of the
amended CPC, a copy of the memorandum of appeal is required to be
filed in the subordinate courts. It is clarified that the requirement of
filing a copy of appeal memorandum in the subordinate court does not
mean that appeal memorandum cannot be filed in the appellate court
immediately for obtaining interim orders.
(2) Advance notice should simultaneously be given by the counsel
for the party, who is proposing to file the appeal, to the counsel for the
opposite party who appeared in the subordinate court so as to enable
the respondents to appear if they so choose, even at the first hearing
stage.
15. Essential Documents to be filed with the Memorandum of
Appeal. The appellant shall, as far as possible, file, along with the
appeal, copies of essential documents marked in the suit for the
purpose of enabling the appellate court to understand the points raised
or for purpose of passing interim orders.
16. Fixation of time-limits in interlocutory matters.—Whenever
notice is issued by the appellate court in interlocutory matters, the
notice should indicate the date by which the reply should be filed. The
rejoinder, if any, should be filed within four weeks of receipt of the
reply. If there are more parties than one who are respondents, each one
of the respondent should comply with this requirement within the time-
limit and the rejoinder may be filed within four weeks from the receipt
of the last reply.
17. Steps for completion of all formalities/(Call Work) (Hajri).
—The appeal shall be listed before the Court Officer for completion of all
formalities necessary before the appeal is taken up for final hearing.
The procedure indicated above of listing the case before a senior officer
of the appellate court for giving dates in routine matters must be
followed to reduce the “call work” (Hajri) and only where judicial orders
are necessary such cases should be listed before Court.
18. Procedure on grant of interim orders.—(1) If an interim
order is granted at the first hearing by the Court, the respondents
would have the option of moving appropriate applications for vacating
the interim order even before the returnable date indicated in the
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notice and if such an application is filed, it shall be listed as soon as
possible even before the returnable date.
(2) If the Court passes an ad interim ex parte order and if the reply
is filed by the respondents and if, without good reason, the appellant
fails to file the rejoinder, Court shall consider whether it is a fit case for
vacating the stay or interim order and list the case for that purpose.
This is intended to see that those who have obtained ad interim orders
do not procrastinate in filing replies. The appellant may also waive his
right to file the rejoinder. Such choice shall be convened to the Court
Officer on or before the date fixed for filing of rejoinder. Such
communication of option by the applicant to the Court Officer will….
Wherever they have not been filed, the Court must insist on their
being filed within a particular period to be fixed by the Court and each
party must serve a copy thereof on the opposite side before the date of
commencement of arguments. There is no question of parties filing
replies to each other's written submissions.
(2) The Court may consider having a Caution List/Alternative List to
take care of eventualities when a case does not go on before a Court
and those cases may be listed before a Court where for any reason the
scheduled cases are not taken up for hearing.
20. Costs.—Awarding of costs must be treated generally as
mandatory in as much as it is the liberal attitude of the Courts in not
awarding costs that has led to frivolous points being raised in appeals
or frivolous appeals being filed in the Courts. Costs should invariably
follow the event and reasons must be assigned by the appellate court
for not awarding costs. If any of the parties have unreasonably
protracted the proceedings, the judge shall have the discretion to
impose exemplary costs after taking into account the costs that may
have been imposed at the time of adjournments.
21. Application/petition under special Acts.—The
practice/directions in regard to original suits should mutatis mutandis
apply in respect of such applications/petitions filed under special Acts
like the Industrial Disputes Act, Hindu Marriage Act, Indian Succession
Act.
CRIMINAL TRIALS AND CRIMINAL APPEALS TO SUBORDINATE
COURTS
22. Criminal trials.—(1) Criminal trials should be classified based
on offence, sentence and whether the accused is on bail or in jail.
Capital punishment, rape and cases involving sexual offences or dowry
deaths should be kept in Track 1. Other cases where the accused is not
granted bail and is in jail, should be kept in Track 2. Cases which affect
a large number of persons such as cases of mass cheating, economic
offences, illicit liquor tragedy and food adulteration cases, etc. should
be kept in Track 3. Offences which are tried by special courts such as
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POTA, TADA, NDPS, Prevention of Corruption Act, etc. should be kept in
Track 4 while cases involving all other offences shall be kept in Track 5.
(2) The endeavour should be to complete Track 1 cases within a
period of nine months, Track 2 and Track 3 cases within twelve months
and Track 4 within fifteen months.
Note.—The High Court may classify criminal appeals pending before
it into different tracks on the same lines mentioned above.
23. Criminal appeals.—(1) Wherever an appeal is filed by a person
in jail, and also when appeals are filed by State as far as possible, the
memorandum of appeal may be accompanied by important documents,
if any, having a bearing on the question of bail.
(2) In respect of appeals filed against acquittals, steps for
appointment of amicus curie or State Legal Aid Counsel in respect of
the accused who do not have a lawyer of their own should be
undertaken by the Court/(State Legal Services Authority) immediately
after completion of four weeks of service of notice. It shall be presumed
that in such an event the accused is not in a position to appoint
counsel.
Advance notice should simultaneously be given by the counsel for
the party who is proposing to file the appeal to the counsel for the
opposite party in the subordinate court, so as to enable the other party
to appear if they so choose even at the first hearing stage.
24. Notice issued under Section 80 of the Code of Civil
Procedure.—Every public authority shall appoint an officer responsible
to take appropriate action on a notice issued under Section 80 of the
Code of Civil Procedure. Every such officer shall take appropriate action
on receipt of…CPC or CrPC. Whenever there is any inconsistency
between these rules and the provisions of either the Code of Civil
Procedure, 1908 or the Code of Criminal Procedure, 1973 or the
Himachal Pradesh Courts Act, 1976 at any other statutes, the
provisions of such Codes and Statutes shall prevail.
► Nature and scope.—Power given under Section 122 is not a piece of
excessive legislation, Aboobacker Babu Haji v. Edakkode Pathummakutty
Umma, (2004) 11 SCC 183.
123. Constitution of Rule Committees in certain States.—(1) A
Committee to be called the Rule Committee, shall be constituted at 245
[the town which is the usual place of sitting of each of the High Courts
246
[* * *] referred to in Section 122].
(2) Each such Committee shall consist of the following persons,
namely:
(a) three Judges of the High Court established at the town at
which such Committee is constituted, one of whom at least has
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247
served as a District Judge or [* * *] a Divisional Judge for
three years,
248
[(b) two legal practitioners enrolled in that Court,]
249 250
[(c) a Judge of a Civil Court subordinate to the High Court,]
[* * *]
251 252
[(d)] [* * *]
(3) The members of each such Committee shall be appointed by the
253
[High Court], who shall also nominate one of their number to be
President.
254
[* * *]
(4) Each member of any such Committee shall hold office for such
period as may be prescribed by the 255[High Court] in this behalf; and
whenever any member retires, resigns, dies or ceases to reside in the
State in which the Committee was constituted, or becomes incapable of
256
acting as a member of the Committee, the said [High Court] may
appoint another person to be a member in his stead.
(5) There shall be a Secretary to each such Committee who shall be
257
appointed by the [High Court] and shall receive such remuneration
258
as may be provided in this behalf [by the State Government].
STATE AMENDMENTS
Assam and Nagaland.—In its application to the State of Assam and
Nagaland, for clause (a) of sub-section (2) of Section 123 substitute
the following clause, namely:—
“(a) three Judges of the High Court established at the town at
which such Committee is constituted, provided that the Chief Justice
may appoint only two Judges of the High Court on the Committee if
the number of Judges of the High Court does not exceed three. [Vide
Code of Civil Procedure (Assam Amendment) Act, 1953 (Assam Act
8 of 1953), Section 2, 18-4-1953].
Sikkim.—In its extension to the State of Sikkim omit S. 123 —
Gazette of India, 18-10-1982, Pt. II, S. 3(ii), Extra., p. 2 (No. 476).
Tamil Nadu.—In its application to the State of Tamil Nadu, in sub-
section (2) of Section 123—
(a) in clause (b), for the words “two legal practitioners”, the words
“three legal practitioners” shall be substituted;
(b) in clause (d), the word “Madras” shall be omitted. [Vide Code of
Civil Procedure (Tamil Nadu Amendment) Act, 1970 (T.N. Act 15
of 1970) (10-6-1970).
124. Committee to report to High Court.—Every Rule Committee
shall make a report to the High Court established at the town at which
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it is constituted on any proposal to annul, alter or add to the rules in
the First Schedule or to make new rules, and before making any rules
under Section 122 the High Court shall take such report into
consideration.
STATE AMENDMENTS
Sikkim.—In its extension to the State of Sikkim omit S. 123 —
Gazette of India, 18-10-1982, Pt. II, S. 3(ii), Extra., p. 2 (No. 476).
125. Power of other High Courts to make rules.—High Courts, other
than the Courts specified in Section 122, may exercise the powers
conferred by that section in such manner and subject to such
259 260
conditions [as [the State Government] may determine]:
Provided that any such High Court may, after previous publication,
make a rule extending within the local limits of its jurisdiction any rules
which have been made by any other High Court.
261
[126. Rules to be subject to approval.—Rules made under the
foregoing provisions shall be subject to the previous approval of the
Government of the State in which the Court whose procedure the rules
regulate is situate or, if that Court is not situate in any State, to the
262
previous approval [of the Central Government].]
263
127. Publication of rules.—Rules so made and [approved] shall be
264
published in the [Official Gazette], and shall from the date of
publication or from such other date as may be specified have the same
force and effect, within the local limits of the jurisdiction of the High
Court which made them, as if they had been contained in the First
Schedule.
128. Matters for which rules may provide.—(1) Such rules shall be
not inconsistent with the provisions in the body of this Code, but,
subject thereto, may provide for any matters relating to the procedure
of Civil Courts.
(2) In particular, and without prejudice to the generality of the
powers conferred by sub-section (1), such rules may provide for all or
any of the following matters, namely:—
(a) the service of summonses, notices and other processes by
post or in any other manner either generally or in any specified
areas, and the proof of such service;
(b) the maintenance and custody, while under the attachment, of
live stock and other movable property, the fees payable for
such maintenance and custody, the sale of such live-stock and
property, and the proceeds of such sale;
(c) procedure in suits by way of counterclaim, and the valuation of
such suits for the purposes of jurisdiction;
(d) procedure in garnishee and charging orders either in addition
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to, or in substitution for, the attachment and sale of debts;
(e) procedure where the defendant claims to be entitled to
contribution or indemnity over against any person whether a
party to the suit or not;
(f) summary procedure—
(i) in suits in which the plaintiff seeks only to recover a debt or
liquidated demand in money payable by the defendant, with
or without interest, arising—
on a contract express or implied; or
on an enactment where the sum sought to be recovered is a
fixed sum of money or in the nature of a debt other than a
penalty; or
on a guarantee, where the claim against the principal is in
respect of a debt or a liquidated demand only; or
on a trust; or
(ii) in suits for the recovery of immovable property, with or
without a claim for rent or mesne profits, by a landlord
against a tenant whose term has expired or has been duly
determined by notice to quit, or has become liable to
forfeiture for non-payment of rent, or against persons
claiming under such tenant;
(g) procedure by way of originating summons;
(h) consolidation of suits, appeals and other proceedings;
(i) delegation to any Registrar, Prothonotary or Master or other
official of the Court of any judicial, quasi-judicial and non-
judicial duties; and
(j) all forms, registers, books, entries and accounts which may be
necessary or desirable for the transaction of the business of
Civil Courts.
129. Power of High Courts to make rules as to their original civil
procedure.—Notwithstanding anything in this Code, any High Court 265
[not being the Court of a Judicial Commissioner] may make such rules
266 267
not inconsistent with the Letters Patent [or order] [or other law]
establishing it to regulate its own procedure in the exercise of its
original civil jurisdiction as it shall think fit, and nothing herein
contained shall affect the validity of any such rules in force at the
commencement of this Code.
268
[130. Power of other High Courts to make rules as to matters
269
other than procedure.—A High Court [not being a High Court to
which Section 129 applies] may, with the previous approval of the
State Government, make with respect to any matter other than
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270 271
procedure any rule which a High Court [for a [* * *] State] might
272
under [Article 227 of the Constitution] make with respect to any
such matter for any part of the territories under its jurisdiction which is
not included within the limits of a presidency-town.]
131. Publication of rules.—Rules made in accordance with Section
273
129 or Section 130 shall be published in the [Official Gazette] and
shall from the date of publication or from such other date as may be
specified have the force of law.
For Section 1 to 78 click here
For Section 79 to 95 click here
For Section 132 to 158 click here
For Schedule 1 (Order 1 to 10) click here
For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 1 (Order 41 to 51) click here
For Schedule 2 to 5 click here
———
202.
Ins. by Act 104 of 1976, S. 33 (w.e.f. 1-2-1977).
203.
Subs. for “three” by Act 46 of 1999, S. 9 (w.e.f. 1-7-2002).
204.
Subs. by Act 104 of 1976, S. 34 (w.e.f. 1-2-1977).
205.
Ins. by Act 18 of 1928, S. 2 and Sch. I (w.e.f. 25-9-1928).
206.
Ins. by Act 104 of 1976, S. 35 (w.e.f. 1-2-1977).
207.
Ins. by Act 104 of 1976, S. 35 (w.e.f. 1-2-1977).
208.
Ins. by Act 104 of 1976, S. 36 (w.e.f. 1-2-1977).
209.
Subs. by Act 104 of 1976, S. 37 (w.e.f. 1-2-1977).
210.
Subs. by Act 22 of 2002, S. 4 (w.e.f. 1-7-2002).
211.
Subs. by Act 22 of 2002, S. 5 (w.e.f. 1-7-2002).
212.
Subs. by Act 104 of 1976, S. 40 (w.e.f. 1-2-1977).
213.
Omitted by Act 10 of 1940, S. 49 and Sch. III (w.e.f. 1-7-1940). Prior to omission it
read as:
“(a) an order superseding an arbitration where the award has not been completed within
the period allowed by the Court;”
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214.
Omitted by Act 10 of 1940, S. 49 and Sch. III (w.e.f. 1-7-1940). Prior to omission it
read as:
“(b) an order on an award stated in the form of a special case;”
215.
Omitted by Act 10 of 1940, S. 49 and Sch. III (w.e.f. 1-7-1940). Prior to omission it
read as:
“(c ) an order modifying or correcting an award;”
216.
Omitted by Act 10 of 1940, S. 49 and Sch. III (w.e.f. 1-7-1940). Prior to omission it
read as:
“(d) an order filing or refusing to file an agreement to refer to arbitration;”
217.
Omitted by Act 10 of 1940, S. 49 and Sch. III (w.e.f. 1-7-1940). Prior to omission it
read as:
“(e) an order staying or refusing to stay a suit where there is an agreement to refer to
arbitration;”
218.
Omitted by Act 10 of 1940, S. 49 and Sch. III (w.e.f. 1-7-1940). Prior to omission it
read as:
“(f) an order filing or refusing to file an award in an arbitration without the intervention
of the Court;”
219.
Ins. by Act 9 of 1922, S. 3.
220.
Ins. by Act 104 of 1976, S. 41 (w.e.f. 1-2-1977).
221.
Ins. by Act 9 of 1922 S. 3.
222.
The words “made after the commencement of this Code” omitted by Act 104 of 1976, S.
42 (w.e.f. 1-2-1977).
223.
Subs. by Act 49 of 1973, S. 2 (w.e.f. 29-11-1973).
224.
Omitted by Act 49 of 1973, S. 3 (w.e.f. 29-11-1973). Prior to omission it read as:
“110. Value of subject matter.—In each of the cases mentioned in clauses (a) and (b)
of Section 109, the amount or value of the subject-matter of the suit in the Court of first
instance must be twenty thousand rupees or upwards, and the amount or value of the
subject-matter in dispute on appeal to the Supreme Court must be the same sum or
upwards;
or the judgment, decree or final order must involve directly or indirectly, some claim or
question to or respecting property of like amount or value;
and where the judgment, decree or final order appealed from affirms the decision of the
Court immediately below the Court passing such judgment, decree or final order, the
appeal must involve some substantial question of law.”
225.
Omitted by the A.O. 1950 (w.e.f. 26-1-1950). Prior to omission it read as:
“111. Bar of certain appeals.—Notwithstanding anything contained in Section 109, no
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appeal shall lie to His Majesty in Council—
(a) from the decree or order of one Judge of a High Court constituted by His Majesty by
Letters Patent, or of one Judge of a Division Court, or of two or more Judges of such
High Court, or of a Division Court constituted by two or more Judges of such High
Court, where such Judges are equally divided in opinion and do not amount in number
to a majority of the whole of the Judges of the High Court at the time-being; or
(b) from any decree from which under Section 102 no second appeal lies.”
226.
Omitted by Act 21 of 1941, S. 2 (w.e.f. 1-9-1942). Prior to omission it read as:
“111-A. Appeals to Federal Court.—Where a certificate has been given under Section
205(1) of the Government of India Act, 1935, the three last preceding sections shall
apply in relation to appeals to the Federal Court as they apply in relation to appeals to His
Majesty in Council, and accordingly references to His Majesty shall be construed as
references to the Federal Court:
Provided that—
(a) so much of the said sections as delimits the cases in which an appeal will lie shall be
construed as delimiting the cases in which an appeal will lie without the leave of the
Federal Court otherwise than on the ground that a substantial question of law as to
the interpretation of the said Act, or any Order in Council made thereunder, has been
wrongly decided;
(b) in determining under clause (c ) of Section 109 whether the case is a fit one for
appeal, and, under Section 110, whether the appeal involves a substantial question of
law, any question of law as to the interpretation of the said Act, or any Order in
Council made thereunder, shall be left out of account.”
227.
Subs. by the A.O. 1950 (w.e.f. 26-1-1950).
228.
Ins. by Act 24 of 1951, S. 2 (w.e.f. 1-4-1951).
229.
Section 115 renumbered as Section 115(1) by Act 104 of 1976, S. 43 (w.e.f. 1-2-1977).
230.
Subs. by Act 46 of 1999, S. 12 (w.e.f. 1-7-2002).
231.
Ins. by Act 104 of 1976, S. 43 (w.e.f. 1-2-1977).
232.
Ins. by Act 46 of 1999, S. 12 (w.e.f. 1-7-2002).
233.
Ins. by Act 104 of 1976, S. 43 (w.e.f. 1-2-1977).
234.
Subs. for “five lakh rupees” by U.P. Act No. 16 of 2019, S. 3 (dated 19-12-2019).
235.
Transitory Provisions.—(1) Notwithstanding anything contained in this Act, no
judgment or order passed by the High Court in a revision filed on or after July 1, 2002 shall be
liable to be questioned or reviewed on the ground that the revision ought to have been filed
in the district court.
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(2) Any revision filed in the district court in a case where the value of the original suit
or proceeding does not exceed five lakh rupees and is decided by it on the assumption
that the district court would have jurisdiction notwithstanding the amendment of Section
115 of the principal Act, by the Code of Civil Procedure (Amendment) Act, 1999 shall be
deemed to have been correctly filed in that court and its decision thereon shall not be
liable to be questioned on this ground, and such revision, if any pending on the date of
commencement of this Act, shall be decided by that court.
(3) If on or after July 1, 2002 an application for revision under Section 115 of the
principal Act has been filed before the High Court in a case decided by a court
subordinate to the district court, where the value of the original suit or proceeding does
not exceed five lakh rupees and such application is pending on the date of
commencement of this Act, then such application, unless arguments thereon have already
been concluded and only judgment remains to be pronounced by the High Court, shall
stand transferred to the district court concerned, and the same shall be disposed of in
accordance with the said Section 115 as substituted by this Act. [Vide U.P. Act 14 of
2003, S. 3 (w.r.e.f. 22-3-2003)]
236.
Subs. for “Chartered High Courts” by Act 2 of 1951, S. 14 (w.e.f. 1-4-1951).
237.
Subs. “for Part A States and Part B States” by the A.O. (No. 2) Order, 1956.
238.
Subs. “for Part A States and Part B States” by the A.O. (No. 2) Order, 1956.
239.
Omitted by Act 3 of 1909, S. 127 and Sch. III.
240.
Subs. by A.O. 1950 (w.e.f. 26-1-1950). Prior to substitution it read as:
“Courts which are High Courts for the purposes of the Government of India Act, 1935”
241.
Subs. for “Part A States and Part B States” by the A.O. (No. 2) Order, 1956.
242.
The words “and the Chief Court of Lower Burma” omitted by Act 11 of 1923, S. 3 and
Sch. II.
243.
Published in the Kolkata Gazette, Extra., Pt. I, dt. 7-12-2006 (w.e.f. 7-12-2006).
244.
Source: hphighcourt.nic.in
245.
Subs. by Act 13 of 1916, S. 2 and Sch. Prior to substitution it read as:
“each of the towns of Calcutta, Madras, Bombay, Allahabad, Lahore and Rangoon”
246.
The words “and of the Chief Court” omitted by the A.O. 1948. Earlier, omitted by Act 11
of 1923, S. 3 and Sch. II (w.e.f. 5-3-1923) and reinserted by Act 32 of 1925.
247.
The brackets and words “(in Burma)” omitted by Act 11 of 1923, S. 3 and Sch. II (w.e.f.
5-3-1923).
248.
Subs. by Act 2 of 1951, S. 16 (w.e.f. 1-4-1951), for cls. (b) and (c ).
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249.
Clause (d) relettered as Cluase (c ) by Act 2 of 1951, S. 16 (w.e.f. 1-4-1951).
250.
The word “and” omitted by Act 38 of 1978, S. 3 and Second Schedule (w.e.f. 26-11-
1978).
251.
Clause (e) relettered as Cluase (d) by Act 2 of 1951, S. 16 (w.e.f. 1-4-1951).
252.
Omitted by Act 38 of 1978, S. 3 and Sch. II (w.e.f. 26-11-1978). Prior to omission it
read as:
“(d) in the towns of Calcutta, Madras and Bombay, an attorney.”
253.
Subs. for “Chief Justice or Chief Judge” by Act 104 of 1976, S. 44 (w.e.f. 1-2-1977).
254.
Omitted by Act 104 of 1976, S. 44 (w.e.f. 1-2-1977). Prior to omission it read as:
“Provided that, if the Chief Justice or Chief Justice elects to be himself a member of a
Committee, the number of other Judges appointed to be members shall be two, and the
Chief Justice or Chief Judge shall be the President of the Committee.”
255.
Subs. for “Chief Justice or Chief Judge” by Act 104 of 1976, S. 44 (w.e.f. 1-2-1977).
256.
Subs. for “Chief Justice or Chief Judge” by Act 104 of 1976, S. 44 (w.e.f. 1-2-1977).
257.
Subs. for “Chief Justice or Chief Judge” by Act 104 of 1976, S. 44 (w.e.f. 1-2-1977).
258.
Subs. by the A.O. 1937. Prior to substitution it read as:
“by the Governor General in Council or by the L.G., as the case may be”
259.
Subs. for “as the Governor General in Council may determine” by Act 38 of 1920, S. 2
and Sch. I (w.e.f. 14-9-1920).
260.
Subs. by the A.O. 1937. Prior to substitution it read as:
“in the case of the Court of the Judicial Commissioner of Coorg, the Governor General in
Council, and, in other cases the L.G.”
261.
Subs. by the A.O. 1937.
262.
Subs. for “Governor General” by the A.O. 1950 (w.e.f. 26-1-1950).
263.
Subs. for “sanctioned” by Act 24 of 1917, S. 2 and Sch. I.
264.
Subs. by the A.O. 1937. Prior to substitution it read as:
“Gazette of India or in the local Official Gazette, as the case may be”
265.
Subs. for “for a Part A State or a Part B State” by the A.O. (No. 2) Order, 1956.
266.
Ins. by the A.O. 1950 (w.e.f. 26-1-1950).
267.
Ins. by Act 2 of 1951, S. 17 (w.e.f. 1-4-1951).
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268.
Subs. by the A.O. 1937.
269.
Subs. for “not constituted by His Majesty by Letters Patent” by the A.O. 1950 (w.e.f. 26
-1-1950).
270.
Subs. for “so constituted” by the A.O. 1950 (w.e.f. 26-1-1950).
271.
The word and letter “Part A” omitted by the A.O. (No. 2) Order, 1956.
272.
Subs. for “Section 224 of the Government of India Act, 1935” by A.O. 1950 (w.e.f. 26-1-
1950).
273.
Subs. by A.O. 1937. Prior to substitution it read as:
“Gazette of India or in the Local Official Gazette, as the case may be”
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
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liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice
rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Section 132 to 158)
CONTENTS
Section 1 to 78
Section 79 to 95
Section 96 to 131
PART XI
MISCELLANEOUS
132. Exemption of certain women from personal appearance
133. Exemption of other persons
134. Arrest other than in execution of decree
135. Exemption from arrest under civil process
135-A. Exemption of members of legislative bodies from arrest
and detention under civil process
136. Procedure where person to be arrested or property to be
attached is outside district
137. Language of subordinate courts
138. Power of High Court to require evidence to be recorded in
English
139. Oath on affidavit by whom to be administered
140. Assessors in causes of salvage, etc.
141. Miscellaneous proceedings
142. Orders and notices to be in writing
143. Postage
144. Application for restitution
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145. Enforcement of liability of surety
146. Proceedings by or against representatives
147. Consent or agreement by persons under disability
148. Enlargement of time
148-A. Right to lodge a caveat
149. Power to make up deficiency of court-fees
150. Transfer of business
151. Saving of inherent powers of Court
152. Amendment of judgments, decrees or orders
153. General power to amend
153-A. Power to amend decree or order where appeal is
summarily dismissed
153-B. Place of trial to be deemed to be open court
154. Saving of present right of appeal
155. Amendment of certain Acts
156. Repeals
157. Continuance of orders under repealed enactments
158. Reference to Code of Civil Procedure and other repealed
enactments
Schedule 1 (Order 1 to 10)
Schedule 1 (Order 11 to 20)
Schedule 1 (Order 21 to 30)
Schedule 1 (Order 31 to 40)
Schedule 1 (Order 41 to 51)
Schedule 2 to 5
———
Part XI
Miscellaneous
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132. Exemption of certain women from personal appearance.—(1)
Women who, according to the customs and manners of the country,
ought not to be compelled to appear in public shall be exempt from
personal appearance in Court.
(2) Nothing herein contained shall be deemed to exempt such
women from arrest in execution of civil process in any case in which the
arrest of women is not prohibited by this Code.
High Court Amendment
CALCUTTA HIGH COURT.—Ss. 132 and 133 extended to all suits or
proceedings in the Court of Small Causes of Calcutta.—Calcutta
Gazette, 20-4-1967, Pt. I, p. 760.
274
133. Exemption of other persons.— [(1) The following persons
shall be entitled to exemption from personal appearance in Court,
namely:—
(i) the President of India;
(ii) the Vice-President of India;
(iii) the Speaker of the House of the People;
(iv) the Ministers of the Union;
(v) the Judges of the Supreme Court;
(vi) the Governors of States and the Administrators of Union
Territories;
(vii) the Speakers of the State Legislative Assemblies;
(viii) the Chairmen of the State Legislative Councils;
(ix) the Ministers of States;
(x) the Judges of the High Courts; and
(xi) the persons to whom Section 87-B applies.]
275
(2) [* * *]
(3) Where any person 276[* * *] claims the privilege of such
exemption, and it is consequently necessary to examine him by
commission, he shall pay the costs of that commission, unless the party
requiring his evidence pays such costs.
134. Arrest other than in execution of decree.—The provisions of
Sections 55, 57 and 59 shall apply, so far as may be, to all persons
arrested under this Code.
High Court Amendment
CALCUTTA—Insert the words “or the Presidency Small Cause Courts
Act, 1882”, after the words “under this Code”, Cal Gaz. Pt. I, dt. 20-4-
1967.
135. Exemption from arrest under civil process.—(1) No Judge,
Magistrate or other judicial officer shall be liable to arrest under civil
process while going to, presiding in, or returning from, his Court.
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(2) Where any matter is pending before a tribunal having jurisdiction
therein, or believing in good faith that it has such jurisdiction, the
parties thereto, their pleaders, mukhtars, revenue-agents and
recognised agents, and their witnesses acting in obedience to a
summons, shall be exempt from arrest under civil process other than
process issued by such tribunal for contempt of court while going to or
attending such tribunal for the purpose of such matter, and while
returning from such tribunal.
(3) Nothing in sub-section (2) shall enable a judgment-debtor to
claim exemption from arrest under an order for immediate execution or
where such judgment-debtor attends to show cause why he should not
be committed to prison in execution of a decree.
High Court Amendments
CALCUTTA HIGH COURT.—Section 135 is extended to all suits or
proceedings in the Court of Small Causes of Calcutta — See Calcutta
Gazette, 20-4-1967, Pt. I, p. 760.
277
[135-A. Exemption of members of legislative bodies from arrest
and detention under civil process.—278[(1) No person shall be liable to
arrest or detention in prison under civil process—
(a) if he is a member of—
(i) either House of Parliament, or
(ii) the Legislative Assembly or Legislative Council of a State,
or
(iii) a Legislative Assembly of a Union Territory,
during the continuance of any meeting of such House of
Parliament or, as the case may be, of the Legislative Assembly
or the Legislative Council;
(b) if he is a member of any committee of—
(i) either House of Parliament, or
(ii) the Legislative Assembly of a State or Union Territory, or
(iii) the Legislative Council of a State,
during the continuance of any meeting of such committee;
(c) if he is a member of—
(i) either House of Parliament, or
(ii) a Legislative Assembly or Legislative Council of a State
having both such Houses,
during the continuance of a joint sitting, meeting, conference
or joint committee of the Houses of Parliament or Houses of the
State Legislature, as the case may be;
and during the forty days before and after such meeting, sitting or
conference.]
(2) A person released from detention under sub-section (1) shall,
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subject to the provisions of the said sub-section, be liable to rearrest
and to the further detention to which he would have been liable if he
had not been released under the provisions of sub-section (1).]
High Court Amendments
CALCUTTA HIGH COURT.—Section 135-A is extended to all suits or
proceedings in the Court of Small Causes of Calcutta — See Calcutta
Gazette, 20-4-1967, Pt. I, p. 760.
136. Procedure where person to be arrested or property to be
attached is outside district.—(1) Where an application is made that any
person shall be arrested or that any property shall be attached under
any provision of this Code not relating to the execution of decrees, and
such person resides or such property is situate outside the local limits
of the jurisdiction of the Court to which the application is made, the
Court may, in its discretion, issue a warrant of arrest or make an order
of attachment, and send to the District Court within the local limits of
whose jurisdiction such person or property resides or is situate a copy
of the warrant or order, together with the probable amount of the costs
of the arrest or attachment.
(2) The District Court shall, on receipt of such copy and amount,
cause the arrest or attachment to be made by its own officers, or by a
Court subordinate to itself, and shall inform the Court which issued or
made such warrant or order of the arrest or attachment.
(3) The Court making an arrest under this section shall send the
person arrested to the Court by which the warrant of arrest was issued,
unless he shows cause to the satisfaction of the former Court why he
should not be sent to the latter Court, or unless he furnishes sufficient
security for his appearance before the latter Court or for satisfying any
decree that may be passed against him by that Court, in either of which
cases the Court making the arrest shall release him.
(4) Where a person to be arrested or movable property to be
attached under this section is within the local limits of the ordinary
original civil jurisdiction of the High Court of Judicature at Fort William
in Bengal or at Madras or at Bombay, 279[* * *] the copy of the warrant
of arrest or of the order of attachment, and the probable amount of the
costs of the arrest or attachment, shall be sent to the Court of Small
280
Causes of Calcutta, Madras [or Bombay], as the case may be, and
that Court, on receipt of the copy and amount, shall proceed as if it
were the District Court.
High Court Amendment
CALCUTTA.—In sub-rule (1) insert the words “or the Presidency Small
Cause Courts Act, 1882”, after the words “provision of this Code” and
before the words “not relating to the execution”. Cal. Gaz. Pt. I, dt. 20-
4-1967.
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► Nature and scope.—Section 136 CPC provides for an order of attachment
in respect of a property outside the jurisdiction of the court and sending the order
of attachment to the District Court within whose local limits the property sought to
be attached is situate, as provided for therein. But Section 136 clearly excludes
execution of decrees from within its purview, Mohit Bhargava v. Bharat Bhushan
Bhargava, (2007) 4 SCC 795.
137. Language of subordinate courts.—(1) The language which, on
the commencement of this Code, is the language of any Court
subordinate to a High Court shall continue to be the language of such
subordinate court until the State Government otherwise directs.
(2) The State Government may declare what shall be the language of
any such Court and in what character applications to and proceedings
in such Courts shall be written.
(3) Where this Code requires or allows anything other than the
recording of evidence to be done in writing in any such Court, such
writing may be in English; but if any party or his pleader is
unacquainted with English a translation into the language of the Court
shall, at his request, be supplied to him; and the Court shall make such
order as it thinks fit in respect of the payment of the costs of such
translation.
STATE AMENDMENTS
Rajasthan.—In its application to the State of Rajasthan, in Section
137 for sub-section (3), the following sub-section shall be substituted,
namely:—
“(3) Wherever this Code requires or allows anything other than
the recording of evidence to be done in writing in any such court,
such writing shall be in Hindi in Devnagri Script with the
international form of Indian numerals:
Provided that the court may in its discretion accept such writing in
English on the undertaking of the party filing such writing, to file a
Hindi translation of the same, within such time as may be granted
by the Court and the opposite party shall have a right to have a copy
of such writing in Hindi.” [Vide Rajasthan Act 7 of 1983, S. 2 (16-5-
1983)].
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Section 137(3), the following proviso shall be inserted, namely:
“Provided that with effect from such date as the State
Government in consultation with the High Court may by notification
in the Gazette appoint, the language of every judgment, decree or
order passed or made by such courts or classes of courts subordinate
to the High Court and in such classes of cases as may be specified
shall only be Hindi in Devnagri script with the international form of
Indian numerals.” [Vide U.P. Act 17 of 1970, S. 2 (8-4-1970)].
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138. Power of High Court to require evidence to be recorded in
281
English.—(1) The [High Court] may, by notification in the Official
Gazette, direct with respect to any Judge specified in the notification, or
falling under a description set forth therein, that evidence in cases in
which an appeal is allowed shall be taken down by him in the English
language and in manner prescribed.
(2) Where a Judge is prevented by any sufficient reason from
complying with a direction under sub-section (1), he shall record the
reason and cause the evidence to be taken down in writing from his
dictation in open court.
STATE AMENDMENTS
Assam and Nagaland.—In its application to the State of Assam and
Nagaland, for Section 138, in its application to Assam and Nagaland,
the following section shall be substituted, namely:—
“138. Power of High Court to require evidence to be recorded in
English.—The High Court may, by notification, in the Official Gazette,
direct with respect to any Judge specified in the notification, or
falling under a description set forth therein that in cases in which an
appeal is allowed, he shall take down, or cause to be taken down,
the evidence in the English language and in the form and manner
prescribed.” [Vide The Civil Procedure (Assam Amendment) Act,
1941 (Assam Act 2 of 1941), Section 2, 12th February, 1941 and
State of Nagaland Act, 1962 (27 of 1962), Section 26 (w.e.f. 1-12-
1963)].
139. Oath on affidavit by whom to be administered.—In the case of
any affidavit under this Code—
(a) any Court or Magistrate, or
282
[(aa) any notary appointed under the Notaries Act, 1952 (53
of 1952); or]
(b) any officer or other person whom a High Court may appoint in
this behalf, or
(c) any officer appointed by any other Court which the State
Government has generally or specially empowered in this
behalf,
may administer the oath to the deponent.
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, for
clauses (b) and (c) the following clauses shall be substituted and
deemed always to have been substituted, namely:—
“(b) any person appointed in this behalf by a High Court or by a
District Court; or
(c) any person appointed in this behalf by such other Court as the
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State Government may, by general or special order, empower in this
behalf;” [Vide U.P. Act 11 of 1981, S. 2].
High Court Amendment
CALCUTTA.—Add the words “or under the Presidency Small Cause
Courts Act, 1882”, after the words “under this Code” in the first line;
and add the words “or by any Judge whom” after the words “Court
which” and before the words “the State Government” in clause (c). Cal.
Gaz. Pt. I, dt. 20-4-1967.
140. Assessors in causes of salvage, etc..—(1) In any admiralty or
vice-admiralty cause of salvage, towage or collision, the Court, whether
it be exercising its original or its appellate jurisdiction, may, if it thinks
fit, and shall upon request of either party to such cause, summon to its
assistance, in such manner as it may direct or as may be prescribed,
two competent assessors; and such assessors shall attend and assist
accordingly.
(2) Every such assessor shall receive such fees for his attendance, to
be paid by such of the parties as the Court may direct or as may be
prescribed.
141. Miscellaneous proceedings.—The procedure provided in this
Code in regard to suits shall be followed, as far as it can be made
applicable, in all proceedings in any court of civil jurisdiction.
283
[Explanation.—In this section, the expression “proceedings”
includes proceedings under Order IX, but does not include any
proceeding under Article 226 of the Constitution.]
High Court Amendment
CALCUTTA.—Add the words “and in the Presidency Small Cause Courts
Act, 1882”, after the words “in this Code” and before the words “in
regard to suits”; add the words “and except as therein otherwise
provided”, after the words, “be made applicable”; omit the words “be
followed” after “shall” and put them after the words “otherwise
provided”; substitute the words “in the Court of Small Causes of
Calcutta” in place of “in any court of civil jurisdiction” after the words
“in all proceedings”. Cal. Gaz. Pt. I, dt. 20-4-1967.
► Writ proceedings.—The provisions of Section 141 CPC are not applicable
in a writ proceeding., Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC
230.
142. Orders and notices to be in writing.—All orders and notices
served on or given to any person under the provisions of this Code shall
be in writing.
High Court Amendment
CALCUTTA.—Insert the words “or of the Presidency Small Cause
Courts Act, 1882”, after the words “of this Code” and before the words
“shall be in writing”. Cal. Gaz. Pt. I, dt. 20-4-1967.
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143. Postage.—Postage, where chargeable on a notice, summons or
letter issued under this Code and forwarded by post, and the fee for
registering the same, shall be paid within a time to be fixed before the
communication is made:
Provided that the State Government 284[* * *] may remit such
postage, or fee, or both, or may prescribe a scale of court-fees to be
levied in lieu thereof.
High Court Amendment
CALCUTTA.—Insert the words “or the Presidency Small Cause Courts
Act, 1882”, after the words “issued under this Code” and before the
words “and forwarded by post”. Cal. Gaz. Pt. I, dt. 20-4-1967.
144. Application for restitution.—(1) Where and in so far as a decree
285 286
[or an order] is [varied or reversed in any appeal, revision or other
proceeding or is set aside or modified in any suit instituted for the
purpose, the Court which passed the decree or order] shall, on the
application of any party entitled to any benefit by way of restitution or
otherwise, cause such restitution to be made as will, so far as may be,
place the parties in the position which they would have occupied but for
such decree 287[or order] or 288[such part thereof as has been varied,
reversed, set aside or modified]; and, for this purpose, the Court may
make any orders, including orders for the refund of costs and for the
payment of interest, damages, compensation and mesne profits, which
289
are properly [consequential on such variation, reversal, setting aside
or modification of the decree or order].
290
[Explanation.—For the purposes of sub-section (1), the expression
“Court which passed the decree or order” shall be deemed to include,—
(a) where the decree or order has been varied or reversed in
exercise of appellate or revisional jurisdiction, the Court of first
instance;
(b) where the decree or order has been set aside by a separate
suit, the Court of first instance which passed such decree or
order;
(c) where the Court of first instance has ceased to exist or has
ceased to have jurisdiction to execute it, the Court which, if the
suit wherein the decree or order was passed were instituted at
the time of making the application for restitution under this
section, would have jurisdiction to try such suit.]
(2) No suit shall be instituted for the purpose of obtaining any
restitution or other relief which could be obtained by application under
sub-section (1).
STATE AMENDMENTS
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Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Section 144, for sub-section (1) the following shall be substituted:
“(1) Where and in so far as a decree or an order is varied or
reversed in appeal, revision or otherwise, the Court of first instance
shall, on the application of any party entitled to any benefit by way
of restitution or otherwise, cause such restitution to be made, as will,
so far as may be, place the parties in the position which they would
have occupied but for such decree or order or such part thereof as
has been varied or reversed; and for this purpose, the Court may
make any orders, including orders for the refund of costs and for the
payment of interest, damages, compensation and mesne profits,
which are properly consequential on such variation or
reversal.” [Vide U.P. Act 24 of 1954, S. 2 and Sch. Item 5, Entry 7
(30-11-1954)].
High Court Amendment
CALCUTTA.—Omit the words “and such person shall, for the purposes
of appeal, be deemed a party within the meaning of Section 47” before
the proviso. Cal. Gaz. Pt. I, dt. 20-4-1967.
► Doctrine of restitution.—Doctrine of restitution applies where decree or
order is varied or reversed in appeal. Restitution application must be filed in court
of first instance in which suit was instituted and decree passed. Even if Section
144 not attracted on facts, remedy may lie under Section 151, Bansidhar Sharma
v. State of Rajasthan, (2019) 19 SCC 701.
► Nature and Scope.—It is a statutory recognition of an already existing rule
of justice, equity and fair play and therefore even apart from Section 144 CPC the
court has inherent jurisdiction to order restitution so as to do complete justice
between the parties, Citibank N.A. v. Hiten P. Dalal, (2016) 1 SCC 411 : (2016) 1
SCC (Civ) 342.
► Conditions.—Section 144 would only apply if by virtue of an order or a
decree of the court something was done, Gammon India Ltd. v. M.S. Reddy &
Co., (2004) 13 SCC 359.
291
145. Enforcement of liability of surety.—Where any person [has
furnished security or given a guarantee]—
(a) for the performance of any decree or any part thereof, or
(b) for the restitution of any property taken in execution of a
decree, or
(c) for the payment of any money, or for the fulfilment of any
condition imposed on any person, under an order of the Court
in any suit or in any proceeding consequent thereon,
292
[the decree or order may be executed in the manner herein provided
for the execution of decrees, namely:—
(i) if he has rendered himself personally liable, against him to that
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extent;
(ii) if he has furnished any property as security, by sale of such
property to the extent of the security;
(iii) if the case falls both under clauses (i) and (ii), then to the
extent specified in those clauses,
and such person shall be deemed to be a party within the meaning of
Section 47]:
Provided that such notice as the Court in each case thinks sufficient
has been given to the surety.
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, for
the existing Section 145, the following shall be substituted:
“145. Where any person has become liable as surety or given any
property as security,—
(a) for the performance of any decree or any part thereof; or
(b) for the restitution of any property taken in execution of any
decree; or
(c) for the payment of any money, or for fulfilment of any condition
imposed on any person, under an order of the Court in any suit or
in any proceeding consequent thereon,
the decree or order may be executed in the manner herein
provided for the execution of decrees—
(i) if he has rendered himself personally liable, against him to that
extent; and
(ii) if he has given any property as security, by sale of such property
to the extent of the security;
and such person shall, for the purposes of appeal, be deemed
to be a party within the meaning of Section 47:
Provided that such notice as the Court in each case thinks
sufficient has been given to the surety.
Explanation.—For the purposes of this section a person entrusted
by a Court with custody of any property attached in execution of any
decree or order shall be deemed to have become liable as surety for
the restitution of such property within the meaning of clause (b).”—
U.P. Act 24 of 1954, Section 2 and Schedule, Item 5, Entry 8 (30th
November, 1954).
► Restitutionary Costs.—Undue benefits derived by unscrupulous litigant
from frivolous litigation by abusing judicial process should be neutralised by court,
A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam, (2012) 6 SCC 430 : (2012) 3 SCC (Civ) 735.
146. Proceedings by or against representatives.—Save as otherwise
provided by this Code or by any law for the time being in force, where
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any proceeding may be taken or application made by or against any
person, then the proceeding may be taken or the application may be
made by or against any person claiming under him.
High Court Amendments
CALCUTTA HIGH COURT.—Sections 146 and 147 of CPC extended to all
suits or proceedings in the Court of Small Causes, Calcutta — See
Calcutta Gazette, 20-4-1967, Pt. I, p. 760.
► Pleadings by successors-in-interest/assignee.—Pleadings taken by
successors-in-interest/assignees cannot be inconsistent with those taken by
predecessors-in-interest/assignor, State of Orissa v. Ashok Transport Agency,
(2005) 1 SCC 536.
147. Consent or agreement by persons under disability.—In all suits
to which any person under disability is a party, any consent or
agreement, as to any proceeding shall, if given or made with the
express leave of the Court by the next friend or guardian for the suit,
have the same force and effect as if such person, were under no
disability and had given such consent or made such agreement.
High Court Amendments
CALCUTTA HIGH COURT.—See under S. 146.
148. Enlargement of time.—Where any period is fixed or granted by
the Court for the doing of any act prescribed or allowed by this Code,
the Court may, in its discretion, from time to time, enlarge such period
293
[not exceeding thirty days in total], even though the period
originally fixed or granted may have expired.
High Court Amendment
CALCUTTA.—Add the words “or by the Presidency Small Cause Courts
Act, 1882”, after the words “allowed by this Code” and before the words
“the Court may”. Cal. Gaz. Pt. I, dt. 20-4-1967.
► Extention of time.—Extension beyond maximum of 30 days, can be
permitted if the act could not be performed within 30 days for reasons beyond the
control of the party, Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6
SCC 344.
► Discretion of court.—Section 148 CPC reserves the court's power to
enlarge the time required for doing an act. When any period of time is granted by
the court for doing any act, the court has the discretion from time to time to
enlarge such period even if the time originally fixed or granted by the court has
expired, D.V. Paul v. Manisha Lalwani, (2010) 8 SCC 546 : (2010) 3 SCC (Civ)
456.
294
[148-A. Right to lodge a caveat.—(1) Where an application is
expected to be made, or has been made, in a suit or proceeding
instituted, or about to be instituted, in a Court, any person claiming a
right to appear before the Court on the hearing of such application may
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lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the
person by whom the caveat has been lodged (hereinafter referred to as
the caveator) shall serve a notice of the caveat by registered post,
acknowledgment due, on the person by whom the application has been,
or is expected to be, made, under sub-section (1).
(3) Where, after a caveat has been lodged under sub-section (1),
any application is filed in any suit or proceeding, the Court shall serve a
notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant,
he shall forthwith furnish the caveator, at the caveator's expense, with
a copy of the application made by him and also with copies of any
paper or document which has been, or may be, filed by him in support
of the application.
(5) Where a caveat has been lodged under sub-section (1), such
caveat shall not remain in force after the expiry of ninety days from the
date on which it was lodged unless the application referred to in sub-
section (1) has been made before the expiry of the said period.]
► Rights of a caveator.—Caveator has a right to be heard mandatorily
before any interim order is passed, Mahadev Govind Gharge v. LAO, (2011) 6
SCC 321 : (2011) 3 SCC (Civ) 304.
149. Power to make up deficiency of court-fees.—Where the whole or
any part of any fee prescribed for any document by the law for the time
being in force relating to court-fees has not been paid, the Court may,
in its discretion, at any stage, allow the person, by whom such fee is
payable, to pay the whole or part, as the case may be, of such court-
fee; and upon such payment the document, in respect of which such
fee is payable, shall have the same force and effect as is such fee had
been paid in the first instance.
STATE AMENDMENTS
Calcutta.—Ss. 149, 151, 152 and 153 extended to all suits or
proceedings in the Court of Small Causes, Calcutta — See Calcutta
Gazette, 20-4-1967, Pt. I, p. 760.
► Power of court.—Section 149 does not confer an absolute right in favour
of plaintiff to pay deficit court fee as and when it pleases him. Said provision only
enables plaintiff to seek indulgence of court to permit payment of deficit court fee
subsequent to presentation of plaint. Jurisdiction under Section 149 to allow
payment of deficit court fee is discretionary in nature, A. Nawab John v. V.N.
Subramaniyam, (2012) 7 SCC 738 : (2012) 4 SCC (Civ) 324.
► Scope of “any document”.—Word “document” used in Section 149
covers not only plaints but various other documents with respect to which court fee
is required to be paid under the appropriate law including written statements in a
suit, A. Nawab John v. V.N. Subramaniyam, (2012) 7 SCC 738 : (2012) 4 SCC
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(Civ) 324.
► Deficiency in court fee.—Deficiency in court fee in respect of plaint can
be made good during the appellate proceedings, Tajender Singh Ghambhir v.
Gurpreet Singh, (2014) 10 SCC 702.
Power to make up deficiency of court fees should not permitted to be misused
to abuse process of court, Atma Ram v. Charanjit Singh, (2020) 3 SCC 311.
► Effect of court permission to make up deficiency in court fees.—Once
the court exercises its discretion under Section 149 CPC, and payment of court
fee is made in accordance with the said decision, the document, under Section
149, shall have the same force and effect as if such fee had been paid in the first
instance, Atma Ram v. Charanjit Singh, (2020) 3 SCC 311.
150. Transfer of business.—Save as otherwise provided, where the
business of any Court is transferred to any other Court, the Court to
which the business is so transferred shall have the same powers and
shall perform the same duties as those respectively conferred and
imposed by or under this Code upon the Court from which the business
was so transferred.
151. Saving of inherent powers of Court.—Nothing in this Code shall
be deemed to limit or otherwise affect the inherent power of the Court
to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court.
STATE AMENDMENTS
Calcutta.—Ss. 149, 151, 152 and 153 extended to all suits or
proceedings in the Court of Small Causes, Calcutta — See Calcutta
Gazette, 20-4-1967, Pt. I, p. 760.
► Nature and scope.—The inherent power of the court to do justice is in
addition to and complementary to powers conferred under CPC, expressly or by
implication, Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378.
Powers under Section 151, held, cannot be used to reopen settled matters.
State of W.B. v. Karan Singh Binayak, (2002) 4 SCC 188.
► Object.—Object of Section 151 is to supplement and not to override or
evade other express provisions of CPC or other statutes, State of U.P. v. Roshan
Singh, (2008) 2 SCC 488 : (2008) 1 SCC (Civ) 603.
► Inherent Powers and Jurisdiction.—Inherent power of court is not
affected by constraints of Order 18 Rule 17. By exercising inherent power, court
can pass orders, if necessary for ends of justice, for reopening of evidence for
further examination or cross-examination or for production of fresh evidence, at
any stage of the suit, even after closure of evidence, Ram Rati v. Mange Ram,
(2016) 11 SCC 296 : (2016) 4 SCC (Civ) 174.
► Court cannot override express provisions of law.—Inherent powers
may be exercised ex debito justitiae in those cases, where there is no express
provision in CPC. The said power cannot be exercised in contravention or in
conflict of or ignoring express and specific provision of law, Durgesh Sharma v.
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Jayshree, (2008) 9 SCC 648.
► Clubbing of suits.—Clubbing of suits does not convert the suits into one
action. Clubbing together is done for convenience, inter alia, to save time, costs,
repetition of procedures and to avoid conflicting judgments, B. Santoshamma v.
D. Sarala, (2020) 19 SCC 80.
152. Amendment of judgments, decrees or orders.—Clerical or
arithmetical mistakes in judgments, decrees or orders or errors arising
therein from any accidental slip or omission may at any time be
corrected by the Court either of its own motion or on the application of
any of the parties.
STATE AMENDMENTS
Calcutta.—Ss. 149, 151, 152 and 153 extended to all suits or
proceedings in the Court of Small Causes, Calcutta — See Calcutta
Gazette, 20-4-1967, Pt. I, p. 760.
► Amendment in judgment.—Section 152 cannot be invoked for claiming a
substantive relief which was not granted under the decree, or as a pretext to get
the order which has attained finality, reviewed. Same can be invoked for the
limited purpose of correcting clerical errors or arithmetical mistakes in the
judgment, Bijay Kumar Saraogi v. State of Jharkhand, (2005) 7 SCC 748.
► Amendment in decree.—Decree which became final and binding cannot
be amended under Sections 151 and 152, Sarup Singh v. Union of India, (2011)
11 SCC 198 : (2011) 3 SCC (Civ) 640.
► Clerical mistakes.—Power of court under Section 152 is limited to
rectification of clerical and arithmetical errors arising from any accidental slip or
omission. There cannot be reconsideration of merits of matter, Century Textile
Industries Ltd. v. Deepak Jain, (2009) 5 SCC 634 : (2009) 2 SCC (Civ) 608.
► Order on rectification of earlier order/judgment.—A “note for speaking
to Minutes” is required to be entertained only for the limited purpose of correcting
a typographical error or an error through oversight, which may have crept in while
transcribing the original order, Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh
v. Brijlal Tibrewal, (2019) 2 SCC 684.
153. General power to amend.—The Court may at any time, and on
such terms as to costs or otherwise as it may think fit, amend any
defect or error in any proceeding in a suit; and all necessary
amendments shall be made for the purpose of determining the real
question or issue raised by or depending on such proceeding.
STATE AMENDMENTS
Calcutta.—Ss. 149, 151, 152 and 153 extended to all suits or
proceedings in the Court of Small Causes, Calcutta — See Calcutta
Gazette, 20-4-1967, Pt. I, p. 760.
295
[153-A. Power to amend decree or order where appeal is
summarily dismissed.—Where an Appellate Court dismisses an appeal
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under Rule 11 of Order XLI, the power of the Court to amend, under
Section 152, the decree or order appealed against may be exercised by
the Court which had passed the decree or order in the first instance,
notwithstanding that the dismissal of the appeal has the effect of
confirming the decree or order, as the case may be, passed by the
Court of first instance.
153-B. Place of trial to be deemed to be open court.—The place in
which any Civil Court is held for the purpose of trying any suit shall be
deemed to be an open court, to which the public generally may have
access so far as the same can conveniently contain them:
Provided that the presiding Judge may, if he thinks fit, order at any
stage of any inquiry into or trial of any particular case, that the public
generally, or any particular person, shall not have access to, or be or
remain in, the room or building used by the Court.]
► Judicial Accountability and Transparency.—Writ petition seeking such
live streaming of important cases of Supreme Court and for framing of guidelines
for regulating same, allowed, Swapnil Tripathi v. Supreme Court of India, (2018)
10 SCC 639.
154. Saving of present right of appeal.—296[* * *]
155. Amendment of certain Acts.—297[* * *]
298
156. Repeals.— [* * *]
157. Continuance of orders under repealed enactments.—
Notifications published, declarations and rules made, places appointed,
agreements filed, scales prescribed, forms framed, appointments made
and powers conferred under Act 8 of 1859 or under any Code of Civil
Procedure or any Act amending the same or under any other enactment
hereby repealed shall, so far as they are consistent with this Code, have
the same force and effect as if they had been respectively published,
made, appointed, filed, prescribed, framed and conferred under this
Code and by the authority empowered thereby in such behalf.
158. Reference to Code of Civil Procedure and other repealed
enactments.—In every enactment or notification passed or issued
before the commencement of this Code in which reference is made to or
to any Chapter or section of Act 8 of 1859 or any Code of Civil
Procedure or any Act amending the same or any other enactment
hereby repealed, such reference shall, so far as may be practicable, be
taken to be made to this Code or to its corresponding Part, Order,
section or rule.
For Section 1 to 78 click here
For Section 79 to 95 click here
For Section 96 to 131 click here
For Schedule 1 (Order 1 to 10) click here
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For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 1 (Order 41 to 51) click here
For Schedule 2 to 5 click here
———
274.
Subs. by Act 66 of 1956, S. 12 (w.e.f. 1-1-1957).
275.
Omitted by Act 66 of 1956, S. 12 (w.e.f. 1-1-1957). Prior to omission it read as:
“(2) The names and residences of the persons so exempted shall, from time to time, be
forwarded to the High Court by the State Government and a list of such persons shall be
kept in such Court, and a list of such persons as reside within the local limits of the
jurisdiction of each Court subordinate to the High Court shall be kept in such subordinate
Court.”
276.
The words “so exempted” omitted by Act 66 of 1956, S. 12 (w.e.f. 1-1-1957).
277.
Ins. by Act 23 of 1925, S. 3.
278.
Subs. by Act 104 of 1976, S. 45 (w.e.f. 1-2-1977).
279.
The words “or of the Chief Court of Lower Burma” omitted by the A.O. 1937.
280.
Subs. for “Bombay or Rangoon” by the A.O. 1937.
281.
Subs. for “Local Government” by Act 4 of 1914, S. 2 and Sch., Pt. I (w.e.f. 24-2-1914).
282.
Ins. by Act 104 of 1976, S. 46 (w.e.f. 1-2-1977).
283.
Ins. by Act 104 of 1976, S. 47 (w.e.f. 1-2-1977).
284.
The words “with the previous sanction of the G.G in C.” omitted by Act 38 of 1920, S. 2
and Sch., Pt. I (w.e.f. 14-9-1920).
285.
Ins. by Act 66 of 1956, S. 13 (1-1-1957).
286.
Subs. for “varied or reversed, the Court of first 144 instance” by Act 104 of 1976, S. 48
(i)(a) (w.e.f. 1-2-1977).
287.
Ins. by Act 66 of 1956, S. 13 (w.e.f. 1-1-1957).
288.
Subs. for “such part thereof as has been varied or reversed” by Act 104 of 1976, S. 48(i)
(b) (w.e.f. 1-2-1977).
289.
Subs. for “consequential on such variation or reversal” by Act 104 of 1976, S. 48(i)(c )
(w.e.f. 1-2-1977).
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290.
Ins. by Act 104 of 1976, S. 48(i) (w.e.f. 1-2-1977).
291.
Subs. for “has become liable as surely” by Act 104 of 1976, S. 49(i) (w.e.f. 1-2-1977).
292.
Subs. by Act 104 of 1976, S. 49(ii) (w.e.f. 1-2-1977).
293.
Ins. by Act 46 of 1999, S. 13 (w.e.f. 1-7-2002).
294.
Ins. by Act 104 of 1976, S. 50 (w.e.f. 1-2-1977).
295.
Ins. by Act 104 of 1976, S. 51 (w.e.f. 1-2-1977).
296.
Omitted by Act 48 of 1952, S. 2 and Sch. (w.e.f. 2-8-1952). Prior to omission it read as:
“154. Saving of present right of appeal.—Nothing in this Code shall affect any present
right of appeal which shall have accrued to any party at its commencement.”
297.
Omitted by Act 48 of 1952, S. 2 and Sch. (w.e.f. 2-8-1952). Prior to omission it read as:
“155. Amendment of certain Acts.—The enactments mentioned in the Fourth Schedule
are hereby amended to the extent specified in the fourth column thereof.”
298.
Omitted by Act 17 of 1914, S. 3 and Sch. II (w.e.f. 16-9-1914). Prior to omission it read
as:
“156. Repeals.—The enactments mentioned in the Fifth Schedule are hereby repealed to
the extent specified in the fourth column thereof.”
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
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rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Schedule 1 (Order 1 to 10))
CONTENTS
Section 1 to 78
Section 79 to 95
Section 96 to 131
Section 132 to 158
THE FIRST SCHEDULE
ORDER I
PARTIES TO SUITS
1. Who may be joined as plaintiffs
2. Power of Court to order separate trials
3. Who may be joined as defendants
3-A. Power to order separate trials where joinder of defendants
may embarrass or delay trial
4. Court may give judgment for or against one or more of joint
parties
5. Defendant need not be interested in all the relief claimed
6. Joinder of parties liable on same contract
7. When plaintiff in doubt from whom redress is to be sought
8. One person may sue or defend on behalf of all in same interest
8-A. Power of Court to permit a person or body of persons to
present opinion or to take part in the proceedings
9. Misjoinder and non-joinder
10. Suit in name of wrong plaintiff
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10-A. Power of Court to request any pleader to address it
11. Conduct of suit
12. Appearance of one of several plaintiffs or defendants for
others
13. Objections as to non-joinder or misjoinder
ORDER II
FRAME OF SUIT
1. Frame of suit
2. Suit to include the whole claim
3. Joinder of causes of action
4. Only certain claims to be joined for recovery of immovable
property
5. Claims by or against executor, administrator or heir
6. Power of Court to order separate trials
7. Objections as to misjoinder
ORDER III
RECOGNISED AGENTS AND PLEADERS
1. Appearances, etc., may be in person, by recognised agent or by
pleader
2. Recognised agents
3. Service of process on recognised agents
4. Appointment of pleader
5. Service of process on pleader
6. Agent to accept service
ORDER IV
I NSTITUTION OF SUITS
1. Suits to be commenced by plaint
2. Register of suits
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ORDER V
I SSUE AND SERVICE OF SUMMONS
Issue of Summons
1. Summons
2. Copy of plaint annexed to summons
3. Court may order defendant or plaintiff to appear in person
4. No party to be ordered to appear in person unless resident with
certain limits
5. Summons to be either to settle issues or for final disposal
6. Fixing day for appearance of defendant
7. Summons to order defendant to produce documents relied on
by him
8. On issue of summons for final disposal, defendant to be
directed to produce his witnesses
Service of Summons
9. Delivery of summons by Court
9-A. Summons given to the plaintiff for service
10. Mode of service
11. Service on several defendants
12. Service to be on defendant in person when practicable, or on
his agent
13. Service on agent by whom defendant carries on business
14. Service on agent in charge in suits for immovable property
15. Where service may be on an adult member of defendant's
family
16. Person served to sign acknowledgement
17. Procedure when defendant refuses to accept service, or cannot
be found
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18. Endorsement of time and manner of service
19. Examination of serving officer
19-A. Simultaneous issue of summons for service by post in
addition to personal service
20. Substituted service
20-A. Service of summons by post
21. Service of summons where defendant resides within
jurisdiction of another Court
22. Service within presidency-towns of summons issued by Courts
outside
23. Duty of Court to which summons is sent
24. Service on defendant in prison
25. Service where defendant resides out of India and has no
agent
26. Service in foreign territory through Political Agent or Court
26-A. Summonses to be sent to officers of foreign countries
27. Service on civil public officer or on servant of railway company
or local authority
28. Service on soldiers, sailors or airmen
29. Duty of person to whom summons is delivered or sent for
service
30. Substitution of letter for summons
ORDER VI
PLEADINGS GENERALLY
1. Pleading
2. Pleading to state material facts and not evidence
3. Forms of pleading
4. Particulars to be given where necessary
5. Further and better statement, or particulars
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6. Condition precedent
7. Departure
8. Denial of contract
9. Effect of document to be stated
10. Malice, knowledge, etc
11. Notice
12. Implied contract, or relation
13. Presumptions of law
14. Pleading to be signed
14-A. Address for service of notice
15. Verification of pleadings
16. Striking out pleadings
17. Amendment of pleadings
18. Failure to amend after order
ORDER VII
PLAINT
1. Particulars to be contained in plaint
2. In money suits
3. Where the subject-matter of the suit is immovable property
4. When plaintiff sues as representative
5. Defendant's interest and liability to be shown
6. Grounds of exemption from limitation law
7. Relief to be specifically stated
8. Relief founded on separate grounds
9. Procedure on admitting plaint
10. Return of plaint
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10-A. Power of Court to fix a date of appearance in the Court
where plaint is to be filed after its return
10-B. Power of appellate court to transfer suit to the proper Court
11. Rejection of plaint
12. Procedure on rejecting plaint
13. Where rejection of plaint does not preclude presentation of
fresh plaint
Documents relied on in plaint
14. Production of document on which plaintiff sues or relies
15. Statement in case of documents not in plaintiff's possession
or power
16. Suits on lost negotiable instruments
17. Production of shop-book
18. Inadmissibility of document not produced when plaint filed
ORDER VIII
WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM
1. Written statement
1-A. Duty of defendant to produce documents upon which relief is
claimed or relied upon by him
2. New facts must be specially pleaded
3. Denial to be specific
4. Evasive denial
5. Specific denial
6. Particulars of set-off to be given in written statement
6-A. Counter-claim by defendant
6-B. Counter-claim to be stated
6-C. Exclusion of counter-claim
6-D. Effect of discontinuance of suit
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6-E. Default of plaintiff to reply to counter-claim
6-F. Relief to defendant where counter-claim succeeds
6-G. Rules relating to written statement to apply
7. Defence or set-off founded upon separate grounds
8. New ground of defence
8-A. Duty of defendant to produce documents upon which relief is
claimed by him
9. Subsequent pleadings
10. Procedure when party fails to present written statement called
for by Court
ORDER IX
APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE
1. Parties to appear on day fixed in summons for defendant to
appear and answer
2. Dismissal of suit where summons not served in consequence of
plaintiff's failure to pay costs
3. Where neither party appears, suit to be dismissed
4. Plaintiff may bring fresh suit or Court may restore suit to file
5. Dismissal of suit where plaintiff, after summons returned
unserved, fails for seven days to apply for fresh summons
6. Procedure when only plaintiff appears
7. Procedure where defendant appears on day of adjourned
hearing and assigns good cause for previous non-appearance
8. Procedure where defendant only appears
9. Decree against plaintiff by default bars fresh suit
10. Procedure in case of non-attendance of one or more of several
plaintiffs
11. Procedure in case of non-attendance of one or more of several
defendants
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12. Consequence of non-attendance, without sufficient cause
shown, of party ordered to appear in person
Setting aside decrees ex parte
13. Setting aside decree ex parte against defendant
14. No decree to be set aside without notice to opposite party
ORDER X
EXAMINATION OF PARTIES BY THE COURT
1. Ascertainment whether allegations in pleadings are admitted or
denied
1-A. Direction of the court to opt for any one mode of alternative
dispute resolution
1-B. Appearance before the conciliatory forum or authority
1-C. Appearance before the Court consequent to the failure of
efforts of conciliation
2. Oral examination of party, or companion of party
3. Substance of examination to be written
4. Consequence of refusal or inability of pleader to answer
Schedule 1 (Order 11 to 20)
Schedule 1 (Order 21 to 30)
Schedule 1 (Order 31 to 40)
Schedule 1 (Order 41 to 51)
Schedule 2 to 5
———
THE FIRST SCHEDULE
High Court Amendments (In General)
ANDHRA PRADESH.—Section 32 of the Andhra State Act, 1953, is as
follows:
“32. Practice and procedure in Andhra High Court.—Subject to the
provisions of this Part, the law in force immediately before the
prescribed day with respect to practice and procedure in the High
Court at Madras shall, with the necessary modifications, apply in
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relation to the High Court of Andhra, and accordingly that High Court
shall have all such powers to make rules and orders with respect to
practice and procedure as are immediately before the prescribed day
exercisable by the High Court at Madras:
Provided that any rules or orders which are in force immediately
before the prescribed day with respect to practice and procedure in
the High Court at Madras, shall, until varied or revoked by rules or
orders made by the High Court of Andhra, apply with the necessary
modifications in relation to practice and procedure in the High Court
of Andhra as if made by that Court.”
ASSAM.—Clause 6 of the Assam High Court Order, 1948 (which came
into force on March 1, 1948) is as follows:
“6. Subject to the provisions of this Order the law in force
immediately before the prescribed day with respect to practice and
procedure in the High Court in Calcutta, shall with necessary
modifications, apply in relation to the High Court of Assam, and
accordingly that High Court shall have all such powers to make rules
and orders with respect to practice and procedure as are
immediately before the prescribed day exercisable by the High Court
in Calcutta:
Provided that any rules or orders which are in force immediately
before the prescribed day with respect to practice and procedure in
the High Court in Calcutta, shall, until varied or revoked by rules or
orders made by the High Court of Assam, apply with the necessary
modifications in relation to practice and procedure in the High Court
of Assam as if made by that Court.”
DELHI AND HIMACHAL PRADESH.—A new Court for the Union
Territories of Delhi and Himachal Pradesh has been constituted under
the Delhi Court Act, w.e.f. 31-10-1966. Jurisdiction of this High Court
has been extended to the Union Territory of Himachal Pradesh with
effect from 1-5-1967. This High Court has been granted original side as
well…. See Delhi High Court Act, 1966 (26 of 1966) Sections 4(20), 5
and 7. Of the ten Union Territories, Manipur, Tripura and Goa, Daman
and Diu have Judicial Commissioner's Courts. See Acts 15 of 1950 and
16 of 1964.
HIMACHAL PRADESH.—Himachal Pradesh has now become a full-
fledged State under the State of H.P. Act, 1970 (53 of 1970). Sections
21, 25 of that Act read thus:
“21. High Court of Himachal Pradesh, (1) On and from the
appointed day there shall be a separate High Court for the State of
Himachal Pradesh (hereinafter referred to as the High Court of
Himachal Pradesh).
(2) The principal seat of the High Court of Himachal Pradesh shall
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be at Simla.
25. Practice and procedure in High Court, subject to the provisions
of this Part, the law in force immediately before the appointed day
with respect to practice and procedure in the High Court of Delhi
shall, with the necessary modifications, apply in relation to the High
Court of Himachal Pradesh.”
GUJARAT.—Section 32 of the Bombay Reorganisation Act, 1960, is as
follows:
“32. Subject to the provisions of this Part the law in force
immediately before the appointed day with respect to practice and
procedure in the High Court of Bombay shall, with the necessary
modifications, apply in relation to the High Court of Gujarat and
accordingly the High Court of Gujarat shall have all such powers to
make rules and orders with respect to practice and procedure as are
immediately before the appointed day exercisable by the High Court
of Bombay:
Provided that any rules or orders which are in force immediately
before the appointed day with respect to practice and procedure in
the High Court of Bombay shall, until varied or revoked by rules or
orders made by the High Court of Gujarat, apply with the necessary
modifications in relation to practice and procedure in the High Court
of Gujarat as if made by that Court.”
ORISSA.—By virtue of clause 6 of the Orissa High Court Order, 1948,
any rules or orders which are in force immediately before 26-7-1948
with respect to practice and procedure in the Patna High Court shall,
until varied or revoked by the Orissa High Court, apply with necessary
modifications in relation to practice and procedure in the Orissa High
Court as if made by that Court.
PUNJAB, HARYANA AND CHANDIGARH.—Punjab has been reorganised
into two States, namely, Punjab and Haryana and one Union Territory,
Chandigarh. Two districts, Lahaul and Spiti, have been transferred to
Himachal Pradesh along with some other villages on the border. But for
all the three Units there is a common High Court known as Punjab and
Haryana High Court. Jurisdiction of this common High Court extends to
Union territory of Chandigarh as well. Practice and procedure in the
High Court of Punjab, with necessary modifications will apply to this
common High Court. [See the Punjab Reorganisation Act, 31 of 1966,
Sections 29, 30 and 33 (1-11-1966).]
UNION TERRITORIES.—Union Territories : Delhi and Himachal
Pradesh have a common High Court…. (See Act 26 of 1966). In relation
to Chandigarh, High Court is the Punjab and Haryana High Court….
(See Act 31 of 1966, Section 4); Pondicherry falls within the
jurisdiction of Madras High Court; Andaman and Nicobar Islands come
under Calcutta High Court; Laccadive, Minicoy and Amindivi Islands are
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governed by the Kerala High Court and Dadra and Nagar Haveli have
Bombay High Court as the High Court.
Union Territory of Goa, Daman and Diu had a Judicial Commissioner's
Court (see Acts 15 of 1956 and 16 of 1964) but now the jurisdiction of
the Bombay High Court is extended to these Union Territories by the
High Court at Bombay (Extension of Jurisdiction to Goa, Daman and
Diu) Act, 1981 (26 of 1981), Section 4, dated 30-12-1982.
UTTAR PRADESH.—“All rules framed and amendments made by the
erstwhile Chief Court of Oudh in the First Schedule of the Code of Civil
Procedure, 1908 be deleted and the rules framed and amendments
made therein by the Allahabad High Court be made applicable to all
civil courts in the State of Uttar Pradesh….” — U.P. Govt. Gazette, 1953,
Part II (17-1-1953)
High Courts in New States after States Reorganisation Act, 1955
As to the practice and procedure that should be followed in the new
or reorganised States of Bombay, Kerala, Madhya Pradesh, Mysore,
Punjab and Rajasthan, Section 54 of the States Reorganisation Act,
1956, is as follows:
“54. Practice and procedure.—Subject to the provisions of this
Part, the law in force immediately before the appointed day with
respect to practice and procedure in the High Court for the
corresponding State shall, with necessary modifications, apply in
relation to the High Court for a new State, and accordingly, the High
Court for the new State shall have all such powers to make rules and
orders with respect to practice and procedure as are, immediately
before the appointed day exercisable by the High Court for the
corresponding State:
Provided that any rules or orders which are in force immediately
before the appointed day with respect to practice and procedure in
the High Court for the corresponding State shall, until varied or
revoked by rules or orders made by the High Court for a new State,
apply with the necessary modifications in relation to practice and
procedure in the High Court for the new State as if made by that
Court.”
ORDER I
Parties to Suits
299
[1. Who may be joined as plaintiffs.—All persons may be joined in
one suit as plaintiffs where—
(a) any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist in such
persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law
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or fact would arise.]
2. Power of Court to order separate trials.—Where it appears to the
Court that any joinder of plaintiffs may embarrass or delay the trial of
the suit, the Court may put the plaintiffs to their election or order
separate trials or make such other order as may be expedient.
► Consolidation/Joint trial of suits.—The court has power to consolidate
suits in appropriate cases. Consolidation is a process by which two or more
causes or matters are by order of the court combined or united and treated as
one cause or matter. The main purpose of consolidation is to save costs, time and
effort and to make the conduct of several actions more convenient. The
jurisdiction to consolidate arises where there are two or more matters or causes
pending in the court and it appears to the court that some common question of law
or fact arises in both or all the suits or that the rights to relief claimed in the suits
are in respect of or arise out of the same transaction or series of transactions,
Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551.
300
[3. Who may be joined as defendants.—All persons may be joined
in one suit as defendants where—
(a) any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist against
such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common
question of law or fact would arise.]
High Court Amendment
BIHAR.—In its application to the Scheduled Areas in the State of
Bihar for the peace and good Government of the said areas the
following proviso shall be added, namely:—
“Provided that in suits for declaration of title or for possession
relating to immovable properties of a member of the Scheduled
Tribes as specified in Part III to the Schedule to the Constitution
(Scheduled Tribes) Order, 1950, the Deputy Commissioner
concerned shall also be joined as a defendant.”—Bihar Regulation 1
of 1969, published in Bihar Gazette, Extra., dated 9-2-1969.
► Restoration of shebaiti rights.—Proper frame of suit, relief and proper
parties in case of person claiming restoration of shebaiti rights, claiming that they
had wrongfully been deprived of their management rights and charge of
idol/temple/debutter property, as result of attachment order passed under Section
145 CrPC, 1898, indicated, M. Siddiq (Ram Janmabhumi Temple 5J) v. Suresh
Das, (2020) 1 SCC 1.
301
[3-A. Power to order separate trials where joinder of defendants
may embarrass or delay trial.—Where it appears to the Court that any
joinder of defendants may embarrass or delay the trial of the suit, the
Court may order separate trials or make such other order as may be
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expedient in the interests of justice.]
High Court Amendments
MADHYA PRADESH.—In Order I of First Schedule to the principal Act,
after Rule 3-A, the following rule shall be inserted, namely:—
“3-B. Conditions for entertainment of suits.—(1) No suit or
proceeding for,—
(a) declaration of title or any right over any agricultural land, with or
without any other relief; or
(b) specific performance of any contract for transfer of any
agricultural land, with or without any other relief, shall be
entertained by any Court, unless the plaintiff or applicant, as the
case may be, knowing or having reason to believe that a return
under Section 9 of the Madhya Pradesh Ceiling on Agricultural
Holdings Act, 1960 (20 of 1960) in relation to land aforesaid has
been or is required to be filed by him or by any other person
before competent authority appointed under that Act, has
impleaded the State of Madhya Pradesh as one of the defendants
or non-applicants, as the case may be, to such suit or proceeding.
(2) No Court shall proceed with pending suit or proceeding
referred to in sub-rule (1) unless, as soon as may be, the State
Government is so impleaded as a defendant or non-applicant.
Explanation.—The expression “suit or proceeding” used in this sub
-rule shall include appeal, reference or revision, but shall not include
any proceeding for or connected with execution of any decree or final
order passed in such suit or proceeding.”—M.P. Act 29 of 1984, S. 5
(14-8-1984).
4. Court may give judgment for or against one or more of joint
parties.—Judgment may be given without any amendment—
(a) for such one or more of the plaintiffs as may be found to be entitled to
relief, for such relief as he or they may be entitled to;
(b) against such one or more of the defendants as may be found to be
liable, according to their respective liabilities.
5. Defendant need not be interested in all the relief claimed.—It
shall not be necessary that every defendant shall be interested as to all
the relief claimed in any suit against him.
6. Joinder of parties liable on same contract.—The plaintiff may, at
his option, join as parties to the same suit all or any of the persons
severally, or jointly and severally, liable on any one contract, including
parties to bills of exchange, hundis and promissory notes.
7. When plaintiff in doubt from whom redress is to be sought.—
Where the plaintiff is in doubt as to the person from whom he is
entitled to obtain redress, he may join two or more defendants in order
that the question as to which of the defendants is liable, and to what
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extent, may be determined as between all parties.
302
[8. One person may sue or defend on behalf of all in same
interest.—(1) Where there are numerous persons having the same
interest in one suit,—
(a) one or more of such persons may, with the permission of the Court,
sue or be sued, or may defend such suit, on behalf of, or for the benefit
of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be
sued, or may defend such suit, on behalf of, or for the benefit of, all
persons so interested.
(2) The Court shall, in every case where a permission or direction is
given under sub-rule (1), at the plaintiff's expense, give notice of the
institution of the suit to all persons so interested, either by personal
service, or, where, by reason of the number of persons or any other
cause, such service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is
instituted, or defended, under sub-rule (1), may apply to the Court to
be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under
sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of
Rule 1 of Order XXIII, and no agreement, compromise or satisfaction
shall be recorded in any such suit under Rule 3 of that Order, unless
the Court has given, at the plaintiff's expense, notice to all persons so
interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not
proceed with due diligence in the suit or defence, the Court may
substitute in his place any other person having the same interest in the
suit.
(6) A decree passed in a suit under this rule shall be binding on all
persons on whose behalf, or for whose benefit, the suit is instituted, or
defended, as the case may be.
Explanation.—For the purpose of determining whether the persons
who sue or are sued, or defend, have the same interest in one suit, it is
not necessary to establish that such persons have the same cause of
action as the persons on whose behalf, or for whose benefit, they sue or
are sued, or defend the suit, as the case may be.]
► Public interest litigation.—A writ petition can be filed as a representative
action on behalf of numerous persons having the same interest against the State
and public authorities and such a writ petition would be categorised as a public
interest litigation on behalf of all such numerous persons who have the same
interest, Association of the Residents of Mhow v. Union of India, 2009 SCC
OnLine MP 543 : AIR 2010 MP 40 (46) (DB).
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► Permission of court.—A representative suit was filed without the
permission of the court, not maintainable, Hari Ram v. Jyoti Prasad, (2011) 2
SCC 682 : (2011) 1 SCC (Civ) 540.
► Stage to file application.—Order 1, Rule 8 does not prescribe any stage at
which the application can be filed, Krishnan Vasudevan v. Shareef, (2005) 12
SCC 180.
► Applicability.—A suit filed in terms of Order 1, Rule 8 should ordinarily be
premised on the ground that defendants represent the parties interested in the
suit. Defendants in such a suit although must be able to represent public in
general, but no personal decree can be passed against them, V.J. Thomas v.
Pathrose Abraham, (2008) 5 SCC 84.
► Consumer Class Action.—All persons represented in a consumer class
action need not have the same cause of action so long as they have common
interest or common grievance to maintain a class action under the Consumer
Protection Act, this being the same principle as is applicable in respect of Order 1
Rule 8 CPC, Anjum Hussain v. Intellicity Business Park (P) Ltd., (2019) 6 SCC
519.
► Representative suit.—Decree in a representative suit is binding on all
persons on whose behalf or for whose benefit suit is filed or defended, C.J. Baby
v. Fr. Jiju Varghese, (2020) 5 SCC 420.
303
[8-A. Power of Court to permit a person or body of persons to
present opinion or to take part in the proceedings.—While trying a suit,
the Court may, if satisfied that a person or body of persons is interested
in any question of law which is directly and substantially in issue in the
suit and that it is necessary in the public interest to allow that person
or body of persons to present his or its opinion on that question of law,
permit that person or body of persons to present such opinion and to
take such part in the proceedings of the suit as the Court may specify.]
9. Misjoinder and non-joinder.—No suit shall be defeated by reason
of the misjoinder or non-joinder of parties, and the Court may in every
suit deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it:
304
[Provided that nothing in this rule shall apply to non-joinder of a
necessary party.]
► Necessary and proper party.—A necessary party is one without whom,
no order can be made effectively and a proper party is one in whom absence an
effective order can be made but whose presence is necessary for a complete and
final decision of the question involved in the proceeding, State of Assam v. Union
of India, (2010) 10 SCC 408, See also Swapna Mohanty v. State of Odisha,
(2018) 17 SCC 621, Globe Ground (India) Employees Union v. Lufthansa
German Airlines, (2019) 15 SCC 273 and Mumbai International Airport (P) Ltd.
v. Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417 : (2010) 3
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SCC (Civ) 87.
► Misjoinder of parties or of cause of action.—A plaint cannot be rejected
for misjoinder of parties and causes of action. If there is power in the court to
consolidate different suits on the basis that it should be desirable to make an order
consolidating them or on the basis that some common questions of law or fact
arise for decision in them, it cannot certainly be postulated that the trying of a suit
defective for misjoinder of parties or causes of action is something that is barred
by lawt, Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551.
► Misjoinder or Non-joinder of necessary party.—Where a suit was filed
against the State, but the State was not made a party, suit was not maintainable,
Jagtu v. Suraj Mal, (2010) 13 SCC 769 : (2011) 1 SCC (Civ) 803.
Objection regarding non-joinder of necessary party should be taken before trial
court in order to provide opportunity to plaintiff to rectify the defect, Church of
Christ Charitable Trust & Educational Charitable Society v. Ponniamman
Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612.
► Restoration of shebaiti rights.—Proper frame of suit, relief and proper
parties in case of person claiming restoration of shebaiti rights, claiming that they
had wrongfully been deprived of their management rights and charge of
idol/temple/debutter property, as result of attachment order passed under Section
145 CrPC, 1898, indicated, M. Siddiq (Ram Janmabhumi Temple 5J) v. Suresh
Das, (2020) 1 SCC 1.
10. Suit in name of wrong plaintiff.—(1) Where a suit has been
instituted in the name of the wrong person as plaintiff or where it is
doubtful whether it has been instituted in the name of the right
plaintiff, the Court may at any stage of the suit, if satisfied that the suit
has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to do,
order any other person to be substituted or added as plaintiff upon such
terms as the Court thinks just.
(2) Court may strike out or add parties.—The Court may at any
stage of the proceedings, either upon or without the application of
either party, and on such terms as may appear to the Court to be just,
order that the name of any party improperly joined, whether as plaintiff
or defendant, be struck out, and that the name of any person who
ought to have been joined, whether as plaintiff or defendant, or whose
presence before the Court may be necessary in order to enable the
Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next
friend or as the next friend of a plaintiff under any disability without his
consent.
(4) Where defendant added, plaint to be amended.—Where a
defendant is added, the plaint shall, unless the Court otherwise directs,
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be amended in such manner as may be necessary, and amended copies
of the summons and of the plaint shall be served on the new defendant
and, if the Court thinks fit, on the original defendant.
305
(5) Subject to the provisions of the Indian Limitation Act, 1877
(15 of 1877), Section 22, the proceedings as against any person added
as defendant shall be deemed to have begun only on the service of the
summons.
High Court Amendment
HIMACHAL PRADESH.—In Or. 1 R. 10, add the following as sub-rule (6)
—
“(6) The Court may, at any stage of the proceedings, on the
application of any party and after notice to the other party affected
by the application and on such terms as may appear to the Court to
be just transpose a plaintiff to the position of a defendant, or subject
to the provisions of sub-rule (3), a defendant to the position of a
plaintiff” — H.P. Gazette, 27-12-2000, Extra., p. 4790.”
KARNATAKA.—In Order I, Rule 10, add the following as sub-rule (6):
“(6) The Court may on the application of any party and after
notice to the other parties affected by the application and on such
terms and conditions as it may impose transpose a plaintiff to the
position of a defendant or subject to the provision of sub-rule (3), a
defendant to the position of a plaintiff.” (30-3-1967).
► Grant of impleadment application.—Grant of application for impleadment
does not affect merits of claim(s) in question, Bhogadi Kannababu v. Vuggina
Pydamma, (2006) 5 SCC 532.
► Striking out or adding parties.—If a party can show a fair semblance of
title or interest he can certainly file an application for impleadment, Sumitbai v.
Paras Finance Co., (2007) 10 SCC 82.
In view of the power under Order 1 Rule 10 CPC suo motu invoked by the
court, it is not necessary for the parties to file separate application, Richard Lee v.
Girish Soni, (2017) 3 SCC 194.
► Discretion of court to strike out or add parties.—Discretion of court to
add a person as party is limited to persons found to be necessary party or proper
party. This discretion is judicial in nature and has to be exercised with reason and
fair play and according to whims, Mumbai International Airport (P) Ltd. v.
Regency Convention Centre & Hotels (P) Ltd., (2010) 7 SCC 417 : (2010) 3
SCC (Civ) 87.
► Tests for necessary party.—Test for necessary party are that (1) there
must be a right to some relief against such party in respect of controversies
involved in the proceedings, or, (2) no effective decree can be passed in his
absence, Kasturi v. Iyyamperumal, (2005) 6 SCC 733.
► “Questions involved in the suit”.—The expression “all the question
involved in the suit” does not involve the controversies which may arise between
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the plaintiffs or the defendants inter se or question between the parties to the suit
and a third-party, Kasturi v. Iyyamperumal, (2005) 6 SCC 733.
► Misjoinder of parties.—It is always open to the appellate court to interfere
with an order allowing an application for addition of parties when it is found that
the courts below had gone wrong in concluding that the persons sought to be
added in the suit were necessary or proper parties to be added as defendants in
the suit instituted by the plaintiff-appellant or if it is held that two courts below had
acted without jurisdiction or acted illegally and with material irregularity in exercise
of their jurisdiction in the matter of allowing the application for addition of parties
filed under Order 1, Rule 10 CPC, Kasturi v. Iyyamperumal, (2005) 6 SCC 733.
► “At any stage of the suit”.—Amendment of plaint at first appeal stage to
implead necessary party is permissible, Khaitan Consultants Ltd. v. Sulata De,
(2015) 15 SCC 567 : (2016) 3 SCC (Civ) 421.
► Rights of plaintiff as dominus litis.—Application for impleadment by
subsequent transferee of suit property cannot be allowed against wishes of
plaintiff who has filed the suit for specific performance in question, Gurmit Singh
Bhatia v. Kiran Kant Robinson, (2020) 13 SCC 773.
306
[10-A. Power of Court to request any pleader to address it.—The
Court may, in its discretion, request any pleader to address it as to any
interest which is likely to be affected by its decision on any matter in
issue in any suit or proceeding, if the party having the interest which is
likely to be so affected is not represented by any pleader.]
307
11. Conduct of suit.—The Court may give the conduct of [a suit]
to such person as it deems proper.
12. Appearance of one of several plaintiffs or defendants for others.—
(1) Where there are more plaintiffs than one, any one or more of them
may be authorised by any other of them to appear, plead or act for
such other in any proceeding; and in like manner, where there are more
defendants than one, any one or more of them may be authorised by
any other of them to appear, plead or act for such other in any
proceeding.
(2) The authority shall be in writing signed by the party giving it and
shall be filed in Court.
13. Objections as to non-joinder or misjoinder.—All objections on the
ground of non-joinder or misjoinder of parties shall be taken at the
earliest possible opportunity and, in all cases where issues are settled,
at or before such settlement, unless the ground of objection has
subsequently arisen, and any such objection not so taken shall be
deemed to have been waived.
ORDER II
Frame of Suit
► Suit to include whole claim.—When family property dispute resulted in
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two different civil suits before two different courts, respective claims of parties are
required to be decided in one suit rather than in two different suits, P.K.
Narayanan Raja v. Ambika, (2018) 9 SCC 164.
1. Frame of suit.—Every suit shall as far as practicable be framed so
as to afford ground for final decision upon the subjects in dispute and
to prevent further litigation concerning them.
2. Suit to include the whole claim.—(1) Every suit shall include the
whole of the claim which the plaintiff is entitled to make in respect of
the cause of action; but a plaintiff may relinquish any portion of his
claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue
in respect of, or intentionally relinquishes, any portion of his claim, he
shall not afterwards sue in respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several reliefs.—A person entitled to
more than one relief in respect of the same cause of action may sue for
all or any of such reliefs; but if he omits, except with the leave of the
Court, to sue for all such reliefs, he shall not afterwards sue for any
relief so omitted.
Explanation.—For the purposes of this rule an obligation and a
collateral security for its performance and successive claims arising
under the same obligation shall be deemed respectively to constitute
but one cause of action.
Illustration
A lets a house to B at a yearly rent of Rs. 1,200. The rent for the
whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in
1908 only for the rent due for 1906. A shall not afterwards sue B for the
rent due for 1905 or 1907.
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Order II, Rule 2—
(a) the existing explanation shall be numbered as Explanation I, and
after Explanation I, as so numbered the following Explanation II,
shall be inserted, namely:—
“Explanation II.—For the purposes of this rule a claim for ejectment of
the defendant from immovable property let out to him and a claim for
money due from him on account of rent or compensation for use and
occupation of that property, shall be deemed to be claims in respect of
distinct causes of action.”;
(b) for the Illustration, the following Illustration shall be substituted,
namely:—
“Illustration.—A lets immovable property to B at a yearly rent. The rent
for the whole of the years 1905, 1906 and 1907 is due and unpaid, and
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the tenancy is determined before A sues B in 1908, only for the rent
due for 1906. A may afterwards sue B for ejectment but not for the rent
due for 1905 or 1907.”. [Vide U.P. Act 57 of 1976, S. 4 (1-1-1977)].
► Nature and scope.—Order 2, Rule 2 is directed to securing an exhaustion
of the relief in respect of a cause of action and not to the inclusion in one and the
same action of different causes of action, even though they may arise from the
same transaction, S. Nazeer Ahmed v. State Bank of Mysore, (2007) 11 SCC 75.
► Object.—Cause of action in both suits must in substance be identical to
attract bar of subsequent suit in respect of any of reliefs pertaining to same cause
of action which had been omitted in previous suit. In view of Order 2 Rule 3 it is
open to plaintiff to combine causes of action but if there is more than one cause
of action, Order 2 Rule 2 will not apply, Pramod Kumar v. Zalak Singh, (2019) 6
SCC 621.
► Applicability of Bar.—Strict proof of earlier suit in evidence in later suit,
held, not mandatory to attract the bar under Order 2 Rule 2, so long as parties are
aware of pleadings, nature of objection to the maintainability of subsequent suit on
the ground of the bar under Order 2 Rule 2, Vurimi Pullarao v. Vemari Vyankata
Radharani, (2020) 14 SCC 110.
► Interpretation.—Provisions of Order 2, Rule 2 bars the remedy of the
plaintiff, therefore, must be strictly construed, Gurinderpal v. Jagmittar Singh,
(2004) 11 SCC 219.
► Winding up proceedings.—Order 2 deals with frame of suit and reliefs
thereunder whereas winding up proceedings initiated under Companies Act, 1956
are not suit but a petition. Hence, provisions of Order 2, Rule 2 would not be
attracted thereto, Raju Jhurani v. Germinda (P) Ltd., (2012) 8 SCC 563 : (2012)
4 SCC (Civ) 543.
► Cause of action.—A suit is filed on a cause of action. Cause of action
would mean a bundle of facts which would be necessary to be proved by the
plaintiff so as enable him to obtain a decree, Dadu Dayalu Mahasabha v. Mahant
Ram Niwas, (2008) 11 SCC 753.
► Mortgage suits.—In respect of suit for enforcing mortgage, bar under Or.
2 R. 2 has been kept out by Or. 34 R. 14, S. Nazeer Ahmed v. State Bank of
Mysore, (2007) 11 SCC 75.
► Suit for possession and mesne profits.—There may be independent
cause of action for either suit. In terms of Order 2, Rule 4 such causes of action
can be joined and therefor no leave of the court is required. If no leave has been
taken, a separate suit may or may not be maintainable but the same has to be
filed within limitation, Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600.
► Pleading and proof.—Unless plea of bar of Order 2, Rule 2 is raised by
defendant and issue is framed thereon, court cannot dismiss suit as so barred.
Raising of plea of res judicata by defendant would not meet said requirement,
Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 : (2010) 4 SCC (Civ)
73, See also B. Santoshamma v. D. Sarala, (2020) 19 SCC 80.
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► Bar of second suit.—Bar of second suit under the rule is applicable when
relief claimed in second suit was also available but not claimed in first suit, Sucha
Singh Sodhi v. Baldev Raj Walia, (2018) 6 SCC 733.
► Mesne profits.—Mesne profits or arrears of rent in a suit filed for ejectment
of the tenant and has relinquished his rights vis-à-vis mesne profits or arrears of
rent in the suit proceedings itself, the provisions of Order 2 Rule 2 will come into
play and in comparison to the second suit for mesne profits or arrears of rent till
the decree, the earlier suit will attain finality, Raptakos Brettand & Co. Ltd. v.
Ganesh Property, (2017) 10 SCC 643.
► Cause of action — Meaning.—Cause of action is not to be confused with
the relief which is sought. It has more to do with the basis for the relief which is
sought. It refers to the media upon which the plaintiff asked the court to arrive at a
conclusion in his favour, Kalyanaswamy v. Bakthavatsalam, (2021) 16 SCC 543
3. Joinder of causes of action.—(1) Save as otherwise provided, a
plaintiff may unite in the same suit several causes of action against the
same defendant, or the same defendants jointly; and any plaintiffs
having causes of action in which they are jointly interested against the
same defendant or the same defendants jointly may unite such causes
of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court
as regards the suit shall depend on the amount or value of the
aggregate subject-matters at the date of instituting the suit.
► Nature and scope.—Order 2, Rule 3 CPC ipso facto would not confer
jurisdiction upon a court which had none. Rather, Order 2, Rule 3 CPC permits
the plaintiff to unite in the same suit several causes of action against the same
defendant, or the same defendants jointly, Dhodha House v. S.K. Maingi, (2006) 9
SCC 41.
4. Only certain claims to be joined for recovery of immovable
property.—No cause of action shall, unless with the leave of the Court,
be joined with a suit for the recovery of immovable property, except—
(a) claims for mesne profits or arrears of rent in respect of the property
claimed or any part thereof;
(b) claims for damages for breach of any contract under which the
property or any part thereof is held; and
(c) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any
party in a suit for foreclosure or redemption from asking to be put into
possession of the mortgaged property.
5. Claims by or against executor, administrator or heir.—No claim by
or against an executor, administrator or heir, as such, shall be joined
with claims by or against him personally, unless the last mentioned
claims are alleged to arise with reference to the estate in respect of
which the plaintiff or defendant sues or is sued as executor,
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administrator or heir, or are such as he was entitled to, or liable for,
jointly with the deceased person whom he represents.
308
[6. Power of Court to order separate trials.—Where it appears to
the Court that the joinder of causes of action in one suit may embarrass
or delay the trial or is otherwise inconvenient, the Court may order
separate trials or make such other order as may be expedient in the
interests of justice.]
7. Objections as to misjoinder.—All objections on the ground of
misjoinder of causes of action shall be taken at the earliest possible
opportunity and, in all cases where issues are settled, at or before such
settlement unless the ground of objection has subsequently arisen, and
any such objection not so taken shall be deemed to have been waived.
High Court Amendments
KERALA, Laccadive, Minicoy and Amindivi Islands
Sub-rule (1) is the same as that of Punjab except for the words
“by striking out the remaining causes of action” in sub-rule (1), the
word “suitably” is substituted. And in sub-rule (2), for the words
“amended plaints for the remaining causes of action”, the words “the
amended plaint for the remaining cause of action” are substituted (9
-6-1959) and Regulation 8 of 1965, Section 2 and Schedule (w.e.f. 1
-10-1967) and for alteration of the name see Act 34 of 1973, S. 3 [1
-11-1973].
RAJASTHAN.—Add Rule 8 in Order 2,
“8. (1) Where such objection has been allowed by the Court, the
plaintiff shall be permitted to select the cause of action with which
he will proceed and shall within a time to be fixed by the Court
amend the plaint by striking out the remaining causes of action.
(2) When the plaintiff has selected the cause of action with which
he will proceed the Court may on his application pass an order giving
him time within which to submit amended plaints for the remaining
causes of action and for making up the order, the Court shall proceed
as provided in Rule 18 of Order 6 and as required by the provisions
of the Court-fees Act.” (14-8-1954).
Rule 8 added
PUNJAB (15-5-1909), HARYANA 1-11-1966, DELHI 3-10-1966, HIMACHAL
PRADESH AND CHANDIGARH.—Add the following rule to Order II : (w.e.f.
15th May, 1909):
“Rule 8.—(1) Where an objection, duly taken, has been allowed by
the Court, the plaintiff shall be permitted to select the cause of
action with which he will proceed, and shall, within time to be fixed
by the Court, amend the plaint by striking out the remaining causes
of action.
(2) When the plaintiff has selected the cause of action with which
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he will proceed the Court shall pass an order giving him time within
which to submit amended plaint for the remaining causes of action
and for making up the court-fees that may be necessary. Should the
plaintiff not comply with the Court's order, the Court shall proceed as
provided in Rule 18 of Order VI and as required by the provisions of
the Court Fees Act.”
RAJASTHAN.—Add Rule 8 in Order II.
“8. (1) Where such objection has been allowed by the Court, the
plaintiff shall be permitted to select the cause of action with which
he will proceed and shall within a time to be fixed by the Court
amend the plaint by striking out the remaining causes of action.
(2) When the plaintiff has selected the cause of action with which
he will proceed the Court may on his application pass an order giving
him time within which to submit amended plaints for the remaining
causes of action and for making up the order, the Court shall proceed
as provided in Rule 18 of Order VI and as required by the provisions
of the Court Fees Act.” (14-8-1954).
ORDER III
Recognised Agents and Pleaders
► Unauthorised pleading.—Unauthorised pleading and representation, are
invalid, K. Anbazhagan v. State of Karnataka, (2015) 6 SCC 86.
► Appointment of Government Law Officers/Counse1/Pleaders.—
Government is free to formulate its own procedure but it should be linked to
workload of court concerned so that large amounts of money are not wasted on
idle Law Officers and they should be selected on merit and not on any extraneous
considerations. The appointment should be transparent and credible, State of
Punjab v. Brijeshwar Singh Chahal, (2016) 6 SCC 1.
1. Appearances, etc., may be in person, by recognised agent or by
pleader.—Any appearance, application or act in or to any Court,
required or authorised by law to be made or done by a party in such
Court, may, except where otherwise expressly provided by any law for
the time being in force, be made or done by the party in person, or by
309
his recognised agent, or by a pleader [appearing, applying or acting,
as the case may be,] on his behalf:
Provided that any such appearance shall, if the Court so directs, be
made by the party in person.
► Concession made by Counsel.—A concession made by counsel is
binding on the party whom he represents. It is binding on the parties, again
subject to just exceptions.A wrong concession on legal question may not be
binding upon his client, BSNL v. Subash Chandra Kanchan, (2006) 8 SCC 279.
► Power of counsel to enter into compromise/settlement.—Power of
counsel to enter into compromise/settlement on behalf of client depends on
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authority conferred in vakalatnama on counsel and instructions given by client
from time to time, Y. Sleebachen v. State of T.N., (2015) 5 SCC 747.
2. Recognised agents.—The recognised agents of parties by whom
such appearances, applications and acts may be made or done are—
(a) persons holding powers-of-attorney, authorising them to make and do
such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties
not resident within the local limits of the jurisdiction of the Court
within which limits the appearance, application or act is made or done,
in matters connected with such trade or business only, where no other
agent is expressly authorised to make and do such appearances,
applications and acts.
High Court Amendments
BOMBAY.—In Order 3, in Rule 2, for clause (a), substitute the
following clause, namely:—
“(a) Persons holding on behalf of such parties either (i) a general
power of attorney, or (ii) in the case of proceedings in the High
Court of Bombay an attorney of such High Court or an advocate,
and in the case of proceedings in any district, any such attorney
or any advocate or a pleader to whom a sanad for the district has
been issued, holding the requisite special power of attorney from
parties not resident within the local limits of the jurisdiction of the
Court within which limits the appearance, application or act is
made or done, authorising them or him to make and do such
appearances, applications and acts on behalf of such
parties.” [Vide Notification No. 3236, dated 27th November,
1936.]
GUJARAT.—Clause (a) shall be read as follows:
“Person holding on behalf of such parties either (i) a general
power-of-attorney, or (ii) in the case of proceedings in the High
Court of Gujarat an Advocate, and in the case of proceedings in any
district, an Advocate or a pleader to whom a sanad for the district
has been issued, holding the requisite special power-of-attorney
from parties not resident within the local limits of the jurisdiction of
the Court within which limits the appearance, application or act is
made or done, authorising them or him to make and do such
appearance, applications and acts on behalf of such parties.” (17-8-
1961).
MADHYA PRADESH.—Clause (a) is the same as that of Gujarat except
that for the words “in the High Court of Gujarat, an Advocate”, the
words “in the High Court of Madhya Pradesh, an Advocate of that High
Court” and for the words “in any district, an Advocate”, the words “in
any district, any Advocate” are substituted. (16-9-1960).
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► “Power-of-attorney”.—Power to depose in place of principal, extends
only to deposition in respect of “acts” done by power-of-attorney holder in
exercise of power granted by the instrument. Term “acts” would not include
deposing in place of and instead of the principal for acts done by principal and
not by power-of-attorney holder, Janki Vashdeo Bhojwani v. Industrial Bank Ltd.,
(2005) 2 SCC 217.
3. Service of process on recognised agents.—(1) Process served on
the recognised agent of a party shall be as effectual as if the same had
been served on the party in person, unless the Court otherwise directs.
(2) The provisions for the service of process on a party to a suit shall
apply to the service of process on his recognised agent.
High Court Amendments
PUNJAB AND HARYANA AND CHANDIGARH.—For sub-rule (1) to Rule 3 of
Order 3, the following shall be substituted.
“Process served on the recognised agent or on an Advocate of the
party shall be effectual as if the same had been served on the party
in person unless the court otherwise directs” vide GSR No.
539/CA5/1908/74 dt. 11-4-1975.
► Knowledge of proceedings in court on part of party.—Representation
of such party by advocate in such proceedings implies presumption of such
knowledge on part of party, Damodaran Pillai v. South Indian Bank Ltd., (2005) 7
SCC 300.
► Composite suit.—Joining of two causes of action in one suit not otherwise
maintainable before the same court due to lack of jurisdiction so as to bring such
suit within territorial jurisdiction of one court, not permissible, Paragon Rubber
Industries v. Pragathi Rubber Mills, (2014) 14 SCC 762.
310
[4. Appointment of pleader.—(1) No pleader shall act for any
person in any Court, unless he has been appointed for the purpose by
such person by a document in writing signed by such person or by his
recognised agent or by some other person duly authorised by or under
a power-of-attorney to make such appointment.
311
(2) Every such appointment shall be [filed in Court and shall, for
the purposes of sub-rule (1), be] deemed to be in force until
determined with the leave of the Court by a writing signed by the client
or the pleader, as the case may be, and filed in Court, or until the client
or the pleader dies, or until all proceedings in the suit are ended so far
as regards the client.
312
[Explanation.—For the purposes of this sub-rule, the following
shall be deemed to be proceedings in the suit,—
(a) an application for the review of decree or order in the suit,
(b) an application under Section 144 or under Section 152 of this Code, in
relation to any decree or order made in the suit,
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(c) an appeal from any decree or order in the suit, and
(d) any application or act for the purpose of obtaining copies of
documents or return of documents produced or filed in the suit or of
obtaining refund of moneys paid into the Court in connection with the
suit.]
313
[(3) Nothing in sub-rule (2) shall be construed—
(a) as extending, as between the pleader and his client, the duration for
which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or document issued
by any Court other than the Court for which the pleader was engaged,
except where such service was expressly agreed to by the client in the
document referred to in sub-rule (1).]
(4) The High Court may, by general order, direct that, where the
person by whom a pleader is appointed is unable to write his name, his
mark upon the document appointing the pleader shall be attested by
such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading
only shall plead on behalf of any party, unless he has filed in Court a
memorandum of appearance signed by himself and stating—
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear:
Provided that nothing in this sub-rule shall apply to any pleader
engaged to plead on behalf of any party by any other pleader who has
been duly appointed to act in Court on behalf of such party.]
High Court Amendments
ALLAHABAD.—(1) In Order III, in Rule 4, in sub-rule (2), in the
Explanation, after clause (a) the following clause shall be inserted,
namely:—
“(aa) a proceeding for revision of an order in the suit.” [Noti. No.
714-IVH-36-A, dt. 9-12-1980, w.e.f. 21-3-1981.]
(2) In explanation to sub-rule (2) of Rule 4 of Order III CPC, 1908,
after the existing clause (d), the following new clauses (e) to (j) are
added—
“(e) An application or proceedings for transfer under Sections 22,
24 and 25 of this Code;
(f) An application under Rule 4 or Rule 9 or Rule 13 of Order IX of
this Code;
(g) An application under Rule 4 of Order XXXVII of this Code;
(h) A reference arising from or out of suit;
(i) An application for execution of any decree or order in the suit;
(j) Any application relating to or incidental to or arising from or
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out of any proceedings referred to in clauses (a) to (i) of this sub-
rule (including an application for leave to appeal) to Supreme Court:
Provided that, where the venue of the suit or the proceedings
shifts from one court (subordinate or otherwise) to another situate at
a different station, the pleader filing the appointment referred to, in
sub-rule (2) in the former court shall not be bound to appear, act or
plead in the latter court unless he files or he has already filed a
memorandum signed by him that he has instructions from his client
to appear, act or plead in that court.”
[Noti. No. 439/VII-b-123, dt. 8-8-1994, w.e.f. 22-10-1994.]
ANDHRA PRADESH.—Same as in Madras.
BOMBAY (DADRA AND NAGAR HAVELI.—Explanation substituted in 1983,
deleted — Maharashtra Govt. Gazette, 19-6-1986, Pt. IV Ka, p. 523.
In Or. 3 R. 4, for the existing sub-rule (3), substituted in 1972 as
sub-rule (3), superseded in 1983 — Maharashtra Govt. Gazette, 15-9-
1983, Pt. IV Ka, p. 397.
DELHI.—Same as that of Punjab—See Act 26 of 1966, Sections 7 and
17 (w.e.f. 31-10-1966 and 1-5-1967).
GUJARAT.—In Order 3 Rule 4, in sub-rule (3), between the words
“order in the suit” and “any application or act”, insert the words “or any
application relating to such appeal”.
Author: This amendment relates to sub-rule (3) prior to its
substitution by the Central Act 104 of 1976, Section 54 (w.e.f. 1-2-
1977).
HIMACHAL PRADESH.—Same as that of Punjab.
KARNATAKA.—Substitute the following for Rule 4:—
“4. (1) No pleader shall act for any person in any Court, unless he
has been appointed for the purpose by such person by a document
subscribed with his signature in his own hand by such person or by
his recognised agent or by some other person duly authorised by or
under a power-of-attorney to make such appointment and the
appointment has been accepted in writing by the pleader.
(2) Every such appointment shall be filed into Court. Except as
otherwise provided in this rule, no such appointment shall be
deemed to have been terminated until its determination with the
leave of the Court by a document subscribed with his signature in
his own hand by the client or his recognised or authorised agent or
by the pleader, as the case may be, and filed into Court; or until the
client or the pleader dies, or until all proceedings in the suit are
ended so far as regards the client.
(3) For the purpose of sub-rule (2), proceedings in the suit shall
mean all interlocutory and miscellaneous proceedings connected with
the suit or any decree or order passed therein taken in the Court in
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which the suit has been instituted or by which the suit has been
disposed of, and shall include applications for review of judgment,
applications for amendment or correction of the decree, application
for execution of the decree or any order in the suit or for restitution
under Section 144 of the Code or otherwise, applications for leave to
appeal against any decree or order passed in the suit, and
applications or acts for the purpose or obtaining copies of documents
or copies of judgments, decrees or orders, or for the return of
documents produced or filed in the suit or for obtaining payment or
refunds of monies paid into Court in connection with the suit or any
decree or order therein.
(4) (a) In the case of applications for execution of a decree,
applications for review of judgment and application for leave to
appeal, a pleader whose appointment continues in force by virtue of
sub-rule (2) of this rule and who has been served with the notice in
any such application shall be at liberty to intimate to the Court in
writing in the form of a memorandum filed into Court at or before
the first hearing of any such application or appeal that he has not
received instructions from his client and to retire from the case.
(b) Where, however, the pleader does not so report the absence of
instructions to the Court but proposes to continue to act on the
strength of the original appointment he shall file into Court at or
before the first hearing of such matter a formal memorandum stating
that he will continue to appear and act for his client in the said
application or appeal, as the case may be.
(c) If a pleader files the memorandum referred to in clause (a) or
omits to file the memorandum referred to in clause (b) within the
time prescribed therefor, the Court shall proceed in sub-rule (2) of
Rule 5 of this Order.
(5) The High Court may by rule or general order direct that where
the person by whom a pleader is appointed is unable to write his
name, his mark upon the document appointing the pleader shall be
attested by such person and in such manner as may be specified in
the rule or order.
(6) No pleader who has been engaged for the purpose of pleading
only shall plead on behalf of any party unless he has filed into Court
a memorandum of appearance signed by himself and stating (a) the
names of the parties to the suit, (b) name of the party for whom he
appears, and (c) the name of the person by whom he is authorised
to appear:
Provided that nothing in this sub-rule shall apply to any pleader
engaged to plead on behalf of any party by any other pleader who
has himself been duly appointed to act in Court on behalf of such
party.
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(7) No Government Pleader or other pleader appearing on behalf
of the Government or on behalf of any public servant sued in his
official capacity shall be required to present any document
empowering him to act, but such pleader shall file into Court a
memorandum of appearance signed by him and stating the
particulars mentioned in sub-rule (6).” (30-3-1967).
KERALA.—(i) In sub-rule (2), after the words “Every such
appointment” insert “when accepted by the pleader in writing”;
(ii) in sub-rule (2), for explanation substitute the following :—
“Explanation.—For the purposes of sub-rule (2) an application for
review of judgment, an application under Section 144 or 152 or
application under Or. 9 R. 9 or 13 of this Code, any appeal from any
Decree or Order in the Suit and any application or act for the purpose
of obtaining copies of documents or return of documents produced or
filed in the suit or of obtaining refund of monies paid into Court in
connection with the suit shall be deemed to be proceedings in the
suit”.—Kerala Gazette, 9-5-2000, Pt. III, p. 31 (No. 19).
(iii) in sub-rule (3), after “or Section 152”, add “or applications
under Or. 9 R. 9 or 13”;
(iv) omit sub-rule (5);
(v) insert the following as sub-rule (6):—
“(6) No pleader appearing on behalf of the Government or on
behalf of any public servant sued in his official capacity shall be
required to present any document empowering him to act, but such
pleader shall file a memorandum of appearance signed by himself
and stating:—
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear.” (9-
6-1959). Regn. 8 of 1965, S. 3.
MADHYA PRADESH.—Same as in Punjab, with following modifications in
the items:
(i) Item (x) in Punjab is item (v) in Madhya Pradesh;
(ii) in item (i), for the words “u/ss. 22, 24 or 25” read “u/ss. 23, 24
or 25”;
(iii) in item (ii) omit “Rule 4”;
(iv) in item (viii), which is item (ix) in Madhya Pradesh, omit “or
Section 154”;
(v) omit item (ix);
(vi) in item (xiii) of Punjab, which is item (xii) in Madhya Pradesh,
for the words “any application for directing or proceeding
prosecution”, read “any application or proceeding for sanctioning
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prosecution”. (18-10-1968).
MADRAS.—(a) In sub-rules (1) and (2) for the words “in writing
signed” substitute “a document subscribed with his signature in his
own hand”.
(b) Insert the following as sub-rule (6):—
“(6) No Government or other pleader appearing on behalf of the
Government or on behalf of any public servant sued in his official
capacity shall be required to present any document empowering him to
act, but such pleader shall file a memorandum of appearance signed by
himself and stating the particulars mentioned in sub-rule (5).” (7-4-
1959).
ORISSA.—Delete sub-rule (4) and Add the following sub-rule (6) to
Rule 4:—
“No pleader shall be entitled to make any application or do any
appearance, or act for any person, unless he presents an
appointment in writing duly signed by such person or his recognised
agent or by some other agents duly authorised by power of attorney
to act on his behalf; or unless he is instructed by an attorney or
pleader duly authorised so as to act on behalf of such person.” No.
5596-RX-2/88 (14-5-1984).
PATNA.—Substitute the following for sub-rule (4):—
“(4) Notwithstanding anything contained in Order III, Rule 4(3) of
the First Schedule of the Code of Civil Procedure, 1908, no advocate
shall be entitled to make or do any appearance, application or act for
any person unless he presents an appointment in writing, duly
signed by such person or his recognised agent or by some other
agent duly authorised by power of attorney to act in his behalf; or
unless he is instructed by an attorney or pleader duly authorised to
act on behalf of such person.”
PUNJAB, HARYANA AND CHANDIGARH.—For sub-rule (3) of Rule 4,
substitute the following:
“(3) For the purpose of sub-rule (2),—
(i) an application or a proceeding for transfer under Section 22, 24 or
25 of this Code, (ii) an application under R. 4 or R. 9 or R. 13 of
Or. 9 of this Code, (iii) an application under R. 4 of Or. 37 of this
Code, (iv) an application for review of judgment, (v) a reference
arising from or out of the suit, (vi) an application for amendment
of the decree or order or the record in the suit, or an appeal,
reference or revision arising from or out of the suit, (vii) an
application for the execution of any decree or order in the suit,
(viii) an application for restitution under Section 144 or Section
151 of this Code, (ix) an application under Section 151 of this
Code, (x) an application under Section 152 of this Code, (xi) any
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appeal (including an appeal under the Letters Patent of the High
Court) or revision application from any decree or order in the suit
or an appeal arising from or out of the suit, (xii) any application
relating to or incidental to or arising from or out of such appeal or
revision or a reference arising from or out of the suit (including an
application for leave to appeal under the Letters Patent of the
High Court or for leave to appeal to the Supreme Court), (xiii) any
application for directing or proceeding for prosecution under
Chapter 35 of the Code of Criminal Procedure, 1898, relating to
the suit or any of the proceedings, mentioned hereinbefore or an
appeal or revision arising from and out of any order passed in
such application or proceeding, (xiv) any application or act for the
purposes of obtaining copies of documents or the return of
documents produced or filed in the suit or in any of the
proceedings mentioned hereinbefore, (xv) any application for the
withdrawal or for obtaining the refund to payment of or out of the
monies paid or deposited into the Court in connection with the
suit or any of the proceedings mentioned hereinbefore (including
withdrawal, refund or payment of or out of the monies deposited
as security for costs or for covering the costs of the preparation
and printing of the Transcript Record of the appeal to the
Supreme Court), (xvi) any application for expunging any remarks,
observations on the record of or made in the judgment in the suit
or any appeal, revision, reference or review arising from or out of
the suit, (xvii) any application for certificate in regard to the
substitution of heirs in appeal to the Supreme Court arising from
the suit, and (xviii) any application under R. 15 of Or. 45 of the
Code, shall be deemed to be proceedings in the suit:
Provided that, where the venue of the suit or the proceedings shift from
one Court (subordinate or otherwise) to another, situate at a different
station, the pleader filing the appointment referred to in sub-rule (2) in
the former Court shall not be bound to appear, act or plead in the latter
Court, unless he files or he has already filed a memorandum signed by
him that he has instructions from his client to appear, act and plead in
that Court.” (31-9-1968).
RAJASTHAN.—(a) In old sub-rule (3), the words “or any application
relating to such appeal” shall be added between the words “order in the
suit” and “any application or Act”.
(b) Insert the following as sub-rule (6):—
(6) No Government pleader within the meaning of Order XXVII, Rule 8-
B shall be required to present any document empowering him to act,
but such pleader shall file a memorandum of appearance signed by
himself and stating the particulars mentioned in sub-rule (5).” [14-8-
1954]
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► Importance of vakalatnama.—Vakalatnama, a species of power-of-
attorney, is an important document, which enables and authorises the pleader
appearing for a litigant to do several acts as an agent, which are binding on the
litigant who is the principal. Care and caution to be observed in filling, attestation
and acceptance of vakalatnama, strongly emphasised, Uday Shankar Triyar v.
Ram Kalewar Prasad Singh, (2006) 1 SCC 75.
5. Service of process on pleader.—314[Any process served on the
pleader who has been duly appointed to act in Court for any party] or
left at the office or ordinary residence of such pleader, and whether the
same is for the personal appearance of the party or not, shall be
presumed to be duly communicated and made known to the party
whom the pleader represents, and, unless the Court otherwise directs,
shall be as effectual for all purposes as if the same had been given to or
served on the party in person.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY (DADRA AND NAGAR HAVELI).—In Or. 3 R. 5 as substituted in
1966 has been superseded in 1983 — Maharashtra Govt. Gazette, 15-9-
1983, Pt. IV, Ka, p. 397.
GUJARAT.—In Order III, Rule 5, for the words “on the pleader of any
party”, the words “on a pleader who has been appointed to act for any
party” shall be substituted. (17-8-1961).
KARNATAKA.—Substitute the following for Rule 5:
“5. (1) Any process served on the pleader of any party or left at
the office or ordinary residence of such pleader and whether the
same is for the personal appearance of party or not, shall be
presumed to be duly communicated and made known to the party
whom the pleader represents, and unless the Court otherwise
directs, shall be as effectual for all purposes as if the same had been
given to or served on the party in person.
Explanation.—Service on a pleader engaged only to plead and who
does not act his client shall not raise the presumption under this
rule.
(2) A pleader appointed to act shall be bound to receive notice on
behalf of his client in all proceedings in the suit as defined in sub-
rule (3) of Rule 4. Where however, such pleader having been served
with notice reports to Court absence of instructions from his client
under sub-rule (4) of Rule 4, the Court shall direct that notice shall
be issued and served personally on the party in the manner
prescribed for service of summons on a defendant under Order V of
this Code.” (30-3-1967).
MADHYA PRADESH.—Same as that of Gujarat. (16-9-1960).
MADRAS AND PONDICHERRY.—Insert the following at the end:
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“Explanation.—Service on a pleader who does not act for his
client, shall not raise the presumption under this rule.” [R.O.C. No.
1810 of 1926—20-12-1927; Act 16 of 1968, Section 3 and Schedule,
Part II (w.e.f. 5-9-1968)].
RAJASTHAN.—Same as that of Gujarat. (14-8-1954).
RULE 5-B
ORISSA.—Same as that of Patna.
PATNA.—Add the following rule:
“5-B. Notwithstanding anything contained in Order III, sub-rules
(2) and (3) of Rule 4 of the First Schedule of the Code of Civil
Procedure no pleader shall act for any person in the High Court
unless he has been appointed for the purpose in the manner
prescribed by sub-rule (1) and the appointment has been filed in the
High Court.”(26-7-1948).
► Applicability.—The principles enshrined in Order 3, Rule 5 CPC are
applicable only in cases where the counsel acts on behalf of his client and
represents its client, ONGC Ltd. v. Nippon Steel Corpn. Ltd., (2007) 2 SCC 382.
When party is represented by counsel before the court, it cannot claim want of
notice and object to the proceedings later, Punjab National Bank v. Sahujain
Charitable Society, (2007) 7 SCC 83.
6. Agent to accept service.—(1) Besides the recognised agents
described in Rule 2 any person residing within the jurisdiction of the
Court may be appointed an agent to accept service of process.
(2) Appointment to be in writing and to be filed in Court.—
Such appointment may be special or general and shall be made by an
instrument in writing signed by the principal, and such instrument or, if
the appointment is general, a certified copy thereof shall be filed in
Court.
315
[(3) The Court may, at any stage of the suit, order any party to
the suit not having a recognised agent residing within the jurisdiction
of the Court, or a pleader who has been duly appointed to act in the
Court on his behalf, to appoint, within a specified time, an agent
residing within the jurisdiction of the Court to accept service of the
process on his behalf.]
High Court Amendments
BOMBAY, DADRA AND NAGAR HAVELI.—In Order III, Rule 6, following
marginal note and sub-rule (3) shall be added as new sub-rule:
“(3) Court may order appointment of agent for service within its
jurisdiction.—The Court may at any stage of a suit order any party to
the suit not having a recognised agent residing within the
jurisdiction of the Court to appoint within a specified time an agent
within the jurisdiction of the Court to accept service of process on his
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behalf.” (1-11-1966).
See Act 35 of 1961, Section 11 and Regulation 6 of 1963, Section
3 (1-7-1965).
In order 3, Rule 6 the marginal note and sub-rule (3) have been
superseded vide Mah. Govt. Gaz. dt. 15-9-1983, Pt. IV Ka P. 397.
GUJARAT.—Same as that of Bombay, except the marginal note. (17-8
-1961).
ORDER IV
Institution of Suits
1. Suits to be commenced by plaint.—(1) Every suit shall be
316
instituted by presenting a plaint [in duplicate] to the Court or such
officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI
and VII, so far as they are applicable.
317
[(3) The plaint shall not be deemed to be duly instituted unless it
complies with the requirements specified in sub-rules (1) and (2).]
High Court Amendments
ALLAHABAD.—(a) For sub-rule (1), substitute the following:
“1. (1) Every suit shall be instituted by presenting to the Court or
such officer as it appoints in this behalf, a plaint, together with a
true copy for service with the summons upon each defendant, unless
the Court for good cause shown allows time for filing such copies.
(2) The court fee chargeable for such service shall be paid in the
case of suits when the plaint is filed and in the case of all other
proceedings when the process is applied for.”
(b) Renumber the present sub-rule (2) as sub-rule (3) (w.e.f. 24-
7-1926).
BOMBAY.—Substitute the following as Rule 1 for the existing Rule 1 of
Order IV and marginal note:—
“1. Suit to be commenced by a plaint.—(1)(a) Every suit shall
be instituted by presenting a plaint to the Court or such Officer as it
appoints in this behalf.
(b) The plaintiff shall, except in the Bombay City Civil Court, file
as many true copies on plain paper of the plaint with annexures as
there are defendants, for service with the summons upon the
defendants, unless the court by reason of the length of the plaint or
the number of defendants or for any other sufficient reason permits
him to present a like number of concise statements of the nature of
the claim made or of the relief claimed in the suit in which case, he
shall present such statement. Such copies or statements shall be
filed along with the plaint unless the Court, for good cause shown,
allows time for filing such copies or statements.
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(2) Where the plaintiff sues, or the defendant or any of the
defendants is sued, in a representative capacity, such statements
shall show in what capacity the plaintiff or the defendant sues or is
sued.
(3) The plaintiff may, by leave of the Court, amend such
statements so as to make them correspond with the plaint.
(4) The fee, chargeable for service of the summons upon the
defendants, shall be paid when the plaint is filed or within such time
as may be extended by the Court.
(5) Every plaint shall comply with the rules contained in Orders VI
and VII so far as they are applicable.” (1-10-1983).
HIMACHAL PRADESH.—Substitute the following for Or. 4 R. 1:—
“1.(1) Every suit shall be instituted by presenting to the Court or
such officer as it appoints in this behalf, a plaint, together with as
many true copies of the plaint, as there are defendants, for service
with the summons upon each defendant, unless the Court, for good
cause shown, allows time for filing such copies.”
(2) The plaintiff shall file along with the plaint, for each of the
defendants a pre-paid registered AD cover with complete and correct
address of each of the defendants written on them along with the
prescribed process-fee and a copy of the plant.
(3) The existing sub-rule (2) will be renumbered as sub-rule (3).”
— H.P. Gaz., 27-12-2000, Extra., p. 4789.
MADHYA PRADESH.—(a) Substitute the following for Rule 1(1)—
“1. (1) Every suit shall be instituted by presenting to the Court or
such officer as it appoints in this behalf a plaint, together with as
many true copies on plain paper of the plaint as there are
defendants, for service with the summons upon each defendant,
unless the Court, for good cause shown, allows time for filing such
copies.”
(b) Add the following as sub-rule (2) to Rule 1 and renumber the
present sub-rule (2) as sub-rule (3):
“(2) The court fee chargeable for such service shall be paid in the
case of suits when the plaint is filed, and in the case of all other
proceedings when the process is applied for.” M.P. Gazette 16-9-
1960, Pt. 4(Ga), p. 905.
PUNJAB AND HARYANA.—(A) (1) Every suit shall be instituted by
presenting a plaint to the Court or such officer as it appoints in this
behalf.
(2) Every plaint shall comply with the rules contained in Orders 6
and 7, so far as they are applicable.
[High Court correction slip No. 14 Rules XI.Y. 24, dt. 21st November,
1908.]
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(B) Sub-rule (2) of R. 1 of Or. 4 as inserted on 11-4-1975 deleted
and sub-rule (3) renumbered as sub-rule (2) (28-1-1983).
RAJASTHAN.—Substitute Rule 1(1) as in Madhya Pradesh (21-7-
1954).
2. Register of suits.—The Court shall cause the particulars of every
suit to be entered in a book to be kept for the purpose and called the
register of civil suits. Such entries shall be numbered in every year
according to the order in which the plaints are admitted.
High Court Amendments
ASSAM AND NAGALAND.—Same as that of Calcutta.—Assam High Court
Order, 1948, Clause 6 (5-4-1948); Act 27 of 1962, Sections 13 and 15
(w.e.f. 1-12-1963).
CALCUTTA: ANDAMAN AND NICOBAR I SLANDS.—Insert the following words
after the words “particulars of every suit”:
“Except suits triable by a Court invested with the jurisdiction of a
Court of Small Causes under the Provincial Small Causes Courts Act,
1887”. (1-1-1939).
GAUHATI.—Same as that of Calcutta.—Assam High Court Order, 1948,
clause 6 (5-4-1948); Act 27 of 1962, Sections 13 and 15 (w.e.f. 1-12-
1963) and North Eastern Areas (Reorganisation) Act, 1971 (81 of
1971), S. 28 (28-1-1972).
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh after
Order IV, the following Order shall be inserted, namely:
“ORDER IV-A
CONSOLIDATION OF CASES
1. Consolidation of suits and proceedings.—When two or more suits
or proceedings are pending in the same court, and the court is of
opinion that it is expedient in the interest of justice, it may by order
direct their joint trial, whereupon all such suits and proceedings may be
decided upon the evidence in all or any such suits or
proceedings.” [Vide U.P. Act 57 of 1976, Section 5 (1-1-1977)].
ORDER V
Issue and Service of Summons
Issue of Summons
318
1. Summons.— [(1) When a suit has been duly instituted, a
summons may be issued to the defendant to appear and answer the
claim and to file the written statement of his defence, if any, within
thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant
has appeared at the presentation of plaint and admitted the plaintiff's
claim:
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Provided further that where the defendant fails to file the written
statement within the said period of thirty days, he shall be allowed to
file the same on such other day as may be specified by the Court, for
reasons to be recorded in writing, but which shall not be later than
ninety days from the date of service of summons.]
(2) A defendant to whom a summons has been issued under sub-
rule (1) may appear—
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions
relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such
questions.
(3) Every such summons shall be signed by the Judge or such officer
as he appoints, and shall be sealed with the seal of the Court.
NOTES ► Proviso to sub-rule (1) of Rule 1 of Order V should not
apply to such transferred suit or application as specified under Section
15 of Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts Act, 2015 (4 of 2016). Vide proviso to
sub-section (4) of Section 15 of the same Act.
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Order V, in Rule 1, in sub-
rule (1), for the second proviso, substitute the following proviso,
namely:—
“Provided further that where the defendant fails to file the written
statement within the said period of thirty days, he shall be allowed
to file the written statement on such other day, as may be specified
by the court, for reasons to be recorded in writing and on payment of
such costs as the court deems fit, but which shall not be later than
one hundred twenty days from the date of service of summons and
on expiry of one hundred twenty days from the date of service of
summons, the defendant shall forfeit the right to file the written
statement and the court shall not allow the written statement to be
taken on record.” [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-
2020)].
Union Territory of Ladakh.—In its application to the Union
Territory of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O.
3774(E), dated 23-10-2020].
High Court Amendments
PUNJAB AND HARYANA (CHANDIGARH).—In Order 5 Rule 1, new sub-rule
(2) was added by 1975 Amendment and the existing sub-rules (2) and
(3) were renumbered as sub-rules (3) and (4) respectively but now by
1983 Amendments, the sub-rule (2), which was added previously, was
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deleted and existing sub-rules (3) and (4) were renumbered as sub-
rules (2) and (3) respectively — See (1) Punjab Government Gazette,
11-4-1975, Pt. III (L.S.), p. 303; Chandigarh Admn. Gazette, 1-5-
1975, Pt. II, p. 96; (2) Punjab Government Gazette, 28-1-1983, Pt. III
(L.S.), p. 55; (3) Haryana Government Gazette, 25-1-1983, Pt. III
(L.S.), p. 105; (4) Chandigarh Admn. Gazette, 1-3-1983, Pt. II, p. 9.
319
[2. Copy of plaint annexed to summons.—Every summon shall be
accompanied by a copy of the plaint.]
High Court Amendments
ALLAHABAD.—Omit the words “or, if so permitted, by a concise
statement”. (24-7-1926).
BOMBAY : DADRA AND NAGAR HAVELI.—In Order V, for the existing Rule
2 and its marginal note, substitute the following as Rule 2 and marginal
note:
“2. Copy of plaint to accompany summons.—Every summons,
except in the case of one issued by the City Civil Court, shall be
accompanied by a copy of the plaint with annexures, or if so
permitted, by concise statement.” (1-10-1983).
KERALA : LAKSHADWEEP, MINICOY AND AMINDIVI I SLANDS.—Omit the
words “or, if so permitted by a concise statement” from Rule 2 and the
words “or statement” in the marginal note (9-6-1959); Regulation 8 of
1965, Section 3.
RAJASTHAN.—Same as that of Allahabad (14-8-1954).
► Non-compliance with Rule 2.—In the absence of a copy of plaint and
other documents, the defendant would be unable to file his written statement,
Nahar Enterprises v. Hyderabad Allwyn Ltd., (2007) 9 SCC 466.
3. Court may order defendant or plaintiff to appear in person.—(1)
Where the Court sees reason to require the personal appearance of the
defendant, the summons shall order him to appear in person in Court
on the day therein specified.
(2) Where the Court sees reason to require the personal appearance
of the plaintiff on the same day, it shall make an order for such
appearance.
4. No party to be ordered to appear in person unless resident with
certain limits.—No party shall be ordered to appear in person unless he
resides—
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at a place less than fifty or (where there is
railway or steamer communication or other established public
conveyance for five-sixths of the distance between the place where he
resides and the place where the Court is situate) less than two hundred
miles' distance from the Court House.
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High Court Amendments
BOMBAY.—For existing Rule 4 substitute the following:
“4. No party shall be ordered to appear in person unless he
resides:
(a) within the local limits of the Court's Ordinary Original
jurisdiction, or
(b) without such limits but at a place less than 100 or (where there
is railway or steamer communication or other established public
conveyance for five-sixths of the distance between the place
where he resides and the place where the court is situate), less
than five hundred kilometres distance from the court house.” (1-
10-1983).
RULE 4-A
ALLAHABAD.—Add the following Rule 4-A:
“4-A. Except as otherwise provided, in every interlocutory
proceeding and in every proceeding after decree in the trial court,
the Court may, either on the application of any party, or of its own
motion, dispense with the service upon any defendant who has not
appeared or upon any defendant who has not filed a written
statement.” (24-7-1926).
ORISSA.—(Deleted) (14-5-1984).
5. Summons to be either to settle issues or for final disposal.—The
Court shall determine, at the time of issuing the summons, whether it
shall be for the settlement of issues only, or for the final disposal of the
suit; and the summons shall contain a direction accordingly:
Provided that, in every suit heard by a Court of Small Causes, the
summons shall be for the final disposal of the suit.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
ASSAM AND NAGALAND.—Same as that of Calcutta—See Assam High
Court Order, 1948, Clause 6 (5-4-1948); Act 27 of 1962, Sections 13
and 15 (w.e.f. 1-12-1963).
BOMBAY : DADRA AND NAGAR HAVELI.—In Order V, for the existing Rule
5 and its marginal note, substitute the following as Rule 5 and marginal
note:
“5. Summons to be either to settle issues or for final disposal.—
The Court shall determine at the time of issuing the summons
whether it shall be for the filing of written statement and the
settlement of issues only, or for the final disposal of the suit; and the
summons shall contain a direction accordingly:
Provided that in every suit heard by a Court of Small Causes the
summons shall be for final disposal of the suit.” (1-10-1983).
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CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Insert the words “for the
ascertainment whether the suit will be contested” after the words
“issue only”. (25-8-1927).
GAUHATI : (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—
Same as that of Calcutta — See Assam High Court Order, 1948, Cl. 6 (5
-4-1948); State of Nagaland Act, 1962 (27 of 1962), Ss. 13 and 15 (1-
12-1963) and North Eastern Areas (Reorganisation) Act, 1971, (81 of
1971), S. 28 (21-1-1972).
KARNATAKA.—Delete Rule 5 and substitute the following:
“5. The Court shall determine, at the time of issuing the
summons, whether it shall be—
(a) for the settlement of issues only, or
(b) for the defendant to appear and state whether he contests to or
does not contest the claim and directing him if he contests to
receive directions as to the date on which he has to file his written
statement, the date of trial and other matters, and if he does not
contest for final disposal of the suit at once, or
(c) for the final disposal of the suit;
And the summons shall contain a direction accordingly:
Provided that, in every suit heard by a Court of Small Causes, the
summons shall be for final disposal of the suit.” (30-3-1967).
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—For Rule 5 the
following rule shall be substituted, namely:
“5. Summons to be either (1) to ascertain whether the suit is
contested or not or (2) for the final disposal of the suit. The Court
shall determine at the time of issuing the summons, whether it shall
be—
(i) For the defendant to appear and state whether he contests, or
does not contest the claim and directing him if he contests, to
receive directions as to the date on which he has to file his written
statement, the date of trial and other matters and if he does not
contest, for final disposal of the suit at once; or
(ii) For the final disposal of the suit at once; and the summons shall
contain a direction accordingly:
Provided that in every non-appealable case the summons shall be
for the final disposal of the suit.” (9-6-1959): Regulation 8 of 1965
(w.e.f. 1-10-1967).
MADRAS AND PONDICHERRY.—Delete the first paragraph and subs. the
following in lieu thereof:
“Rule 5. The Court shall determine, at the time of issuing the
summons, whether it shall be—
(1) for the settlement of issue only, or (2) for the defendant to
appear and state whether he contests or does not contest the claim
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and directing him, if he contests, to receive directions as to the date
on which he has to file his written statement, the date of trial and
other matters, and if he does not contest, for final disposal of the
suit at once; or (3) for the final disposal of the suit; and the
summons shall contain a direction accordingly.” (P. Dis. No. 7 of
1927) and Act 26 of 1968, Section 3 and Schedule, Part II (w.e.f. 5-
9-1968).
ORISSA.—Delete Rule 5 substituted on 30-3-1954 (14-5-1984).
320
6. Fixing day for appearance of defendant.—The day [under sub-
rule (1) of Rule 1] shall be fixed with reference to the current business
of the Court, the place of residence of the defendant and the time
necessary for the service of the summons; and the day shall be so fixed
as to allow the defendant sufficient time to enable him to appear and
answer on such day.
7. Summons to order defendant to produce documents relied on by
him.—The summons to appeal and answer shall order the defendant to
321
produce [all documents or copies thereof specified in Rule 1-A of
Order VIII] in his possession or power upon which he intends to rely in
support of his case.
High Court Amendments
BOMBAY (DADRA AND NAGAR HAVELI).—Amendment to R. 7 in 1966
superseded in 1983, Maharashtra Govt. Gazette, 15-9-1983, Pt. IV Ka,
p. 397.
DELHI AND HIMACHAL PRADESH.—Same as in Punjab—Act 26 of 1966, S.
7 proviso and S. 13.
PUNJAB, HARYANA AND CHANDIGARH.—Substitute for Rule 7 the
following:
“The summons to appear and answer shall order the defendant to
produce all documents in his possession or power upon which he
bases his defence or any claim for set-off and shall further order that
where he relies on any other documents (whether in his possession
or power or not) as evidence in support of his defence or claim for
set-off, he shall enter such documents in a list to be added or
annexed to the written statement.” (24-7-1936).
8. On issue of summons for final disposal, defendant to be directed
to produce his witnesses.—Where the summons is for the final disposal
of the suit, it shall also direct the defendant to produce, on the day
fixed for his appearance, all witnesses upon whose evidence he intends
to rely in support of his case.
Service of Summons
322
[9. Delivery of summons by Court.—(1) Where the defendant
resides within the jurisdiction of the Court in which the suit is
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instituted, or has an agent resident within that jurisdiction who is
empowered to accept the service of the summons, the summons shall,
unless the Court otherwise directs, be delivered or sent either to the
proper officer to be served by him or one of his subordinates or to such
courier services as are approved by the Court.
(2) The proper officer may be an officer of a Court other than that in
which the suit is instituted, and, where he is such an officer, the
summons may be sent to him in such manner as the Court may direct.
(3) The services of summons may be made by delivering or
transmitting a copy thereof by registered post acknowledgment due,
addressed to the defendant or his agent empowered to accept the
service or by speed post or by such courier services as are approved by
the High Court or by the Court referred to in sub-rule (1) or by any
other means of transmission of documents (including fax message or
electronic mail service) provided by the rules made by the High Court:
Provided that the service of summons under this sub-rule shall be
made at the expenses of the plaintiff.
(4) Notwithstanding anything contained in sub-rule (1), where a
defendant resides outside the jurisdiction of the Court in which the suit
is instituted, and the Court directs that the service of summons on that
defendant may be made by such mode of service of summons as is
referred to in sub-rule (3) (except by registered post acknowledgment
due), the provisions of Rule 21 shall not apply.
(5) When an acknowledgment or any other receipt purporting to be
signed by the defendant or his agent is received by the Court or postal
article containing the summons is received back by the Court with an
endorsement purporting to have been made by a postal employee or by
any person authorised by the courier service to the effect that the
defendant or his agent had refused to take delivery of the postal article
containing the summons or had refused to accept the summons by any
other means specified in sub-rule (3) when tendered or transmitted to
him, the Court issuing the summons shall declare that the summons
had been duly served on the defendant:
Provided that where the summons was properly addressed, pre-paid
and duly sent by registered post acknowledgment due, the declaration
referred to in this sub-rule shall be made notwithstanding the fact that
the acknowledgment having been lost or mislaid, or for any other
reason, has not been received by the Court within thirty days from the
date of issue of summons.
(6) The High Court or the District Judge, as the case may be, shall
prepare a panel of courier agencies for the purposes of sub-rule (1).
High Court Amendments
(To old Rule 9)
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ALLAHABAD.—Add the following as sub-rule (3) to R. 9—
“(3) In lieu of or in addition to, the procedure indicated in sub-
rule (1), such summons may also be served by sending it by
registered post addressed to the defendant at the place where he
ordinarily resides or carries on business or works for gain. Unless the
cover is returned undelivered by the post office on account of proper
address or other similar reason, the summons may be deemed to
have been delivered to the addressee at the time when it should
have reached him in the ordinary course.” (14-4-1962).
ANDHRA PRADESH.—Add the following as sub-rule (3):
“(3) Where the defendant resides in India, whether within the
jurisdiction of the Court in which the suit is instituted or not, the
Court may direct proper officer to cause a summons under this Order
to be addressed to the defendant at the place where he ordinarily
resides or carries on business or works for gain and sent to him by
registered post, acknowledgment prepaid. An acknowledgment
purporting to be signed by the defendant shall be deemed to be
sufficient proof of service of such summons.” (1-11-1951).
KERALA, LAKSHADWEEP.—Same as that of Madras given under Andhra
Pradesh (9-6-1959): Regn. 8 of 1965 (w.e.f. 1-10-1967).
MADRAS AND PONDICHERRY.—For R. 9 substitute the following rule,
namely:—
“9. (1) Where the defendant resides in India, whether within or
without the jurisdiction of the Court in which the suit is instituted,
the Court may direct the proper officer to cause a summons under
this Order to be addressed to the defendant at the place, where he
ordinarily resides or carries on business or works for gain, and sent
to him by registered post prepaid for acknowledgment.
(2) Where the summons is returned unserved or the defendant
does not appear on the day fixed in the summons, the Court may
direct that the summons shall be delivered or sent to the proper
officer to be served by him or one of his subordinates on the
defendant.
(3) The proper officer may be an officer or a Court other than that
in which the suit is instituted and where he is such an officer, the
summons may be sent to him by post, or in such other manner as
the Court may direct.
(4) Notwithstanding anything contained in sub-clause (1), where
proceedings in Court are taken for—
(i) issue of an injunction, or
(ii) punishment of a party for contempt of court, or
(iii) bringing to sale any property in execution of a decree or order of
Court, notice shall be served only in the manner provided for in
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sub-clause (2).” (27-3-1963). Repealed w.e.f. 5-12-1980 by T.N.
Govt. Gazette, 24-12-1980, Pt. III, S. 2, p. 288. Pondichery
Gazzette, 10-2-1981, p. 111.
For application to Pondicherry see Act 26 of 1968, Section 3 and
Schedule, Part II.
► Service of summons through courier.—Service of summons by courier
and at instance of plaintiff under this section is permissible and the provision for,
is valid, Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344.
► Deemed service of notice.—Notice correctly addressed and despite
intimation by post office is not accepted and returned unserved, in such
circumstances it is presumed that notice has been served, P.T. Thomas v.
Thomas Job, (2005) 6 SCC 478.
9-A. Summons given to the plaintiff for service.—(1) The Court may,
in addition to the service of summons under rule, on the application of
the plaintiff for the issue of a summons for the appearance of the
defendant, permit such plaintiff to effect service of such summons on
such defendant and shall, in such a case, deliver the summons to such
plaintiff for service.
(2) The service of such summons shall be effected by or on behalf of
such plaintiff by delivering or tendering to the defendant personally a
copy thereof signed by the Judge or such officer of the Court as he may
appoint in this behalf and sealed with the seal of the Court or by such
mode of service as is referred to in sub-rule (3) of Rule 9.
(3) The provisions of Rules 16 and 18 shall apply to a summons
personally served under this rule as if the person effecting service were
a serving officer.
(4) If such summons, when tendered, is refused or if the person
served refuses to sign an acknowledgment of service or for any reason
such summons cannot be served personally, the Court shall, on the
application of the party, re-issue such summons to be served by the
Court in the same manner as a summons to a defendant.]
Rule 9-B
High Court Amendments
CALCUTTA.—After Rule 9-A, insert the following Rule 9-B—
“9-B. In cases of service of summons under Rule 9-A of this order
or through courier-agency, the plaintiff and the person serving shall
along with the return file an affidavit giving details about the place
and manner of service and the persons present at the time of such
service:
Provided further that if any part of such affidavit is found to be
false or fabricated, the deponent can be summarily tried and
punished for perjury and the courier-agency may be blacklisted for
the purpose of effecting service of summons in that Court:
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Provided further that if such affidavit is found to be false and
fabricated subsequently in any proceedings for setting aside ex parte
decree passed on the basis of such affidavit, the Court, arriving at
the conclusion that such affidavit was a false one, including the
appellate or the Revisional Court, can blacklist the courier-agency for
the purpose of service of summons in such court and can also inflict
punishment on the person affirming such false affidavit in a
summary manner.”—Ins. by Noti. No. 4681-G, dt. 6-12-2006,
published in the Kolkata Gazette, Extra., dt. 7-12-2006 (w.e.f. 7-12-
2006).
10. Mode of service.—Service of the summons shall be made by
delivering or tendering a copy thereof signed by the Judge or such
officer as he appoints in this behalf, and sealed with the seal of the
Court.
High Court Amendments
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab—See Act 26 of
1968, Sections 7 and 17 (31-10-1966 and 1-5-1967).
HIMACHAL PRADESH.—Same as that of Delhi — See Act 53 of 1970, Ss.
21 and 25 (25-1-1971).
KARNATAKA.—Add the following proviso to Rule 10:
“Provided that, in any case the Court may either on its own
motion or on the application of the plaintiff, either in the first
instance or when summons last issued is returned unserved direct
the service of summons by registered post prepaid for
acknowledgment, instead of the mode of service laid down in this
rule. The postal acknowledgment purporting to contain the signature
of the defendant may be deemed to be prima facie proof of sufficient
service of the summons on the defendant on the day on which it
purports to have been signed by him. If the postal cover is returned
unserved, an endorsement purporting to have been made thereon by
the delivery peon or either an employee or officer of the Postal
Department shall be prima facie evidence of the statements contain
therein.” (30-3-1967).
ORISSA.—Deleted (14-5-1984).
PATNA.—Add the following:
“Provided that in any case the Court may, on its own motion, or
on the application of the plaintiff, send the summons to the
defendant by post in addition to the mode of service laid in this rule.
An acknowledgment purporting to be signed by the defendant or an
endorsement by postal servant that the defendant refused to take
delivery may be deemed by the Court issuing the summons to be
prima facie proof of service.”
PUNJAB, HARYANA AND CHANDIGARH.—Add the following proviso:
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“Provided that in any case if the plaintiff so wishes the Court may
serve the summons in the first instance by registered post
(acknowledgment due) instead of in the mode of service laid down in
this rule.” (As amended on 24-11-1927): Act 31 of 1966, Sections
29 and 32 (1-11-1966).
RAJASTHAN.—Add the following proviso:
“Provided that in any case the Court may in its discretion send the
summons to the defendant by registered post in addition to the
mode of service laid down in this rule. An acknowledgment
purporting to be signed by the defendant or an endorsement by
postal servant that the defendant refused to take the delivery may
be deemed by the Court issuing the summons to be prima facie
proof of service.” (14-8-1954).
11. Service on several defendants.—Save as otherwise prescribed,
where there are more defendants than one, service of the summons
shall be made on each defendant.
12. Service to be on defendant in person when practicable, or on his
agent.—Wherever it is practicable service shall be made on the
defendant in person, unless he has an agent empowered to accept
service, in which case service on such agent shall be sufficient.
13. Service on agent by whom defendant carries on business.—(1)
In a suit relating to any business or work against a person who does
not reside within the local limits of the jurisdiction of the Court from
which the summons is issued, service on any manager or agent, who,
at the time of service, personally carries on such business or work for
such person within such limits, shall be deemed good service.
(2) For the purpose of this rule the master of a ship shall be deemed
to be the agent of the owner or charterer.
14. Service on agent in charge in suits for immovable property.—
Where in a suit to obtain relief respecting, or compensation for wrong
to, immovable property, service cannot be made on the defendant in
person, and the defendant has no agent empowered to accept the
service, it may be made on any agent of the defendant in charge of the
property.
323
[15. Where service may be on an adult member of defendant's
family.—Where in any suit the defendant is absent from his residence
at the time when the service of summons is sought to be effected on
his at his residence and there is no likelihood of his being found at the
residence within a reasonable time and he has no agent empowered to
accept service of the summons on his behalf, service may be made on
any adult member of the family, whether male or female, who is
residing with him.
Explanation.—A servant is not a member of the family within the
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meaning of this rule.]
High Court Amendments
ALLAHABAD.—For the words “where in any suit the defendant cannot
be found”, read “when the defendant is absent or cannot be personally
served.”, (24-7-1926).
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY.—In Or. 5, for the existing R. 15 and its marginal note,
substitute the following as R. 15 and marginal note:—
“15. Where service may be on male member of defendant's
family.—When the defendant cannot for any reason be personally
served and has no agent empowered to accept service of the
summons on his behalf, service may be made on any adult male
member of the family of the defendant who is residing with him.
Explanation.—A servant is not a member of the family within the
meaning of this rule.” See Maharashtra Govt. Gazette, 13-9-1983 (1-
10-1983).
CALCUTTA (ANDAMAN AND NICOBAR ISLANDS.—Substitute the
following:
“R. 15. Where in any suit the defendant is absent from his
residence at the time when service is sought to be effected on him
thereat and there is no likelihood of his being found thereat within a
reasonable time, then unless he has an agent empowered to accept
service of the summons on his behalf, service may be made on any
adult male member of the family for the defendant who is residing
with him:
Provided that where such adult male member has an interest in
the suit and such interest is adverse to that of the defendant, a
summon so served shall be deemed for the purposes of the third
column of Article 164 of Schedule I of the Limitation Act, 1908 not to
have been duly served.
Explanation.—A servant is not a member of the family within the
meaning of this rule”. (25-7-1928).
DELHI.—Same as that of Punjab — See Delhi High Court Act, 1966
(26 of 1966), Ss. 7 and 17 (31-10-1966 and 1-5-1967).
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).
—Same as that of Calcutta-Assam High Court Order, 1948, Cl. 6 (5-4-
1948).
HIMACHAL PRADESH.—Same as that of Delhi — See State of Himachal
Pradesh Act, 1970 (53 of 1970), Ss. 21 and 25 (25-1-1971).
KARNATAKA.—Delete Rule 15 and substitute the following—
15. Where in any suit the defendant is absent from his residence
at the time when service is sought to be effected to him thereat and
there is no likelihood of his being found thereat within a reasonable
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time, then unless he has an agent duly empowered to accept service
of the summons on his behalf, service may be made on any adult
male member of the family of the defendant (not being a servant)
who is residing with him:
Provided that where such adult male member has an interest in
the suit and such interest is adverse to that of the defendant
summons so served shall be deemed for the purposes of R. 13 of Or.
9 of this Code or of the 3rd Column of Art. 123 of the Schedule of
the Limitation Act, 1963, not to have been duly served (30-3-1967).
KERALA (LAKSHADWEEP ISLANDS).—In Rule 15, for the word “male”
in the marginal note, substitute the word “adult” and omit the word
“male” in the rule (9-6-1959), Regn. 8 of 1965, S. 3 and Schedule
(w.e.f. 1-10-1967).
MADHYA PRADESH.—Substitute the words “when the defendant is
absent or cannot be personally served” for the words “where in any
suit, the defendant cannot be found” (16-9-1960).
MADRAS (PONDICHERRY).—Delete the words “the defendant cannot
be found” and in lieu thereof insert the words “the defendant is
absent”. (R.O.C. No. 1810 of 1926, 20-12-1927) and Pondicherry
(Extension of Laws) Act, 1968 (26 of 1968), S. 3 and Sch., Pt. II.
PUNJAB, HARYANA AND CHANDIGARH.—(1) Where service may be
on male member of defendant's family.—Where in any suit the
defendant cannot be found or is absent from his residence and has no
agent empowered to accept service of the summons on his behalf,
service may be made on any adult male member of the family of the
defendant who is residing with him.
Explanation.—A servant is not a member of the family within the
meaning of this rule, (High Court Noti. No. 563-G., dt. 24-11-1927).
(2) After the words “where in any suit the defendant cannot be
found”, insert the following words “or is absent from his residence” (24-
1-1927).
RAJASTHAN.—Substitute the words “when the defendant is absent or
cannot be personally served” for the words “where in any suit the
defendant cannot be found” (14-8-1954).
16. Person served to sign acknowledgement.—Where the serving
officer delivers or tenders a copy of the summons to the defendant
personally, or to an agent or other person on his behalf, he shall require
the signature of the person to whom the copy is so delivered or
tendered to an acknowledgement of service endorsed on the original
summons.
17. Procedure when defendant refuses to accept service, or cannot
be found.—Where the defendant or his agent or such other person as
aforesaid refuses to sign the acknowledgment, or where the serving
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officer, after using all due and reasonable diligence, cannot find the
324
defendant [who is absent from his residence at the time when
service is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable time]
and there is no agent empowered to accept service of the summons on
his behalf, nor any other person on whom service can be made, the
serving officer shall affix a copy of the summons on the outer door or
some other conspicuous part of the house in which the defendant
ordinarily resides or carries on business or personally works for gain,
and shall then return the original to the Court from which it was issued,
with a report endorsed thereon or annexed thereto stating that he has
so affixed the copy, the circumstances under which he did so, and the
name and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed.
High Court Amendments
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Substitute the following:
“Rule 17.—Where the defendant or his agent or such other person
as aforesaid refuses to sign the acknowledgment, or where the
defendant is absent from his residence at the time when service is
sought to be effected on him thereat and there is no likelihood of his
being found thereat within a reasonable time and there is no agent
empowered to accept service of the summons on his behalf, nor any
other person upon whom service can be made, the serving officer
shall affix a copy of the summons on the outer door or some other
conspicuous part of the house in which the defendant ordinarily
resides or carries on business or personally works for gain and shall
then return the original to the Court from which it was issued with a
report endorsed thereon or annexed thereto stating that he has so
affixed the copy, the circumstances under which he did so, and the
name and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed.” (25-7-
1928).
GAUHATI (ASSAM, NAGALAND, TRIPURA, MEGHALAYA AND MANIPUR).—Same
as that of Calcutta-See Assam High Court Order, 1948, Clause 6 (5-4-
1948); Act 27 of 1962, Sections 13 and 15 (w.e.f. 1-12-1963) and Act
81 of 1971 (25-1-1972).
KARNATAKA.—Delete Rule 17 and substitute the following:
“17. Where the defendant or his agent or such other person as
aforesaid refuses to sign the acknowledgment, or where the
defendant is not present at the house in which he ordinarily resides
or carries on business or personally works for gain at the time when
service is sought to be effected on him thereat and there is no
likelihood of his being found thereat within a reasonable time and
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their is no agent empowered to accept service of the summons on
his behalf nor any other person upon whom service can be made
under Rule 15, the serving officer shall affix a copy of the summons
on the outer door or some other conspicuous part of the house in
which the defendant ordinarily resides or carries on business or
personally works for gain, and shall then return the original to the
Court from which it was issued, with a report endorsed thereon or
annexed thereto stating that he has so affixed the copy, the
circumstances under which he did so, and the name and address of
the person, if any, by whom the house was identified and in whose
presence the copy was so affixed.” (30-3-1967).
MADHYA PRADESH.—The following proviso shall be added at the end of
the rule:
“Provided that where a special service has been issued and the
defendant refused to sign the acknowledgment, it shall not be
necessary to affix a copy as directed hereinbefore.” (16-9-1960).
► Proof of service.—Where the defendant contends that he did not accept
service or could not be found, filing of registered cover of the notice is not
enough. Contents of the notice have also to be brought on record, T. Vijendradas
v. M. Subramanain, (2007) 8 SCC 751.
18. Endorsement of time and manner of service.—The serving officer
shall, in all cases in which the summons has been served under Rule
16, endorse or annex, or cause to be endorsed or annexed, on or to the
original summons, a return stating the time when and the manner in
which the summons was served, and the name and address of the
person (if any) identifying the person served and witnessing the
delivery or tender of the summons.
High Court Amendments
RULE 18-A
ANDHRA PRADESH.—Insert as Rule 18-A:—
“18-A. Chief Ministerial Officer, District Court, may be empowered
to order issue of fresh summons.—A District Judge, within the
meaning of the Madras Civil Courts Act, 1873, may delegate to the
Chief Ministerial Officer of the District Court the power to order the
issue of fresh summons to a defendant when the return on the
previous summons is to the effect that the defendant was not served
and the plaintiff does not object to the issue of fresh summons
within seven days after the return has been notified on the Notice
Board.”
KARNATAKA.—Add the following as Rule 18-A:
“18-A. The Presiding Officer of a Civil Court may delegate to the
Chief Ministerial Officer of the Court, the power to order issue of
fresh summons to a defendant when the return on the previous
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summons is to the effect that the defendant was not served and the
plaintiff does not object to issue of fresh summons within 7 days
after he has been required to deposit the necessary process fee for
the issue of fresh summons. If the plaintiff objects, the matter shall
be placed before the Presiding Officer for his orders.” (30-3-1967)
MADRAS AND PONDICHERRY.—Substitute the following for Rule 18-A
inserted in 1929:—
“18-A. A District Judge, a Subordinate Judge and a District Munsif
within the meaning of the Madras Civil Courts Act, 1873, and a City
Civil Judge within the meaning of the Madras City Civil Court Act,
1862, may delegate to the Chief Ministerial Officer of their respective
Courts the power to issue fresh summons to a defendant when (i)
the return on the previous summons is to the effect that the
defendant was not served and (ii) the plaintiff does not object to the
issue of fresh summons within seven days after the return has been
notified on the Notice Board.” (9-11-1955).
19. Examination of serving officer.—Where a summons is returned
under Rule 17, the Court shall, if the return under that rule has not
been verified by the affidavit of the serving officer, and may, if it has
been so verified, examine the serving officer on oath, or cause him to
be so examined by another Court, touching his proceedings, and may
make such further enquiry in the matter as it thinks fit; and shall either
declare that the summons has been duly served or order such service
as it thinks fit.
High Court Amendments
ASSAM AND NAGALAND.—Same as that of Calcutta—Assam High Court
Order, 1948, Clause 6 (5-4-1948) and Act 27 of 1962, Sections 13 and
15 (w.e.f. 1-12-1963).
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Substitute the following:
“Rule 19.—Where a summons is returned under Rule 17, the
Court shall, if the return under that rule has not been verified by the
declaration of the serving officer, and may, if it has been so verified,
examine the serving officer, on oath, or cause him to be so examined
by another Court, touching his proceedings, and may make such
further inquiry in the matter as it thinks fit, and shall either declare
that the summons has been duly served or order such service as it
thinks fit.” (25-7-1928).
325
[19-A. Simultaneous issue of summons for service by post in
326
addition to personal service.— [* * *]]
High Court Amendments
ASSAM.—Same as that of Calcutta.
BOMBAY.—In Or. 5, in sub-rule (1) of Rule 19-A—
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(i) for the word “shall” the word “may” shall be substituted;
(ii) the proviso shall be deleted. (1-10-1983).
In Rule 19-A prior to omission:
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Insert the following:
“19-A. A declaration made and subscribed by a serving officer
shall be received as evidence of the facts as to the service or
attempted service of the summons.” (25-7-1928).
GAUHATI.—Same as that of Calcutta—Assam High Court Order, 1948,
Clause 6 and Act 27 of 1962, Sections 13 and 15 (w.e.f. 1-12-1963)
and Act 81 of 1971.
MADRAS AND PONDICHERRY.—For R. 19-A, substitute the following
namely:—
(1) The Court shall, in addition to and simultaneously with the
issue of summons for service in the manner provided in Rules 9 to
19 (both inclusive) also direct the summons to be served by
registered post, acknowledgement due; either through an officer of
Court or by the plaintiff personally, addressed to the defendant or his
agent empowered to accept the service at the place where the
defendant or his agent, actually and voluntarily resides or carries on
business or personally works for gain:
Provided that nothing in this sub-rule shall require the Court to
issue a summons for service by registered post, where, in the
circumstances of the case, the Court considers it unnecessary.
(2) (i) Where an acknowledgment purporting to be signed by the
defendant or his agent is received by this Court, or is filed into Court
by the plaintiff together with an affidavit, sworn to by the plaintiff as
to the manner of service, such service shall, be deemed to be
sufficient proof of service of summons in the suit.
(ii) Where, the summons sent by registered post by an officer of
Court is received back by the Court with an endorsement purporting
to have been made by a postal employee to the effect that the
defendant or his agent had refused to take delivery of the postal
article containing the summons, when tendered to him, the Court
issuing such summons may declare that the summons had been
duly served on the defendant.
(iii) Where, however, the plaintiff files into Court an affidavit
sworn to by him, stating that the postal article containing the
summons is received back by him with an endorsement purporting
to have been made by a postal employee that the defendant or his
agent had refused to take delivery of the postal articles containing
the summons, together with the returned postal article containing
the summons the Court issuing such summons shall not declare that
the summons had been duly served on the defendant.” — See T.N.
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Govt. Gazette, 10-9-1986, Pt. II, S. 2, p. 110.
20. Substituted service.—(1) Where the Court is satisfied that there
is reason to believe that the defendant is keeping out of the way for the
purpose of avoiding service, or that for any other reason the summons
cannot be served in the ordinary way, the Court shall order the
summons to be served by affixing a copy thereof in some conspicuous
place in the Court House, and also upon some conspicuous part of the
house (if any) in which the defendant is known to have last resided or
carried on business or personally worked for gain, or in such other
manner as the Court thinks fit.
327
[(1-A) Where the Court acting under sub-rule (1) orders service
by an advertisement in a newspaper, the newspaper shall be a daily
newspaper circulating in the locality in which the defendant is last
known to have actually and voluntarily resided, carried on business or
personally worked for gain.]
(2) Effect of substituted service.—Service substituted by order of
the Court shall be as effectual as if it had been made on the defendant
personally.
(3) Where service substituted, time for appearance to be fixed.
—Where service is substituted by order of the Court, the Court shall fix
such time for the appearance of the defendant as the case may require.
High Court Amendments
PUNJAB & HARYANA.—Add the following as proviso to R. 1:
“Provided that if service in the ordinary manner or by registered
post is not affected for the first date of hearing the Court may direct
substituted service in such manner as the Court may deem fit, even
if no application is made by or on behalf of the plaintiff for that
purpose.” Vide Punjab Gaz. dt. 11-4-1975, Pt. III (L.S.), p. 303.
Hary. Govt. Gaz., dt. 25-3-1975, Pt. III (L.S.), p. 189. Admn. Gaz.,
dt. 1-5-1975, Pt. II, p. 95.
► Substituted service of summons.—Where the court on examination of
service return does not conclude that the defendant is evading service, substituted
service would not be warranted in the case, Smruti Pahariya v. Sanjay Pahariya,
(2009) 13 SCC 338 : (2009) 5 SCC (Civ) 96.
Requirements to be satisfied for mode of passing as to substituted service of
summons: a. there is reason to believe that defendant is keeping out of the way
for purpose of avoiding service; b. for any other reason, the summons cannot be
served in ordinary way, Neerja Realtors (P) Ltd. v. Janglu, (2018) 2 SCC 649.
► Advertisement in newspaper.—Once a summons is published in a
newspaper having wide circulation in the locality, it is effectiveeven if the persons
sought to be served is not the subscriber or reader of the said newspaper, Sunil
Poddar v. Union Bank of India, (2008) 2 SCC 326 : (2008) 1 SCC (Civ) 558.
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328 329
[20-A. Service of summons by post.— [* * *]]
High Court Amendments
PUNJAB, HARYANA AND CHANDIGARH.—The following shall be inserted as
Rule 20-B after existing Rule 20-A in Order V of the Code of Civil
Procedure, 1908, namely:—
“20-B. On the occurrence of an unanticipated holiday or in the
event of the Presiding Officer of a Court being absent owing to
sudden illness or other unexpected cause, all cases fixed for the day
in question shall be deemed to have been automatically adjourned to
the next working day when the Presiding Officer is present and it
shall be the duty of the parties or their counsel to attend Court on
that day.” (10-9-1993)
21. Service of summons where defendant resides within jurisdiction
of another Court.—A summons may be sent by the Court by which it is
issued, whether within or without the State, either by one of its officers
330
or by post [or by such courier service as may be approved by the
High Court, by fax message or by electronic mail service or by any
other means as may be provided by the rules made by the High Court]
to any Court (not being the High Court) having jurisdiction in the place
where the defendant resides.
High Court Amendments
ALLAHABAD.—Renumber Rule 21 as sub-rule (1) and add the
following as sub-rule 1(2):
“(2) In lieu of or in addition to, the procedure indicated in sub-
rule (1), such summons may also be served by sending it by
registered post addressed to the defendant at the place where he
ordinarily resides or carries on business or works for gain. Unless the
cover is returned undelivered by the post office on account of want of
proper address or other similar reason, the summons may be
deemed to have been delivered to the addressee at the time when it
should have reached him in the ordinary course.” (1-6-1957).
ANDHRA PRADESH.—Add the proviso to Rule 21:
“Provided that summons intended for service in the twin cities of
Hyderabad and Secunderabad shall be sent to the City Civil Court,
Hyderabad, at Secunderabad.” (23-3-1967)
PUNJAB, HARYANA AND CHANDIGARH.—Add the following proviso to Rule
5:
“Provided that where the defendant resides within the State at a
place not exceeding sixteen kilometres from the place where the
Court is situate, a summons may be delivered or sent by the Court
to one of its officers to be served by him or one of his subordinates.”
— Punjab Govt. Gazette, 22-9-1978, Pt. III, (L.S.), p. 505 —
Haryana Govt. Gazette, 19-9-1978, Pt. III (L.S.), p. 809 —
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Chandigarh Admn. Gazette, 1-5-1979, Pt. II, p. 51.
RULE 21-A
BOMBAY : DADRA AND NAGAR HAVELI.—Notification in 1966, inserting R.
21-A superseded in 1983 — Maharashtra Govt. Gazettte, 15-9-1983, Pt.
IV, Ka, p. 397.
Comments
(R. 21-A being inconsistent with R. 19-A stands repealed, A 1990
Bom 163, 170).
GUJARAT.—As in Bombay save that the rule begins with words “the
Court may” and the words put in brackets are omitted. (17-8-1961).
MADHYA PRADESH.—Insert as Rule 21-A:—
“21-A. The Court, may, notwithstanding anything in the foregoing
rules, cause the summons of its own Court or of any other Court in
India to be addressed to the defendant at the place where he
ordinarily resides or carries on business and sent to him by
registered post pre-paid for acknowledgment provided that such
place is a town or village in the Akola revenue taluq. An
acknowledgment purporting to be signed by the defendant or an
endorsement by a postal servant that the defendant refused service
may be deemed by the Court issuing the summons to be prima facie
proof of service.”(23-9-1932)
22. Service within presidency-towns of summons issued by Courts
outside.—Where a summons issued by any Court established beyond
the limits of the towns of Calcutta, Madras 331[and Bombay] is to be
served within any such limits, it shall be sent to the Court of Small
Causes within whose jurisdiction it is to be served.
High Court Amendments
BOMBAY : DADRA AND NAGAR HAVELI.—Add the following proviso:
“Provided that where any such summons is to be served within
the limits of Greater Bombay, it may be addressed to the defendant
at the place within such limits where he is residing (or where he
ordinarily carries on business) and may be sent to him by the Court
by post registered for acknowledgment. An acknowledgment
purporting to be signed by the defendant or an endorsement by a
postal servant that the defendant refused service shall be deemed by
the Court issuing the summons to be prima facie proof of service. In
all other cases the Court shall hold such enquiry as it thinks fit and
either declare the summons to have been duly served or order such
further service as may in its opinion be necessary.” (1-11-1966).
Notification in 1966 inserting R. 21-A superseded in 1983 —
Maharashtra Govt. Gazette, 15-9-1983, Pt. IV, Ka, p. 397.
GUJARAT.—Same as that of Bombay except for the words
“endorsement by a postal servant” the words “endorsement purporting
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to be by a postal servant” are substituted and words put in brackets are
omitted. (17-8-1961).
RAJASTHAN.—Add the following proviso:
“Provided that any such summons may instead be addressed to
the defendant at the place within such limits where he is residing
and may be sent to him by the Court by post registered for
acknowledgment. An acknowledgment purporting to be signed by
the defendant or an endorsement by a postal servant that the
defendant refuses service shall be deemed by the Court issuing the
summons to be prima facie proof of service. In all other cases the
Court shall hold such inquiry as it thinks fit and either declare the
summons to have been served or order such further service as may
in its opinion be necessary.” (25-7-1957).
23. Duty of Court to which summons is sent.—The Court to which a
summons is sent under Rule 21 or Rule 22 shall, upon receipt thereof,
proceed as if it had been issued by such Court and shall then return the
summons to the Court of issue, together with the record (if any) of its
proceedings with regard thereto.
24. Service on defendant in prison.—Where the defendant is
332
confined in a prison, the summons shall be delivered or sent [or by
post or by such courier service as may be approved by the High Court,
by fax message or by electronic mail service or by any other means as
may be provided by the rules made by the High Court] to the officer in
charge of the prison for service on the defendant.
25. Service where defendant resides out of India and has no agent.—
Where the defendant resides out of 333[India] and has no agent in 334
[India] empowered to accept service, the summons shall be addressed
335
to the defendant at the place where he is residing and sent to him
[or by post or by such courier service as may be approved by the High
Court, by fax message or by electronic mail service or by any other
means as may be provided by the rules made by the High Court], if
there is postal communication between such place and the place where
the Court is situate:
336 337
[Provided that where any such defendant [resides in
Bangladesh or Pakistan], the summons, together with a copy thereof,
may be sent for service on the defendant, to any Court in that country
(not being the High Court) having jurisdiction in the place where the
defendant resides:
Provided further that where any such defendant is a public officer 338
[in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the
case may be, Pakistan military, naval or air forces)] or is a servant of a
railway company or local authority in that country, the summons,
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together with a copy thereof, may be sent for service on the defendant,
to such officer or authority in that country as the Central Government
may, by notification in the Official Gazette, specify in this behalf.]
High Court Amendments
ALLAHABAD.—Omit the present entry under Allahabad and substitute
the following for Rule 25:
“25. Where the defendant resides out of India and has no agent in
India empowered to accept service, the summons, unless the Court
otherwise directs, be addressed to the defendant at the place where
he is residing and sent to him by registered post, if there is postal
communication between such place and the place where the Court is
sitting. Unless the cover is returned undelivered by the post office on
account of want of proper address or other similar reason, the
summons may be deemed to have been delivered to the addressee
at the time when it should have reached him in ordinary course.” (29
-3-1958).
ANDHRA PRADESH.—Same as that of Madras, except—
(i) omit the word ‘British’ wherever it occurs; and
(ii) delete existing first proviso. (29-8-1957).
BOMBAY : DADRA AND NAGAR HAVELI.—Notification amending R. 25 in
1966, superseded in 1983 — Maharashtra Govt. Gazette 15-9-1983, Pt.
IV, Ka, p. 397.
KARNATAKA.—Substitute the following for Rule 25:
“25. (1) Where the defendant resides outside the State of Mysore
but within the territories of India, the Court may direct the proper
officer within the meaning of Rule 9 to cause the summons to be
addressed to the defendant at the place where he ordinarily resides
or carries on business, or works for gain and sent to him by
registered post prepaid for acknowledgment. When it is so sent by
registered post, the provisions of the proviso to Rule 10 shall apply
thereto.
(2) Where the defendant resides out of India and has no agent in
India empowered to accept service, the summons may be addressed
to the defendant at the place where he is residing and sent to him
by post, if there is postal communication between such place and
the place where the Court is situate:
Provided that, if by any arrangement between the Central
Government and the Government of the foreign territory in which the
defendant resides, the summons can be served by an officer of the
Government of such territory, the summons may be sent to such
officer in the same manner as by the said arrangement may have
been agreed upon:
Provided further that, where any such defendant resides in
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Pakistan, the summons together with a copy thereof, may be sent for
service on the defendant to any Court in that country (not being the
High Court) having jurisdiction in the place where the defendant
resides:
Provided further that, where any such defendant is a public officer
in Pakistan (not belonging to Pakistan military, naval or air force) or
is a servant of a railway company or local authority in that country,
the summons, together with a copy thereof, may be sent for service
on the defendant, to such officer or authority in that country as the
Central Government may, by notification in the Official Gazette,
specify in that behalf.” (30-3-1967).
KERALA : LAKSHADWEEP, MINICOY AND AMINDIVI I SLANDS.—(i) Before the
existing provisos, add the following proviso, namely:
“Provided that, if by any arrangement between the Government of
the State in which the Court issuing summons is situate and the
Government of the foreign territory in which the defendant resides,
the summons can be served by an officer of the Government of such
territory, the summons may be sent to such officer in such manner
as by the said arrangement may have been agreed upon.”
(ii) In the last proviso, for the word “company”, substitute the
word “Administration”. (9-6-1959); Regulation 8 of 1965 (w.e.f. 1-
10-1967).
MADHYA PRADESH.—Substitute “may” for “shall”. (16-9-1960).
MADRAS AND PONDICHERRY.—(i) Substitute the following for Rule 25—
“25. Service where defendant resides out of British India and has
no agent. Where the defendant resides out of British India and has
no agent in British India empowered to accept service, the summons
may be addressed to the defendant at the place where he is residing
and sent to him by post, if there is postal communication between
such place and the place where the Court is situate:
Provided that if, by any arrangement between the Government of
the Province in which the Court issuing the summons is situate and
the Government of the foreign territory in which the defendant
resides, the summons can be served by an officer of the Government
of such territory, the summons may be sent to such officer in such
manner as by the said arrangement may have been agreed
upon.” (As amended on 2-3-1942).
(ii) Omit first proviso to Rule 25. (23-12-1964)
RULE 25-A
ALLAHABAD.—Add the following as Rule 25-A after the existing Rule
25, namely:—
“25-A. Where the defendant resides out of India but has an agent
empowered to accept service of summons on his behalf residing in
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India but outside the jurisdiction of the court the summons, unless
directed otherwise by the Court, may be addressed to such agent
and sent to him by registered post if there is a post communication
between such place and the place where the court is sitting. Unless
the cover is returned undelivered for want of proper address or any
other sufficient reasons the summon may be deemed to have been
delivered to the addressee at the time when it should have reached
him in ordinary course.” (14-4-1962).
MADHYA PRADESH.—Add the following as Rule 25-A—
“25-A. Service where defendant resides in India but outside
Madhya Pradesh.—Where the defendant resides in India but outside
the limits of Madhya Pradesh, the Court may, in addition to any other
mode of service, send the summons by registered post to the
defendant at the place where he is residing or carrying on business.
An acknowledgement purporting to be signed by him or an
endorsement by a postal servant that the defendant refused service
may be deemed by the Court issuing the summons to be prima facie
proof of service.” (16-9-1960)
339
[26. Service in foreign territory through Political Agent or Court.—
Where—
(a) in the exercise of any foreign jurisdiction vested in the Central
Government, a Political Agent has been appointed, or a Court has been
established or continued, with power to serve a summons, issued by a
Court under this Code, in any foreign territory in which the defendant
actually and voluntarily resides, carries on business or personally works
for gain, or
(b) the Central Government has, by notification in the Official Gazette,
declared, in respect of any Court situate in any such territory and not
established or continued in the exercise of any such jurisdiction as
aforesaid, that service by such Court of any summons issued by a
Court under this Code shall be deemed to be valid service,
the summons may be sent to such Political Agent or Court, by post, or
otherwise, or if so directed by the Central Government, through the
Ministry of that Government dealing with foreign affairs, or in such
other manner as may be specified by the Central Government for the
purpose of being served upon the defendant; and, if the Political Agent
or Court returns the summons with an endorsement purporting to have
been made by such Political Agent or by the Judge or other officer of
the Court to the effect that the summons has been served on the
defendant in the manner hereinbefore directed, such endorsement shall
be deemed to be evidence of service.]
High Court Amendments
ALLAHABAD.—After the words “the summons may” insert the words
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“in addition to, or in substitution for the method permitted by Rule 25”.
(24-7-1926).
ANDHRA PRADESH.—Same as that of Madras as amended in 1958, (29-
8-1957).
GUJARAT.—For Rule 26, the following rule is substituted:—
“26. Service in foreign territory through Political Agent or Court.—
Where—(a) and (b) (Same as in Kerala except that the words ‘or
process’ and ‘or’ at the end of clause (b) and clause (c) are omitted.)
the summons may, in addition to or in substitution for the method
permitted by R. 25 be sent to such Political Agent or Court by post or
otherwise, for the purpose of being served upon the defendant; and, if
the Political Agent or Court returns the summons with an endorsement
signed by such Political Agent or by the Judge or other officer of the
Court that the summons has been served on the defendant in the
manner hereinbefore directed, such endorsement shall be deemed to be
evidence of service” (17-8-1961).
KARNATAKA.—For Rule 26 substitute the following:—
“26. Where—
(a) in the exercise of any foreign jurisdiction vested in the Central
Government, a Political Agent has been appointed, or a Court has
been established or continued with power to serve a summons or
process issued by a Court under this Code in any foreign territory
in which the defendant resides, or
(b) the State Government has, by notification in the Official Gazette,
declared, in respect of any court situate in any such territory and
not established or continued in the exercise of any such
jurisdiction as aforesaid, that service by such court of any
summons or process issued under this Code by a Court of the
State shall be deemed to be valid service, or
(c) by any arrangement between the Central Government and the
Government of the foreign territory in which the defendant
resides, the summons or process may be served by an officer of
the Government of such territory.
the summons or process may be sent to such Political Agent, Court or
officer through the Ministry of the Central Government dealing in the
external affairs, or such officer as may be specified in the notification in
this behalf by the State Government in the Official Gazette, and if such
Political Agent, Court or other officer specified returns the summons
with an endorsement signed by the Judge or other officer of such court
or by the other officer specified, that the summons has been served on
the defendant in the manner hereinbefore directed, such endorsement
shall be deemed to be evidence of service.” (30-3-1967).
KERALA (LAKSHADWEEP I SLANDS).—For Rule 26, substitute the
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following, namely:—
“26. Service in the foreign territory through Political Agent or
Court or by special arrangement.—Where—
(a) in the exercise of any foreign jurisdiction vested in the Central
Government, a Political Agent has been appointed or a Court has
been established or continued with power to serve a summons or
process issued by a Court under this Code in any foreign territory
in which the defendant resides, or
(b) the State Government has, by notification in the Official Gazette,
declared, in respect of any court situate in any such territory and
not established or continued in the exercise of any such
jurisdiction as aforesaid, that service by such court of any
summons or process issued under this Code by a Court of the
State shall be deemed to be valid service, or
(c) by any arrangement between the Government of the State in
which the Court issuing the summons or process is situate and
the Government of the foreign territory in which the defendant
resides, the summons or process can be served by an officer of
the Government of such territory.
the summons or process may be sent to such Political Agent or Court in
such manner as may have been agreed upon or to the proper officer of
the Government of the foreign territory by post or otherwise for the
purpose of being served upon the defendant; and, if the summons or
process is returned with an endorsement signed by such Political Agent
or by the Judge or other officer of the Court or by the officer of the
Government of the foreign territory, that the summons or process has
been served on the defendant in manner hereinbefore directed, such
endorsement shall be deemed to be evidence of service (9-6-1959):
Provided that the Court issuing the summons shall, if the
Government by a notification in the Official Gazette so directs, send
the summons to the Government or other officer specified in that
behalf of the foreign territory in which the Court in respect of which a
declaration has been made by the State Government under cl. (b) is
situated and in which the defendant resides, through the Ministry of
the Central Government dealing with external affairs or such officer
as may be specified in the notification in this behalf for causing the
summons to be served upon the defendant by such court or other
officer specified and if such court or other officer returns the
summons with an endorsement signed by the Judge or other officer
of such court or by the other officer specified that the summons has
been served upon the defendant in the manner hereinbefore
directed, such endorsement shall be deemed to be evidence of
service.” (22-9-1964); see Regn. 8 of 1965 (w.e.f. 1-10-1967).
MADHYA PRADESH.—Insert the words “in addition to or in substitution
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for the method permitted by Rule 25” between the words “may” and
“be sent”. (16-9-1960).
MADRAS (POINDICHERRY).—Substitute the following:—
“26. Service in the foreign territory through Political Agent or
Court or by special arrangement.—Where—
(a) in the exercise of any foreign jurisdiction vested in the Central
Government, a Political Agent has been appointed or a Court has
been established or continued, with power to serve a summons or
process issued by a Court under this Code in any foreign territory
in which the defendant resides, or
(b) the Central Government has, by notification in the Official
Gazette, declared, in respect of any court situate in any such
territory and not established or continued in the exercise of any
such jurisdiction as aforesaid that service by such court of any
summons or process issued under this Code by a Court in India
shall be deemed to be valid service, or
the summons or process may be sent to such Political Agent or
Court, or in such manner as may have been agreed upon to the
proper officer of the Government of the foreign territory by post or
otherwise, for the purpose of being served upon the defendant; and,
if the summons or process is returned with an endorsement signed
by such Political Agent or by the Judge or other officer of the Court
or by the officer of the Government of the foreign territory that the
summons or process has been served on the defendant in manner
hereinbefore directed, such endorsement shall be deemed to be
evidence of service.”
[As amended on 21-3-1942 and 28-5-1958]; Act 26 of 1968, S. 3
and Sch., Pt. II.
RAJASTHAN.—Proviso added to R. 26 is the same as introduced in
Kerala in 1964 (11-2-1965).
340
[26-A. Summonses to be sent to officers of foreign countries.—
Where the Central Government has, by notification in the Official
Gazette, declared in respect of any foreign territory that summonses to
be served on defendants actually and voluntarily residing or carrying on
business or personally working for gain in that foreign territory may be
sent to an officer of the Government of the foreign territory specified by
the Central Government, the summonses may be sent to such officer,
through the Ministry of the Government of India dealing with foreign
affairs or in such other manner as may be specified by the Central
Government; and if such officer returns any such summons with an
endorsement purporting to have been made by him that the summons
has been served on the defendant, such endorsement shall be deemed
to be evidence of service.]
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27. Service on civil public officer or on servant of railway company or
local authority.—Where the defendant is a public officer (not belonging
341 342 343
to [the Indian] military, [naval or air] forces), [* * *] or is the
servant of a railway company or local authority, the Court may, if it
appears to it that the summons may be most conveniently so served,
send it for service on the defendant to the head of the office in which
he is employed together with a copy to be retained by the defendant.
High Court Amendments
ALLAHABAD.—Add the following:
“Notes to Order V, Rule 27.—(1) A list of heads of offices to whom
summonses shall be sent for service on the servants of Railway
Companies working in whole or in part in these States is given in
Appendix II of the General Rules (Civil).
(2) In every case where a Court sees fit to issue a summons,
direct to any public servant other than a soldier under Order XVI,
simultaneously with the issue of summons, notice shall be sent to
the head of the office in which the person concerned is employed in
order that arrangements may be made for the performance of duties
of such persons.
Illustration
If the Court sees fit to issue a summons to a Kanungo or Patwari
it shall inform the Collector of the district, and if to a Sub-Registrar,
it shall inform the District Registrar to whom the Sub-Registrar is
subordinate.”
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY.—In Order V, for the existing Rule 27 and its marginal note,
substitute the following as Rule 27 and marginal note:—
“27. Service on civil public officer or on servant of railway
company or local authority.—Where the defendant is a public officer
not belonging to the Indian Military, Naval or Air Forces, or is the
servant of a railway company or local authority, the Court may, if it
appears to it that the summons may be most conveniently so
served, send it by registered post pre-paid for acknowledgment for
service on the defendant to the head of the office in which he is
employed, together with a copy to be retained by the defendant.” (1
-10-1983)
KARNATAKA.—For Rule 27 substitute the following:
“27. Where the defendant is a public officer (not belonging to the
Indian Military, Naval or Air Forces) or is a servant of a railway
company or local authority, the Court may, if it appears to it that the
summons may be most conveniently so served, send it by registered
post pre-paid for acknowledgment for service on the defendant to
the head of the office in which he is employed, together with a copy
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to be sent to the defendant.” (30-3-1967)
KERALA AND LAKSHADWEEP I SLAND.—For Rule 27, the following rule
shall be substituted, namely:
“27. Service on civil public officer or on servant of railway
administration or local authority.—Where the defendant is a public
officer (not belonging to the Indian Military, Naval or Air Forces) or is
the servant of a railway administration or local authority, the Court
may, if it appears to it that the summons may be most conveniently
so served, send it by registered post pre-paid for acknowledgment
for service on the defendant to the head of the office in which he is
employed, together with a copy to be retained by the defendant.” (9
-6-1959); Reg. 8 of 1965 (w.e.f. 1-10-1967)
MADRAS AND PONDICHERRY.—After the words “send it” insert the words
“by registered post pre-paid for acknowledgment.” (Dis. No. 209 of
1912); Act 26 of 1968, Section 3 and Schedule, Part II.
28. Service on soldiers, sailors or airmen.—Where the defendant is a
344 345
solider, [sailor] [or airman], the Court shall send the summons for
service to his commanding officer together with a copy to be retained
by the defendant.
High Court Amendments
ALLAHABAD.—The present Rule 28 shall be numbered 28(1).
Add the following as Rule 28(2), (3), (4) and (5):
“(2) Where the address of such Commanding Officer is not known,
the Court may apply to the officer commanding the station in which
the defendant was serving when the cause of action arose to supply
such address, in the manner prescribed in sub-rule (4) of this rule.
(3) Where the defendant is an officer of the Indian Military Forces,
whenever it is practicable, service shall be made on the defendant in
person.
(4) Where such defendant resides outside the jurisdiction of the
Court in which the suit is instituted, or outside the States, the Court
may apply over the seal and signature of the Court to the officer
commanding the station in which the defendant was residing when
the cause of action arose, for the address of such defendant, and the
officer commanding to whom such application is made shall supply
the address of the defendant or all such information that is in his
power to give, as may lead to the discovery of his address.
(5) Where personal service is not practicable, the Court shall issue
the summons to the defendant as the address so supplied by
registered post.”
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY.—In Order V, for the existing Rule 28 and its marginal note,
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substitute the following as Rule 28 and marginal note:—
“28. Service on soldiers, sailors, or airmen.—Where the defendant
is a solider, sailor or airman the Court shall send by registered post
pre-paid for acknowledgment the summons for service to his
Commanding Officer together with a copy to be retained by the
defendant.” (1-10-1983)
KARNATAKA.—For Rule 28, substitute the following:
“28. Where the defendant is a solider, sailor or airman the Court
shall send by registered post pre-paid for acknowledgment the
summons for service on the defendant to his commanding officer
together with a copy to be retained by the defendant.” (30-3-1967)
KERALA.—As by Madras. (9-6-1959).
MADRAS AND PONDICHERRY.—After the words “shall send” insert the
words “by registered post pre-paid for acknowledgment”. (Dis. No. 209
of 1912); Act 26 of 1968, Section 3 and Schedule, Part II.
29. Duty of person to whom summons is delivered or sent for
service.—(1) Where a summons is delivered or sent to any person for
service under Rule 24, Rule 27 or Rule 28, such person shall be bound
to serve it if possible, and to return it under his signature, with the
written acknowledgement of the defendant, and such signature shall be
deemed to be evidence of service.
(2) Where from any cause service is impossible, the summons shall
be returned to the Court with a full statement of such cause and of the
steps taken to procure service, and such statement shall be deemed to
be evidence of non-service.
High Court Amendments
ALLAHABAD.—In sub-rule (1), line 3, for the words and figures “Rule
28” read “Rule 28(1).” (5-3-1927).
RULE 29-A
ANDHRA PRADESH.—Same as that of Madras—as amended in 1958.
(29-8-1957).
KARNATAKA.—Add the following as Rule 29-A
“29-A. Notwithstanding anything contained in the foregoing rules,
where the defendant is a public officer (not belonging to Military,
Naval or Air Forces) sued in his official capacity, service of summons
shall be made by sending a copy of the summons to the defendant
by registered post pre-paid for acknowledgment together with the
original summons, which the defendant shall sign and return to the
Court which issued the summons.” (30-3-1967).
KERALA.—”Service where defendant is a public officer sued in his
official capacity”. Same as that of Madras (9-6-1959): Reg. 8 of 1965
(w.e.f. 1-10-1967).
MADRAS AND PONDICHERRY.—Insert as Rule 29-A:
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“29-A. Notwithstanding anything contained in the foregoing rules,
where the defendant is a public officer (not belonging to the Military,
Naval or Air Forces of India) sued in his official capacity, service of
summons shall be made by sending a copy of the summons to the
defendant by registered post pre-paid for acknowledgment together
with the original summons, which the defendant shall sign and
return to the Court which issued the summons.” (Dis. No. 209 of
1912 as amended on 28-5-1958); Act 26 of 1968, Section 3 and
Schedule, Pt. II.
30. Substitution of letter for summons.—(1) The Court may,
notwithstanding anything hereinbefore contained, substitute for a
summons a letter signed by the Judge or such officer as he may
appoint in this behalf, where the defendant is, in the opinion of the
Court, of a rank entitling him to such mark of consideration.
(2) A letter substituted under sub-rule (1) shall contain all the
particulars required to be stated in a summons, and, subject to the
provisions of sub-rule (3), shall be treated in all respects as a
summons.
(3) A letter so substituted may be sent to the defendant by post or
by a special messenger selected by the Court, or in any other manner
which the Court thinks fit; and, where the defendant has an agent
empowered to accept service, the letter may be delivered or sent to
such agent.
High Court Amendments
RULES 31 AND 32
ALLAHABAD.—Insert the following as Rules 31 and 32:
“31. An application for the issue of a summons for a party or a
witness shall be made in the form prescribed for the purpose. No
other forms shall be received by the Court.”
“32. Ordinarily every process, except those that are to be served
on Europeans, shall be written in the Court Vernacular. But where a
process is sent for execution to Court in a district where a different
language is in ordinary use, it shall be written in English and shall be
accompanied by a letter in English requesting its execution.
In case where the return of service is in a language different from
that of the district from which it is issued it shall be accompanied by
an English translation.” [(Noti. No. 1953/35(a) of 22-5-1915 and 19-
3-1921)].
RULE 31
ANDHRA PRADESH.—Same as that of Madras (9-6-1959): Reg. 8 of
1965 (w.e.f. 1-10-1967).
HIMACHAL PRADESH.—(1) For Rule 31 same as that of Madras except in
sub-rule (7) for the words “or a civil revision petition” the words “or a
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revision petition” be substituted.
(2) For Rule 32, substitute the following:—
“32. Unless the Court otherwise directs, notice of an interlocutory
application in the suit need not be served on a party who having
been duly served with summons in the main suit has failed to appear
and has been declare ex parte by the Court.” — H.P. Gazette 27-12-
2000, Extra., p. 4789.
KERALA.—Same as Madras except for “India” read “the
Government” (9-6-1959).
MADRAS AND PONDICHERRY.—Add the following after Rule 30:
“31. (1) The Court may, on the application of the plaintiff and on
such terms as to security or otherwise as the Court thinks fit,
dispense with the service of summons on a defendant who is
resident in territory belonging to or occupied by a State at war with
India:
Provided that an order dispensing with service of summons shall
not be made unless the Court is satisfied that the defendant is
resident in such territory and that service of summons on him in the
mode prescribed by the Code is not possible.
(2) The Court may before making the said order direct such
publication of the application as it considers necessary in the
circumstances.
(3) Where in any suit an order dispensing with service of
summons on a defendant is made under this rule and a decree or
order is passed against him, the Court may on his application and on
such terms as may be just set aside such decree or order and
appoint a day for proceeding with the suit.
(4) The provisions of the first proviso to Rule 13 of Order IX and
the provisions of Rule 14 of the said Order shall apply to an order
setting aside a decree or order under sub-rule (3).
(5) The application under sub-rule (3) shall be filed within one
year from the date of cessation of hostilities with the State.
(6) The provisions of Section 5 of the Indian Limitation Act, shall
apply to applications under sub-rule (3).
(7) The provisions of this rule shall apply mutatis mutandis to a
respondent in an appeal or a civil revision petition who is resident in
such territory as is referred to in sub-rule (1).” R.D.C. No. 2108/44,
dated 29-3-1944, as amended on 28-5-1958; Act 26 of 1968,
Section 3 and Sch., Pt. II.
RULES 31, 32, 33 AND 34
KARNATAKA.—Add the following as Rules 31, 32, 33 and 34:
“31. (1) The Court may on the application of the plaintiff and on
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such terms as to security or otherwise as the Court thinks fit,
dispense with the service of summons on defendant who is a
resident in a territory belonging to or occupied by a State at war with
the Central Government:
Provided that an order dispensing with the service of summons
shall not be made unless the Court is satisfied that the defendant is
a resident in such territory and that the service of summons on him
in the manner prescribed by this Code is not possible.
(2) The Court may before making any such order direct such
publication of the application as it considers necessary in the
circumstances.
(3) Where in any suit an order dispensing with the service of
summons on a defendant is made under this rule and a decree or
order is passed against him, the Court may on his application and on
such terms as may be just set aside such decree or order and
appoint a day for proceeding with the suit.
(4) The provisions of the first proviso to Rule 13 of Order IX of
this Code and the provisions of Rule 14 of the said Order shall apply
to an order setting aside the decree or order made under sub-rule
(3).
(5) The application under sub-rule (3) shall be filed within one
year from the date of cessation of hostilities with the said State.
(6) The provisions of Section 5 of the Limitation Act, 1963 shall
apply to applications under sub-rule (3).
(7) The provision of this rule shall apply mutatis mutandis to a
respondent in an appeal or a civil revision petition who is resident in
such territory as is referred to in sub-rule (1).
32. Where any party in a suit is represented by a pleader, the
plaint or the written statement, as the case may be, shall give the
address of the pleader within the local limits of the city, town or
place where the Court is situate and the said address of the pleader
shall be the address for service on the party represented by the said
pleader for purposes of all notices and processes issued in the suit.
All such notices and processes in the suit or in any interlocutory
matter in the suit shall be sufficiently served if left by a party or
pleader or by a person employed by the defendant or by an officer or
employee of the Court at the said address for service on the party
intended to be served.
33. Unless the Court otherwise directs, notice of an interlocutory
application in the suit need not be served on a party who having
been duly served with summons on the main suit has failed to
appear and has been declared ex parte by the Court:
Provided that the Court shall direct such notice to be issued and
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served on any such party in application for the amendment of any
pleading in the suit, if the Court is of the opinion that such party
may be interested in or affected by the proposed amendment.
34. The provisions of Rules 32 and 33 shall also apply mutatis
mutandis to appeals and revision petitions.”
ORDER VI
Pleadings Generally
► Approbate and reprobate.—A litigant can take different stands at different
times but cannot take contradictory stands in the same case and a party cannot
be permitted to approbate and reprobate on the same facts and take inconsistent
shifting stands, Suzuki Parasrampuria Suitings (P) Ltd. v. Official Liquidator,
(2018) 10 SCC 707.
1. Pleading.—“Pleading” shall mean plaint or written statement.
► Nature and scope.—Pleadings are binding on parties in subsequent
proceedings proprio vigore unless fraud is proved, Ranganayakamma v. K.S.
Prakash, (2008) 15 SCC 673.
► Object.—The object of the rule is two fold. First is to afford the other side
intimation regarding the particular facts of his case so that they may be met by the
other side. Second is to enable the court to determine what is really the issue
between the parties. Virendra v. Vinayak, (1999) 1 SCC 47.
Object of pleadings is to enable the court to decide true rights of parties, State
of Maharashtra v. Hindustan Construction Co. Ltd., (2010) 4 SCC 518.
► Alternative and inconsistent pleadings.—Pleadings of the parties are
required to be read as a whole. Defendants are entitled to raise alternative and
inconsistent pleas but are not permitted to raise pleas which are mutually
destructive of each other, Vimal Chand Ghevarchand Jain v. Ramakant Eknath
Jadoo, (2009) 5 SCC 713 : (2009) 2 SCC (Civ) 669.
► Variance between pleadings and proof.—In case of variance between
pleadings and evidence, such evidence cannot be relied upon. An adverse
inference is to be drawn when pleadings and evidence are self-contradictory,
Kashi Nath v. Jaganath, (2003) 8 SCC 740.
346
[2. Pleading to state material facts and not evidence.—(1) Every
pleading shall contain, and contain only, a statement in a concise form
of the material facts on which the party pleading relies for his claim or
defence as the case may be, but not the evidence by which they are to
be proved.
(2) Every pleading shall, when necessary, be divided into
paragraphs, numbered consecutively, each allegation being, so far as is
convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in
figures as well as in words.]
High Court Amendments
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HIMACHAL PRADESH.—In Rule 2, the following sub-rule (4) be added—
“(4) The plaintiff shall state in a separate paragraph that to the
best of his knowledge and information no suit between the same
parties for the same cause of action and relief is pending in any
court.”—H.P. Gazette, 27-11-2000.
► Construal of pleadings.—Order 6 Rule 2(1) CPC states the basic and
cardinal rule of pleadings that every pleading shall contains and contain only, a
statement in a concise form of the material facts on which the party pleading relies
for his claim or defence, as the case may be, but not the evidence by which they
are to be proved, Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC
137.
► Binding effect of pleadings.—Pleadings are binding on parties in
subsequent proceedings proprio vigore unless fraud is proved, Ranganayakamma
v. K.S. Prakash, (2008) 15 SCC 673.
► Amendment of pleadings.—By taking recourse to an amendment made in
the pleading, the party cannot be permitted to go beyond his admission, SAIL v.
Union of India, (2006) 12 SCC 233.
► Material facts.—Mere fact that plea was not expressly taken in pleadings
would not necessarily disentitle a party from relying upon it if it is satisfactorily
proved by evidence, Standard Chartered Bank v. Andhra Bank Financial
Services Ltd., (2006) 6 SCC 94.
Pleadings must raise sufficient cause of action, Maria Margarida Sequeira
Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ)
126.
The words ‘material facts’ show that the facts necessary to formulate a
complete cause of action must be stated. Omission of a single material facts leads
to an incomplete cause of action and the statement or plaint becomes bad, Sopan
Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137.
► Pleadings and framing of issues.—Issues in respect of documents
neither pleaded nor in respect of which any issue(s) were framed, held, cannot be
decided. Civil suits are decided based on pleadings and issues framed and
parties to suit cannot be permitted to travel beyond pleadings, Ponnayal v.
Karuppannan, (2019) 11 SCC 800.
► Absence of pleadings.—Evidence can only be adduced with reference to
matters which are pleaded in a civil suit and in the absence of an adequate
pleading, evidence by itself cannot supply the deficiency of a pleaded case, M.
Siddiq (Ram Janmabhumi Temple 5J) v. Suresh Das, (2020) 1 SCC 1.
3. Forms of pleading.—The forms in Appendix A when applicable,
and where they are not applicable forms of the like character, as nearly
as may be, shall be used for all pleadings.
4. Particulars to be given where necessary.—In all cases in which the
party pleading relies on any misrepresentation, fraud, breach of trust,
wilful default, or undue influence, and in all other cases in which
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particulars may be necessary beyond such as are exemplified in the
forms aforesaid, particulars (with dates and items if necessary) shall be
stated in the pleading.
High Court Amendment
KARNATAKA.—Renumber Rule 4 as Rule 4(1) and add the following as
Rule 4(2):
“(2) In a suit for infringement of a patent, the plaintiff shall state
in his plaint or annex thereto the particulars of the breaches relied
upon, and the defendant if he disputes the validity of the patent
shall state in his written statement or annex thereto the particulars
of the objections on which he relies in support of such invalidity; at
the hearing of any such suit no evidence shall, except with the leave
of the Court (to be given upon such terms as to the Court may seem
just), be admitted in proof of any alleged infringement or objections
not raised in the particulars of breaches or objections
respectively.” (30-3-1967).
RULE 4-A
STATE AMENDMENTS
(As inserted by States)
Madhya Pradesh.—In its application to the State of Madhya
Pradesh, after Rule 4, the following shall be inserted, namely:
“4-A. Particulars of pleading for agricultural land.—In any suit or
proceeding contemplated under Rule 3-B of Order I, the parties,
other than the State Government shall plead the particulars of total
agricultural land which is owned, claimed or held by them in any
right and shall further declare whether the subject matter of suit or
proceeding is or is not covered by Madhya Pradesh Ceiling on
Agricultural Holdings Act, 1960 (20 of 1960) and whether any
proceedings in relation to such subject matter are to the knowledge
of the party pending before the competent authority.” [Vide M.P. Act
29 of 1984 (w.e.f. 14-8-1984)].
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of
Madras (9-6-1959).
MADRAS AND PONDICHERRY.—Insert the following after Rule 4:
“4-A. (1) In a suit for infringement of a patent, the plaintiff shall
state in his plaint or annex thereto the particulars of breaches relied
upon.
(2) In any such suit the defendant if he disputes the validity of
the patent shall state in his written statement or annex thereto the
particulars of the objections on which he relies in support of such
invalidity.
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(3) At the hearing of any such suit no evidence shall, except by
leave of the Court (to be given upon such terms as to the Court may
seem just), be admitted in proof of any alleged infringement or
objections not raised in the particulars of breaches or objections
respectively.” (R.O.C. 2770/44); Act 26 of 1968; S. 3 and Sch.
► Pleadings and particulars.—Plaintiff is obliged to give particulars where
he alleges fraud, misrepresentation or undue influence in civil suit, Electrical
Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695, See also
Ranganayakamma v. K.S. Prakash, (2008) 15 SCC 673.
► Fraud.—Whenever a party wants to put forth contention of fraud, specific
pleadings as to fraud are to be made and proved, Saradamani Kandappan v. S.
Rajalakhmi, (2011) 12 SCC 18.
Pleading of case of fraud is not necessary when fraud is apparent from the
face of record, Lachhman Das v. Jagat Ram, (2007) 10 SCC 448.
► Misrepresentation.—Where a contract or settlement is alleged to be
vitiated by fraud or misrepresentation, particulars thereof must be pleaded
specifically clearly, Ranganayakamma v. K.S. Prakash, (2008) 15 SCC 673.
347
5. Further and better statement, or particulars.— [* * *]
High Court Amendments
BOMBAY.—In Order VI, for the existing Rule 5 and its marginal note,
substitute the following as Rule 5 and marginal note:—
“5. Further and better statement of particulars.—(1) A further and
better statement of the nature of the claim or defence, or further and
better particulars of any matter stated in any pleading may in all
cases be ordered upon such terms, as to costs and otherwise, as
may be just.
(2) No application for further and better particulars from the
plaintiff or the defendant except the one given by the defendant on
or before the returnable date of the summons or by the plaintiff on
or before the first date fixed for hearing after the filing of the written
statement, shall be entertained, unless the plaintiff or the defendant
assigns good cause for the same.
(3) After filing the written statement, the Court shall fix a date for
(i) reception of documents other than those in possession or power
of parties, and (ii) applications for interrogatories, discovery of
documents and the inspection thereof. Such applications should not
be entertained thereafter, unless good cause is shown to the
satisfaction of the Court.” (1-10-1983)
GUJARAT.—Same as in Bombay, except, in sub-rule (2),—
(a) for the “defendant on or before”, substitute “the defendant on”;
and
(b) in sub-rule (2), for “the plaintiff on or before”, substitute “the
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plaintiff on”.
KARNATAKA.—Renumber Rule 5 as Rule 5(1) and add the following as
sub-rule (2):
“(2) In a suit for infringement of a trade mark or copyright, the
Court may either on its own motion or on the application of any party
apply the provisions of sub-rule (2) of Rule 4 of this Order so far as
the circumstances of the case may allow.” (30-3-1967).
6. Condition precedent.—Any condition precedent, the performance
or occurrence of which is intended to be contested, shall be distinctly
specified in his pleading by the plaintiff or defendant, as the case may
be; and, subject thereto, an averment of the performance or occurrence
of all conditions precedent necessary for the case of the plaintiff or
defendant shall be implied in his pleading.
7. Departure.—No pleading shall, except by way of amendment raise
any new ground of claim or contain any allegation of fact inconsistent
with the previous pleadings of the party pleading the same.
► Mutually destructive pleas.—A party to a lis cannot raise pleas which are
mutually destructive, but ordinary inconsistent defences can be raised,
Devasahayam v. P. Savithramma, (2005) 7 SCC 653.
► Departure in pleading.—Stand taken by State in Supreme Court
contradictory to those taken in courts below was held impermissible, Darshan
Singh v. State of Punjab, (2007) 14 SCC 262 : (2009) 1 SCC (L&S) 488.
8. Denial of contract.—Where a contract is alleged in any pleading, a
bare denial of the same by the opposite party shall be construed only
as a denial in fact of the express contract alleged or of the matters of
fact from which the same may be implied, and not as a denial of the
legality or sufficiency in law of such contract.
9. Effect of document to be stated.—Wherever the contents of any
document are material, it shall be sufficient in any pleading to state the
effect thereof as briefly as possible, without setting out the whole or
any part thereof, unless the precise words of the document or any part
thereof are material.
10. Malice, knowledge, etc.—Wherever it is material to allege malice,
fraudulent intention, knowledge or other condition of the mind of any
person, it shall be sufficient to allege the same as a fact without setting
out the circumstances from which the same is to be inferred.
11. Notice.—Wherever it is material to allege notice to any person of
any fact, matter or thing, it shall be sufficient to allege such notice as a
fact, unless the form or the precise terms of such notice, or the
circumstances from which such notice is to be inferred are material.
12. Implied contract, or relation.—Wherever any contract or any
relation between any persons is to be implied from a series of letters or
conversations or otherwise from a number of circumstances, it shall be
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sufficient to allege such contract or relation as a fact, and to refer
generally to such letters, conversations or circumstances without
setting them out in detail. And if in such case the person so pleading
desires to rely in the alternative upon more contracts or relations than
one as to be implied from such circumstances, he may state the same
in the alternative.
13. Presumptions of law.—Neither party need in any pleading allege
any matter of fact which the law presumes in his favour or as to which
the burden of proof lies upon the other side unless the same has first
been specifically denied (e.g., consideration for a bill of exchange where
the plaintiff sues only on the bill and not for the consideration as a
substantive ground of claim).
► Nature and scope.—Rules of pleading in the Code do not cover question
of law, District Basic Education Officer v. Dhananjai Kumar Shukla, (2008) 3
SCC 481.
14. Pleading to be signed.—Every pleading shall be signed by the
party and his pleader (if any):
Provided that where a party pleading is, by reason of absence or for
other good cause, unable to sign the pleading, it may be signed by any
person duly authorised by him to sign the same or to sue or defend on
his behalf.
High Court Amendment
KARNATAKA.—Renumber existing Rule 14 as Rule 14(2) and insert the
following as sub-rule (1) to Rule 14:
“(1) Every pleading shall contain the party's full address for
service, that is to say, full address of his place of residence as well as
place of business, if any, in addition to his pleader's address for
service as required by Rule 32 of Order V of this Code. Such address
for service furnished by the party, unless a change therein has been
notified to the Court by filing a memorandum to that effect, shall be
presumed to be his correct address for service for purposes of suit,
any appeal or revision or other proceeding directed against the
decree or order passed in that suit. When a memorandum of change
of address is filed by any party, a note to that effect shall be made in
the cause title of the pleading and if the pleading happens to be the
written statement also in the cause title of the plaint.” (30-3-1967).
► Defect in signing.—If a plaint is not signed by the plaintiff or his duly
authorised agent due to any bona fide error, the defect can be permitted to be
rectified either by the trial court at any time before judgment, or even by the
appellate court by permitting appropriate amendment, when such defect comes to
its notice during hearing, Uday Shankar Triyar v. Ram Kalewar Prasad Singh,
(2006) 1 SCC 75.
348
[14-A. Address for service of notice.—(1) Every pleading, when
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filed by a party, shall be accompanied by a statement in the prescribed
form, signed as provided in Rule 14, regarding the address of the party.
(2) Such address may, from time to time, be changed by lodging in
Court a form duly filled up and stating the new address of the party and
accompanied by a verified petition.
(3) The address furnished in the statement made under sub-rule (1)
shall be called the “registered address” of the party, and shall, until
duly changed as aforesaid, be deemed to be the address of the party
for the purpose of service of all processes in the suit or in any appeal
from any decree or order therein made and for the purpose of
execution, and shall hold good, subject as aforesaid, for a period of two
years after the final determination of the cause or matter.
(4) Service of any process may be effected upon a party at his
registered address in all respects as though such party resided thereat.
(5) Where the registered address of a party is discovered by the
Court to be incomplete, false or fictitious, the Court may, either on its
own motion, or on the application of any party, order—
(a) in the case where such registered address was furnished by a plaintiff,
stay of the suit, or
(b) in the case where such registered address was furnished by a
defendant, his defence be struck out and he be placed in the same
position as if he had not put up any defence.
(6) Where a suit is stayed or a defence is struck out under sub-rule
(5), the plaintiff or, as the case may be, the defendant may, after
furnishing his true address, apply to the Court for an order to set aside
the order of stay or, as the case may be, the order striking out the
defence.
(7) The Court, if satisfied that the party was prevented by any
sufficient cause from filing the true address at the proper time, shall set
aside the order of stay or order striking out the defence, on such terms
as to costs or otherwise as it thinks fit and shall appoint a day for
proceeding with the suit or defence, as the case may be.
(8) Nothing in this rule shall prevent the Court from directing the
service of a process at any other address, if, for any reason, it thinks fit
to do so.]
High Court Amendments
ASSAM AND CALCUTTA: Insert the following:—
“R. 14-A. Every pleading when filed shall be accompanied by a
statement in a prescribed form, signed as provided in Rule 14 of this
Order, of the party's address for service. Such address may from
time to time be changed by lodging in Court a form duly filled up
and stating the new address of the party and accompanied by a
verified petition. The address so given shall be called the registered
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address of the party and shall, until duly changed as aforesaid, be
deemed to be the address of the party for the purpose of service of
all processes in the suit or in any appeal from any decree or order
therein made and for the purpose of execution, and shall hold good
subject as aforesaid for a period of two years, after the final
determination of the cause or matter. Service of any process may be
effected upon a party at his registered address in like manner in all
respects as though such party resided thereat”.
BOMBAY.—Substitute the following sub-rules (1) to (4) for existing
sub-rules (1) to (4) of Rule 14-A of Order VI:—
“14-A. Address for service of notice.—(1) Every pleading when
filed by a party, shall be accompanied by a statement in the
prescribed form, signed as provided in Rule 14, regarding the
address of the party. Parties subsequently added shall immediately
on being so added file a memorandum in writing of this nature.
(2) Such address may, from time to time, be changed by lodging
in Court a form duly filled up and stating the new address of the
party and accompanied by a verified petition. Notice of such change
shall be given to such other parties as the Court may deem it
necessary and the form showing the change may be served either on
the pleaders or such parties or be sent to them by registered post
pre-paid for acknowledgment as the Court thinks fit.
(3) The address furnished in the statement made under sub-rule
(1) shall be called the “registered address” of the party, and shall,
until duly changed as aforesaid, be deemed to be the address of the
party for the purpose of service of all processes in the suit or in any
appeal from any decree or order therein made and for the purpose of
execution, and shall hold good, subject as aforesaid, for a period of
six years alter the final determination of the cause or matter.
(4) (i) Where a party is not found at the registered address and
no agent or adult male member of his family, on whom a notice or
process can be served is present, a copy of the notice or process
shall be affixed to the outer door of the house. If on the date fixed
such party is not present, another date shall be fixed and a copy of
the notice, summons or other process shall be sent to the registered
address of that party by registered post pre-paid for
acknowledgment (which pre-payment shall be made within one
month from the date originally fixed for hearing) and such service
shall be deemed to be as effectual as if the notice or process had
been personally served.
(ii) Where a party engages a pleader, notice or process issued
against the party shall be served in the manner prescribed by Order
III, Rule 5, unless the Court directs service at the registered address
of the party.
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(5) Where the registered address of a party is not filed within the
specified time or is discovered by the Court to be incomplete, false
or fictitious the Court may, either on its own motion, or on the
application of any party, order—
(a) in case where the default in furnishing registered address is by
the plaintiff or where such registered address was furnished by a
plaintiff rejection of the plaint, or
(b) in case where the default in furnishing registered address is by
the defendant, or where such registered address was furnished by
a defendant, his defence is struck out and he be placed in the
same position as if he had not put any defence.
(6) Where a plaint is rejected or defence is struck out under sub-
rule (5), the plaintiff or as the case may be the defendant after
furnishing his true address, apply to the Court for an order to set
aside the rejection of the plaint or as the case may be, the orders
striking out the defence.
(7) The Court is satisfied that the party was prevented by any
sufficient cause from filing the true address at the proper time, shall
set aside the rejection of the plaint or order striking out the defence,
on such terms as to costs or otherwise as it thinks fit and shall
appoint a day for proceeding with the suit or defence as the case
may be.
(8) Where a party is not found at the registered address and no
agent or adult member of his family on whom a notice or process can
be served is present, a copy of the notice or process shall be affixed
to the outer door of the house. If on the date fixed such party is not
present, another date shall be fixed and a copy of the notice,
summons or other process shall be sent to the registered address of
that party by registered post prepaid for acknowledgment (which pre
-payment shall be made within one month from the date originally
fixed for hearing) and such service shall be deemed to be as
effectual as if the notice or process had been personally served.
(9) Where the Court has struck out the defences under sub-rule
(5) and has consequently passed a decree or an order, the defendant
or the opposite party as the case may be, may apply to the Court by
which the decree or order was passed for an order setting aside the
decree or order and if he files a registered address and satisfies the
Court that he was prevented by any sufficient cause from filing the
address, the Court shall make an order setting aside the decree or
order against him upon such terms as to costs or otherwise as it
thinks fit and shall appoint a day for proceeding with the suit or
proceeding, provided that where the decree or order is of such a
nature that it cannot be set aside as against such defendant or
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opposite party only, it may set aside as against all or any of the
defendants or opposite party.
(10) Nothing in this rule shall prevent the Court from directing
service of a process at any other address, if for any reason it thinks
fit to do so.
(11) Where a party engages a pleader, a notice or process issued
against the party shall be served in the manner prescribed by Order
III, Rule 5 unless the Court directs service at the registered address
of the party.” (1-10-1983).
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS).—Insert the following:
“R. 14-A.—Every pleading when filed shall be accompanied by a
statement in a prescribed form, signed as provided in Rule 14 of this
Order, of the party's address for service. Such address may from
time to time be changed by lodging in Court a form duly filled up
and stating the new address of the party and accompanied by a
verified petition. The address so given shall be called the registered
address of the party and shall, until duly changed as aforesaid, be
deemed to be the address of the party for the purpose of service of
all processes in the suit or in any appeal from any decree or order
therein made and for the purposes in the suit or in any appeal from
any decree or order therein made and for the purposes of execution,
and shall hold good subject as aforesaid for a period of two years,
after the final determination of the cause of matter. Service of any
process may be effected upon a party at his registered address in
like manner in all respects as though such party resided
thereat.” (25-7-1928).
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta.—(Assam High Court Order, 1948 and Act 27 of
1962, S. 15 (1-12-1963). Act 81 of 1971, S. 28 (21-1-1972).
ORISSA.—Deleted (14-5-1984).
15. Verification of pleadings.—(1) Save as otherwise provided by any
law for the time being in force, every pleading shall be verified at the
foot by the party or by one of the parties pleading or by some other
person proved to the satisfaction of the Court to be acquainted with the
facts of the case.
(2) The person verifying shall specify, by reference to the numbered
paragraphs of the pleading, what he verifies of his own knowledge and
what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall
state the date on which and the place at which it was signed.
349
[(4) The person verifying the pleading shall also furnish an
affidavit in support of his pleadings.]
STATE AMENDMENTS
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Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
the First Schedule to the said Code, in Order VI, Rule 15, in sub-rule
(1), for the words, “on oath administered by an officer empowered
under Section 139 of the Code,” (substituted by U.P. Act 57 of 1976, S.
6), the words “at the foot” shall be substituted.—U.P. Act 31 of 1978,
S. 4 (w.e.f. 1-8-1978). Hence in effect, the word “at the foot” have
been restored.
High Court Amendments
BOMBAY (DADRA AND NAGAR HAVELI).—(i) In sub-rule (1) of Rule 15, in
so far as it applies to the Bombay City Civil Court, there shall be
substituted a comma for the full stop, and the following shall be added
at the end of the sub-rule:—
“within the local jurisdiction, before one of the officers of the
Court empowered to administer oath, and elsewhere in India, before
the officer indicated by Section 139 of the Code.” (16-8-1948).”
(ii) In sub-rule (1) add the following at the end:—
“Provided that in respect of pleadings to be filed in the Bombay
City Civil Court such verification shall, within the local jurisdiction of
the Court, be made before one of the officers of the said Court
empowered to administer oath, and elsewhere, before any officer
mentioned in Section 139 of the Code of Civil Procedure, 1908.” (1-
10-1983). Maharashtra Govt. Gazette 15-9-1983, Pt. 4, Ka, p. 402.
ORISSA.—Same as that of Patna (27-9-1961).
PATNA.—Sub-rule (1) was substituted by the following:—
“(1) Save as otherwise provided by any law for the time being in
force, the facts stated in every pleading shall be verified by solemn
affirmation or on oath of the party or of one of the parties pleading or
of some other person proved to the satisfaction of the Court to be
acquainted with the facts of the case, before any officer empowered
to administer oath under Section 139 of the Code.” (27-9-1961).
► Verification of pleadings.—Defect is curable but is fatal if not chosen to
be cured in view of mandatory statutory provision, P.A. Mohammed Riyas v. M.K.
Raghavan, (2012) 5 SCC 511.
► Affidavit in support of pleading.—The requirement of filing affidavit in
support of pleadings is not illegal and unnecessary. The same has the effect of
fixing additional responsibility on the deponent as to truth of facts stated in the
pleadings, Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344.
350
[16. Striking out pleadings.—The Court may at any stage of the
proceedings order to be struck out or amended any matter in any
pleading—
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the
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suit, or
(c) which is otherwise an abuse of the process of the Court.]
► Object.—The underlying object of Order 6, Rule 16 CPC is to ensure that
every party to a suit should present his pleading in an intelligible form without
causing embarrassment to his adversary, Sathi Vijay Kumar v. Tota Singh, (2006)
13 SCC 353.
► Scope and application.—Striking out pleadings has serious adverse
impact on the rights of the party concerned, hence, the power under this section
has to be exercised with extreme care, caution and circumspection, Abdul Razak
v. Mangesh Rajaram Wagle, (2010) 2 SCC 432 : (2010) 1 SCC (Civ) 444.
351
[17. Amendment of pleadings.—The Court may at any stage of
the proceedings allow either party to alter or amend his pleading in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after
the trial has commenced, unless the Court comes to the conclusion that
in spite of due diligence, the party could not have raised the matter
before the commencement of trial.]
High Court Amendments
BOMBAY.—For the existing Rule 17 and its marginal note, substitute
the following as Rule 17 and marginal note:
“17. Amendment of pleadings.—The Court may at any stage of
the proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of
determining the real question in controversy between the parties.
Where, however, an application for amendment is made by the
plaintiff, in a suit in which the defendant has not appeared, though
served with a summons, and where in the opinion of the Court the
amendment applied for is a material one, the Court shall give notice
of the application to the defendant before allowing the amendment;
and where in the absence of the defendant the Court grants any
amendment in a form materially different from that of which notice
has been given to the defendant, a copy of the amended plaint shall
be served on the defendant.” (1-10-1983).
DELHI.—Same as in Punjab.
GUJARAT.—Add as follows:
“Where however an application for amendment is made by the
plaintiff in a suit in which the defendant has not appeared though
served with a summons and where in the opinion of the Court the
amendment applied for is a material one, the Court shall give notice
of the application to the defendant before allowing the amendment,
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and where in the absence of the defendant the Court grants any
amendment in a form materially different from that applied for, a
copy of the amended plaint shall be served on the defendant.” (17-8
-1961).
HIMACHAL PRADESH.—Same as in Punjab.
ORISSA.—Renumber the existing Rule 17 as Rule 17(1) and add the
following as sub-rule (2).
“(2) Every application for amendment shall be in writing and duly
verified in the manner laid down in Rule 5 and shall state the specific
amendment which is sought to be made, indicating the words or
paragraphs to be added to, omitted from or substituted in place of
the original pleadings.” (14-5-1984).
PUNJAB, HARYANA AND CHANDIGARH.—Add the following as sub-rule (2):
“(2) Every application for amendments shall be in writing and
shall state the specific amendments which are sought to be made
indicating the words or paragraphs to be added, omitted or
substituted in the original pleading.” (14-12-1951), Act 31 of 1966,
Ss. 29 & 32 (1-11-1966).
► Nature and scope.—Grant of application for amendment subject to certain
conditions, namely, (i) when the nature of it is changed by permitting amendment;
(ii) when the amendment would result in introducing new cause of action and
intends to prejudice the other party; and (iii) when allowing amendment application
defeats the law of limitation, Rajkumar Guruwara v. S.K. Sarwagi and Co. (P)
Ltd., (2008) 14 SCC 364.
► Amendment of pleadings.—Principles summarised in respect of
application for amendment of pleadings, when may be allowed, N.C. Bansal v.
U.P. Financial Corpn., (2018) 2 SCC 347, See also Rajkumar Guruwara v. S.K.
Sarwagi and Co. (P) Ltd., (2008) 14 SCC 364.
► New relief.—Application for amendment of pleading to add a new relief, if it
amounts to a fresh suit and is barred by limitation, it would not be allowed by
court, Ashutosh Chaturvedi v. Prano Devi, (2008) 15 SCC 610.
► Withdrawal of admission.—Where defendant has admitted in her written
statement the pleas and contentions of the plaintiff she cannot be permitted to
amend the same to deny or dispute plaintiff's claim, Gautam Sarup v. Leela Jetly,
(2008) 7 SCC 85.
► Subsequent events.—It is open to the Court to take notice of subsequent
events and allow the amendment, if the originally claimed relief becomes
inappropriate; necessary to take note of the subsequent events in order to
complete justice, Shikharchand Jain v. Digamber Jain, (1974) 1 SCC 675.
► Amendment of Plaint.—Amendment to plaint to correct valuation of suit
property, which could result in transfer of suit due to change in pecuniary
jurisdiction, not a ground to deny amendment, Mount Mary Enterprises v.
Jivratna Medi Treat (P) Ltd., (2015) 4 SCC 182.
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► Amendment of plaint after passing of final decree.—Court holds the
power to allow such amendment provided : (i) application is bona fide, (ii) does
not cause injustice to other side, and (iii) does not affect the right(s) already
accrued to the other side, Peethani Suryanarayana v. Repaka Venkata Ramana
Kishore, (2009) 11 SCC 308 : (2009) 4 SCC (Civ) 529.
► Amendment of written statement.—Adding a new ground of defence or
substituting or altering a defence does not raise the same problem as adding,
altering or substituting a new cause of action. Inconsistent defences can be raised
in the written statement butnot permissible in case of the plaint, Baldev Singh v.
Manohar Singh, (2006) 6 SCC 498.
Belated and mala fide amendment of written statement are impermissible,
Amrit Lal v. Shiv Narain Gupta, (2010) 15 SCC 510 : (2013) 2 SCC (Civ) 103.
Resiling from admissions made in written statement is not permissible, Ram
Niranjan Kajaria v. Sheo Prakash Kajaria, (2020) 19 SCC 366.
► Amendment of suit.—Amendment of suit is not permissible when the same
changes the nature of suit, Asian Hotels (North) Ltd. v. Alok Kumar Lodha,
(2022) 8 SCC 145.
► Amendment based on two different pleas.—Proposed amendment based
on two different pleas, held, can be allowed if no prejudice is caused to the
opposite party by the said amendment, Chandan Hazarika v. Banti Bhuyan,
(2003) 10 SCC 242.
► Amendment allowed without giving opportunity.—Where court allowed
the amendment application without affording any opportunity to the opposite party
and simultaneously passed a decree not only based on the amended plea but
exceeding it, held, procedure was wholly illegal, Ramnik Vallabhdas Madhvani v.
Taraben Pravinlal Madhvani, (2004) 1 SCC 497.
► Limitation.—As a general rule, the court should decline amendments if a
fresh suit on the amended claims would be barred by limitation on the date of
application, Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009)
10 SCC 84 : (2009) 4 SCC (Civ) 37.
► Delay.—Delay and laches on the part of the parties to the proceedings
would also be a relevant factor for allowing or disallowing an application for
amendment of the pleadings, Union of India v. Pramod Gupta, (2005) 12 SCC 1.
Long pendency of matters in court cannot be a ground for the delay, Ashutosh
Chaturvedi v. Prano Devi, (2008) 15 SCC 610.
► Pre-trial and post-trial amendment.—“Due diligence” means reasonable
diligence; it means such diligence as a prudent man would exercise in the conduct
of his own affairs, Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC
117.
► Discretionary power of Court.—The court always gives relief to amend
the pleading of the party, unless it is satisfied that the party applying was acting
mala fide or that by his blunder he had caused injury to his opponent which
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cannot be compensated for by an order of cost, Mahila Ramkali Devi v.
Nandram, (2015) 13 SCC 132.
352
[18. Failure to amend after order.—If a party who has obtained an
order for leave to amend does not amend accordingly within the time
limited for that purpose by the order, or if no time is thereby limited
then within fourteen days from the date of the order, he shall not be
permitted to amend after the expiration of such limited time as
aforesaid or of such fourteen days, as the case may be, unless the time
is extended by the Court.]
High Court Amendments
ORISSA.—Substitute the following for Rule 18:
“Where a party has obtained an order to amend and the
amendment is extensive, within a time limited for that purpose by
the order, or if no time is thereby limited, then, within fourteen days
from the date of the order, he shall file a consolidated pleading
incorporating the amendments, and he shall not be permitted to
amend after the expiration of such limited time as aforesaid or of
such fourteen days, as the case may be, unless the time is extended
by the Court.
In all other cases, the Bench Clerk shall carry out the
amendment.” (14-5-1984).
ORDER VII
Plaint
1. Particulars to be contained in plaint.—The plaint shall contain the
following particulars:
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far
as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound
mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of
his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the
purposes of jurisdiction and of court fees, so far as the case admits.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY : DADRA AND NAGAR HAVELI.—For item (i) substitute the
following:
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“(i) Statement of the value of the subject-matter of the suit for
the purposes of jurisdiction and of court-fees, so far as the case
admits, showing the provisions of law under which the valuation of
the court-fees and jurisdiction is separately made.” (1-10-1983).
KARNATAKA.—Delete Rule 1 and substitute the following:
“1. The plaint shall contain the following particulars:
(a) the name of the Court in which the suit is brought;
(b) the name, age, description, place of residence and place of
business, if any, of the plaintiff;
(c) the name, age, description, place of residence and the place of
business, if any, of the defendant, so far as can be ascertained by
the plaintiff;
(d) where the plaintiff or the defendant is a minor or a person of
unsound mind, a statement to that effect and in the case of a
minor, his age to the best of the knowledge and belief of the
person verifying the plaint:
Provided that, where, owing to the large number of defendants or any
other sufficient cause, it is not practicable to ascertain with reasonable
accuracy the age of the minor defendants, it may be stated that the
age of the minor defendant is not known;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion
of the claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the
purposes of jurisdiction and court-fees, so far as the case
admits.” (30-3-1967).
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of
Madras but without the Proviso. (9-6-1959).
MADRAS AND PONDICHERRY.—Substitute the following for sub-clause
(d) of Rule 1:
“(d) Where plaintiff or the defendant is a minor or a person of
unsound mind, a statement to that effect, and in the case of a
minor, a statement regarding his age to the best of the knowledge
and belief of the person verifying the plaint:
Provided that where, owing to the large number of defendants or
any other sufficient reason, it is not practicable to ascertain with
reasonable accuracy the age of the minor defendant, it may be
stated that the age of minor defendant is not known.” (ROC
1433/43) and Act 26 of 1968, Section 3 and Schedule Pt. II (w.e.f. 5
-9-1968).
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PUNJAB, HARYANA AND CHANDIGARH.—After clause (i) of Or. 7, R. 1,
insert—
“(j) A statement to the effect that no suit between the same
parties, or between parties under whom they or any of them claim,
litigating on the same grounds has been previously instituted or
finally decided by a Court of competent jurisdiction or limited
jurisdiction, and if so, with what results.” (15-3-1991)
► Nature and scope.—Civil Procedure Code, 1908 does not envisage a
situation where a Civil Court could hear a defendant before registering a plaint,
P.K. Palanisamy v. N. Arumugham, (2009) 9 SCC 173 : (2009) 3 SCC (Civ) 649.
► Plaint to be read as whole.—Relinquishment of reliefs with permission of
court does not imply that plaint is not being read as a whole, Sopan Sukhdeo
Sable v. Asstt. Charity Commr., (2004) 3 SCC 137.
2. In money suits.—Where the plaintiff seeks the recovery of money,
the plaint shall state the precise amount claimed:
But where the plaintiff sues for mesne profits, or for an amount
which will be found due to him on taking unsettled accounts between
him and the defendant, 353[or for movables in the possession of the
defendant, or for debts of which the value he cannot, after the exercise
of reasonable diligence, estimate, the plaint shall state approximately
the amount or value sued for].
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, after Rule 2, insert the following
Rule, namely:—
“2-A. Where interest is sought in the suit.—(1) Where the plaintiff
seeks interests, the plaint shall contain a statement to that effect
along with the details set out under sub-rules (2) and (3).
(2) Where the plaintiff seeks interest, the plaint shall state
whether the plaintiff is seeking interest in relation to a commercial
transaction within the meaning of section 34 of the Code of Civil
Procedure, 1908 and, furthermore, if the plaintiff is doing so under
the terms of a contract or under an Act, in which case the Act is to
be specified in the plaint; or on some other basis and shall state the
basis of that.
(3) Pleadings shall also state—
(a) the rate at which interest is claimed;
(b) the date from which it is claimed;
(c) the date to which it is calculated;
(d) the total amount of interest claimed to the date calculation; and
(e) the daily rate at which interest accrues after the date.” [Vide
S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-2020)].
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Union Territory of Ladakh.—In its application to the Union
Territory of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O.
3774(E), dated 23-10-2020].
High Court Amendments
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab. (7-8-1959).
KARNATAKA.—For Rule 2 substitute the following:
“2. Where the plaintiff seeks for recovery of money, the plaint
shall state the precise amount claimed, and wherever a statement of
account or a memorandum of calculation is necessary for the
purpose, such statement or memorandum shall be set out in the
schedule to the plaint or separately annexed thereto.
But where the plaintiff sues for mesne profits, or for an amount
which will be found due to him on taking unsettled accounts
between him and the defendant, the plaint shall state approximately
the amount sued for.” (30-3-1967).
PUNJAB, HARYANA AND CHANDIGARH.—In the second paragraph after the
word “defendant” insert “or for movables in the possession of the
defendant, or for debts of which the value he cannot, after the exercise
of reasonable diligence, estimate” and after the word “amount” where it
last occurs insert “or value”. Act 31 of 1966, Ss. 29 and 32 (1-11-
1966).
3. Where the subject-matter of the suit is immovable property.—
Where the subject-matter of the suit is immovable property, the plaint
shall contain a description of the property sufficient to identify it, and,
in case such property can be identified by boundaries or numbers in a
record of settlement or survey, the plaint shall specify such boundaries
or numbers.
High Court Amendments
ASSAM AND NAGALAND.—Same as that of Calcutta.
BOMBAY : DADRA AND NAGAR HAVELI.—In Order VII, for the existing
Rule 3 and its marginal note, substitute the following as Rule 3 and
marginal note:—
“3. Where the subject-matter of the suit is immovable property.—
Where the subject-matter of the suit is immovable property, the
plaint shall contain a description of the property sufficient to identify
it, and, in case such property can be identified by boundaries or
numbers in a record of settlement of survey, the plaint shall specify
such boundaries or numbers. In case of encroachment a sketch
showing as approximately as possible the location and extent of the
encroachment shall also be filed along with the plaint.” (1-10-1983).
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Add at the end the
words:
“and where the area is mentioned, such description shall further
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state the area according to the notation used in the record of
settlement or survey, with or without, at the option of the party, the
same area in terms of the local measures.”
GAUHATI.—Same as that of Calcutta — Assam High Court Order,
1948, Cl. 6.
HIMACHAL PRADESH.—Existing Rule 3 shall be renumbered as Rule 3
(1) and sub-rule (2) be added:—
“(2) Where the suit is for a specific plot with definite boundaries,
it shall also be accompanied by a map, drawn to scale, showing
clearly the specific plot claimed or in relation to which the decree is
to be made, and so much of the fields adjoining it, also drawn to
scale, as may be sufficient to facilitate identification. The specific
plot and adjoining fields shall be numbered in accordance with the
statement and the map shall be certified as correct by the person
who prepared it. Where, however, the suit is for the whole of one or
more khasra numbers as shown in the settlement map or a share in
such numbers, and not for a specific portion thereof, no map will be
required unless it is necessary for other reasons to show the
boundaries of such khasra numbers. — H.P. Gazette 27-11-2000,
Extra., p. 4791.
► Object.—Object of this provision is that the description of the property must
be sufficient to identify it. The property can be identifiable by boundaries or by
number in a public record of settlement or survey. It can be described even by
plaint map showing the location of the disputed immovable property, Zarif Ahmad
v. Mohd. Farooq, (2015) 13 SCC 673.
4. When plaintiff sues as representative.—Where the plaintiff sues in
a representative character the plaint shall show not only that he has an
actual existing interest in the subject-matter, but that he has taken the
steps (if any) necessary to enable him to institute a suit concerning it.
High Court Amendment
KARNATAKA.—For Rule 4, substitute the following:
“4. (1) Where the plaintiff sues in a representative character, the
plaint shall show not only that he has an actual existing interest in
the subject-matter, but also that he has taken the steps (if any),
necessary to enable him to institute a suit concerning it.
(2) When the permission of the Court under Rule 8 of Order I of
this Code is sought, before or at the time of the institution of the
suit, the plaint shall be accompanied by an application supported by
an affidavit stating the number or approximate number of parties
interested, the places where they respectively reside, that they have
all the same interest in the subject-matter of the suit and the nature
of the said interest, and the best means of giving notice of the
institution of the suit to the said parties. If the permission sought is
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granted, the plaint shall state or be amended so as to state that the
plaintiff sues on behalf of himself and all other persons interested in
the subject-matter of the suit and that he has been permitted by the
Court to do so by an order of Court made on a particular date, in the
application mentioned above.” (30-3-1967).
5. Defendant's interest and liability to be shown.—The plaint shall
show that the defendant is or claims to be interested in the subject-
matter, and that he is liable to be called upon to answer the plaintiff's
demand.
6. Grounds of exemption from limitation law.—Where the suit is
instituted after the expiration of the period prescribed by the law of
limitation, the plaint shall show the ground upon which exemption from
such law is claimed:
354
[Provided that the Court may permit the plaintiff to claim
exemption from the law of limitation on any ground not set out in the
plaint, if such ground is not inconsistent with the grounds set out in the
plaint.]
► Applicability.—Stating of grounds of exemption in pleadings is necessary.
Proviso to Order 7 Rule 6 permit exemption from law of limitation on any ground
not set out in plaint, so long as such ground was not inconsistent with grounds set
out in plaint, Shanti Conductors (P) Ltd. v. Assam SEB, (2020) 2 SCC 677.
7. Relief to be specifically stated.—Every plaint shall state
specifically the relief which the plaintiff claims either simply or in the
alternative, and it shall not be necessary to ask for general or other
relief which may always be given as the Court may think just to the
same extent as if it had been asked for. And the same rule shall apply
to any relief claimed by the defendant in his written statement.
► Relief to be stated.—Relief, not founded on pleadings, cannot be granted,
Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362.
► Accrual of cause of action after institution of suit.—If the cause of
action arose during pendency of the suit and if the suit keeping in view the
subsequent events is found not to be barred by limitation, held, relief granted in
such suit is not liable to be interfered with, Bay Berry Apartments (P) Ltd. v.
Shobha, (2006) 13 SCC 737.
► Suit for declaration of title to property.—In case of suit for declaration of
title to property and recovery of possession, when property is held custodia legis,
the fact that in such a case it is not necessary to seek relief of possession, held,
does not mean that such a suit would not be a suit for possession, particularly if
possession has in any case been sought as a relief, M. Siddiq (Ram
Janmabhumi Temple 5J) v. Suresh Das, (2020) 1 SCC 1.
8. Relief founded on separate grounds.—Where the plaintiff seeks
relief in respect of several distinct claims or causes of action founded
upon separate and distinct grounds, they shall be stated as far as may
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be separately and distinctly.
355
[9. Procedure on admitting plaint.—Where the Court orders that
the summons be served on the defendants in the manner provided in
Rule 9 of Order V, it will direct the plaintiff to present as many copies of
the plaint on plain paper as there are defendants within seven days
from the date of such order along with requisite fee for service of
summons on the defendants.]
High Court Amendments
ALLAHABAD.—(a) For the semi-colon after “it” in clause (1), substitute
a full stop and delete the rest of this clause as well as clauses (2) and
3; and
(b) renumber clause (4) as clause (2), deleting the words “or
statements” therein. (12-2-1927).
ANDHRA PRADESH.—Same as that of Madras.
ASSAM AND NAGALAND.—Same as in Calcutta.
BOMBAY.—For Rule 9, substitute the following:
“9. Chief Ministerial Officer to sign lists and copies produced along
with plaint.—(1) The plaintiff shall endorse on the plaint or annex
thereto a list of documents (if any), which he has produced along
with it.
(2) The Chief Ministerial Officer of the Court shall sign such lists
and the copies of the plaint with annexures presented under Rule 1
of Order IV, if on examination he finds them to be correct.” (1-10-
1983). See Maharashtra Govt. Gazette, 15-9-1983, Pt. 4 Ka, p. 403;
Goa Gazette, 12-10-1987, Extra., S. 1, No. 28, p. 377 (1-4-1987).
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—For clause (1) substitute
the following:
“(1) The plaintiff shall endorse on the plaint, or annex thereto, a
list of the documents (if any), which he has produced along with it,
(1-A) The plaintiff shall present with his plaint—
(i) as many copies on plain paper of the plaint as there are
defendants, unless the Court by reason of the length of the plaint
or the number of the defendants, or for any sufficient reason,
permits him to present a like number of concise statements of the
nature of the claim made, or of the relief claimed in suit, in which
case he shall present such statements;
(ii) draft forms of summons and fees for the service thereof.” (As
amended on 3-2-1933).
GAUHATI.—Same as in Calcutta — Assam High Court Order, 1948, Cl.
6 and Act 27 of 1962, Ss. 13 and 15 (1-12-1963) and Act 81 of 1971,
S. 28 (21-1-1972).
KARNATAKA.—For Rule 9, substitute the following:
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“9. The plaintiff shall present along with the plaint as many copies
on plain paper of the plaint as there are defendants, unless by
reason of the length of the plaint or the number of the defendants or
for any other sufficient reason, the Court permits him to present a
like number of concise statements of the nature of the claim made or
of the relief claimed in the suit, in which case he shall present such
statements. Where the plaintiff sues or the defendant or any of the
defendants is sued in a representative capacity, such statements
shall show in what capacity the plaintiff or the defendant sues or is
sued. The plaintiff may, by leave of the Court, amend such
statements so as to make them correspond with the plaint. The
copies or concise statements, as the case may be, shall bear an
endorsement signed by the party or the pleader filing the same to
the effect that they are true and correct.” (30-3-1967).
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In Rule 9:
(i) for sub-rule (1), the following sub-rule shall be substituted,
namely:—
“9. (i) The plaintiff shall endorse on the plaint, or annex thereto, a list
of the documents (if any), which he has produced along with it, and
shall present along with the plaint as many copies on plain paper of the
plaint as there are defendants.”;
(ii) sub-rules (2) and (3) shall be omitted;
(iii) in sub-rule (4) the words “or statements” shall be omitted. (9-6-
1959).
MADHYA PRADESH.—Substitute the following for Rule 9:
(1) Same as that of Calcutta (1):
“(2) The Chief Ministerial Officer of the court shall sign such list
and the copies of the plaint presented under Rule 1 of Order IV, if on
examination, he finds them to be correct.” (16-9-1960).
MADRAS AND PONDICHERRY.—After the word “and” occurring in clause
(1), delete the comma and the five words following viz. “if the plaint is
admitted” and insert the expression “along with the plaint” after the
words “shall present”. (R.O.C. No. 1810 of 1926) Act 26 of 1968,
Section 3 and Schedule Pt. II (w.e.f. 5-9-1968).
ORISSA.—Deleted 14-5-1984.
PUNJAB AND HARYANA.—For sub-rule (1-A) the following will be
substituted, namely:—
“The plaintiff shall, within the time fixed by the Court or extended
by it under sub-rule (1), file summons in the prescribed form, in
duplicate, after being duly filled in, for each of the defendants and
pay the requisite fee for the service thereof on the
defendants.” (Vide Noti. No. 100—GSR 21-22/C.A. 5/1908/S.
122/81, dated 10-2-1982, pub. in Haryana Gaz., dated 16-2-1982
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L.S., p. 131.)
356
10. Return of plaint.—(1) [Subject to the provisions of Rule 10-A,
the plaint shall] at any stage of the suit be returned to be presented to
the Court in which the suit should have been instituted.
357
[Explanation.—For the removal of doubts, it is hereby declared
that a court of appeal or revision may direct, after setting aside the
decree passed in a suit, the return of the plaint under this sub-rule.]
(2) Procedure on returning plaint.—On returning a plaint the
Judge shall endorse thereon the date of its presentation and return, the
name of the party presenting it, and a brief statement of the reasons
for returning it.
High Court Amendment
BOMBAY.—In Order VII, Rule 10 for the existing sub-rule (1) and its
marginal note substitute the following as sub-rule (1) and marginal
note:—
“10. Return of plaint.—(1) Subject to the provisions of Rule 10-A,
the plaint shall at any stage of the suit be returned to be presented
to the Court in which the suit should have been instituted. The
plaintiff or his pleader shall be informed of the date fixed for the
return of the plaint.” (1-10-1983).
► Nature and scope.—Although at the stage of consideration of the return of
the plaint under Order 7, Rule 10 CPC, what is to be looked into is the plaint and
the averments therein, it is also necessary to read the plaint in a meaningful
manner to find out the real intention behind the suit, Begum Sabiha Sultan v.
Nawab Mohd. Mansur Ali Khan, (2007) 4 SCC 343.
► Re-presentation of plaint.—Presentation of plaint in the correct court after
its return is not a case of “transfer”. It is a case of lack of jurisdiction of the first
court. It is not a continuation of proceedings initiated in the wrong court. Hence
the correct court cannot take up the proceedings from the stage at which they
stood in the wrong court, since the proceedings were void ab initio, Harshad
Chimanlal Modi (2) v. DLF Universal Ltd., (2006) 1 SCC 364.
► Return of plaint by court lacking jurisdiction.—After such presentation,
suit has to proceed de novo before competent court, even if evidence of parties
already stood concluded and matter fixed for final arguments before court which
returned the plaint. Order 7 Rule 10 r/w Rule 10-A cannot be interpreted as
providing any discretion to court to which plaint was returned, to proceed from the
stage at which plaint was returned, EXL Careers v. Frankfinn Aviation Services
(P) Ltd., (2020) 12 SCC 667.
358
[10-A. Power of Court to fix a date of appearance in the Court
where plaint is to be filed after its return.—(1) Where, in any suit, after
the defendant has appeared, the Court is of opinion that the plaint
should be returned, it shall, before doing so, intimate its decision to the
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plaintiff.
(2) Where an intimation is given to the plaintiff under sub-rule (1),
the plaintiff may make an application to the Court—
(a) specifying the Court in which he proposes to present the plaint after
its return,
(b) praying that the Court may fix a date for the appearance of the parties
in the said Court, and
(c) requesting that the notice of the date so fixed may be given to him
and to the defendant.
(3) Where an application is made by the plaintiff under sub-rule (2),
the Court shall, before returning the plaint and notwithstanding that
the order for return of plaint was made by it on the ground that it has
no jurisdiction to try the suit,—
(a) fix a date for the appearance of the parties in the Court in which the
plaint is proposed to be presented, and
(b) give to the plaintiff and to the defendant notice of such date for
appearance.
(4) Where the notice of the date for appearance is given under sub-
rule (3),—
(a) it shall not be necessary for the Court in which the plaint is presented
after its return, to serve the defendant with a summons for appearance
in the suit, unless that Court, for reasons to be recorded, otherwise
directs, and
(b) the said notice shall be deemed to be a summons for the appearance
of the defendant in the Court in which the plaint is presented on the
date so fixed by the Court by which the plaint was returned.
(5) Where the application made by the plaintiff under sub-rule (2) is
allowed by the Court, the plaintiff shall not be entitled to appeal against
the order returning the plaint.]
► Effect of insertion of Rule 10-A.—Representation of petition in court
which is indicated in order for return cannot be considered as a fresh filing in all
circumstances when it is returned to plaintiff for such re-representation, Oriental
Insurance Co. Ltd. v. Tejparas Associates & Exports (P) Ltd., (2019) 9 SCC
435.
359
[10-B. Power of appellate court to transfer suit to the proper
Court.—(1) Where, on an appeal against an order for the return of
plaint, the Court hearing the appeal confirms such order, the court of
appeal may, if the plaintiff by an application so desires, while returning
the plaint, direct plaintiff to file the plaint, subject to the provisions of
the Limitation Act, 1963 (26 of 1963), in the Court in which the suit
should have been instituted (whether such Court is within or without
the State in which the Court hearing the appeal is situated), and fix a
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date for the appearance of the parties in the Court in which the plaint is
directed to be filed and when the date is so fixed it shall not be
necessary for the Court in which the plaint is filed to serve the
defendant with the summons for appearance in the suit, unless that
Court in which the plaint is filed, for reasons to be recorded, otherwise
directs.
(2) The direction made by the Court under sub-rule (1) shall be
without any prejudice to the rights of the parties to question the
jurisdiction of the Court, in which the plaint is filed, to try the suit.]
11. Rejection of plaint.—The plaint shall be rejected in the following
cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed
by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written
upon paper insufficiently stamped, and the plaintiff, on being required
by the Court to supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred
by any law;
360
[(e) where it is not filed in duplicate];
361
[(f) where the plaintiff fails to comply with the provisions of Rule 9];
362
[Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-papers shall not be
extended unless the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamp-papers, as the
case may be, within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to the plaintiff.]
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
ASSAM AND NAGALAND.—Same as that of Calcutta.
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Add the following as
clause (e):
“(e) where any of the provisions of Rule 9(1-A) is not complied
with and the plaintiff on being required by the Court to comply
therewith within a time to be fixed by the Court, fails to do so.” (25-
7-1928).
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta — See Assam High Court Order, 1948, Cl. 6 and Act
27 of 1962, Ss. 13 and 15 (1-12-1963), Act 81 of 1971, S. 28 (25-1-
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1972).
KARNATAKA.—For item (c), substitute the following:
“(c) where the relief claimed is properly valued, but the court-fee
actually paid is insufficient and plaintiff does not make good the
deficiency within the time, if any, granted by the Court.” (30-3-
1967).
MADRAS AND PONDICHERRY.—For clause (c), substitute the following:
“(c) where the relief claimed is properly valued, but the plaint is
written on paper insufficiently stamped, and the plaintiff does not
make good the deficiency within the time, if any, granted by the
Court.” (9-2-1967).
ORISSA.—Deleted (14-5-1984).
► Object.—Order 10 is a tool in hands of court to effectuate object behind
Order 7, Rule 11, Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC
137.
Under Order 7, Rule 11 of there is any defect as contemplated by Rule 11(c)
(as inserted by Act 46 of 1999) or non-compliance as referred to in Rule 11(f) (as
inserted by Act 22 of 2002), the Court should ordinarily give an opportunity for
rectifying the defects and in the event of the same not being done the court will
have the liberty or the right to reject the plaint, Salem Advocate Bar Assn. v.
Union of India, (2003) 1 SCC 49.
► Rejection of plaint.—To see whether the plaint discloses cause of action,
the court has to scrutinise the averments/pleas in the plaint. Averments in the
written statement are wholly irrelevant . If the allegations in plaint do not disclose a
clear right or material(s) to sue, or creates an illusion of a cause of action by
cleaver drafting, court should reject the plaint at first hearing, Church of Christ
Charitable Trust & Educational Charitable Society v. Ponniamman Educational
Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612, See also Dahiben v.
Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366.
Different clauses in Order 7 Rule 11 CPC provided in relation to rejection of
plaint should not be mixed up. Whereas in a given case, an application for
rejection of the plaint may be filed on more than one ground, a clear finding to that
effect must be arrived at, Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661.
Power conferred under Order 7 Rule 11 CPC in respect of rejection of plaint is
of drastic nature. While exercising of power under Order 7 Rule 11 CPC, only the
averments in plaint have to be read as a whole, P.V. Guru Raj Reddy v. P.
Neeradha Reddy, (2015) 8 SCC 331 : (2015) 4 SCC (Civ) 100, See also
Shaukathussain Mohammed Patel v. Khatunben Mohmmedbhai Polara, (2019)
10 SCC 226.
This provision is mandatory in nature. If any of the grounds specified in
clauses (a) to (e) are made out, court is bound to reject the plaint. The conduct of
plaintiff is relevant consideration, Dahiben v. Arvindbhai Kalyanji Bhanusali,
(2020) 7 SCC 366.
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Hearing of defendant before registering plaint, not permissible, P.K.
Palanisamy v. N. Arumugham, (2009) 9 SCC 173 : (2009) 3 SCC (Civ) 649.
► Rejection of plaint : Material on which to be determined.—The plaint
cannot be rejected on the basis of the allegations made by the defendant in his
written statement or in an application for rejection of the plaint, Abdul Gafur v.
State of Uttarakhand, (2008) 10 SCC 97, See also Sajjan Sikaria v. Shakuntala
Devi Mishra, (2005) 13 SCC 687.
Plaint cannot be rejected on basis of defendant's allegations in written
statements. Court has to read entire plaint to find whether cause of action
disclosed, if it does, then it cannot be rejected under O. 7 R. 11, Kuldeep Singh
Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345.
► Validity of rejection of plaint.—Rejection of plaint is to be determined
solely in terms of what is averred in plaint and not what plaintiff pleads in appeal or
in some other suit, Soumik Sil v. Subhas Chandra Sil, (2015) 5 SCC 732.
Rejection of a plaint in part/only against one of the defendants in exercise of
power under Order 7 Rule 11(d), not permissible. Such relief can be claimed by
invoking other remedies including under Order 6 Rule 16 at the appropriate stage,
Madhav Prasad Aggarwal v. Axis Bank Ltd., (2019) 7 SCC 158.
Rejection of plaint where suit appears from statement in plaint to be barred by
any law. Applicability of bar of res judicata cannot be determined at stage of
rejection of plaint. The same can only be determined upon trial of the suit. Srihari
Hanumandas Totala v. Hemant Vithal Kamat, (2021) 9 SCC 99.
► Recording of reasons.—When the court rejects plaint, recording of
reasons for the same is mandated by Order 7, Rule 12 CPC, Ram Prakash Gupta
v. Rajiv Kumar Gupta, (2007) 10 SCC 59.
► Interpretation/Construction.—Term “law” used in Expression “barred by
any law” occurring in Clause (d) of Order 7 Rule 11 CPC, includes not only
legislative enactments but also judicial decisions of Supreme Court, Bhargavi
Constructions v. Kothakapu Muthyam Reddy, (2018) 13 SCC 480.
► Relative scope of Order 7 Rule 11 and Order 6, Rule 16.—Only a part of
the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a
whole must be rejected. Order 7 Rule 11 does not justify rejection of any particular
portion of the plaint. Order 6, Rule 16 of the Code is relevant in this regard. It
deals with “striking out pleadings”. It has three clauses permitting the court at any
stage of the proceeding to strike out or amend any matter in any pleading, Sopan
Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137.
► Relative scope of Order 7 Rule 11 and Order 8 Rule 1.—Pleas that
ought to be raised in written statement cannot be raised in application under Order
7 Rule 11, Alpana Gupta v. APG Towers (P) Ltd., (2019) 15 SCC 46.
► Stage at which power under the rule may be exercised.—Power under
this provision can be exercised both at threshold of the proceedings, and in
absence of any statutory restriction, at any stage of the subsequent proceedings.
However, preliminary objection should be raised at the earliest, Vithalbhai (P) Ltd.
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v. Union Bank of India, (2005) 4 SCC 315.
► Prerequisites for applicability of Or. 7 R. 11(d).—Or. 7 R. 11(d) being
one of the exceptions to the right of a person to file a civil suit under S. 9, must be
strictly construed. Embargo thereunder against maintainability of suit must be
apparent from averments made in plaint, Vishnu Dutt Sharma v. Daya Sapra,
(2009) 13 SCC 729 : (2009) 5 SCC (Civ) 253.
The language of Order 7, Rule 11 CPC is quite clear and unambiguous.The
plaint can be rejected on the ground of limitation only where the suit appears from
the statement in the plaint to be barred by any law. “Law” within the meaning of
Order 7, Rule 11(d) must include the law of limitation as well, Hardesh Ores (P)
Ltd. v. Hede and Co., (2007) 5 SCC 614.
► Bar of civil court's jurisdiction.—Jurisdiction to declare khatedari rights
exclusively vests with Revenue Court. Only after declaration of rights by Revenue
Court, suit in respect of land in question can be maintained, Pyarelal v.
Shubhendra Pilania, (2019) 3 SCC 692.
► Rejection of plaint.—When reliefs sought in plaint cannot be granted, only
option available to court is to reject plaint. Rajendra Bajoria v. Hemant Kumar
Jalan, (2022) 12 SCC 641
► Rejection of plaint.—Clever drafting creating illusions of cause of action
are not permitted in law and a clear right to sue. Similarly, court must see that bar
in law of suit is not camouflaged by devious and clever drafting of plaint.
Moreover, provisions of Or. 7 R. 11 are not exhaustive and court has inherent
power to see that frivolous or vexatious litigations are not allowed to consume time
of court. K. Akbar Ali v. K. Umar Khan, (2021) 14 SCC 51
12. Procedure on rejecting plaint.—Where a plaint is rejected the
Judge shall record an order to that effect with the reasons for such
order.
13. Where rejection of plaint does not preclude presentation of fresh
plaint.—The rejection of the plaint on any of the grounds hereinbefore
mentioned shall not of its own force preclude the plaintiff from
presenting a fresh plaint in respect of the same cause of action.
High Court Amendment
BOMBAY : GOA, DAMAN AND DIU.—In Order VII, for the existing Rule 13
and its marginal note, substitute the following as Rule 13 and marginal
note:—
“13. Where rejection of plaint does not preclude presentation of
fresh plaint.—The rejection of the plaint on any of the grounds
hereinbefore mentioned or on the ground mentioned in Rule 14-A(5)
(a) of Order VI shall not of its own force preclude the plaintiff from
presenting a fresh plaint in respect of the same cause of action.” Mah
Govt. Gaz., Pt. 4 ka, p. 403, dt. 15-9-1983. (1-10-1983). Goa Gaz.,
dt. 12-10-1987, p. 377 (1-4-1987).
► Presentation of fresh plaint.—Rejection of the plaint under Rule 11 does
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not preclude the presentation of a fresh plaint in terms of Rule 13, Sopan Sukhdeo
Sable v. Asstt. Charity Commr., (2004) 3 SCC 137, See also Shreya Vidyarthi v.
Ashok Vidyarthi, (2015) 16 SCC 46 : (2016) 3 SCC (Civ) 611.
Documents relied on in plaint
363
[14. Production of document on which plaintiff sues or relies.—(1)
Where a plaintiff sues upon a document or relies upon document in his
possession or power in support of his claim, he shall enter such
documents in a list, and shall produce it in court when the plaint is
presented by him and shall, at the same time deliver the document and
a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of
the plaintiff, he shall, wherever possible, state in whose possession or
power it is.
364
[(3) A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the list to be
added or annexed to the plaint but is not produced or entered
accordingly, shall not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the
cross-examination of the plaintiff's witnesses, or, handed over to a
witness merely to refresh his memory.]
High Court Amendment
KARNATAKA.—For Rule 14, substitute the following:
“14. (1) The plaintiff shall endorse on the plaint or annex thereto
a list of documents required to be produced or disclosed as
hereinafter provided in this rule.
(2) Where the plaintiff sues upon a document in his possession or
power, he shall produce it in Court when the plaint is presented, and
shall at the same time deliver the document or a copy thereof to be
filed with the plaint.
(3) Where the plaintiff relies on any other documents (whether in
his possession or not) as evidence in support of his claim, he shall
enter such documents in the list above referred to showing
separately which of the documents in his possession or power he has
produced with the plaint and which are not so produced. In regard to
any such documents which are not produced, the list shall contain a
statement of the reason for their non-production and the steps which
the plaintiff has taken or will take to produce them or cause their
production.” (30-3-1967).
15. Statement in case of documents not in plaintiff's possession or
365
power.— [* * *]
16. Suits on lost negotiable instruments.—Where the suit is founded
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upon a negotiable instrument, and it is proved that the instrument is
lost, and an indemnity is given by the plaintiff, to the satisfaction of the
Court, against the claims of any other person upon such instrument,
the Court may pass such decree as it would have passed if the plaintiff
had produced the instrument in Court when the plaint was presented,
and had at the same time delivered a copy of the instrument to be filed
with the plaint.
17. Production of shop-book.—(1) Save in so far as is otherwise
provided by the Bankers' Books Evidence Act, 1891 (18 of 1891),
where the document on which the plaintiff sues is an entry in a shop-
book or other account in his possession or power, the plaintiff shall
produce the book or account at the time of filing the plaint, together
with a copy of the entry on which he relies.
(2) Original entry to be marked and returned.—The Court or such
officer as it appoints in this behalf, shall forthwith mark the document
for the purpose of identification; and, after examining and comparing
the copy with the original, shall, if it is found correct, certify it to be so
and return the book to the plaintiff and cause the copy to be filed.
High Court Amendments
ALLAHABAD.—Add the following proviso to sub-rule (2):
“Provided that, if the copy is not written in English or is written in
a character other than the ordinary Persian or Nagri character in use,
the procedure laid down in Order XIII, Rule 12, as to verification
shall be followed, and in that case the Court or its officer need not
examine or compare the copy with the original.”
Bombay.—Add at the end of sub-rule (2):
“Provided that where the entry referred to in this rule is in a
language other than English or the language of the Court, the
plaintiff shall file with the plaint a true copy of the entry together
with its translation either in English or in the language of the Court,
such translation being verified as regards its correctness by an
affidavit of the person making the translation:
Provided further that the Court may accept a plaint without the
translation and permit the party to file the said translation within a
time to be fixed by the Court.
In either of such cases the Court or its officer need not examine
and compare the copy with the original and certify the same to be
correct.” (1-10-1983) vide.
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
GUJARAT.—Same as that of first proviso of Bombay without the words
“English or” and the words “either in English or” which are deleted, and
addition of last sentence with words “In such a case” substituted for
first five words. (17-8-1961).
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HIMACHAL PRADESH.—Same as in Punjab.
KARNATAKA.—Add the following as sub-rule (3) to Rule 17:
“(3) Where the document is not in the language of the Court, the
Chief Ministerial Officer of the Court shall take the directions of the
Judge or Presiding Officer of the Court as to whether the procedure
prescribed in Rule 12 of Order XIII of this Code shall be
followed.” (30-3-1967).
PUNJAB : HARYANA AND CHANDIGARH.—After sub-rule (2) add the
following:
“Explanation.—When a shop-book or other account written in a
language other than English or the language of the Court is produced
with a translation or transliteration of the relevant entry, the party
producing it shall not be required to present a separate affidavit as
to the correctness of the translation or transliteration, but shall add a
certificate on the document itself, that it is a full and true translation
or transliteration of the original entry, and no examination or
comparison by the Ministerial Officer shall be required except by a
special order of the Court.” (9-3-1935).
18. Inadmissibility of document not produced when plaint filed.—366
[* * *]
High Court Amendments
ALLAHABAD.—Noti. No. 268/44-5(1) of 29-1-1927 and Noti. No.
6112/45(a) of 10-12-1932 — At the end of sub-rule (2) add the
following proviso:
Provided that, if the copy is not written in English or is written in
a character other than the ordinary Persian or Nagri character in use,
the procedure laid down in Or. 13 R. 12, as to verification shall be
followed and in that case the Court or its officer need not examine or
compare the copy with the original.
BOMBAY.—Add the following proviso at the end of the sub-rule (2):
Provided that where the entry referred to in this rule is in
language other than English or the language of the Court, the
plaintiff shall file with the plaint a true copy of the entry together
with its translation either in English or in the language of the Court,
such translation being verified as regards the correctness by an
affidavit of the person making translation:
Provided further that the Court may accept a plaint without the
translations and permit the party to file the said translation within a
time to be fixed by the Court.
In either of such cases the Court or its officer need not examine
and compare the copy with the original and certify the same to be
correct. (1-11-1966).
DELHI.—Same as in Punjab.
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GUJARAT.—Same as in Bombay with the following modifications:
(i) in the first proviso omit the words “English or” and “either in
English or”;
(ii) omit second proviso;
(iii) in the last sentence for the words “In either of such cases”
substitute “in such a case”. (17-8-1961).
HIMACHAL PRADESH.—Same as in Punjab.
KARNATAKA.—Add the following sub-rule (3),
(3) Where the document is not in the language of the Court, the
Chief Ministerial Officer of the Court shall take the directions of the
Judge or Presiding Officer of the Court as to whether the procedure
prescribed in Rule 12 of Order 13, of this Code shall be followed. (30
-3-1967).
PUNJAB.—Noti. No. 88-Gazette-XI-Y-7 of 9-3-1935—Rule substituted
by another rule which is the same as the existing rule with the
following Explanation added:
Explanation.—When a shop-book or other account written in a
language other than English or the language of the Court is produced
with a translation or transliteration of the relevant entry, the party
producing it shall not be required to present a separate affidavit as
to the correctness of the translation of transliteration, but shall add a
certificate on the document itself, that it is a full and true translation
or transliteration of the original entry, and no examinations or
comparison by the ministerial officer shall be required except by a
special order of the Court.
By CPC (Amendment) Act, 1999 (46 of 1999), in sub-rule (1) of the
Rule, the words “without the leave of the court” were omitted. By CPC
(Amendment) Act, 2002 (22 of 2000). R. 18 (as amended by clause (v)
of Section 17 of the Code of Civil Procedure (Amendment) Act, 1999
has been omitted. The omitted R. 18 ran thus:
“18. Inadmissibility of document not produced when plaint filed.—
(1). A document which ought to be produced in Court by the plaintiff
when the plaint is presented or to be entered in the list to be added
or annexed to the plaint, and which is not produced or entered
accordingly, shall not, without the leave of the Court, be received in
evidence on is behalf at the hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross-
examination of the defendant's witnesses, or in answer to any case
set up the defendant or handed over to a witness merely to refresh
his memory.”
High Court Amendments
RULES 19 TO 25
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ALLAHABAD.—Add the following Rules 19 to 25:
“19. Every plaint or original petition shall be accompanied by a
proceeding giving an address written in Hindi in Devnagri script at
which service of notice, summons or other process may be made on
the plaintiff or petitioner. Plaintiffs or petitioners subsequently
added, shall, immediately on being so added, file a proceeding of
this nature.
20. An address for service filed under the preceding rule shall be
within the local limits of the District Court within which the suit or
petition is filed, or of the District Court within which the party
ordinarily resides, if within the limits of the United Provinces of Agra
and Oudh.
21. Where a plaintiff or petitioner fails to file an address for
service, he shall be liable to have his suit dismissed or his petition
rejected by the Court suo motu, or any party may apply for an order
to that effect, and the Court may make such order as it thinks just.
22. Where a party is not found at the address given by him for
service and no agent or adult male member of his family on whom a
notice or process can be served, is present, a copy of the notice or
process shall be affixed to the outer door of the house. If on the date
fixed such party is not present another date shall be fixed and a copy
of the notice, summons or other process shall be sent to the
registered address by registered post, and such service shall be
deemed to be as effectual as if the notice or process had been
personally served.
23. Where a party engages a pleader, notice or processes for
service on him shall be served in the manner prescribed by Order
III, Rule 5, unless the Court directs service at the address for service
given by the party.
24. A party who desires to change the address for service given
by him as aforesaid shall file a verified petition, and the Court may
direct the amendment of the record accordingly. Notice of such
petition shall be given to such other parties to the suit as the Court
may deem it necessary to inform, and may be either served upon the
pleaders of such parties or be sent to them by registered post, as the
Court thinks fit.
25. Nothing in these rules shall prevent the Court from directing
the service of a notice or process in other manner, if, for any reason,
it thinks fit to do so.” (1-6-1918 and 12-12-1970)
RULES 19 TO 26
BOMBAY : DADRA AND NAGAR HAVELI.—The following shall be added as
Rules 19 to 26:
“19. Address to be filed with plaint or original petition.—(1) Every
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plaint or original petition shall be accompanied by a memorandum in
writing giving an address at which service of notice, or summons or
other process may be made on the plaintiff or petitioner. Plaintiffs or
petitioners subsequently added shall, immediately on being so
added, file a memorandum in writing of this nature.
(2) This address shall be called the “registered address”, and it
shall, subject to Rule 24 of this Order, hold good in all proceedings in
the suit and in appeals and also for a further period of six years from
the date of final decision for all purposes including those of
execution.
20. Nature of address to be filed.—The registered address filed
under the preceding rule shall be within the local limits of the
District Court within which the suit or petition is filed or, if a party
cannot conveniently give an address as aforesaid, at a place where
the party ordinarily resides.
21. (1) Consequences of failure to file address.—Where a plaintiff
or petitioner after being required to file the registered address within
a specified time, fails to file the registered address, he shall be liable
to have his plaint or petition rejected by the Court suo motu, or any
party may apply for an order to that effect, and the Court may make
such order as it thinks just.
(2) When default may be condoned.—Where a plaint or petition is
rejected under sub-rule (1) the plaintiff or the petitioner may apply
for an order to set aside the rejection and, if he files a registered
address and satisfies the Court that he was prevented by any
sufficient cause from filing a registered address at proper time the
Court shall set aside the rejection on such terms as to costs or
otherwise as it deems fit and shall appoint a date for proceeding with
the suit or petition.
22. Procedure when party not found at the place of registered
address.—Where a party is not found at the registered address and
no agent or adult male member of his family on whom a notice or
process can be served is present, a copy of the notice or process
shall be affixed to the outer door of the house. If on the date fixed
such party is not present, another date shall be fixed and a copy of
the notice, summons or other process shall be sent to the registered
address of that party by registered post pre-paid for
acknowledgment (which payment shall be made within one month
from the date originally fixed for hearing) and such service shall be
deemed to be as effectual as if the notice or process had been
personally served.
23. Service of process where party engages a pleader.—Where a
party engages a pleader, notice or process on him shall be served in
the manner prescribed by Order III, Rule 5, unless the Court directs
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service at the registered address of the party.
24. Change of registered address.—A party who desires to change
the registered address given by him as aforesaid shall file a fresh
memorandum in writing to this effect, and the Court may direct the
amendment of the record accordingly. Notice of such memorandum
shall be given to such other parties as the Court may deem it
necessary to inform, and may be served either upon the pleaders of
such parties or be sent to them by registered post pre-paid for
acknowledgment as the Court thinks fit.
25. Rules not binding on Court.—Nothing in Rules 19, 22, 23 and
24 of this Order shall prevent the Court from directing the service of
a notice or process in any other manner, if, for any reason, it thinks
fit to do so.
26. Applicability to notice under Order XXI, Rule 22.—Nothing in
Rules 19, 22, 23 and 24 of this Order shall apply to the notice
prescribed by clause (b) of sub-rule (i) of Rule 22 of Order XXI of
this Code.” (1-11-1966)
RULES 19 TO 25
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab except that for
Himachal Pradesh in Rule 20 read “Judicial Commissioners Court,
Himachal Pradesh” for “High Court of Judicature at Lahore.”
RULES 19 TO 26
GUJARAT:—19. Same as that of Bombay from marginal heading to “of
this nature”. After “of this nature” add the following in continuation:
“The address so given shall hold good throughout interlocutory
proceedings and appeals and also for a further period of two years
from the date of final decision and for all purposes including those of
execution.
20. Nature of address to be filed.—An address for service filed
under the preceding rule shall be within the local limits of the
District Court within which the suit or petition is filed, or if he cannot
conveniently give an address as aforesaid, at a place where a party
ordinarily resides.
21. Consequences of failure to file address.—Same as that of
Allahabad.
22. Procedure when party not found at the place of address.—
Where a party is not found at the address given by him for service
and no agent or adult male member of his family on whom a notice
or process can be served, is present, a copy of the notice or process
shall be affixed to the outer door of the house. If on the date fixed
such party is not present another date shall be fixed and a copy of
the notice, summons or other process shall be sent to the address
supplied by that party by registered post pre-paid for
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acknowledgment (which payment shall be made within one month
from the date originally fixed for hearing) and such service shall be
deemed to be as effectual as if the notice or process had been
personally served.
23. Service of notice on pleaders.—Where a party engages a
pleader, notice or process on him shall be served in the manner
prescribed by Order III, Rule 5, unless the Court directs service at
the address for service given by the party.
24. Change of the registered address.—A party who desires to
change the address for service given by him as aforesaid shall file a
fresh memorandum in writing to this effect and the Court may direct
the amendment of the record accordingly. Notice of such
memorandum shall be given to such other parties to the suit as the
Court may deem it necessary to inform, and may be served either
upon the pleaders for such parties or be sent to them by registered
post, as the Court thinks fit.
25. Same as that of Bombay.
26. Applicability to notice under Order XXI, Rule 22.—Nothing in
these rules shall apply to the notice prescribed by Order XXI, Rule
22.” (17-8-1961).
RULES 19 TO 23
MADHYA PRADESH.—Add the following as Rules 19 to 23:
“19. Registered address.—Every plaint or original petition shall be
accompanied by a memorandum giving an address at which service
of process may be made on the plaintiff or the petitioner. The
address shall be within the local limits of the Civil District in which
the plaint or original petition is filed or, if an address within such
Civil District cannot conveniently be given, within the local limits of
the Civil District in which the party ordinarily resides.
This address shall be called the “registered address” and it shall
hold good throughout interlocutory proceedings and appeals and also
for a further period of two years from the date of final decision for all
purposes including those of execution.
20. Registered address by a party subsequently added as plaintiff
or petitioner.—Any party subsequently added as plaintiff or
petitioner shall in like manner file a registered address at the time of
applying or consenting to be joined as plaintiff or petitioner.
21. Consequence of non-filing of registered address.—(1) If the
plaintiff or the petitioner fails to file a registered address as required
by Rule 19 or 20, he shall be liable, at the discretion of the Court, to
have his suit dismissed or his petition rejected.
An order under this rule may be passed by the Court suo motu or
on the application of any party.
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(2) Where a suit is dismissed or a petition rejected under sub-rule
(1) the plaintiff or the petitioner may apply for an order to set the
dismissal or the rejection aside and if he files a registered address
and satisfies the Court that he was prevented by any sufficient cause
from filing the registered address at the proper time, the Court shall
set aside the dismissal or the rejection upon such terms as to costs
or otherwise as it thinks fit, and shall appoint a day for proceeding
with the suit or petition.
22. Affixing of process and its validity.—Where the plaintiff or the
petitioner is not found at his registered address and no agent or
adult male member of his family on whom a process can be served is
present, a copy of the process shall be affixed to the outer door of
the house and such service shall be deemed to be as effectual as if
the process had been personally served.
23. Change of registered address.—A plaintiff or petitioner who
wishes to change his registered address shall file a verified petition
and the Court shall direct the amendment of the record accordingly.
Notice of such petition shall be given to such other parties to the suit
or proceedings as the Court may deem it necessary to inform.” (16-9
-1960).
ORISSA.—Omit Rules 19, 20, 21 and 22 of Order VII Patna
Amendment. (7-5-1954).
PATNA.—Add the following Rules 19 to 22:
“Rule 19. Every plaint or original petition shall be accompanied by
a statement giving an address at which service of notice or other
processes may be made on the plaintiff or petitioner and every
plaintiff or petitioner subsequently added shall immediately on being
so added file a similar statement.
Rule 20. An address for service filed under the preceding rule
shall state for following particulars:
(i) The name of the street and number of the house if in a town.
(ii) The name of the house or village;
(iii) The Post Office;
(iv) The District;
(v) The Munsif if in Bihar of the District Court if outside Bihar.
Rule 21. See above Rule 21 of Allahabad High Court.
Rule 22. A party who desires to charge his address for service
given by him as aforesaid shall file a verified petition and the Court
may direct the amendment of the words accordingly. Notice of such
petition shall be given to such other parties to the suit as the Court
may deem it necessary to inform and may be either served upon the
pleader for such parties or be sent to them by registered post as the
Court thinks fit.”
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RULES 19 TO 25
PUNJAB AND HARYANA.—Add the following as Rules 19 to 25:
“19. Every plaint or original petition shall be accompanied by a
proceeding giving an address at which service of notice, summons or
other process may be made on the plaintiff or petitioner. Plaintiffs or
petitioners subsequently added shall, immediately on being so
added, file a proceeding of this nature.
20. An address for service filed under the preceding rule shall be
within the local limits of the District Court within which the suit or
petition is filed, or of the District Court within which the party
ordinarily resides, if within the limits of the territorial jurisdiction of
the High Court of Judicature at Lahore. (Now Punjab & Haryana High
Court).
21. Where a plaintiff or petitioner fails to file an address for
service, he shall be liable to have his suit dismissed or his petition
rejected by the Court suo motu or any party may apply for an order
to that effect, and the Court may make such order as it thinks just.
22. Where a party is not found at the address given by him for
service and no agent or adult male member of his family on whom a
notice, summons or other process can be served is present, a copy of
the notice, summons or other process shall be affixed to the outer
door of the house. If on the date fixed such party is not present
another date shall be fixed and a copy of the notice, summons or
other process shall be sent to the registered address by registered
post, and such service shall be deemed to be as effectual as if the
notice, summons or other process had been personally served.
23. Where a party engages a pleader, notice, summonses or other
processes for service on him shall be served in the manner
prescribed by Order III, Rule 5, unless Court directs service at the
address for service given by the party.
24. A party who desires to change the address for service given
by him as aforesaid shall file a verified petition, and the Court may
direct the amendment of the record accordingly. Notice of such
petition shall be given to such other parties to the suit as the Court
may deem it necessary to inform, and may be either served upon the
pleaders for such parties or be sent to them by registered post as
the Court thinks fit.
25. Nothing in these rules shall prevent the Court from directing
the service of a notice, summons, or other process in any other
manner, if for any reasons, it thinks fit to do so.” (14-11-1927).
RULES 19 TO 25
RAJASTHAN.—Add the following as Rules 19 to 25:
“19. (1) Same as that of Madhya Pradesh from “Every plaint …” to
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“…or petitioner”. After this add the following in continuation of
above:
“Plaintiffs or petitioners subsequently added shall, immediately
on being so added, file memorandum of this nature.”
(2) Same as that of Madhya Pradesh Rule 19, para 2.
20. An address for service filed under the preceding rule shall be
within the local limits of the District Court within which the suit or
petition is filed, or of the District Court within which the party
ordinarily resides, if within the limits of Rajasthan.
21. (1) Where a plaintiff or petitioner fails to file an address for
service, he shall be liable to have his suit dismissed or his petition
rejected by the Court suo motu or any party may apply for an order
to that effect, and the Court may make such order as it thinks just.
(2) Same as that of Madhya Pradesh (2).
22. Same as that of Gujarat from “where……..house”. After this
add the following:
“If on the date fixed, such party is not present and the process
is not declared by the Court under Rule 19 of Order V, to have
been duly served, another date shall be fixed and a copy of the
process shall be sent to the registered address by registered post,
and such service shall be deemed to be as effectual as if the
process had been personally served.
23. Where a party engages a pleader, processes for service on him
shall be served in the manner prescribed by Order III, Rule 5, unless
the Court directs service at the address for service given by the
party.
24. A party who desires to change the address for service given
by him as aforesaid shall file a verified petition, and the Court may
direct the amendment of the record accordingly. Notice of such
petition shall be given to such other parties to the suit as the Court
may deem it necessary to inform, and may be either served upon the
pleader for such parties or be sent to them by registered post, as the
Court thinks fit.
25. Nothing in these rules shall prevent the Court from directing
the service of a process in any other manner, if for any reasons it
thinks fit to do so.” (24-7-1954).
ORDER VIII
367
[Written Statement, Set-off and Counter-claim]
368
[1. Written statement.—The defendant shall, within thirty days
from the date of service of summons on him, present a written
statement of his defence:
Provided that where the defendant fails to file the written statement
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within the said period of thirty days, he shall be allowed to file the
same on such other day, as may be specified by the Court, for reasons
to be recorded in writing, but which shall not be later than ninety days
from the date of service of summons.]
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Rule 1, for the proviso
thereto, substitute the following proviso, namely,—
“Provided that where the defendant fails to file the written
statement with the said period of thirty days, he shall be allowed to
file the written statement on such other day, as may be specified by
the court, for reasons to be recorded in writing and on payment of
such costs as the court deems fit, but which shall not be later than
one hundred twenty days from the date of service of summons and
on expiry of one hundred twenty days from the date of service of
summons, the defendant shall forfeit the right to file the written
statement and the court shall not allow the written statement to be
taken on record.” [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-
2020)].
Union Territory of Ladakh.—In its application to the Union
Territory of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O.
3774(E), dated 23-10-2020].
High Court Amendments
ALLAHABAD.—The full stop shall be omitted and the following added
at the end of the rule, namely:
“and shall file with his written statement a list of full documents
(whether in his possession or power or not) on which he relies as
evidence in support of his defence.” (17-1-1953).
BIHAR.—Substitute R. 1 as under—
“(1) The defendant may, and if so required by the Court, shall, at
or before the first hearing or within such time as the Court may
permit, present a written statement of his defence, and with such
written statement, or if there is no written statement, at the first
hearing shall produce in Court all documents in his possession or
power on which he bases his defence or any claim for set-off.
(2) Where he relies on any other documents as evidence in
support of his defence or claim for set-off, he shall enter such
documents in a list to be added or annexed to the written statement,
or where there is no written statement, to be presented at the first
hearing. If no such list is annexed or presented, the defendant shall
be allowed a further period of ten days to file this list of documents.
(3) A document which ought to be entered in the list referred to
in sub-clause (2) but which has not been so entered, shall not,
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without the leave of the Court, be received in evidence on the
defendant's behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents produced for
cross-examination of plaintiffs witnesses or handed to a witness
merely to refresh his memory.”— Bihar Gazette 9-8-1972, Pt. III, p.
107.
BOMBAY.—(1) For the existing title of Order VIII, substitute the
following title:—
“Written Statement, Set-off, Counter-claim and Third Party
Procedure.”
(2) In Order VIII, for the existing Rule 1 and its marginal note,
substitute the following as Rule 1 and marginal note:
“Written Statement.—(1) The defendant may and if so required by
the Court shall within such time as may be specified in that behalf or
within such extended time as the Court may permit, present a
written statement of his defence, after serving a copy thereof on the
plaintiff or his pleader on or before the date fixed for presenting the
same in Court, or file in Court for the use of the plaintiff a copy of
the written statement while presenting the same in Court:
Provided that the first adjournment for filing the written
statement shall not ordinarily exceed four weeks and no further
adjournment shall be granted except for reasons to be recorded in
writing.” (1-10-1983).
CALCUTTA.—In its application to the High Court at Calcutta, in Rule 1
of Order 8, after the proviso, insert the following provisos:
“Provided further that the Court can in exceptional cases extend
the time beyond ninety days from the date of service of summons if
the defendant proves to the satisfaction of the Court that due to
unforeseen circumstances he was prevented from filing the written
statement within the said time:
Provided further that the Court should in no case extend such
time beyond one hundred twenty days from the service of summons
unless it is proved to the satisfaction of the Court that the defendant
was prevented from filing the written statement earlier due to the
circumstances beyond his control.”— Inserted by Noti. No. 4681-G,
dt. 6-12-2006, published in the Kolkata Gazette, Extra., dt. 7-12-
2006 (w.e.f. 7-12-2006).
Note.—They shall apply to all civil courts throughout the territories
in relation to which, the High Court, Calcutta, exercises its jurisdiction,
w.e.f. 7-12-2006.
ORISSA.—Deleted. (14-5-1984).
PUNJAB, HARYANA AND CHANDIGARH.—(1) The defendant may, and if so
required by the Court, shall at or before the first hearing or within such
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time as the Court may permit, present a written statement of his
defence, in duplicate, one for the Court and the other for the plaintiff;
and with such written statement, or if there is no written statement, at
the first hearing, shall produce in Court all documents in his possession
or power on which he bases his defence or any claim for set off.
(2) Where he relies on any other documents as evidence in support
of his defence or claim for set off, he shall enter such documents in a
list to be added or annexed to the written statement or where there is
no written statement, to be presented at the first hearing. If no such
list is so annexed or presented, the defendant shall be allowed a further
period often days to file this list of documents.
(3) A document which ought to be entered in the list referred to in
sub-clause (2) but which has not been so entered, shall not, without
the leave of the Court, be received in evidence on the defendant's
behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents produced for cross-
examination of plaintiffs witnesses or handed to a witness merely to
refresh his memory. (High Court Noti. No. 191-R/XI-T-8, dt. 19-6-1939
and High Court Noti. No. 2Q0-Central/X(-Y-8, dt. 1-9-1953).
► Nature and applicability.—Limitation period prescribed in Order 8, Rule 1
for filing written statement is not applicable to suits on the original side of
chartered High Courts, Iridium India Telecom Ltd. v. Motorola Inc., (2005) 2 SCC
145.
Every party in a case has a right to file a written statement. This is in
accordance with natural justice, Sumitbai v. Paras Finance Co., (2007) 10 SCC
82.
► Extension of time.—Proviso to Order 8, Rule 1 CPC is not mandatory in
nature. It would be open to the court to permit the appellant to file his written
statement if exceptional circumstances have been made out, Zolba v. Keshao,
(2008) 11 SCC 769, See also Salem Advocate Bar Assn. (2) v. Union of India,
(2005) 6 SCC 344 and Atcom Technologies Ltd. v. Y.A. Chunawala and Co.,
(2018) 6 SCC 639.
Discretion of courts to extend time is not to be so frequently and routinely
exercised so as to nullify period fixed by Order 8, Rule 1 and proviso thereto,
► Extension of period of filing written statement (WS).—Proviso is
directory in nature. Court has discretion to allow defendant to file WS beyond that
period in exceptional cases for proper and satisfactory reasons to be recorded in
writing. Onus is on defendant to plead and show convincing and cogent reason for
filing WS beyond prescribed period.
► Filing of WS in suits relating to commercial disputes of specified
value.—For suits relating to commercial disputes of specified value, a WS is to be
filed within a period of 30 days from date of service of summons on defendant. On
failure to file WS within the said period, a grace period of further 90 days is
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granted under CPC to file WS which the court may employ for reasons to be
recorded in writing and on payment of such costs by defendant as the court
deems fit. But, on expiry of 120 days from date of service of summons on
defendant, defendant shall forfeit the right to file WS and court must not allow WS
to be taken on record, SCG Contracts (India) (P) Ltd. v. K.S. Chamankar
Infrastructure (P) Ltd., (2019) 12 SCC 210.
► Power to condone delay in filing written statements.—The amendment
to Order 8 Rule 1 CPC by the Commercial Courts Act, 2015 i.e. providing for
mandatory nature of the timeline prescribed for filing of written statement and lack
of discretion with courts to condone any delay, is not applicable to non-
commercial suits, Desh Raj v. Balkishan, (2020) 2 SCC 708.
369
[1-A. Duty of defendant to produce documents upon which relief
is claimed or relied upon by him.—(1) Where the defendant bases his
defence upon a document or relies upon any document in his
possession or power, in support of his defence or claim for set-off or
counter-claim, he shall enter such document in a list, and shall produce
it in Court when the written statement is presented by him and shall, at
the same time, deliver the document and a copy thereof, to be filed
with the written statement.
(2) Where any such document is not in the possession or power of
the defendant, he shall, wherever possible, state in whose possession
or power it is.
370
[(3) A document which ought to be produced in Court by the
defendant under this rule, but, is not so produced shall not, without the
leave of the Court, be received in evidence on his behalf at the hearing
of the suit.]
(4) Nothing in this rule shall apply to documents—
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.]
► Production of documents which were not filed with written statement.
—If procedural violation does not seriously cause prejudice to adversary party,
courts must lean towards doing substantial justice rather than relying upon
procedural and technical violation, Sugandhi v. P. Rajkumar, (2020) 10 SCC 706.
2. New facts must be specially pleaded.—The defendant must raise
by his pleading all matters which show the suit not to be maintainable,
or that the transaction is either void or voidable in point of law, and all
such grounds of defence as, if not raised, would be likely to take the
opposite party by surprise, or would raise issues of fact not arising out
of the plaint, as, for instance, fraud, limitation, release, payment,
performance, or facts showing illegality.
3. Denial to be specific.—It shall not be sufficient for a defendant in
his written statement to deny generally the grounds alleged by the
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plaintiff, but the defendant must deal specifically with each allegation
of fact of which he does not admit the truth, except damages.
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, after Rule 3, insert the following
Rule, namely,—
“3-A. Denial by the defendant in suits.—(1) Denial shall be in the
manner provided in sub-rules (2), (3), (4) and (5) of this rule.
(2) The defendant in his written statement shall state which of
the allegations in the particulars of plaint he denies, which
allegations he is unable to admit or deny, but which he requires the
plaintiff to prove, and which allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint,
he must state his reasons for doing so and if he intends to put
forward a different version of events from that given by the plaintiff,
he must state his own version.
(4) If the defendant disputes the jurisdiction of the court he must
state the reasons for doing so, and if he is able, give his own
statement as to which court ought to have jurisdiction.
(5) If the defendant disputes the plaintiff valuation of the suit, he
must state his reasons for doing so, and if he is able, give his own
statement of the value of the suit.” [Vide S.O. 1123(E), dated 18-3-
2020 (w.e.f. 18-3-2020)].
Union Territory of Ladakh.—In its application to the Union
Territory of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O.
3774(E), dated 23-10-2020].
► Admission by non-traverse.—Non-denial of or non-response to a plea
that is not supported by evidence cannot be deemed to be admitted by applying
the doctrine of non-traverse, RBI v. S. Mani, (2005) 5 SCC 100.
► Necessity of specific pleadings.—A party has to plead the case and
produce/adduce sufficient evidence to substantiate his submissions made in the
plaint and in case the pleadings are not complete, the court is under no obligation
to entertain the pleas, Rajasthan SRTC v. Bajrang Lal, (2014) 4 SCC 693 : (2014)
2 SCC (L&S) 97.
► Evasive denial of facts in written statement.—If defendant does not deal
specifically with each allegation of fact of which he does not admit as truth, same
may be taken to have been admitted, Smriti Madan Kansagra v. Perry Kansagra,
(2021) 12 SCC 289.
4. Evasive denial.—Where a defendant denies an allegation of fact in
the plaint, he must not do so evasively, but answer the point of
substance. Thus, if it is alleged that he received a certain sum of
money, it shall not be sufficient to deny that he received that particular
amount, but he must deny that he received that sum or any part
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thereof, or else set out how much he received. And if an allegation is
made with diverse circumstances, it shall not be sufficient to deny it
along with those circumstances.
371
5. Specific denial.— [(1)] Every allegation of fact in the plaint, if
not denied specifically or by necessary implication, or stated to be not
admitted in the pleading of the defendant, shall be taken to be
admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so
admitted to be proved otherwise than by such admission.
372
[(2) Where the defendant has not filed a pleading, it shall be
lawful for the Court to pronounce judgment on the basis of the facts
contained in the plaint, except as against a person under a disability,
but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or
under sub-rule (2), the Court shall have due regard to the fact whether
the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree
shall be drawn up in accordance with such judgment and such decree
shall bear the date on which the judgment was pronounced.]
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Rule 5, in sub-rule (1) after
first proviso thereto, insert the following proviso, namely—
“Provided further, that every allegation of fact in the plaint, if not
denied in the manner provided under Rule 3-A of this order, shall be
taken to be admitted except as against a person under
disability.” [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-
2020)].
Union Territory of Ladakh.—In its application to the Union
Territory of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O.
3774(E), dated 23-10-2020].
► Mode of denial.—Denial of a fact in written statement has to be specific.
Denial for want of knowledge is no denial at all and has not even the effect of
putting the fact in issue, Muddasani Venkata Narsaiah v. Muddasani Sarojana,
(2016) 12 SCC 288.
► Non-rebuttal of court decision affecting jurisdiction.—The decision
does not become applicable merely because the opposite party has not rebutted
it, Food Corporation of India v. Pala Ram, (2008) 14 SCC 32 : (2009) 1 SCC
(L&S) 690.
► Non-denial of averments in plaint.—Averments made in plaint not denied
in written statement would be deemed to be admitted, M. Venkataramana Hebbar
v. M. Rajagopal Hebbar, (2007) 6 SCC 401.
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6. Particulars of set-off to be given in written statement.—(1) Where
in a suit for the recovery of money the defendant claims to set-off
against the plaintiff's demand any ascertained sum of money legally
recoverable by him from the plaintiff, not exceeding the pecuniary
limits of the jurisdiction of the Court, and both parties fill the same
character as they fill in the plaintiff's suit, the defendant may, at the
first hearing of the suit, but not afterwards unless permitted by the
Court, present a written statement containing the particulars of the
debt sought to be set-off.
(2) Effect of set-off.—The written statement shall have the same
effect as a plaint in a cross-suit so as to enable the Court to pronounce
a final judgment in respect both of the original claim and of the set-off,
but this shall not affect the lien, upon the amount decreed, of any
pleader in respect of the costs payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to
a written statement in answer to a claim of set-off.
Illustrations
(a) A bequeaths Rs 2000 to B and appoints C his executor and
residuary legatee. B dies and D takes out administration to B's effects.
C pays Rs 1000 as surety for D; then D sues C for the legacy. C cannot
set-off the debt of Rs 1000 against the legacy, for neither C nor D fills
the same character with respect to the legacy as they fill with respect
to the payment of the Rs 1000.
(b) A dies intestate and in debt to B. C takes out administration to
A's effects and B buys part of the effects from C. In a suit for the
purchase-money by C against B, the latter cannot set-off the debt
against the price, for C fills two different characters, one as the vendor
to B, in which he sues B, and the other as representative to A.
(c) A sues B on a bill of exchange. B alleges that A has wrongfully
neglected to insure B's goods and is liable to him in compensation
which he claims to set-off. The amount not being ascertained cannot be
set-off.
(d) A sues B on a bill of exchange for Rs 500. B holds a judgment
against A for Rs 1000. The two claims being both definite, pecuniary
demands may be set-off.
(e) A sues B for compensation on account of trespass. B holds a
promissory note for Rs 1000 from A and claims to set-off that amount
against any sum that A may recover in the suit. B may do so, for as
soon as A recovers, both sums are definite pecuniary demands.
(f) A and B sue C for Rs 1000. C cannot set-off a debt due to him by
A alone.
(g) A sues B and C for Rs 1000. B cannot set-off a debt due to him
alone by A.
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(h) A owes the partnership firm of B and C Rs 1000. B dies, leaving
C surviving. A sues C for a debt of Rs 1500 due in his separate
character. C may set-off the debt of Rs 1000.
High Court Amendments
KARNATAKA AND PATNA.—Add the following to sub-rule (1):
“and the provisions of Order VII, Rules 14 to 18 shall mutatis
mutandis apply to a defendant claiming set-off as if he were a
plaintiff.” (30-3-1967).
ORISSA.—Deleted (14-5-1984).
373
[6-A. Counter-claim by defendant.—(1) A defendant in a suit
may, in addition to his right of pleading a set-off under Rule 6, set up,
by way of counter-claim against the claim of the plaintiff, any right or
claim in respect of a cause of action accruing to the defendant against
the plaintiff either before or after the filing of the suit but before the
defendant has delivered his defence or before the time limited for
delivering his defence has expired, whether such counter-claim is in the
nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary
limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so
as to enable the Court to pronounce a final judgment in the same suit,
both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in
answer to the counter-claim of the defendant within such period as may
be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by
the rules applicable to plaints.
► Counterclaim.—Legislative intention is to impose restrictions on belated
filing of written statement, set-off and counterclaim under Or. 8. Counterclaim is
designed to avoid multiplicity of proceedings, Ashok Kumar Kalra v. Surendra
Agnihotri, (2020) 2 SCC 394.
► Object and scope.—Right to counter-claim is an additional right.
Discretionary relief under Order 8, Rule 6-A is dependent upon fact of each case
but discretion has to be exercised in a judicious manner, and cannot be used
contrary to statutory interdicts contained in Order 8, Rule 6-A, Bollepanda P.
Poonacha v. K.M. Madapa, (2008) 13 SCC 179.
A belated counterclaim must be discouraged although in some cases it may be
allowed. Grant of relief will depend upon the factual background involved in each
case, Bollepanda P. Poonacha v. K.M. Madapa, (2008) 13 SCC 179.
► Proper remedy.—Proper remedy against final order of dismissal of
counterclaim on merits is appeal, Rajni Rani v. Khairati Lal, (2015) 2 SCC 682.
6-B. Counter-claim to be stated.—Where any defendant seeks to rely
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upon any ground as supporting a right of counter-claim, he shall, in his
written statement, state specifically that he does so by way of counter-
claim.
6-C. Exclusion of counter-claim.—Where a defendant sets up a
counter-claim and the plaintiff contends that the claim thereby raised
ought not to be disposed of by way of counter-claim but in an
independent suit, the plaintiff may, at any time before issues are
settled in relation to the counter-claim, apply to the Court for an order
that such counter-claim may be excluded, and the Court may, on the
hearing of such application make such order as it thinks fit.
► Counterclaim, when not tenable.—Ascertained and crystallised sum
under executable award or decree, held, cannot be adjusted against a mere claim
for damages which is yet to be adjudicated upon, Indian Oil Corpn. Ltd. v. SPS
Engg. Ltd., (2011) 3 SCC 507.
6-D. Effect of discontinuance of suit.—If in any case in which the
defendant sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, and counter-claim may nevertheless be
proceeded with.
6-E. Default of plaintiff to reply to counter-claim.—If the plaintiff
makes default in putting in a reply to the counter-claim made by the
defendant, the Court may pronounce judgment against the plaintiff in
relation to the counter-claim made against him, or make such order in
relation to the counter-claim as it thinks fit.
6-F. Relief to defendant where counter-claim succeeds.—Where in
any suit a set-off or counter-claim is established as a defence against
the plaintiff's claim, and any balance is found due to the plaintiff or the
defendant, as the case may be, the Court may give judgment to the
party entitled to such balance.
6-G. Rules relating to written statement to apply.—The rules relating
to a written statement by a defendant shall apply to a written
statement filed in answer to a counter-claim.]
7. Defence or set-off founded upon separate grounds.—Where the
defendant relies upon several distinct grounds of defence or set-off 374
[or counter-claim] founded upon separate and distinct facts, they shall
be stated, as far as may be, separately and distinctly.
RULE 7-A
High Court Amendment
KARNATAKA.—After Rule 7 and before Rule 8, add the following as
Rule 7-A:
“7-A. Where the defendant seeks the permission of the Court
under Rule 8 of Order I of this Code to defend the suit on behalf of or
for the benefit of himself and other persons having the same interest
as the defendant in the subject-matter of the suit he shall file an
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application supported by an affidavit setting out the particulars
detailed in sub-rule (2) of Rule 4 of Order VII of this Code. Notice of
such an application shall be given to all parties to the suit, and if the
permission sought is granted the plaint may be amended by
inserting a statement that the defendant is with the leave of the
Court sued as the representative of all persons interested in subject-
matter of the suit.” (30-3-1967).
8. New ground of defence.—Any ground of defence which has arisen
after the institution of the suit or the presentation of a written
statement claiming a set-off 375[or counter-claim] may be raised by the
defendant or plaintiff, as the case may be, in his written statement.
376
[8-A. Duty of defendant to produce documents upon which relief
377
is claimed by him.— [* * *]]
378
[9. Subsequent pleadings.—No pleading subsequent to the
written statement of a defendant other than by way of defence to set-
off or counter-claim shall be presented except by the leave of the Court
and upon such terms as the Court thinks fit; but the Court may at any
time require a written statement or additional written statement from
any of the parties cut and fix a time of not more than thirty days for
presenting the same.]
High Court Amendment
BOMBAY : DADRA AND NAGAR HAVELI.—For Rule 9, substitute the
following:
“9. Subsequent pleadings.—No pleading subsequent to the
written statement of the defendant other than by way of defence to a
set-off or counter-claim shall be presented except by the leave of the
Court and upon such terms as the Court thinks fit, but the Court
may at any time require a written statement or additional written
statement from any of the parties and fix a time for presenting the
same.”
► Written statement “required” by court.—Under Order 8, Rule 9, in spite
of the time-limit appointed by Order 8, Rule 1 having expired, the court is not
powerless to permit a written statement being filed if the court may require such
written statement, Kailash v. Nanhku, (2005) 4 SCC 480.
379
[10. Procedure when party fails to present written statement
called for by Court.—Where any party from whom a written statement
is required under Rule 1 or Rule 9 fails to present the same within the
time permitted or fixed by the Court, as the case may be, the Court
shall pronounce judgment against him, or make such order in relation
to the suit as it thinks fit and on the pronouncement of such judgment
a decree shall be drawn up.]
STATE AMENDMENTS
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Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Rule 10, insert the following
proviso, namely—
“Provided that no court shall make an order to extend the time
provided under Rule 1 of this order for filing of the written
statement.” [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-
2020)].
Union Territory of Ladakh.—In its application to the Union
Territory of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O.
3774(E), dated 23-10-2020].
High Court Amendments
ALLAHABAD.—Add the following new Rules 11 and 12:—
“11. Every party, whether original, added or substituted, who
appears in any suit or other proceeding shall on or before the date
fixed in the summons or notice served on him as the date of hearing,
file in Court a proceeding stating his address for service, written in
Hindi in Devnagri script, and if he fails to do so he shall be liable to
have his defence, if any, struck out and to be placed in the same
position as if he had not defended. In this respect the Court may act
suo motu or on the application of any party for an order to such
effect, and the Court may make such order as it thinks just.
[Amended 1971 LLT-V-18].
12. Rules 20, 22, 23, 24 and 25 of Order VII shall apply, so far as
may be, to addresses for service filed under the preceding rule.” (1-6
-1918).
BOMBAY.—Add the following as Rules 11 to 36:—
“11. Parties to file addresses (1) (a).—Every party, whether
original, added or substituted, who appears in any suit or other
proceeding, shall file in the court on or before the date fixed in the
summons or notice served on him as date for his appearance or
within such further time as may be allowed by the Court, a
memorandum in writing stating the address at which he may be
served.
(b) Registered address.—This address shall be called the
“registered address” and it shall, subject to Rule 24 of Order VII
read with Rule 12 of this Order, hold good in all proceedings in the
suit and in appeals and also for a further period of six years from the
date of the final decision for all purposes including those of
execution.
(c) Consequence of default in filing registered address.—If, after
being registered to file the registered address within a specified
time, he fails to do so, he shall be liable to have his defences, if any,
struck out and to be placed in the same position as if he had not
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defended. In this respect, the Court may act suo motu or on the
application of any party for an order to such effect, and the Court
may make such order as it thinks fit.
(2) When default may be condoned.—Where the Court has struck
out the defences under sub-rule (1) and has adjourned the hearing
of the suit or the proceeding and where the defendant or the
opposite party at or before such hearing appears and assigns
sufficient cause for his failure to file the registered address and also
files registered address, he may, upon such terms as the Court
directs as to costs or otherwise, be heard in answer to the suit or the
proceeding as if the defences had not been struck out.
(3) When decree passed on default can be set aside.—Where the
Court has struck out the defences under sub-rule (1) and has
consequently passed a decree or order, the defendant or the
opposite party, as the case may be, may apply to the Court by which
the decree or order was passed for an order to set aside the decree
or order, and if he files a registered address and satisfies the Court
that he was prevented by any sufficient cause from filing the
address, the Court shall make an order setting aside the decree or
order as against him upon such terms as to costs or otherwise as it
thinks fit and shall appoint a date for proceeding with the suit or
proceeding:
Provided that where the decree or order is of such a nature that it
cannot be set aside as against such defendant or opposite party
only, it may be set aside as against all or any of the other
defendants or the opposite parties.
12. Applicability of Rules 20 and 22 to 26 of Order VII.—Rules 20,
22, 23, 24, 25 and 26 of Order VII shall apply, so far as they may be
applicable, to registered addresses filed under the last preceding
rule.
Counter-claim
13. Defendant may set up counter-claim against the claims of the
plaintiff in addition to set-off.—A defendant in a suit, in addition to
his right of pleading a set-off under Order VIII, Rule 6 of the Code of
Civil Procedure, 1908, may set up by way of counter-claim against
the claims of the plaintiff any right or claim in respect of a cause of
action accruing to the defendant either before or after the filing of
the suit, but before the defendant has delivered his defence and
before the time limited for delivering his defence has expired,
whether such counter-claim sounds in damages or not, and such
counter-claim shall have the same effect as a cross-suit so as to
enable the Court to pronounce a final judgment in the same suit,
both on the original and on the counter claim, and the plaintiff (if so
advised) shall be at liberty to file a written statement in answer to
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the counter-claim of the defendant within four weeks after service
upon him or his pleader of a copy of the defendant's counter-claim;
and the Court or a Judge may, on the application of the plaintiff
before trial, if in the opinion of the Court or Judge such counter-
claim cannot be disposed of in the pending suit or ought not to be
allowed, refuse permission to the defendant to avail himself thereof,
and require him to file a separate suit in respect thereof.
14. Defendant setting up a counter-claim to specifically state so in
the written statement.—Where any defendant seeks to rely upon any
grounds as supporting a right of counter-claim, he shall in his
written statement state specifically that he does so by way of
counter-claim.
15. Where the counter-claim involves in addition to the plaintiff
other persons also, the defendant to add further title to the title of
the written statement and deliver copies of his written statement to
such persons as are already parties to the suit.—Where a defendant
by a written statement sets up any counter-claim, which raises
questions between himself and the plaintiff along with any other
persons, he shall add to the title of his written statement a further
title similar to the title in a plaint, setting forth the names of all the
persons who, if such counter-claim were to be enforced by a cross-
suit, would be defendants to such cross-suit, and shall deliver copies
of his written statement to such of them as are already parties to the
suit within which he is required to deliver it to the plaintiff.
16. Service of summons when counter-claim is against persons
who are not already parties to the suit.—Where any such person as is
mentioned in the last preceding rule, is not already a party to the
suit, he shall be summoned to appear by being served with a copy of
the written statement and such service shall be regulated by the
same rules as are contained in the Code of Civil Procedure, 1908
with respect to the service of a writ of summons.
17. Appearance of persons other than defendants to the suit,
when served with counter-claim.—Any person not a defendant to the
suit, who is served with a written statement and counter-claim as
aforesaid, must appear therein as if he had been served with a writ
of summons to appear in the suit.
18. Reply to counter-claim.—Any person named in a written
statement as a party to a counter-claim thereby made, may deliver a
reply within the time, within which he might deliver a written
statement if it were a plaint.
19. Objection to counter-claim being allowed to be set up in the
suit.—Where a defendant sets up a counter-claim, if the plaintiff or
any other person named in the manner aforesaid as party to such
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counter-claim, contends that the claim thereby raised ought not to
be disposed of by way of counter-claim but in an independent suit,
he may, at any time before reply, apply to the Court of a Judge for
an order that such counter-claim may be excluded, and the Court, or
a Judge may, on the hearing of such application, make such order as
shall be just.
20. Counter-claim may be proceeded with, even if suit be stayed,
discontinued or dismissed.—If in any case in which the defendant
sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be
proceeded with.
21. On default of reply to counter-claim, the counter-claim may
be set down for judgment.—If the defendant to the counter-claim
makes default in putting in a reply to the counter-claim, the
defendant in the suit who is the plaintiff to the counter-claim may, in
such cases get the suit set down for judgment on the counter-claim,
and such judgment shall be given as the Court shall consider him to
be entitled to.
22. Judgment when set-off or counter-claim is established.—
Where in any suit a set-off or counter-claim is established as a
defence against the plaintiff's claim, the Court or a Judge may, if the
balance is in favour of the defendant, give judgment for the
defendant for such balance, or may otherwise adjudge to the
defendant such relief as he may be entitled upon the merits of the
case. (1-11-1966)
380
Third Party Procedure
23. Third Party Notice.—Where in a suit a defendant claims
against any person not already a party to the suit (hereinafter called
the third party)—
(a) that he is entitled to contribution or indemnity, or
(b) that he is entitled to any relief or remedy relating to or
connected with the subject-matter of the suit and substantially
the same as some relief or remedy claimed by the plaintiff, or
(c) that any question or issue relating to or connected with subject-
matter of the suit is substantially the same as some question or
issue arising between the plaintiff and the defendant and should
properly be determined not only as between the plaintiff and the
defendant but as between the plaintiff and the defendant and the
Third Party or between any or either of them, he may apply to the
court for leave to issue a notice (hereinafter called the ‘Third Party
Notice’) to that effect. The application shall be made by affidavit,
stating the nature of the claim made by the defendant and the
facts on which proposed. Third Party Notice is based and may be
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made ex parte. The application shall be made within four weeks
from the service of the summons upon defendant.
24. Form and Service of Notice.—(1) Third Party Notice shall state
the nature of the claim made by the plaintiff against the defendant
and the nature and grounds of the claim made by the defendant
against the Third Party or the nature and extent of any relief or
remedy claimed by him against Third Party or the nature of the
question or issue sought to be determined and shall be sealed with
the seal of the Court. It shall be served on the Third Party according
to the rules relating to service of summons and shall, unless
otherwise ordered, be served within two weeks from the date of the
order granting leave to issue the Third Party Notice. A copy of the
plaint and copy of the affidavit of the defendant in support of the
Third Party Notice shall be served on the Third Party along with the
Third Party Notice.
(2) A copy of the Third Party Notice and of the affidavit of the
defendant in support of the Third Party Notice shall be furnished to
all parties to the suit within two weeks from the date of the order
granting leave to issue the Third Party Notice.
25. Effect of Service of Notice.—The Third Party shall, as from the
time of the service upon him of the Notice, be a party to the suit
with the same rights in respect of his defence against any claim
made against him and otherwise as if he had been duly sued in the
ordinary way by the defendant.
26. Third Party to enter appearance or Vakalatnama.—If the Third
Party desires to dispute the plaintiff's claim in the suit as against the
defendant on whose behalf the Notice has been issued or his own
liability to the defendant, the Third Party shall enter an appearance
in person or a Vakalatnama in the suit within two weeks from the
service of the Notice:
Provided that a person so served and failing to appear within the
said period of two weeks may apply to the Court for leave to appear
and such leave may be given on such terms, if any, as the Court
may think fit.
27. Consequence of Failure to enter Appearance or Vakalatnama.
—If the Third Party does not enter an appearance in person or a
Vakalatnama he shall be deemed to admit the claim stated in the
Third Party Notice and shall be bound by any judgment or decision in
the suit, whether by consent or otherwise, in so far as it is relevant
to any claim, question or issue stated in the Notice.
28. Decree when Third Party makes Default in Appearance or
Vakalatnama.—Where the Third Party makes default in entering an
appearance in person or a Vakalatnama in the suit,—
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(1) in cases where the suit is tried and results in favour of the
plaintiff, the Court which tries the suit may, at or after the trial,
pass such decree in favour of the defendant against the Third
Party as the nature of the case may require:
Provided that, execution thereof shall not issue without the leave of the
Court until the decree against the defendant has been satisfied, and
(2) in cases where the suit is decided in plaintiff's favour, otherwise
than by trial, the Court may, at any time after the decree against
the defendant has been satisfied, on the application of the
defendant pass such decree in favour of the defendant against the
Third Party as the nature of the case may require.
29. Third Party to file Affidavit in Reply.—If the Third Party enters
an appearance in person or a Vakalatnama he shall file within two
weeks thereafter an affidavit in reply to the affidavit of the defendant
in support of the Third Party Notice, setting out his case in respect of
the Third Party Notice, and his case, if any, in respect of the plaint.
30. Appearance or Vakalatnama of Third Party Directions to be
given.—(1) Where the Third Party enters an appearance in person for
a Vakalatnama and files his affidavit as required by the last
preceding rule, and the suit appears on board for directions before
the Court it may,—
(a) order any claim, question or issue stated in the Third Party Notice
to be tried in such manner, before, at or after the trial of the suit,
as the Court may think fit and may, in that event, give the Third
Party leave to defend the suit either along or jointly with any
defendant, upon such terms as he may think just, or to appear at
the trial and take such part therein as he may think and just and
generally may make such orders and give such directions as may
appear proper for having the questions and the rights and
liabilities of the parties most conveniently determined and
enforced and as to the extent to which the Third Party shall be
bound or made liable by any decree in the suit, or
(b) dismiss the Third Party Notice.
(2) Any order made or direction given under this rule may be
varied or rescinded by the Court at any time before the disposal of
the suit.
31. Defendant to apply for directions in certain cases.—Where for
any reason it is not possible for the Court to give direction on the
Third Party Notice at the time when the suit appears on the Board for
directions, the defendant issuing the Third Party Notice shall, within
two weeks, after the filing of the affidavit in reply by the Third Party
apply for directions. Upon the hearing of such applications, the Court
may pass such orders and give such directions as are mentioned in
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the last preceding rule.
32. Costs.—The Court may decide all questions of costs as
between a Third Party and the other parties to the suit, and may
order any one or more to pay the costs of any other, or others or give
such directions to costs as the justice of the case may require.
33. Setting aside Third Party proceedings.—Proceedings on a Third
Party Notice may, at any stage of the proceedings, be set aside by
the Court.
34. Right of the Third Party and of each successive Third Party to
apply for Third Party Notice against other persons.—(1) Where the
Third Party makes against any person not already a party to the suit
(to be called ‘the second Third Party’) such a claim as is mentioned
in Rule 23 he may by leave of the Court issue a Third Party Notice to
that effect.
(2) Where the second ‘Third Party’ in his turn makes such a claim
as is mentioned in Rule 23 against any person not already a party to
the suit (to be called ‘the Third Party’) or where each successive
Third Party in his turn makes such a claim against any person not
already a Party to the suit, such second ‘Third Party’ or any
successive Third Party may, by leave of the Court issue a Third Party
Notice to that effect.
(3) The provisions contained in the preceding rules as to Third
Party Procedure shall, with any necessary modification apply to all
cases where Third Party Notices have been issued, whether at the
instance of the Third Party or any successive Third Party.
35. Right of defendant to issue Third Party Notice against co-
defendant.—(1) Where a defendant makes against a co-defendant
such a claim as is mentioned in Rule 23 he may, without leave of the
Court, issue and serve on such co-defendant within six weeks from
the service of the summons upon him (the defendant making the
claim) a notice stating the nature and ground of such claim and shall
at the same time file an affidavit in support of such claim and furnish
copies thereof to all parties in the suit.
(2) The provisions contained in the preceding rules regarding
Third Party Procedure shall, with necessary modification, apply to
cases where a defendant has issued such notice against a co-
defendant, but nothing herein contained shall prejudice the rights of
the plaintiff against any defendant in the suit.
36. Third Party proceeding in a counter-claim.—Where in any suit
a counter-claim is made by a defendant, the provisions contained in
the preceding rules regarding Third Party Procedure shall, with any
necessary modifications, apply in relation to the counter-claim as if
the subject-matter of the counter-claim were the subject-matter of
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the suit, and as if the person making the counter-claim were the
plaintiff and the person against whom it is made a defendant.” (31-
12-1987)
DELHI AND HIMACHAL PRADESH.—Same as in Punjab.
GUJARAT.—Add the following new Rules 11 and 12:—
“11. Parties to file addresses.—Every party, whether original,
added or substituted, who appears in any suit or other proceeding
shall, on or before the date fixed in the summons or notice served on
him as the date of hearing, file in Court a memorandum in writing
stating his address for service, and if he fails to do so, he shall be
liable to have his defence, if any, struck out and to be placed in the
same position as if he had not defended. In this respect the Court
may act suo motu or on the application of any party for an order to
such effect, and the Court may make such order as it thinks fit. The
address so given shall hold good throughout the interlocutory
proceedings and appeals and also for a further period of two years
from the date of final decision and for all purposes including those of
execution:
Provided that this rule shall not apply to a defendant who has not
filed a written statement but who is examined by the Court under
Section 7 of the Dekkhan Agriculturists' Relief Act, 1879, or
otherwise, or in any case where the Court permits the address for
service to be given by a party on a date later than that specified in
this rule.
12. Applicability of Rules 20, 22, 24 and 25 of Order VII to
addresses for service.—Rules 20, 22, 24 and 25 of Order VII shall
apply, so far as may be, to addresses for service filed under the last
preceding rule.” (1-11-1966).
MADHYA PRADESH (Notification No. 3409; 29-6-1943).—Add the
following Rules 11 to 13:
“11. Registered address.—Every defendant in a suit or opposite
party in any proceedings shall, on the first day of his appearance in
Court, file a memorandum giving an address for service on him of
any subsequent process. The address shall be within the local limits
of the Civil District in which the suit or petition is fixed or, if an
address within the local limits of such Civil District cannot
conveniently be given, within the local limits of the Civil District in
which the party ordinarily resides.
This address shall be called the “registered address” and it shall
hold good throughout interlocutory proceedings and appeals and also
for a further period of two years from the date of final decision and
for all purposes including those of execution.
12. Consequences of non-filing of registered address.—(1) If the
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defendant or the opposite party fails to file a registered address as
required by Rule 11, he shall be liable, at the discretion of the Court,
to have his defence struck out and to be placed in the position as if
he had made no defence.
An order under this rule may be passed by the Court suo motu or
on the application of any party.
(2) Where the Court has struck out the defence under sub-rule
(1) and has adjourned the hearing of the suit or the proceedings and
where the defendant or the opposite party at or before such hearing
appears and assigns sufficient cause for his failure to file the
registered address he may upon such terms as the Court directs as
to costs or otherwise be heard in answer to the suit or the
proceedings as if the defence had not been struck out.
(3) Where the Court has struck out the defence under sub-rule
(1) and has consequently passed a decree or order, the defendant or
the opposite party, as the case may be, may apply to the Court by
which the decree or order was passed for an order to set aside the
decree or order; and if he files a registered address and satisfies the
Court that he was prevented by any sufficient cause from filing the
address, the Court shall make an order setting aside the decree or
order as against him upon such terms as to costs or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit or
proceeding:
Provided that where the decree is of such a nature that it cannot
be set aside as against such defendant or opposite party only it may
be set aside as against all or any of the other defendants or opposite
parties.
13. Rules 20, 22 and 23 of Order VII shall apply, so far as may
be, to addresses for service filed under Rule 11.” (16-9-1960).
ORISSA.—Omit 11 and 12 of Order VIII as added by Orissa
Amendment (14-5-1984).
PATNA.—Add the following new Rules 11 and 12:—
“11. Every party, whether original, added or substituted, who
appears in any suit or other proceedings shall at the time of entering
appearance to the summons, notice or other process served on him,
file in Court a statement stating his address for service and if he fails
to do so, he shall be liable to have his defence, if any, struck out and
to be placed in the same position as if he had not defended. In this
respect the Court may act suo motu or on the application of any
party for an order to such effect and the Court may make such order
as it thinks just.
12. Rules 20 and 22 Order VII shall apply, so far as may be to
addresses for service filed under the preceding rule.”
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PUNJAB.—Add the following as new Rules 11 and 12:
“11. Every party, whether original, added or substituted, who
appears in any suit or other proceeding shall, on or before the date
fixed in the summons, notice or other process served on him as the
date of hearing, file in court a proceeding stating his address for
service, and, if he fails to do so, he shall be liable to have his
defence, if any, struck out and to be placed in the same position as if
he had not defended. In this respect the Court may act suo motu or
on the application of any party for an order to such effect, and the
Court may make such order as it thinks just.”
12. Rules 20, 22, 23, 24 and 25 of Order VII shall apply, so far as
may be, to addresses for service filed under the proceeding
rule.” (24-11-1927).
Note.—This Rule applies to defendants who are corporations as well
as the other defendants. The Rule is mandatory so far as the filing of
the proceeding stating the addresses for service is concerned; but the
matter is left to the discretion of the Court and it is not bound to strike
off the defence of the defaulting party in every case.
RAJASTHAN.—Add the following new Rules 11 and 12:—
“11. (1) Same as Punjab Rule 11 with the following modifications:
(i) For “summons, notice or other process” read “summons or
notice”;
(ii) After the words “file in Court” for “a proceeding” substitute “a
memorandum”.
(2) Same as sub-rule (2) of Rule 12 of Madhya Pradesh, only
substituting “good cause” for “sufficient cause”.
(3) Same as sub-rule (3) of Rule 12 of Madhya Pradesh, only
inserting after “decree” the words “or order”.
12. Rules 19(2), 20, 23, 24 and 25 of Order VII shall apply, so far
as may be addresses for service filed under the preceding rule.” (8-7
-1954).
► Passing of ex parte decree.—Only prima facie case for passing decree is
not sufficient. There is need of establishing the pleading raised in the plaint and
caution that the suit is not barred by limitation, Bogidhola Tea & Trading Co. Ltd.
v. Hira Lal Somani, (2007) 14 SCC 606.
► Relief.—Such prayer, as were not granted by the decree, would be
deemed to have been refused and to that extent the suit shall be deemed to have
been dismissed, Plasto Pack v. Ratnakar Bank Ltd., (2001) 6 SCC 683 : AIR
2001 SC 3651 : (2001) 45 ALR 169.
► Non-filing of written statement.—Non-filing of written statement should
not have penal consequence. Court should proceed cautiously and exercise its
discretion in a just manner. Even in absence of written statement, burden of proof
would remain on plaintiff and his mere assertion in plaint affidavit would not be
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sufficient to discharge the burden. Where in view of non-filing of written statement
despite repeated opportunities given to defendant, decree passed without going
into merits, merely on basis of affidavit filed by plaintiff, in a case involving
disputed questions of fact, held, it would amount to a penal decree, C.N.
Ramappa Gowda v. C.C. Chandregowda, (2012) 5 SCC 265 : (2012) 3 SCC
(Civ) 68.
ORDER VIII-A
ANDHRA PRADESH.—Same as that of Madras.
KARNATAKA.—After Order VIII insert the following:—
“Order VIII-A
Third Party Procedure
1.(1) Where in respect of the claim made against him in the suit,
a defendant claims to be entitled to contribution from or indemnity
against any person not already party to the suit (hereinafter called
the third party) he may by leave of Court, issue a notice (hereinafter
called the third party notice) to that effect, sealed with the seal of
the Court.
(2) An application for leave to issue such notice shall be filed
along with the written statement of the said defendant and be
accompanied by a draft of the notice sought to be issued. The notice
shall state the nature and grounds of the claim and when the draft of
the same is approved by Court with or without corrections, it shall be
served on the third party together with a copy of the plaint and a
copy of the said defendant's written statement in the manner
prescribed for the service of summons.
2. (1) If on being served with such notice the third party does not
enter appearance on or before the date fixed therein for his
appearance, he shall be deemed to admit the validity of the decree
that may be passed against the defendant, on whose behalf the
notice was issued, whether upon contest or consent or otherwise,
and to admit his own liability to contribute or indemnify, as the case
may be, to the extent claimed in the third party notice:
Provided that a person so served and failing to appear may, at any
time before the disposal of the suit, apply to Court for leave to
appear and the Court may grant such leave upon such terms, if any,
as it may think fit to impose.
(2) Where the third party does not enter appearance in the suit
and the suit is decreed upon contest or consent or otherwise against
the defendant on whose behalf the notice was issued, the Court may
in the said decree make such directions as to contribution or
indemnity as the case may be, against the third party and in favour
of the said defendant as the circumstances of the case may require:
Provided that the execution thereof shall not issue against the
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third party without the leave of the Court until after satisfaction by
such defendant of the decree against him.
3. If the third party desires to dispute either the claim made
against him in the third party notice or the plaintiff's claim in the
suit or both, he shall enter appearance in the suit on or before the
date fixed therefor in the notice.
4. When the third party enters appearance under Rule 3 or upon
leave being granted under the proviso to sub-rule (1) of Rule 2 he
shall apply to Court for directions as to further proceedings to be
taken on the notice setting out his case or pleas in respect of the
same. Notice thereof shall be given both to the defendant on whose
behalf the third party notice was issued as well to the plaintiff, fixing
an early date for its hearing.
5. (1) On hearing of such application—
(a) if the Court is of the opinion either that the claim made in the
third party notice is prima facie not warranted or that it is not so
intimately connected with the plaintiff's claim in the suit as to
render its being conveniently tried along with the plaintiff's claim
in the suit, or that its trial in the suit will unduly prolong or
hamper the trial of the suit, the Court may dismiss the
proceedings on the third party notice;
(b) if the Court is satisfied that there is a question to be tried as to
the liability of the third party to make the contribution or pay the
indemnity claimed, in whole or in part, and that it is just and
convenient to try the same in the suit itself, the Court may order
the question of such liability as between the third party and the
defendant giving notice, to be tried in such manner as it may
direct and may by the said order also give liberty to the third
party to defend the suit itself upon such terms as may be just.
(2) When the Court proceeds under clause (b) of sub-rule (1) it
shall also give such directions as may be necessary for the delivery
of pleadings, production of documents or the making of further
appropriate proceeding in the suit.
(3) If upon trial a decree comes to be passed either on contest or
consent or otherwise against the defendant on whose behalf notice
was given, the Court shall in such decree make such direction as to
contribution or indemnity, as the case may be, against the third
party and in favour of the said defendant as the circumstances of the
case may require, and also as to whether execution in respect of
such direction against the third party shall or shall not be conditional
upon the defendant satisfying the decree against him.
(4) The Court, while making such decrees may, decide all
questions of costs as between the third party and other parties and
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may order any one or more to pay the costs of any other or others
and give such directions as to costs as the justice of the case may
require.
6. (1) Where the Court dismisses the proceedings on a third party
notice under clause (a) of sub-rule (5), the claim made in the third
party notice shall be deemed to have been left undecided, and the
defendant on whose behalf notice was issued will be at liberty to
take such other independent proceeding in respect thereof as may
be open to him, as if no such notice had been issued by him.
(2) Where the Court decides to proceed under clause (b) of sub-
rule (1) of Rule 5, the third party shall, as from the date on which
the third party notice was served on him be a party to the suit and
shall have—
(a) the same rights as respects the claims made against him by or
the decree passed against him in favour of the defendant on
whose behalf the notice was issued, as if he had been sued in the
ordinary way by the said defendant; and
(b) where he is given the liberty to defend the suit itself, the same
rights as respects his defence in the suit and the decree passed
therein as if he had been sued in the ordinary way by the plaintiff
in the suit.
(3) On the making of an order under clause (b) of sub-rule (1) of
Rule 5, the cause title of the suit shall be amended by inserting the
name of the third party in the array of defendants, with the addition
in brackets after his name the words “Third Party on the notice of the
defendant served on.”
KERALA.—Same as Madras (9-6-1959).
MADRAS : PONDICHERRY.—After Order VIII insert the following as
Order VIII-A, namely:
“Order VIII-A
Third Party Procedure
1. Third party notice.—Where a defendant claims to be entitled to
contribution from or indemnity against any person not already a
party to the suit (hereinafter called a third party notice) to that
effect, sealed with the seal of the Court, the notice shall state the
nature and grounds of the claim. Such notice shall be filed into Court
with a copy of the plaint and shall be served on the third party
according to the rules relating to the service of summons.
2. Effect of notice.—The third party shall, as from the time of the
service upon him of the notice, be deemed to be a party to the
action with the same rights in respect of his defence against any
claim made against him and otherwise as if he had been duly sued
in the ordinary way by the defendant.
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3. Default by third party.—If the third party desires to dispute the
plaintiff's claim in the suit as against the defendant on whose behalf
the notice has been given, or his own liability to the defendant, the
third party may enter appearance in the suit on or before the date
fixed for his appearance in the notice. If he does not enter
appearance he shall be deemed to admit the validity of the decree
that may be obtained against such defendant, whether by consent or
otherwise and his own liability to contribute or indemnify, as the
case may be, to the extent claimed in the third party notice:
Provided always that a person so served and failing to appear may
apply to the Court for leave to appear, and such leave may be given
upon such terms, if any, as the Court shall think fit.
4. Procedure on default.—Where the third party does not enter
appearance in the suit and the suit is decreed by consent or
otherwise in favour of the plaintiff, the Court may pass such decree
as the nature of the case may require, against the third party and in
favour of the defendant on whose behalf notice was issued:
Provided that execution thereof shall not be issued without leave
of the Court until after satisfaction by such defendant of the decree
against him.
5. Third party directions.—If the third party enters appearance the
defendant on whose behalf notice was issued may apply to the Court
for directions; and the Court may, if satisfied that there is a question
to be tried as to the liability of the third party to make the
contribution or pay the indemnity claimed, in whole or in part, order
the question of such liability, as between the third party and the
defendant giving the notice to be tried in such manner, at or after
the trial of the suit, as the Court may direct; and if not so satisfied,
may pass such decree or order as the nature of the case may
require.
6. Leave to defend.—The Court may upon the hearing of the
application mentioned in Rule 5, give the third party liberty to
defend the suit upon such terms as may be just, or to appear at the
trial and take such part therein as may be just, and generally may
order such proceedings to be taken, documents to be delivered or
amendments to be made, and give such directions as appear proper
for the most convenient determination of the question or questions
in issue, and as to the mode and extent in or to which the third party
shall be bound or made liable by the decree in the suit.
7. Costs.—The Court may decide all questions of costs as between
the third party and the other parties to the suit, and may order any
one or more to pay the costs of any other, or others, or give such
direction as to costs as the justice of the case may require.
8. Questions between co-defendants.—Where a defendant claims
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to be entitled to contribution from or indemnity against any other
defendant to the suit, a notice may be issued and the same
procedure shall be adopted for the determination of such questions
between the defendants as would be issued and taken, if such last
mentioned defendant were third party; but nothing herein contained
shall prejudice the right of the plaintiff against any defendant in the
suit.
9. Further parties.—Where any person served with a third party
notice by a defendant under these rules claims to be entitled to
contribution from or indemnity against any person not already a
party to the suit, he may, by leave of the Court, issue a third party
notice to that effect, and the preceding rules as to the third party
procedure shall apply mutatis mutandis to every notice so issued
and the expressions “third party notice” and “third party” in these
rules shall apply to and include every notice so issued and every
person served with such notice respectively.” Act 26 of 1968, Section
3 and Schedule, Part II (w.e.f. 5-9-1968).
ORDER IX
Appearance of Parties and Consequence of Non-appearance
► Dismissal for default.—Ordinarily litigation is based on adjudication on
merits of contentions of parties. Litigation should not be terminated by default,
either of plaintiff or defendant. Cause of justice requires that as far as possible,
adjudication be done on merits, Robin Thapa v. Rohit Dora, (2019) 7 SCC 359.
1. Parties to appear on day fixed in summons for defendant to
appear and answer.—On the day fixed in the summons for the
defendant to appear and answer, the parties shall be in attendance at
the Court House in person or by their respective pleaders, and the suit
shall then be heard unless the hearing is adjourned to a future day
fixed by the Court.
381
[2. Dismissal of suit where summons not served in consequence
of plaintiff's failure to pay costs.—Where on the day so fixed it is found
that the summons has not been served upon the defendant in
consequence of the failure of the plaintiff to pay the court-fee or postal
charges, if any, chargeable for such service, or failure to present copies
of the plaint as required by Rule 9 of Order VII, the Court may make an
order that the suit be dismissed:
Provided that no such order shall be made, if notwithstanding such
failure, the defendant attends in person or by agent when he is allowed
to appear by agent on the day fixed for him to appear and answer.]
High Court Amendments
ALLAHABAD.—After the words, “for such service” insert “or that the
plaintiff has failed to comply with the rules for filing the copy of the
plaint for service on the defendant”. (24-7-1926)
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ORISSA.—(Notification No. 24-X-7-52 of 30-3-1954).—For the words
“court fee or postal charges” substitute “court fee, postal or other
charges”. (7-5-1954).
3. Where neither party appears, suit to be dismissed.—Where neither
party appears when the suit is called on for hearing, the Court may
make an order that the suit be dismissed.
► Appealable order.—A dismissal of the suit for non-prosecution or for non-
appearance of the plaintiff is not a decree, hence it is not appealable as a decree,
Firdous Omer v. Bankim Chandra Daw, (2006) 6 SCC 569.
4. Plaintiff may bring fresh suit or Court may restore suit to file.—
Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may
(subject to the law of limitation) bring a fresh suit; or he may apply for
an order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for 382[such failure as is referred to in Rule
2], or for his non-appearance, as the case may be, the Court shall make
an order setting aside the dismissal and shall appoint a day for
proceeding with the suit.
High Court Amendments
BOMBAY.—Renumber R. 4 as R. 4(1) and add as sub-rule (2):—
“(2) The provisions of Section 5 of the Indian Limitation Act, 1963
shall apply to applications under this rule.”
DELHI.—Same as in Bombay.
GUJARAT.—Same as in Bombay.
HIMACHAL PRADESH.—Same as in Bombay.
MADHYA PRADESH.—Same as in Bombay. (2-9-1955).
ORISSA.—Insert the following proviso to R. 4 of Or. 9 of the Code,
namely:—
“Provided that in cases where the defendant had entered into
contest by filing his defence, no suit shall be restored without notice
to him.” (14-5-1984).
PUNJAB, HARYANA AND CHANDIGARH.—Same as in Bombay. (14-2-
1956).
► Restoration.—In divorce proceedings filed by wife on ground of impotency
of husband, the court exercising inherent powers can order medical examination
of the husband, Amol Chavhan v. Jyoti Chavhan, 2011 SCC OnLine MP 1325:
AIR 2012 MP 61.
5. Dismissal of suit where plaintiff, after summons returned
383
unserved, fails for seven days to apply for fresh summons.— [(1)
Where, after a summons has been issued to the defendant, or to one of
several defendants, and returned unserved, the plaintiff fails, for a
384
period of [seven days] from the date of the return made to the Court
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by the officer ordinarily certifying to the Court returns made by the
serving officers, to apply for the issue of a fresh summons the Court
shall make an order that the suit be dismissed as against such
defendant, unless the plaintiff has within the said period satisfied the
Court that—
(a) he has failed after using his best endeavours to discover the residence
of the defendant, who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time,
in which case the Court may extend the time for making such
application for such period as it thinks fit.]
(2) In such case the plaintiff may (subject to the law of limitation)
bring a fresh suit.
High Court Amendments
BOMBAY.—In Rule 5, for sub-rule (1), the following shall be
substituted:
“(1) Dismissal of suit where plaintiff after summons returned
unserved fails for two months to apply for fresh summons.—Where,
after a summons has been issued to the defendant, or to one of
several defendants, and returned unserved, the plaintiff fails, for a
period of two months from the next hearing of the suit to apply for
issue of a fresh summons the Court, shall make an order that the
suit be dismissed as against such defendant, unless the plaintiff has
within the said period satisfied the Court that—
(a) he has failed, after using his best endeavour to discover the
residence of the defendant who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time, in
which case the Court may extend the time for making such
application for such period as it thinks fit.” (31-12-1987)
GUJARAT.—Same as in Bombay (i).
KERALA.—(i) For the existing marginal note the following shall be
substituted, namely:
“Dismissal of suit where plaintiff fails to apply for steps”; (7-4-
1959)
(ii) in sub-rule (1) for the words “three months from the date of
the return ……………. returns made by the serving officers” substitute
the words “one month from the next hearing of the suit or from the
notice regarding the non-service of summons given by the Court to
the plaintiff or counsel”. (9-6-1959)
ORISSA.—For Rule 5 substitute the following:
“5. Dismissal of suit where plaintiff, after summons returned
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unserved, fails to file necessary requisites for fresh summons.—(1)
Where after summons has been issued to the defendant, or to one of
similar defendants and returned unserved, the plaintiff fails to file
necessary requisites for the issue of a fresh summons, within the
period fixed by the Court, it shall make an order that the suit be
dismissed as against such defendant; and
(2) in such a case the plaintiff may (subject to the law of
limitation) bring a fresh suit.” (3-5-1968).
► Seven days : Computation.—Period of seven days mentioned in
amended Rule 5 is clearly directory, Salem Advocate Bar Assn. (2) v. Union of
India, (2005) 6 SCC 344.
6. Procedure when only plaintiff appears.—(1) Where the plaintiff
appears and the defendant does not appear when the suit is called on
for hearing, then—
385
[(a) When summons duly served.—If it is proved that the summons
was duly served, the Court may make an order that the suit be heard
ex parte;]
(b) When summons not duly served.—If it is not proved that the
summons was duly served, the Court shall direct a second summons to
be issued and served on the defendant;
(c) When summons served but not in due time.—If it is proved that the
summons was served on the defendant, but not in sufficient time to
enable him to appear and answer on the day fixed in the summons, the
Court shall postpone the hearing of the suit to a future day to be fixed
by the Court, and shall direct notice of such day to be given to the
defendant.
(2) Where it is owing to the plaintiff's default that the summons was
not duly served or was not served in sufficient time, the Court shall
order the plaintiff to pay the costs occasioned by the postponement.
High Court Amendments
ORISSA.—Deleted (14-5-1984).
PATNA.—In Rule 6(1)(c) delete the words “and shall direct notice of
such day to be given to the defendant” and substitute a fullstop for the
comma after the words “fixed by the Court”. (6-5-1946).
RAJASTHAN.—In Rule 6, the words “the Court may proceed ex parte”
shall be substituted by the words “the Court may make an order that
the suit be heard ex parte”. (30-6-1956).
► Obligation of court.—Where summons served upon the defendant after
the date fixed for his appearance, it was obligatory on the part of the court to fix
another date for his appearance and filing of written statement and direct the
plaintiff to take steps for service of fresh summons, Nahar Enterprises v.
Hyderabad Allwyn Ltd., (2007) 9 SCC 466.
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7. Procedure where defendant appears on day of adjourned hearing
and assigns good cause for previous non-appearance.—Where the Court
has adjourned the hearing of the suit ex parte, and the defendant, at or
before such hearing, appears and assigns good cause for his previous
non-appearance, he may, upon such terms as the Court directs as to
costs or otherwise, be heard in answer to the suit as if he had appeared
on the day fixed for his appearance.
High Court Amendment
RAJASTHAN.—The following shall be substituted for Rule 7, namely:
“7. Where the Court has adjourned the hearing of the suit after
making an order that it be heard ex parte and the defendant at or
before such hearing appears and assigns good cause for his previous
non-appearance, the Court may upon such terms as it directs as to
costs or otherwise set aside the order for the hearing of the suit ex
parte and hear the defendant in answer to the suit as if he had
appeared on the day fixed for his appearance.” (30-6-1956).
► Applicability.—R. 7 is not applicable when defendant appears after hearing
is closed and case is posted for pronouncement of judgment. R. 7 applies when
hearing is in progress. Date on which a case is fixed for judgment is not a date of
hearing. R. 7 cannot be availed on that date or thereafter, Rasiklal Manikchand
Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196 : (2012) 1 SCC (Civ) 705.
► Power of court to impose conditions.—While exercising its jurisdiction
under Order 9, Rule 7 CPC, the court can impose conditions in regard to payment
of costs, but while exercising its power under Order 9, Rule 13 thereof, the court
can exercise a larger jurisdiction in the sense that it can impose other conditions,
G.L. Vijain v. K. Shankar, (2006) 13 SCC 136.
8. Procedure where defendant only appears.—Where the defendant
appears and the plaintiff does not appear when the suit is called on for
hearing, the Court shall make an order that the suit be dismissed,
unless the defendant admits the claim, or part thereof, in which case
the Court shall pass a decree against the defendant upon such
admission, and, where part only of the claim has been admitted, shall
dismiss the suit so far as it relates to the remainder.
► Appealable order.—A dismissal of the suit for non-prosecution or for non-
appearance of the plaintiff is not a decree,hence it is not appealable as a decree,
Firdous Omer v. Bankim Chandra Daw, (2006) 6 SCC 569.
► Presumption of abandonment of proceedings.—There can be no legal
presumption about factum of abandonment of proceedings. Abandonment has to
be express or even if it is to be implied, circumstances must be so strong and
convincing that drawing such inference is inevitable rather, no other view is
possible, Aman Lohia v. Kiran Lohia, (2021) 5 SCC 489.
9. Decree against plaintiff by default bars fresh suit.—(1) Where a
suit is wholly or partly dismissed under Rule 8, the plaintiff shall be
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precluded from bringing a fresh suit in respect of the same cause of
action. But he may apply for an order to set the dismissal aside, and if
he satisfies the Court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the Court shall
make an order setting aside the dismissal upon such terms as to costs
or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit.
(2) No order shall be made under this rule unless notice of the
application has been served on the opposite party.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
ASSAM AND NAGALAND.—Same as that of Calcutta.
BOMBAY.—Add the following as sub-rule (3):
“(3) The provision of Section 5, Limitation Act, 1908 shall apply to
applications under this rule.”(21-12-1927)
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—Insert sub-rule (2) as
follows:
(A) Renumber sub-rule (2), as sub-rule (3) and add as sub-rule (2):
“(2) The plaintiff shall for service on O.P. present along with his
application under this rule either—
(i) as many copies thereof on plain paper as there are O.P., or
(ii) if the Court by reason of the length of the application or the
number of O.P. or for any other sufficient reason grants
permission in this behalf, a like number of concise statements.”
(B) In the renumbered sub-rule (3) after the words “notice of the
application” add “with a copy thereof (or concise statement as the
case may be)”.
DELHI AND HIMACHAL PRADESH.—Same as in Punjab.
GAUHATI.—Same as in Calcutta.
GUJARAT.—Same as that of Bombay. (17-8-1961).
KERALA.—Same as that in Madras (9-6-1959)
MADRAS.—Same as that of Bombay. (29-3-1949).
ORISSA.—Delete sub-rule (3) as added by Orissa Amendment (14-5-
1984).
PUNJAB AND HARYANA.—Add the following proviso to sub-rule (1):
“Provided that the plaintiff shall not be precluded from bringing
another suit for redemption of a mortgage, although a former suit
may have been dismissed for default.” (Chief Court, 12-5-1909).
Add as sub-rule (3):—
“(3) The provisions of Section 5, Limitation Act shall apply to
applications under sub-rule (1).” (14-2-1956).
► “Sufficient cause”.—In case of non appearance by plaintiff or respondent
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for only one day, High Court as well as trial court erred in not restoring suit,
Kamla Bai v. Harishankar Arora, (2010) 15 SCC 454 : (2013) 2 SCC (Civ) 85.
10. Procedure in case of non-attendance of one or more of several
plaintiffs.—Where there are more plaintiffs than one, and one or more
of them appear, and the others do not appear, the Court may, at the
instance of the plaintiff or plaintiffs appearing, permit the suit to
proceed in the same way as if all the plaintiffs had appeared, or make
such order as it thinks fit.
11. Procedure in case of non-attendance of one or more of several
defendants.—Where there are more defendants than one, and one or
more of them appear, and the others do not appear, the suit shall
proceed, and the Court shall, at the time of pronouncing judgment,
make such order as it thinks fit with respect to the defendants who do
not appear.
12. Consequence of non-attendance, without sufficient cause shown,
of party ordered to appear in person.—Where a plaintiff or defendant,
who has been ordered to appear in person, does not appear in person,
or show sufficient cause to the satisfaction of the Court for failing so to
appear, he shall be subject to all the provisions of the foregoing rules
applicable to plaintiffs and defendants, respectively, who do not appear.
Setting aside decrees ex parte
13. Setting aside decree ex parte against defendant.—In any case in
which a decree is passed ex parte against a defendant, he may apply to
the Court by which the decree was passed for an order to set it aside;
and if he satisfies the Court that the summons was not duly served, or
that he was prevented by any sufficient cause from appearing when the
suit was called on for hearing, the Court shall make an order setting
aside the decree as against him upon such terms as to costs, payment
into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be
set aside as against such defendant only it may be set aside as against
all or any of the other defendants also:
386
[Provided further that no Court shall set aside a decree passed ex
parte merely on the ground that there has been an irregularity in the
service of summons, if it is satisfied that the defendant had notice of
the date of hearing and had sufficient time to appear and answer the
plaintiff's claim.]
387
[Explanation.—Where there has been an appeal against a decree
passed ex parte under this rule, and the appeal has been disposed of
on any ground other than the ground that the appellant has withdrawn
the appeal, no application shall lie under this rule for setting aside that
ex parte decree.]
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High Court Amendments
ALLAHABAD.—Add the following further proviso:
“Provided also that no such decree shall be set aside merely on
the ground of irregularity in the service of summons if the Court is
satisfied that the defendant knew, or but for his wilful conduct would
have known, of the date of hearing in sufficient time to enable him
to appear and answer the plaintiff's claim.”
ANDHRA PRADESH.—Same as that of Madras.
ASSAM AND NAGALAND.—Same as that of Calcutta.
BOMBAY, DADRA AND NAGAR HAVELI.—For Rule 13 and its marginal note
substitute the following as Rule 13 and marginal note:—
“13. Setting aside decree ex parte against defendant.—In any
case in which a decree is passed ex parte against a defendant, he
may apply to the Court by which the decree was passed for an order
to set it aside; and if he satisfies the Court that the summons was
not duly served, or that there was sufficient cause for his failure to
appear when the suit was called on for hearing, the Court shall make
an order setting aside the decree as against him upon such terms as
to costs payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot
be set aside as against such defendant only, it may be set aside as
against all or any of the other defendants also:
Provided also that no such decree shall be set aside merely on the
ground of irregularity of service of summons, if the Court is satisfied
that the defendant knew, or but for his wilful conduct would have
known, of the date of hearing in sufficient time it enable him to
appear and answer the plaintiff's claim.
Explanation I.—Where a summons has been served under Order
V, Rule 15, on an adult male member having an interest adverse to
that of the defendant in the subject-matter of the suit, it shall not be
deemed to have been duly served within the meaning of this rule.
Explanation II.—Where there has been an appeal against a decree
passed ex parte under this rule, and the appeal has been disposed of
on any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule for
setting aside that ex parte decree.” (1-10-1983).
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—Renumber Rule 13 as
Rule 13(1) and add the following:
“(2) The defendant shall for the service on opposite party present
along with his applications under this rule either—
(i) as many copies thereof on plain paper as there are opposite
parties; or
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(ii) if the Court by reason of the length of the application or the
number of the opposite parties or for any other sufficient reason
grants permission in this behalf a like number of concise
statements.”
DELHI, HIMACHAL PRADESH, PUNJAB, HARYANA AND CHANDIGARH.—
Renumber Rule 13 as Rule 13(1) and add the following as sub-rule (2)
namely,—
Same as that of M.P. (d).
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta.
GUJARAT.—Renumber Rule 13 as Rule 13(1) and add sub-rule (2) to
it:
13.(2) Same as that of Madhya Pradesh (d).
KARNATAKA.—Add the following further proviso to Rule 13:
“Provided further that no such decree shall be set aside merely on
the ground of irregularity in the service of summons, if the Court is
satisfied that the defendant knew the date of hearing in sufficient
time to enable him to appear and answer the plaintiff's claim.” (30-3
-1967).
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—(1) Renumber
Rule 13 as Rule 13(1).
(2) Delete the full stop at the end of the existing proviso and add the
words “after notice to them”;
(3) After the existing proviso as amended add a further proviso as in
Madras;
(4) Add sub-rule (2) as in Madras (9-6-1959).
MADHYA PRADESH.—(a) Renumber the existing rule as sub-rule (1);
(b) Substitute “there was sufficient cause for his failure to
appearing” for “he was prevented by any sufficient cause from
appearing” occurring in sub-rule (1) so renumbered;
(c) Add the following as an additional proviso and Explanation to sub
-rule (1):
Same as that of 2nd Proviso and Explanation of Bombay.
(d) Add the following as sub-rule (2):
“(2) The provisions of Section 5 of the Indian Limitation Act, IX of
1908, shall apply to application under sub-rule (1).” (16-9-1960).
MADRAS AND PONDICHERRY.—(1) Renumber Rule 12 as Rule 13(1) and
insert the following as proviso to sub-rule (1):
“Provided further that no Court shall set aside a decree passed ex
parte merely on the ground that there has been an irregularity in the
service of summons, if it be satisfied that the defendant had notice
of the date of hearing in sufficient time to appear and answer the
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plaintiff's claim.” (R.O.C. No. 1810 of 1926).
(2) Add the following as sub-rule (2):
Same as that of Madhya Pradesh (d).
ORISSA.—(i) Delete the Orissa Amendment to Rule 13. (14-5-1984)
(ii) Renumber the existing Explanation to Rule 13 as Explanation-I
and add the following Explanation as Explanation-II.
“Explanation-II: A summons served under Order 5, Rule 15 on an
adult male member having an interest adverse to that of the
defendant in the subject-matter of the suit shall not be deemed to
have been duly served within the meaning of this rule”. (14-5-
1984).
► Recording of reasons.—An order setting aside the ex parte decree being
a judicial order, held, should be supported by reasons, Mahesh Yadav v.
Rajeshwar Singh, (2009) 2 SCC 205 : (2009) 1 SCC (Civ) 454.
► Applicability of bar under Order 21 Rule 102.—Bar under Order 21 Rule
102 which disallows transferee pendente lite from taking benefit of Order 21 Rule
97 and other rules, held, is not applicable to application filed under Order 9 Rule
13 for setting aside ex parte decree, Menka Gupta v. Umashree Devi, (2020) 19
SCC 490.
► Remedies in cases of ex parte decree.—A defendant in a suit has more
than one remedy as regards setting aside of an ex parte decree. He can file an
application for setting aside the ex parte decree; file a suit stating that service of
notice was fraudulently suppressed; prefer an appeal and file an application for
review, Rabindra Singh v. Financial Commr., (2008) 7 SCC 663.
► Sufficient cause.—The meaning of the word “sufficient” is “adequate” or
“enough”, inasmuch as may be necessary to answer the purpose intended,
Parimal v. Veena, (2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1.
► Imposition of conditions.—While setting aside ex parte decree when
defendant is able to prove sufficient cause for non-appearance, conditions can be
imposed which should not be unreasonable or excessively harsh. Expression “or
otherwise” must be construed widely, Tea Auction Ltd. v. Grace Hill Tea Industry,
(2006) 12 SCC 104.
An order imposing conditions need not be wholly unconditional one. Imposition
of condition is permissible under Order 9, Rule 13, Nahar Enterprises v.
Hyderabad Allwyn Ltd., (2007) 9 SCC 466.
► Setting aside whole decree : First proviso.—If the decree is indivisible,
the court can set aside the entire decree against all the defendants, Bank of India
v. Mehta Bros., (2008) 13 SCC 466.
The word “decree” used in first proviso means decree in general and not
necessarily ex parte decree, Bank of India v. Mehta Bros., (2008) 13 SCC 466.
► Irregularity in service of summons : Second proviso.—Second proviso
is mandatory in nature. It is not permissible for court to allow the application in
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utter disregard of terms and conditions incorporated therein, Parimal v. Veena,
(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1.
► Limitation.—Period of limitation for setting aside ex parte decree shall be
reckoned from the date of knowledge of passing of the ex parte decree, Mahabir
Singh v. Subhash, (2008) 1 SCC 358 : (2008) 1 SCC (Civ) 267.
► Remedies against ex parte decree.—Simultaneous filing of application
under Or. 9 R. 13 and appeal against the ex parte decree under S. 96(2) is
permissible. However, if appeal against ex parte decree is dismissed, in the light
of Expln. to Or. 9 R. 13, which is to be strictly construed, an application under Or.
9 R. 13 would not be maintainable. The converse though is not true. Moreover, if
the application under Or. 9 R. 13 is dismissed the defendant can file an appeal
thereagainst under Or. 43 R. 1(d). Bhanu Kumar Jain v. Archana Kumar, (2005)
1 SCC 787, See also Neerja Realtors (P) Ltd. v. Janglu, (2018) 2 SCC 649 and
Bhivchandra Shankar More v. Balu Gangaram More, (2019) 6 SCC 387.
► Ex parte decree.—Procedure of setting aside of ex parte decree, in cases
to which Provincial Small Cause Courts Act, 1887 applies, explained. Subodh
Kumar v. Shamim Ahmed, (2021) 15 SCC 105
14. No decree to be set aside without notice to opposite party.—No
decree shall be set aside on any such application as aforesaid unless
notice thereof has been served on the opposite party.
High Court Amendments
ASSAM.—Same as that of Calcutta.
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—Cancel the word “thereof”
and substitute the following:
“together with a copy thereof (or concise statement as the case
may be)”. (3-2-1933).
GAUHATI.—Same as that of Calcutta.
RULE 15
BOMBAY.—Add the following as Rule 15:
“15. Application of the provisions of this 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.” (1-10-1983).
GUJARAT.—Same as that of Bombay. (17-8-1961).
KARNATAKA.—Add the following as Rule 15:
“15. The provisions of Section 5 of the Limitations Act, 1963, shall
apply to an application made under sub-rule (1) of Rule 9 or Rule
13.” (30-3-1967).
ORDER X
Examination of Parties by the Court
1. Ascertainment whether allegations in pleadings are admitted or
denied.—At the first hearing of the suit the Court shall ascertain from
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each party or his pleader whether he admits or denies such allegations
of fact as are made in the plaint or written statement (if any) of the
opposite party, and as are not expressly or by necessary implication
admitted or denied by the party against whom they are made. The
Court shall record such admissions and denials.
► “First hearing”.—“First hearing of the suit” comes after framing of issues
whereafter suit is posted for trial. Said hearing can never be earlier than date fixed
for preliminary examination of parties and settlement of issues. Meaning of
“hearing” presupposes existence of an occasion which enables parties to be
heard in respect of the cause and “first day of hearing” does not mean day for
return of summons or the returnable date, but day on which court applies its mind
to the case, Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 :
(2012) 2 SCC (Cri) 423 : (2012) 2 SCC (Civ) 497, See also Badami v. Bhali,
(2012) 11 SCC 574 : (2013) 1 SCC (Civ) 404.
First hearing cannot be earlier than date fixed for preliminary examination of
parties and framing of issues,
388
[1-A. Direction of the court to opt for any one mode of alternative
dispute resolution.—After recording the admissions and denials, the
Court shall direct the parties to the suit to opt either mode of the
settlement outside the Court as specified in sub-section (1) of Section
89. On the option of the parties, the court shall fix the date of
appearance before such forum or authority as may be opted by the
parties.
1-B. Appearance before the conciliatory forum or authority.—Where a
suit is referred under Rule 1-A, the parties shall appear before such
forum or authority for conciliation of the suit.
1-C. Appearance before the Court consequent to the failure of efforts
of conciliation.—Where a suit is referred under Rule 1-A and the
presiding officer of conciliation forum or authority is satisfied that it
would not be proper in the interest of justice to proceed with the matter
further, then, it shall refer the matter again to the court and direct the
parties to appear before the Court on the date fixed by it.]
389
[2. Oral examination of party, or companion of party.—(1) At the
first hearing of the suit, the Court—
(a) shall, with a view to elucidating matters in controversy in the suit,
examine orally such of the parties to the suit appearing in person or
present in Court, as it deems fit; and
(b) may orally examine any person, able to answer any material question
relating to the suit, by whom any party appearing in person or present
in Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine any
party appearing in person or present in Court, or any person, able to
answer any material question relating to the suit, by whom such party
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or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an
examination under this rule questions suggested by either party.]
► Nature and scope.—Object of the examination under Order 10, Rule 2
CPC is to identify the matters in controversy and not to prove or disprove the
matters in controversy, nor to seek admissions, nor to decide the rights or
obligations of parties. Further held, power of court under Order 10, Rule 2 cannot
be converted into a process of selective cross-examination. Although court can
combine its power under Order 12, Rule 3-A with its power under Order 10, Rule 2
but even in that case, it cannot cross examine a party with reference to a
document, Kapil Corepacks (P) Ltd. v. Harbans Lal, (2010) 8 SCC 452 : (2010) 3
SCC (Cri) 924 : (2010) 3 SCC (Civ) 400.
3. Substance of examination to be written.—The substance of the
examination shall be reduced to writing by the Judge, and shall form
part of the record.
4. Consequence of refusal or inability of pleader to answer.—(1)
Where the pleader of any party who appears by a pleader or any such
person accompanying a pleader as is referred to in Rule 2, refuses or is
unable to answer any material question relating to the suit which the
Court is of opinion that the party whom he represents ought to answer,
and is likely to be able to answer if interrogated in person, the Court 390
[may postpone the hearing of the suit to a day not later than seven
days from the date of first hearing] and direct that such party shall
appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on
the day so appointed, the Court may pronounce judgment against him,
or make such order in relation to the suit as it thinks fit.
For Section 1 to 78 click here
For Section 79 to 95 click here
For Section 96 to 131 click here
For Section 132 to 158 click here
For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 1 (Order 41 to 51) click here
For Schedule 2 to 5 click here
———
299.
Subs. by Act 104 of 1976, S. 52 (w.e.f. 1-2-1977).
300.
Subs. by Act 104 of 1976, S. 52 (w.e.f. 1-2-1977).
301.
Ins. by Act 104 of 1976, S. 52 (w.e.f. 1-2-1977).
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302.
Subs. by Act 104 of 1976, S. 52 (w.e.f. 1-2-1977).
303.
Ins. by Act 104 of 1976, S. 52 (w.e.f. 1-2-1977).
304.
Ins. by Act 104 of 1976, S. 52 (w.e.f. 1-2-1977).
305.
See now the Limitation Act, 1963 (36 of 1963), S. 21.
306.
Ins. by Act 104 of 1976, S. 52 (w.e.f. 1-2-1977).
307.
Subs. for “the suit” by Act 104 of 1976, S. 52 (w.e.f. 1-2-1977).
308.
Subs. by Act 104 of 1976, S. 53 (w.e.f. 1-2-1977).
309.
Subs. for “duly appointed to act” by Act 22 of 1926, S. 2.
310.
Subs. by Act 22 of 1926, S. 2.
311.
Subs. for “filed in Court and shall be” by Act 104 of 1976, S. 54 (w.e.f. 1-2-1977).
312.
Ins. by Act 104 of 1976, S. 54 (w.e.f. 1-2-1977).
313.
Subs. by Act 104 of 1976, S. 54 (w.e.f. 1-2-1977).
314.
Subs. by Act 104 of 1976, S. 54 (w.e.f. 1-2-1977). Prior to substitution it read as:
“Any process served on the pleader of any party”.
315.
Ins. by Act 104 of 1976, S. 54 (w.e.f. 1-2-1977).
316.
Ins. by Act 46 of 1999, S. 14 (w.e.f. 1-7-2002).
317.
Ins. by Act 46 of 1999, S. 14 (w.e.f. 1-7-2002).
318.
Subs. by Act 22 of 2002, S. 6 (w.e.f. 1-7-2002).
319.
Subs. by Act 46 of 1999, S. 15 (w.e.f. 1-7-2002).
320.
Subs. for “for the appearance of the defendant” by Act 46 of 1999, S. 15 (w.e.f. 1-7-
2002).
321.
Subs. for “all documents” by Act 46 of 1999, S. 15 (w.e.f. 1-7-2002).
322.
Subs. by Act 22 of 2002, S. 6 (w.e.f. 1-7-2002).
323.
Subs. by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977).
324.
Ins. by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977).
325.
Ins. by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977).
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326.
Omitted by Act 46 of 1999, S. 15 (w.e.f. 1-7-2002). Prior to omission it read as:
“19-A. Simultaneous issue of summons for service by post in addition to personal
service.—(1) The Court shall, in addition to, and simultaneously with, the issue of
summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct
the summons to be served by registered post, acknowledgment due, addressed to the
defendant, or his agent empowered to accept the service, at the place where the
defendant, or his agent, actually and voluntarily resides or carries on business or
personally works for gain:
Provided that nothing in this sub-rule shall require the Court to issue a summons for
service by registered post, where, in the circumstances of the case, the Court considers
it unnecessary.
(2) When an acknowledgment purporting to be signed by the defendant or his agent is
received by the Court or the postal article containing the summons is received back by
the Court with an endorsement purporting to have been made by a postal employee to
the effect that the defendant or his agent had refused to take delivery of the postal
article containing the summons, when tendered to him, the Court issuing the summons
shall declare that the summons had been duly served on the defendant:
Provided that where the summons was properly addressed, prepaid and duly sent by
registered post, acknowledgment due, the declaration referred to in this sub-rule shall be
made not withstanding the fact that the acknowledgment having been lost or mislaid, or
for any other reason, has not been received by the Court within thirty days from the date
of the issue of the summons.”
327.
Ins. by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977).
328.
Ins. by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957).
329.
omitted by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977). Prior to omission it read as:
“20-A. Service of summons by post.—(1) Where, for any reason whatsoever, the
summons is returned unserved, the Court may, either in lieu of, or in addition to, the
manner provided for service of summons in the foregoing rules, direct the summons to be
served by registered post addressed to the defendant or his agent empowered to accept
service at the place where the defendant or his agent ordinarily resides or carries on
business or personally works for gain.
(2) An acknowledgement purporting to be signed by the defendant or the agent or an
endorsement by a postal employee that the defendant or the agent refused to take
delivery may be deemed by the Court issuing the summons to the prima facie proof of
service.”
330.
Subs. by Act 46 of 1999, S. 15 (w.e.f. 1-7-2002).
331.
Subs. for “Bombay and Rangoon” by the A.O. 1937.
332.
Subs. for “by post or otherwise” by Act 46 of 1999, S. 15 (w.e.f. 1-7-2002).
333.
Subs. for “the State” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
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334.
Subs. for “the State” by Act 2 of 1951, S. 3 (w.e.f. 1-4-1951).
335.
Subs. for “by post” by Act 46 of 1999, S. 15 (w.e.f. 1-7-2002).
336.
Ins. by Act 19 of 1951, S. 2.
337.
Subs. by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977).
338.
Subs. by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977).
339.
Subs. by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977).
340.
Ins. by Act 104 of 1976, S. 55 (w.e.f. 1-2-1977).
341.
Subs. for “His Majesty's” by the A.O. 1950 (w.e.f. 26-1-1950).
342.
Subs. for “or naval” by Act 10 of 1927, S. 2 and Sch. I.
343.
The words “or His Majesty's Indian Marine Service” omitted by Act 35 of 1934, S. 2 and
Sch. I.
344.
Ins. by Act 35 of 1934, S. 2 and Sch.
345.
Ins. by Act 10 of 1927, S. 2 and Sch.
346.
Subs. by Act 104 of 1976, S. 56 (w.e.f. 1-2-1977).
347.
Omitted by Act 46 of 1999, S. 16 (w.e.f. 1-7-2002). Prior to omission it read as:
“5. Further and better statement, or particulars.—A further and better statement of
the nature of the claim or defence, or further and better particulars of any matter stated
in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise,
as may be just.”
348.
Ins. by Act 104 of 1976, S. 56 (w.e.f. 1-2-1977).
349.
Ins. by Act 46 of 1999, S. 16 (w.e.f. 1-7-2002).
350.
Subs. by Act 104 of 1976, S. 56 (w.e.f. 1-2-1977).
351.
Subs. by Act 22 of 2002, S. 7 (w.e.f. 1-7-2002).
352.
Subs. by Act 22 of 2002, S. 7 (w.e.f. 1-7-2002).
353.
Subs. by Act 104 of 1976, S. 57 (w.e.f. 1-2-1977).
354.
Ins. by Act 104 of 1976, S. 57 (w.e.f. 1-2-1977).
355.
Subs. by Act 22 of 2002, S. 8 (w.e.f. 1-7-2002).
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356.
Subs. by Act 104 of 1976, S. 57 (w.e.f. 1-2-1977).
357.
Ins. by Act 104 of 1976, S. 57 (w.e.f. 1-2-1977).
358.
Ins. by Act 104 of 1976, S. 57 (w.e.f. 1-2-1977).
359.
Ins. by Act 104 of 1976, S. 57 (w.e.f. 1-2-1977).
360.
Ins. by Act 46 of 1999, S. 17 (w.e.f. 1-7-2002).
361.
Subs. by Act 22 of 2002, S. 8 (w.e.f. 1-7-2002).
362.
Ins. by Act 104 of 1976, S. 57 (w.e.f. 1-2-1977).
363.
Subs. by Act 46 of 1999, S. 17 (w.e.f. 1-7-2002).
364.
Subs. by Act 22 of 2002, S. 8 (w.e.f. 1-7-2002).
365.
Omitted by Act 46 of 1999, S. 17 (w.e.f. 1-7-2002). Prior to omission it read as:
“15. Statement in case of documents not in plaintiff's possession or power.—Where any
such document is not in the possession or power of the plaintiff, he shall, if possible,
state in whose possession or power it is.”
366.
Omitted by Act 22 of 2002, S. 8 (w.e.f. 1-7-2002). Prior to omission it read as:
“18. Inadmissibility of document not produced when plaint filed.—(1) A document which
ought to be produced in Court by the plaintiff when the plaint is presented, or to be
entered in the list to be added or annexed to the plaint, and which is not produced or
entered accordingly, shall not, without the leave of the Court, be received in evidence on
his behalf at the hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross-examination of the
defendant's witnesses, or in answer to any case set-up by the defendant or handed to a
witness merely to refresh his memory.”
367.
Subs. by Act 104 of 1976, S. 58 (w.e.f. 1-2-1977).
368.
Subs. by Act 22 of 2002, S. 9 (w.e.f. 1-7-2002).
369.
Ins. by Act 46 of 1999, S. 18 (w.e.f. 1-7-2002).
370.
Subs. by Act 22 of 2002, S. 9 (w.e.f. 1-7-2002).
371.
Renumbered by Act 104 of 1976, S. 58 (w.e.f. 1-2-1977).
372.
Ins. by Act 104 of 1976, S. 58 (w.e.f. 1-2-1977).
373.
Ins. by Act 104 of 1976, S. 58 (w.e.f. 1-2-1977).
374.
Ins. by Act 104 of 1976, S. 58 (w.e.f. 1-2-1977).
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375.
Ins. by Act 104 of 1976, S. 58 (w.e.f. 1-2-1977).
376.
Ins. by Act 104 of 1976, S. 58 (w.e.f. 1-2-1977).
377.
Omitted by Act 46 of 1999, S. 18 (w.e.f. 1-7-2002). Prior to omission it read as:
“8-A. Duty of defendant to produce documents upon which relief is claimed by him.—
(1) Where a defendant bases his defence upon a document in his possession or power, he
shall produce it in Court when the written statement is presented by him and shall, at the
same time, deliver the document or a copy thereof, to be filed with the written
statement.
(2) A document which ought to be produced in Court by the defendant under this rule,
but is not so produced, shall not, with-out the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.
(3) Nothing in this rule shall apply to documents produced,—
(a) for the cross-examination of the plaintiff's witnesses; or
(b) in answer to any case set up by the plaintiff subsequent to the filing of the plaint; or
(c ) handed over to a witness merely to refresh his memory.”
378.
Subs. by Act 22 of 2002, S. 9 (w.e.f. 1-7-2002).
379.
Subs. by Act 22 of 2002, S. 9 (w.e.f. 1-7-2002).
380.
Rules 23 to 36 subs. for Rules 23 to 30 by Noti. No. P.0102/77 pub. in Mah. Govt. Gaz.,
Pt. IV-Ka, dt. 31-12-1987.
381.
Subs. by Act 22 of 2002, S. 10 (w.e.f. 1-7-2002).
382.
Subs. by Act 104 of 1976, S. 59 (w.e.f. 1-2-1977).
383.
Subs. by Act 24 of 1920, S. 2.
384.
Subs. for “one month” by Act 46 of 1999, S. 19 (w.e.f. 1-7-2002).
385.
Subs. by Act 104 of 1976, S. 59 (w.e.f. 1-2-1977).
386.
Ins. by Act 104 of 1976, S. 59 (w.e.f. 1-2-1977).
387.
Ins. by Act 104 of 1976, S. 59 (w.e.f. 1-2-1977).
388.
Ins. by Act 46 of 1999, S. 20 (w.e.f. 1-7-2002).
389.
Subs. by Act 104 of 1976, S. 60 (w.e.f. 1-2-1977).
390.
Subs. by Act 46 of 1999, S. 20 (w.e.f. 1-7-2002).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
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rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Schedule 1 (Order 11 to 20))
CONTENTS
Section 1 to 78
Section 79 to 95
Section 96 to 131
Section 132 to 158
Schedule 1 (Order 1 to 10)
ORDER XI
DISCOVERY AND I NSPECTION
1. Discovery by interrogatories
2. Particular interrogatories to be submitted
3. Costs of interrogatories
4. Form of interrogatories
5. Corporations
6. Objections to interrogatories by answer
7. Setting aside and striking out interrogatories
8. Affidavit in answer, filing
9. Form of affidavit in answer
10. No exception to be taken
11. Order to answer or answer further
12. Application for discovery of documents
13. Affidavit of documents
14. Production of documents
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15. Inspection of documents referred to in pleadings or affidavits
16. Notice to produce
17. Time for inspection when notice given
18. Order for inspection
19. Verified copies
20. Premature discovery
21. Non-compliance with order for discovery
22. Using answers to interrogatories at trial
23. Order to apply to minors
ORDER XII
ADMISSIONS
1. Notice of admission of case
2. Notice to admit documents
2-A. Document to be deemed to be admitted if not denied after
service of notice to admit documents
3. Form of notice
3-A. Power of Court to record admission
4. Notice to admit facts
5. Form of admissions
6. Judgment on admissions
7. Affidavit of signature
8. Notice to produce documents
9. Costs
ORDER XIII
PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
1. Original documents to be produced at or before the settlement of
issues
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2. Effect of non-production of documents
3. Rejection of irrelevant or inadmissible documents
4. Endorsements on documents admitted in evidence
5. Endorsements on copies of admitted entries in books, accounts
and records
6. Endorsements on documents rejected as inadmissible in evidence
7. Recording of admitted and return of rejected documents
8. Court may order any document to be impounded
9. Return of admitted documents
10. Court may send for papers from its own records or from other
Courts
11. Provisions as to documents applied to material objects
ORDER XIV
SETTLEMENT OF I SSUES AND DETERMINATION OF SUIT ON I SSUES OF LAW OR ON
I SSUES AGREED UPON
1. Framing of issues
2. Court to pronounce judgment on all issues
3. Materials from which issues may be framed
4. Court may examine witnesses or documents before framing
issues
5. Power to amend, and strike out, issues
6. Questions of fact or law may by agreement be stated in form of
issues
7. Court, if satisfied that agreement was executed in good faith,
may pronounce judgment
ORDER XV
DISPOSAL OF THE SUIT AT THE FIRST HEARING
1. Parties not at issue
2. One of several defendants not at issue
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3. Parties at issue
4. Failure to produce evidence
ORDER XVI
SUMMONING AND ATTENDANCE OF WITNESSES
1. List of witnesses and summons to witnesses
1-A. Production of witnesses without summons
2. Expenses of witness to be paid into Court on applying for
summons
3. Tender of expenses to witness
4. Procedure where insufficient sum paid in
5. Time, place and purpose of attendance to be specified in
summons
6. Summons to produce document
7. Power to require persons present in Court to give evidence or
produce document
7-A. Summons given to party for service
8. Summon how served
9. Time for serving summons
10. Procedure where witness fails to comply with summons
11. If witness appears attachment may be withdrawn
12. Procedure if witness fails to appear
13. Mode of attachment
14. Court may of its own accord summon as witnesses strangers to
suit
15. Duty of persons summoned to give evidence or produce
document
16. When they may depart
17. Application of Rules 10 to 13
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18. Procedure where witness apprehended cannot give evidence or
produce document
19. No witness to be ordered to attend in person unless resident
within certain limits
20. Consequence of refusal of party to give evidence when called on
by Court
21. Rules as to witnesses to apply to parties summoned
ORDER XVI-A
ATTENDANCE OF WITNESSES CONFINED OR DETAINED IN PRISONS
1. Definitions
2. Power to require attendance of prisoners to give evidence
3. Expenses to be paid into Court
4. Power of State Government to exclude certain persons from the
operation of Rule 2
5. Officer in charge of prison to abstain from carrying out order in
certain cases
6. Prisoner to be brought to Court in custody
7. Power to issue commission for examination of witness in prison
ORDER XVII
ADJOURNMENTS
1. Court may grant time and adjourn hearing
2. Procedure if parties fail to appear on day fixed
3. Court may proceed notwithstanding either party fails to produce
evidence, etc
ORDER XVIII
HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
1. Right to begin
2. Statement and production of evidence
3. Evidence where several issues
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3-A. Party to appear before other witnesses
4. Recording of evidence
5. How evidence shall be taken in appealable cases
6. When deposition to be interpreted
7. Evidence under Section 138
8. Memorandum when evidence not taken down by Judge
9. When evidence may be taken in English
10. Any particular question and answer may be taken down
11. Questions objected to and allowed by Court
12. Remarks on demeanour of witnesses
13. Memorandum of evidence in unappealable cases
14. Judge unable to make such memorandum to record reasons of
his inability
15. Power to deal with evidence taken before another Judge
16. Power to examine witness immediately
17. Court may recall and examine witness
17-A. Production of evidence not previously known or which could
not be produced despite due diligence
18. Power of Court to inspect
19. Power to get statements recorded on commission
ORDER XIX
AFFIDAVITS
1. Power to order any point to be proved by affidavit
2. Power to order attendance of deponent for cross-examination
3. Matters to which affidavits shall be confined
ORDER XX
JUDGMENT AND DECREE
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1. Judgment when pronounced
2. Power to pronounce judgment written by judge's predecessor
3. Judgment to be signed
4. Judgments of Small Cause Courts
5. Court to state its decision on each issue
5-A. Court to inform parties as to where an appeal lies in cases
where parties are not represented by pleaders
6. Contents of decree
6-A. Preparation of decree
6-B. Copies of judgments when to be made available
7. Date of decree
8. Procedure where Judge has vacated office before signing decree
9. Decree for recovery of immovable property
10. Decree for delivery of movable property
11. Decree may direct payment by instalments
12. Decree for possession and mesne profits
12-A. Decree for specific performance of contract for the sale or
lease of immovable property
13. Decree in administration suit
14. Decree in pre-emption suit
15. Decree in suit for dissolution of partnership
16. Decree in suit for account between principal and agent
17. Special directions as to accounts
18. Decree in suit for partition of property or separate possession of
a share therein
19. Decree when set-off or counter-claim is allowed
20. Certified copies of judgment and decree to be furnished
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ORDER XX-A
COSTS
1. Provisions relating to certain items
2. Costs to be awarded in accordance with the rules made by High
Court
Schedule 1 (Order 21 to 30)
Schedule 1 (Order 31 to 40)
Schedule 1 (Order 41 to 51)
Schedule 2 to 5
———
ORDER XI
Discovery and Inspection
1. Discovery by interrogatories.—In any suit the plaintiff or defendant
by leave of the Court may deliver interrogatories in writing for the
examination of the opposite parties or any one or more of such parties
and such interrogatories when delivered shall have a note at the foot
thereof stating which of such interrogatories each of such persons is
required to answer: Provided that no party shall deliver more than one set
of interrogatories to the same party without an order for that purpose:
Provided also that interrogatories which do not relate to any matters in
question in the suit shall be deemed irrelevant, notwithstanding that they
might be admissible on the oral cross-examination of a witness.
► Production of additional document(s).—A declaration on oath is required
for additional documents if reasonable cause for non-disclosure with plaint
established. Rigour of establishing reasonable cause for non-disclosure along with
plaint may not arise where discovery of additional document was subsequent to filling
of plaint, Sudhir Kumar v. Vinay Kumar G.B., (2021) 13 SCC 71.
2. Particular interrogatories to be submitted.—On an application for
leave to deliver interrogatories, the particular interrogatories proposed to
391
be delivered shall be submitted to the Court [and that Court shall
decide within seven days from the day of filing of the said application]. In
deciding upon such application, the Court shall take into account any
offer, which may be made by the party sought to be interrogated to
deliver particulars, or to make admissions, or to produce documents
relating to the matters in question, or any of them, and leave shall be
given as to such only of the interrogatories submitted as the Court shall
consider necessary either for disposing fairly of the suit or for saving
costs.
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3. Costs of interrogatories.—In adjusting the costs of the suit inquiry
shall at the instance of any party be made into the propriety of exhibiting
such interrogatories, and if it is the opinion of the taxing officer or of the
Court, either with or without an application for inquiry, that such
interrogatories have been exhibited unreasonably, vexatiously, or at
improper length, the costs occasioned by the said interrogatories and the
answers thereto shall be paid in any event by the party in fault.
4. Form of interrogatories.—Interrogatories shall be in Form No. 2 in
Appendix C, with such variations as circumstances may require.
5. Corporations.—Where any party to a suit is a corporation or a body
of persons, whether incorporated or not, empowered by law to sue or be
sued, whether in its own name or in the name of any officer or other
person, any opposite party may apply for an order allowing him to deliver
interrogatories to any member or officer of such corporation or body, and
an order may be made accordingly.
6. Objections to interrogatories by answer.—Any objection to
answering any interrogatory on the ground that it is scandalous or
irrelevant or not exhibited bona fide for the purpose of the suit, or that
392
the matters inquired into are not sufficiently material at that stage, [or
on the ground of privilege or any other ground], may be taken in the
affidavit in answer.
7. Setting aside and striking out interrogatories.—Any interrogatories
may be set aside on the ground that they have been exhibited
unreasonably or vexatiously, or struck out on the ground that they are
prolix, oppressive, unnecessary or scandalous; and any application for
this purpose may be made within seven days after service of the
interrogatories.
8. Affidavit in answer, filing.—Interrogatories shall be answered by
affidavit to be filed within ten days, or within such other time as the
Court may allow.
9. Form of affidavit in answer.—An affidavit in answer to
interrogatories shall be in Form No. 3 in Appendix C, with such variations
as circumstances may require.
10. No exception to be taken.—No exceptions shall be taken to any
affidavit in answer, but the sufficiency or otherwise of any such affidavit
objected to as insufficient shall be determined by the Court.
11. Order to answer or answer further.—Where any person interrogated
omits to answer, or answers insufficiently, the party interrogating may
apply to the Court for an order requiring him to answer, or to answer
further, as the case may be. And an order may be made requiring him to
answer or answer further, either by affidavit or by viva voce examination,
as the Court may direct.
12. Application for discovery of documents.—Any party may, without
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filing any affidavit, apply to the Court for an order directing any other
party to any suit to make discovery on oath of the documents which are
or have been in his possession or power, relating to any matter in
question therein. On the hearing of such application the Court may either
refuse or adjourn the same, if satisfied that such discovery is not
necessary, or not necessary at that stage of the suit, or make such order,
either generally or limited to certain classes of documents, as may, in its
discretion, be thought fit:
Provided that discovery shall not be ordered when and so far as the
Court shall be of opinion that it is not necessary either for disposing fairly
of the suit or for saving costs.
13. Affidavit of documents.—The affidavit to be made by a party
against whom such order as is mentioned in the last preceding rule has
been made, shall specify which (if any) of the documents therein
mentioned he objects to produce, and it shall be in Form No. 5 in
Appendix C, with such variations as circumstances may require.
14. Production of documents.—It shall be lawful for the Court, at any
time during the pendency of any suit, to order the production by any
party thereto, upon oath, of such of the documents in his possession or
power, relating to any matter in question in such suit, as the Court shall
think right; and the Court may deal with such documents, when
produced, in such manner as shall appear just.
15. Inspection of documents referred to in pleadings or affidavits.—
Every party to a suit shall be entitled 393[at or before the settlement of
issues] to give notice to any other party, in whose pleadings or affidavits
394
reference is made to any document [or who has entered any document
in any list annexed to his pleading,] to produce such document for the
inspection of the party giving such notice, or of his pleader, and to permit
him or them to take copies thereof; and any party not complying with
such notice shall not afterwards be at liberty to put any such document in
evidence on his behalf in such suit unless he shall satisfy the Court that
such document relates only to his own title, he being a defendant to the
suit, or that he had some other cause or excuse which the Court shall
deem sufficient for not complying with such notice, in which case the
Court may allow the same to be put in evidence on such terms as to costs
and otherwise as the Court shall think fit.
16. Notice to produce.—Notice to any party to produce any documents
referred to in his pleading or affidavits shall be in Form No. 7 in Appendix
C, with such variations as circumstances may require.
17. Time for inspection when notice given.—The party to whom such
notice is given shall, within ten days from the receipt of such notice,
deliver to the party giving the same a notice stating a time within three
days from the delivery thereof at which the documents, or such of them
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as he does not object to produce, may be inspected at the office of his
pleader, or in the case of bankers' books or other books of account or
books in constant use for the purposes of any trade or business, at their
usual place of custody, and stating which (if any) of the documents he
objects to produce, and on what ground. Such notice shall be in Form No.
8 in Appendix C, with such variations as circumstances may require.
18. Order for inspection.—(1) Where the party served with notice
under Rule 15 omits to give such notice of a time for inspection or objects
to give inspection, or offers inspection elsewhere than at the office of his
pleader, the Court may, on the application of the party desiring it, make
an order for inspection in such place and in such manner as it may think
fit:
Provided that the order shall not be made when and so far as the Court
shall be of opinion, that it is not necessary either for disposing fairly of
the suit or for saving costs.
(2) Any application to inspect documents, except such as are referred
to in the pleadings, particulars or affidavits of the party against whom the
application is made or disclosed in his affidavit of documents, shall be
founded upon an affidavit showing of what documents inspection is
sought, that the party applying is entitled to inspect them, and that they
are in the possession or power of the other party. The Court shall not
make such order for inspection of such documents when and so far as the
Court shall be of opinion that it is not necessary either for disposing fairly
of the suit or for saving costs.
19. Verified copies.—(1) Where inspection of any business books is
applied for, the Court may, if it thinks fit, instead of ordering inspection of
the original books, order a copy of any entries therein to be furnished and
verified by the affidavit of some person who has examined the copy with
the original entries, and such affidavit shall state whether or not there are
in the original book any and what erasures, interlineations or alterations:
Provided that, notwithstanding that such copy has been supplied, the
Court may order inspection of the book from which the copy was made.
(2) Where on an application for an order for inspection privilege is
claimed for any document, it shall be lawful for the Court to inspect the
document for the purpose of deciding as to the validity of the claim of
395
privilege [unless the document relates to matters of State.]
(3) The Court may, on the application of any party to a suit at any
time, and whether an affidavit of documents shall or shall not have
already been ordered or made, make an order requiring any other party to
state by affidavit whether any one or more specific documents, to be
specified in the application, is or are, or has or have at any time been, in
his possession or power; and, if not then in his possession, when he
parted with the same and what has become thereof. Such application
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shall be made on an affidavit stating that in the belief of the deponent
the party against whom the application is made has, or has at some time
had, in his possession or power the document or documents specified in
the application, and that they relate to the matters in question in the
suit, or to some of them.
20. Premature discovery.—Where the party from whom discovery of
any kind or inspection is sought objects to the same, or any part thereof,
the Court may, if satisfied that the right to the discovery or inspection
sought depends on the determination of any issue or question in dispute
in the suit, or that for any other reason it is desirable that any issue or
question in dispute in the suit should be determined before deciding upon
the right to the discovery or inspection, order that such issue or question
be determined first, and reserve the question as to the discovery or
inspection.
396
21. Non-compliance with order for discovery.— [(1)] Where any
party fails to comply with any order to answer interrogatories, or for
discovery or inspection of documents, he shall, if a plaintiff, be liable to
have his suit dismissed or want of prosecution, and, if a defendant, to
have his defence, if any, struck out, and to be placed in the same position
as if he had not defended, and the party interrogating or seeking
discovery or inspection may apply to the Court for an order to that effect,
and 397[an order may be made on such application accordingly, after
notice to the parties and after giving them a reasonable opportunity of
being heard.]
398
[(2) Where an order is made under sub-rule (1) dismissing any suit,
the plaintiff shall be precluded from bringing a fresh suit on the same
cause of action.]
22. Using answers to interrogatories at trial.—Any party may, at the
trial of a suit, use in evidence any one or more of the answers or any part
of an answer of the opposite party to interrogatories without putting in
the others or the whole of such answer:
Provided always that in such case the Court may look at the whole of
the answers, and if it shall be of opinion that any others of them are so
connected with those put in that the last-mentioned answers ought not to
be used without them, it may direct them to be put in.
23. Order to apply to minors.—This Order shall apply to minor plaintiffs
and defendants, and to the next friends and guardians for the suit of
persons under disability.
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, for Order XI of the Code,
substitute the following Order, namely.—
“ORDER XI
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DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS
1. Disclosure and discovery of documents.—(1) Plaintiff shall file a
list of all documents and photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit, along with the
plaint, including:—
(a) documents referred and relied on by the plaintiff in the plaint;
(b) documents relating to any matter in question in the proceedings,
in the power, possession, control or custody of the plaintiff, as on
the date of filing the plaint, irrespective of whether the same is in
support of or adverse to the plaintiffs case; and
(c) nothing in this rule shall apply to documents produced by plaintiffs
and relevant only—
(i) for the cross-examination of the defendant's witnesses, or
(ii) in answer to any case setup by the defendant subsequent to the
filing of the plaint, or
(iii) handed over to a witness merely to refresh his memory.
(2) The list of documents filed with the plaint shall specify whether
the documents in the power, possession, control or custody of the
plaintiff are originals, office copies or photocopies and the list shall also
set out in brief, details of parties to each document, mode or
execution, issuance or receipt and line of custody of each document.
(3) The plaint shall contain a declaration on oath from the plaintiff
that all documents in the power, possession, control, or custody of the
plaintiff, pertaining to the facts and circumstances of the proceedings
initiated by him have been disclosed and copies thereof annexed with
the plaint, and that the plaintiff does not have any other documents in
its power, possession, control or custody.
Explanation.— A declaration on oath under this sub-rule shall be
contained in the Statement of Truth as set out in the Appendix I.
(4) In case of urgent filings, the plaintiff may seek leave to rely on
additional documents, as part of the above declaration on oath and
subject to grant of such leave by court, the plaintiff shall file such
additional documents in court, within thirty days of filing the suit,
along with a declaration on oath that the plaintiff has produced all
documents in its power, possession, control or custody, pertaining to
the facts and circumstances of the proceedings initiated by the plaintiff
and that the plaintiff does not have any other documents, in its power,
possession, control or custody.
(5) The plaintiff shall not be allowed to rely on documents, which
were in the plaintiff's power, possession, control or custody and not
disclosed along with plaint or within the extended period set out
above, save and except by leave of court and such leave shall be
granted only upon the plaintiff establishing reasonable cause for non-
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disclosure along with the plaint.
(6) The plaint shall set out details of documents, which the plaintiff
believes to be in the power, possession, control or custody or the
defendant and which the plaintiff wishes to rely upon and seek leave
for production thereof by the said defendant.
(7) The defendant shall file a list of all documents and photocopies
of all documents, in its power, possession, control or custody,
pertaining to the suit, along with the written statement or with its
counter-claim if any, including—
(a) the documents referred to and relied on by the defendant in the
written statement;
(b) the documents relating to any matter in question in the proceeding
in the power, possession, control or custody of the defendant,
irrespective of whether the same is in support of or adverse to the
defendant's defense;
(c) nothing in this rule shall apply to documents produced by the
defendants and relevant only—
(i) for the cross-examination of the plaintiff's witnesses;
(ii) in answer to any case setup by the plaintiff subsequent to the
filing of the plaint; or
(iii) handed over to a witness merely to refresh his memory.
(8) The list of documents filed with the written statement or counter
-claim shall specify whether the documents, in the power, possession,
control or custody of the defendant, are originals, office copies or
photocopies and the list shall also set out in brief, details of parties to
each document being produced by the defendant, mode of execution,
issuance or receipt and line of custody of each document.
(9) the written statement or counter-claim shall contain a
declaration on oath made by the deponent that all documents in the
power, possession, control or custody of the defendant, save and
except for those set out in sub-rule (7)(c)(iii), pertaining to the facts
and circumstances of the proceedings initiated by the plaintiff or in the
counter-claim, have been disclosed and copies thereof annexed with
the written statement or counter-claim and that the defendant does
not have in its power, possession, control or custody, any other
documents.
(10) Save and except for sub-rule (7)(c)(iii), defendant shall not be
allowed to rely on documents, which were in the defendant's power,
possession, control or custody and not disclosed along with the written
statement or counter-claim, save and except by leave of court and
such leave shall be granted only upon the defendant establishing
reasonable cause for non-disclosure along with the written statement
or counter-claim.
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(11) The written statement or counter-claim shall set out details of
documents in the power, possession, control or custody of the plaintiff,
which the defendant wishes to rely upon and which have not been
disclosed with the plaint, and call upon the plaintiff to produce the
same.
(12) Duty to disclose documents, which have come to the notice of
a party, shall continue till disposal of the suit.
2. Discovery by interrogatories.—(1) In any suit the plaintiff or
defendant by leave of the court may deliver interrogatories in writing
for the examination of the opposite parties or anyone or more of such
parties, and such interrogatories when delivered shall have a note at
the foot thereof stating which of such interrogatories each of such
persons is required to answer:
Provided that no party shall deliver more than one set of
interrogatories to the same party without an order for that purpose:
Provided further that interrogatories which do not relate to any
matters in question in the suit shall be deemed irrelevant,
notwithstanding that they might be admissible on the oral cross-
examination of a witness.
(2) On an application for leave to deliver interrogatories, the
particular interrogatories proposed to be delivered shall be submitted
to the court, and that court shall decide within seven days from the
day of filing of the said application, in deciding upon such application,
the court shall take into account any offer, which may be made by the
party sought to be interrogated to deliver particulars, or to make
admissions, or to produce documents relating to the matters in
question, or any of them, and leave shall be given as to such only of
the interrogatories submitted as the court shall consider necessary
either for disposing fairly of the suit or for saving costs.
(3) In adjusting the costs of the suit inquiry shall at the instance of
any party be made into the propriety of exhibiting such interrogatories,
and if it is the opinion of the taxing officer or of the court, either with
or without an application for inquiry, that such interrogatories have
been exhibited unreasonably, vexatiously, or at improper length, the
costs occasioned by the said interrogatories and the answers thereto
shall be paid in any event by the party in fault.
(4) Interrogatories shall be in the form provided in Form No. 2 in
Appendix C to the Code of Civil Procedure, 1908, with such variations
as circumstances may require.
(5) Where any party to a suit is a corporation or a body of persons,
whether incorporated or not, empowered by law to sue or be sued,
whether in its own name or in the name of any officer of other person,
any opposite party may apply for any order allowing him to deliver
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interrogatories to any member or officer of such corporation or body,
and an order may be made accordingly.
(6) Any objection to answering any interrogatory on the ground that
it is scandalous or irrelevant or not exhibited bona fide for the purpose
of the suit, or that the matters required into are not sufficiently
material at that stage, or on the ground of privilege or any other
ground may be taken in the affidavit in answer.
(7) Any interrogatories may be set aside on the ground that they
have been exhibited unreasonably or vexatiously, or struck out on the
ground that they are prolix, oppressive, unnecessary or scandalous and
any application for this purpose may be made within seven days after
service of the interrogatories.
(8) Interrogatories shall be answered by affidavit to be filed within
ten days, or within such other time as the court may allow.
(9) An affidavit in answer to interrogatories shall be in the form
provided in Form No. 3 in Appendix C to the Code of Civil Procedure,
1908, with such variations as circumstances may require.
(10) No exceptions shall be taken to any affidavit in answer, but the
sufficiency or otherwise of any such affidavit objected to as insufficient
shall be determined by the court.
(11) Where any person interrogated omits to answer, or answers
insufficiently, the party interrogating may apply to the court for an
order requiring him to answer, or to answer further, as the case may
be, and an order may be made requiring him to answer, or to answer
further, either affidavit or by viva voce examination, as the court may
direct.
3. Inspection.—(1) All parties shall complete inspection of all
documents disclosed within thirty days of the date of filing of the
written statement or written statement to the counter-claim,
whichever is later, the court may extend this time limit upon
application at its discretion, but not beyond thirty days in any event.
(2) Any party to the proceedings may seek directions from the
court, at any stage of the proceedings, for inspection or production of
documents by the other party, of which inspection has been refused by
such party or documents have not been produced despite issuance of a
notice to produce.
(3) Order in such application shall be disposed of within thirty days
of filing such application, including filing replies and rejoinders (if
permitted by court) and hearing.
(4) If the above application is allowed, inspection and copies thereof
shall be furnished to the party seeking it, within five days of such
order.
(5) No party shall be permitted to rely on a document, which it had
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failed to disclose or of which inspection has not been given, save and
except with leave of court.
(6) The Court may impose exemplary costs against a defaulting
party, who willfully or negligently failed to disclose all documents
pertaining to a suit or essential for a decision therein and which are in
their power, possession, control or custody or where a court holds that
inspection or copies of any documents had been wrongfully or
unreasonably withheld or refused.
4. Admission and denial of documents.—(1) Each party shall submit
a statement of admissions or denials of all documents disclosed and of
which inspection has been completed, within fifteen days of the
completion of inspection or any later date as fixed by the court.
(2) The statement of admissions and denials shall set out explicitly,
whether such party was admitting or denying:
(a) correctness of contents of a document;
(b) existence of a document;
(c) execution of a document;
(d) issuance or receipt of a document;
(e) custody of a document.
Explanation.—A statement of admission or denial of the existence of
a document made in accordance with clause (b) of sub-rule (2) shall
include the admission or denial of the contents of a document.
(3) Each party shall set out reasons for denying a document under
any of the above grounds and bare and unsupported denials shall not
be deemed to be denials of a document and proof of such documents
may then be dispensed with at the direction of the court.
(4) Any party may however submit bare denials for third party
documents of which the party denying does not have any personal
knowledge of, and to which the party denying is not a party to in any
manner whatsoever.
(5) An affidavit in support of the statement of admissions and
denials shall be filed confirming the correctness of the contents of the
statement.
(6) In the event that the court holds that any party has unduly
refused to admit a document under any of the above criteria, costs
(including exemplary costs) for deciding on admissibility of a
document may be imposed by the court on such party.
(7) The court may pass orders with respect to admitted documents
including for waiver of further proof thereon or rejection of any
documents.
5. Production of documents.—(1) Any party to a proceeding may
seek or the court may order, at any time during the pendency of any
suit, production by any party or person, of such documents in the
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possession or power of such party or person, relating to any matter in
question in such suit.
(2) Notice to produce such document shall be issued in the form
provided in Form No. 7 in Appendix C to the Code of Civil Procedure,
1908 (5 of 1908).
(3) Any party or person to whom such notice to produce is issued
shall be given not less than seven days and not more than fifteen days
to produce such document or to answer to their inability to produce
such document.
(4) The court may draw an adverse inference against a party
refusing to produce such document after issuance of a notice to
produce and where sufficient reasons for such non-production are not
given and order costs.
6. Electronic Records.—(1) In case of disclosures and inspection of
electronic records as defined in the Information Technology Act, 2000
(21 of 2000), furnishing of printouts shall be sufficient compliance of
the above provisions.
(2) At the discretion of the parties or where required (when parties
wish to rely on audio or video content), copies of electronic records
may be furnished in electronic form either in addition to or in lieu of
printouts.
(3) Where electronic records form part of documents disclosed, the
declaration on oath to be filed by a party shall specify—
(a) the parties to such electronic record;
(b) the manner in which such electronic record was produced and by
whom;
(c) the dates and time of preparation or storage or issuance or receipt
of each such electronic record;
(d) the source of such electronic record and date and time when the
electronic record was printed;
(e) in case of e-mail ids, details of ownership, custody and access to
such e-mail ids;
(f) in case of documents stored on a computer or computer resource
(including on external servers or cloud), details of ownership,
custody and access to such data on the computer or computer
resource; deponent's knowledge of contents and correctness of
contents;
(g) whether the computer or computer resource used for preparing or
receiving or storing such document or data was functioning properly
or in case of malfunction that such malfunction did not affect the
contents of the document stored;
(h) that the printout or copy furnished was taken from the original
computer or computer resource.
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(4) The parties relying on printouts or copy in electronic form, of
any electronic records, shall not be required to give inspection of
electronic records, provided a declaration is made by such party that
each such copy, which has been produced, has been made from the
original Electronic Records.
(5) The court may give directions for admissibility of electronic
records at any stage of the proceedings.
(6) Any party may seek directions from the court and the court may
of its motion issue directions for submission of further proof of any
electronic record including metadata or logs before admission of such
electronic record.” [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-
2020)].
Union Territory of Ladakh.—In its application to the Union Territory
of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O. 3774(E),
dated 23-10-2020].
ORDER XII
Admissions
1. Notice of admission of case.—Any party to a suit may give notice, by
his pleading, or otherwise in writing, that he admits the truth of the
whole or any part of the case of any other party.
► Averments, when not admission.—Averments on a material question in
point, not punctiliously drafted, cannot amount to an admission. Arm Group
Enterprises Ltd. v. Waldorf Restaurant, (2003) 6 SCC 423.
2. Notice to admit documents.—Either party may call upon the other
party 399[to admit, within 400[seven] days from the date of service of the
notice any document,] saving all just exceptions; and in case of refusal or
neglect to admit, after such notice, the costs of proving any such
document shall be paid by the party so neglecting of refusing, whatever
the result of the suit may be, unless the Court otherwise directs; and no
costs of proving any document shall be allowed unless such notice is
given, except where the omission to give the notice is, in the opinion of
the Court, a saving of expense.
High Court Amendments
ALLAHABAD.—In Rule 2 of Order XII—
(a) insert words “without sufficient cause” between the words “neglect
to admit” and the words “after such notice”;
(b) substitute the words “such special” for the word “the” occurring
between the words “after such notice” and the words “costs of
proving”;
(c) insert a comma and after that the words “as may be fixed by the
Court not exceeding fifty rupees for each document” between the
words “any such document” and the words “shall be paid by party”;
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and
(d) insert the comma and the words “unless the Court otherwise
directs” and the semi-colon thereafter occurring between the words
“whatever the result of the suit may be” and “and no costs of
proving any document”. (1-6-1957).
PATNA.—Add the following clause at the end of Rule 2:
“The Court may allow a penal costs in case of wrongful or
unreasonable refusal to admit documents irrespective of the result of
the litigation.” (26th July, 1972)
401
[2-A. Document to be deemed to be admitted if not denied after
service of notice to admit documents.—(1) Every document which a party
is called upon to admit, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of that party or
in his reply to the notice to admit documents, shall be deemed to be
admitted except as against a person under a disability:
Provided that the Court may, in its discretion and for reasons to be
recorded, require any document so admitted to be proved, otherwise than
by such admission.
(2) Where a party unreasonably neglects or refuses to admit a
document after the service on him of the notice to admit documents, the
Court may direct him to pay costs to the other party by way of
compensation.]
► Admissibility of documents.—A party objecting to the admissibility of a
document must raise its objection at the appropriate time. If the objection is not
raised and the document is allowed to be marked, one cannot be permitted to turn
round and raise a contention that the contents of the document had not been proved
and, thus, should not be relied upon, Oriental Insurance Co. Ltd. v. Premlata
Shukla, (2007) 13 SCC 476 : (2009) 1 SCC (Cri) 204.
3. Form of notice.—A notice to admit documents shall be in Form No. 9
in Appendix C, with such variations as circumstances may require.
402
[3-A. Power of Court to record admission.—Notwithstanding that no
notice to admit documents has been given under Rule 2, the Court may,
at any stage of the proceeding before it, of its own motion, call upon any
party to admit any document and shall, in such a case, record whether
the party admits or refuses or neglects to admit such document.]
4. Notice to admit facts.—Any party, may, by notice in writing, at any
time not later than nine days before the day fixed for the hearing, call on
any other party to admit, for the purposes of the suit only, any specific
fact or facts, mentioned in such notice. And in case of refusal or neglect
to admit the same within six days after service of such notice, or within
such further time as may be allowed by the Court, the costs of proving
such fact or facts shall be paid by the party so neglecting or refusing,
whatever the result of the suit may be, unless the Court otherwise
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directs:
Provided that any admission made in pursuance of such notice is to be
deemed to be made only for the purposes of the particular suit, and not
as an admission to be used against the party on any other occasion or in
favour of any person other than the party giving the notice.
403
[* * *]
5. Form of admissions.—A notice to admit facts shall be in Form No. 10
in Appendix C, and admissions of facts shall be in Form No. 11 in
Appendix C, with such variations as circumstances may require.
404
[6. Judgment on admissions.—(1) Where admissions of fact have
been made either in the pleading or otherwise, whether orally or in
writing, the Court may at any stage of the suit, either on the application
of any party or of its own motion and without waiting for the
determination of any other question between the parties, make such
order or give such judgment as it may think fit, having regard to such
admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree
shall be drawn up in accordance with the judgment and the decree shall
bear the date on which the judgment was pronounced.]
High Court Amendment
ORISSA.—Rule 6 as substituted earlier deleted vide Orissa Gaz. Pt. III-
A, p. 69 dt. 25-5-1984.
► Admission, Nature and scope.—Admission includes one that can be
inferred from facts and circumstances of case without any dispute, Charanjit Lal
Mehra v. Kamal Saroj Mahajan, (2005) 11 SCC 279, See also Jeevan Diesels &
Electricals Ltd. v. Jasbir Singh Chadha, (2010) 6 SCC 601 : (2010) 2 SCC (Civ)
745.
Admission to form basis of judgment must be clear and unequivocal and sufficient
for grant of relief prayed for. Admission(s) that are relied on to grant judgment based
thereon, must be germane to issues necessary to be decided in suit involved, Payal
Vision Ltd. v. Radhka Choudhary, (2012) 11 SCC 405 : (2013) 1 SCC (Civ) 340.
► Object.—Object of Order 12, Rule 6 is to give plaintiff a right to speedy
judgment. A party on admission of the other party, can press for judgment, as a
matter of legal right, however, court always retains its discretion in matter of
pronouncing judgment, Karan Kapahi v. Lal Chand Public Charitable Trust, (2010) 4
SCC 753 : (2010) 2 SCC (Civ) 262.
► Categorical and unconditional admissions.—Categorical and unconditional
admissions are necessary for granting relief under Order 12 Rule 6, Hari Steel &
General Industries Ltd. v. Daljit Singh, (2019) 20 SCC 425.
► Power of court.—Power of court under this rule is discretionary and cannot
be sought to be exercised as a right, Satish Chander Ahuja v. Sneha Ahuja, (2021)
1 SCC 414.
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7. Affidavit of signature.—An affidavit of the pleader or his clerk, of the
due signature of any admissions made in pursuance of any notice to
admit documents or facts, shall be sufficient evidence of such admissions,
if evidence thereof is required.
8. Notice to produce documents.—Notice to produce documents shall
be in Form No. 12 in Appendix C, with such variations as circumstances
may require. An affidavit of the pleader, or his clerk, of the service of any
notice to produce, and of the time when it was served, with a copy of the
notice to produce, shall in all cases be sufficient evidence of the service of
the notice, and of the time when it was served.
9. Costs.—If a notice to admit or produce specifies documents which
are not necessary, the costs occasioned thereby shall be borne by the
party giving such notice.
► Object.—Object of Order 12 Rule 8 CPC is to facilitate production of
documents not in possession of party asking for such production. On such
production of documents, it is duty of party who has asked for such production to
get documents exhibited and place on record in order to obtain true and correct
finding, Rohini Traders v. J.K. Lakshmi Cement Ltd., (2015) 12 SCC 46.
ORDER XIII
Production, Impounding and Return of Documents
405
[1. Original documents to be produced at or before the settlement
of issues.—(1) The parties or their pleader shall produce on or before the
settlement of issues, all the documentary evidence in original where the
copies thereof have been filed along with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof
prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of the other
party; or
(b) handed over to a witness merely to refresh his memory.]
High Court Amendments
ORISSA.—Rule 1 as substituted earlier deleted (25-5-1984).
PATNA.—After the words “at the first hearing of the suit” add the words.
“Or, where issues are framed, on the day when issues are framed, or
within such further time as the court may permit.”
PUNJAB, HARYANA AND CHANDIGARH.—(1) The following shall be
substituted for sub-rule (1) to Rule 1 of Order XIII:
“The parties or their pleaders shall produce at the first hearing of
the suit all the documentary evidence of every description in their
possession or power, either in original or photostat copy thereof, on
which they intend to rely and which has not already been filed in
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Court, and all documents which the Court has ordered to be
produced.” (Vide Noti. No. GSR 39/C.A. 5/1908/S. 12257, w.e.f. 11-4-
1975) [The above amendment omitted by Noti. No. 189 Rules/XI.Y.16,
dt. 20-11-2023, w.e.f. 23-11-2023]
(2) In its application to the States of Punjab, Haryana and U.T.
Chandigarh, the following sub-rule (4) of Order XIII Rule 1 shall be
added:
1. Original documents to be produced at or before the settlement of
issues
“(4) The documents as mentioned in sub-rule (1) and all other
documents which the Court orders to be produced, shall be produced
in the following Form No. 5 of Appendix H (Miscellaneous) of the
Appendices to the First Schedule of CPC by substituting the existing
Form No. 5 :—
No. 5
List of documents produced by Plaintiff/Defendant under
Order XIII, Rule 1, Civil Procedure Code
[Order XIII, sub-rule (4) of Rule 1]
IN THE COURT OF ____________ AT ____________ DISTRICT
SUIT NO. ____________ OF 20 ______
____________ Plaintiff
Versus
____________ Defendant
List of documents produced with the plaint (or at first hearing) on
behalf of Plaintiff or defendant
This List was filed by____________ this day of 20 ________
1 2 3 4 5
Serial Description What What became of Remarks
No. and date, if the the document
any, of the document
document is
intended
to prove
If If
brought rejected
on the date of
record, return to
Exhibit the party
mark put and
on the signature
document of party,
or
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pleader
to whom
the
document
was
returned.
Signature of party or pleader
Poducing the list.”
[Vide Noti. No. 189 Rules/XI.Y.16, dt. 20-11-2023, w.e.f. 23-11-2023]
406
2. Effect of non-production of documents.— [* * *]
► Interference with erroneous order.—Even an erroneous order dismissing
an application under Order 13, Rule 2 cannot be interfered with in revision unless it
is shown that trial court had acted with material irregularity in exercise of its
jurisdiction and that the order would result in failure of justice, Madanlal v. Shyamlal,
(2002) 1 SCC 535.
► “Good cause”.—“Good cause” requires a lower degree of proof as
compared to “sufficient cause”. Application under Order 13, Rule 2 could be dealt
with liberally, Madanlal v. Shyamlal, (2002) 1 SCC 535.
3. Rejection of irrelevant or inadmissible documents.—The Court may
at any stage of the suit reject any document which it considers irrelevant
or otherwise inadmissible, recording the grounds of such rejection.
4. Endorsements on documents admitted in evidence.—(1) Subject to
the provisions of the next following sub-rule, there shall be endorsed on
every document which has been admitted in evidence in the suit the
following particulars, namely:—
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted;
and the endorsement shall be signed or initialled by the Judge.
(2) Where a document so admitted is an entry in a book, account or
record, and a copy thereof has been substituted for the original under the
next following rule, the particulars aforesaid shall be endorsed on the
copy and the endorsement thereon shall be signed or initialled by the
Judge.
High Court Amendments
BOMBAY : DADRA AND NAGAR HAVELI, GOA, DAMAN AND DIU.—Add the
following to sub-rule (1):
“Provided that in proceedings in the Bombay City Civil Court, the
endorsement may be signed or initialled by such officer as the Principal
Judge may authorise in this behalf.” (1-10-1983).
HIMACHAL PRADESH.—Add the following proviso to Rule 4(1) of Order 13:
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“Provided that where the Court is satisfied that the document has
not been endorsed in the manner laid down in the rules aforesaid and
the same was admitted in evidence, such documents shall be treated
as having been properly admitted in evidence unless non-compliance
of this rule has resulted in miscarriage of Justice.”— H.P. Gazette, 27-
12-2000, Extra., p. 4789.
PATNA.—Add the following after the words “Judge” appearing at the
end of sub-rule (1) as well as sub-rule (2) of Rule 4 of Order XIII of the
First Schedule to the Code of Civil Procedure, 1908:
“or, in the case of the High Court, by an officer in Court under the
order of the Judge or one of the Judges.” (5th February, 1971).
PUNJAB AND HARYANA.—Add the following proviso to Rule 4, Order XIII:
“Provided that where the Court is satisfied that the document, not
endorsed in the manner laid down in the above rule, was in fact,
admitted in evidence, it shall treat the document as having been
properly admitted in evidence unless non-compliance with this rule has
resulted in miscarriage of justice.” 11-6-1974.
► Admission of document in evidence.—Admissibility of a document is to be
decided at the stage of admission itself, instead of leaving it be decided
subsequently, Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills, (2010) 8
SCC 423 : (2010) 3 SCC (Civ) 392.
5. Endorsements on copies of admitted entries in books, accounts and
records.—(1) Save in so far as is otherwise provided by the Bankers'
Books Evidence Act, 1891 (18 of 1891), where a document admitted in
evidence in the suit is an entry in a letter-book or a shop-book or other
account in current use, the party on whose behalf the book or account is
produced may furnish a copy of the entry.
(2) Where such a document is an entry in a public record produced
from a public office or by a public officer, or an entry in a book or account
belonging to a person other than a party on whose behalf the book or
account is produced, the Court may require a copy of the entry to be
furnished—
(a) where the record, book or account is produced on behalf of a party,
then by that party, or
(b) where the record, book or account is produced in obedience to an
order of the Court acting of its own motion, then by either or any
party.
(3) Where a copy of an entry is furnished under the foregoing
provisions of this rule, the Court shall, after causing the copy to be
examined, compared and certified in manner mentioned in Rule 17 of
Order VII, mark the entry and cause the book, account or record in which
it occurs to be returned to the person producing it.
High Court Amendments
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BOMBAY (DADRA AND NAGAR HAVELI), GOA, DAMAN AND DIU.—Add the
following proviso—
“Provided that where the entry referred to in this rule is in a
language other than English or the language of the Court, the
provisions contained in the proviso to Rule 17(2) of Order VII shall
apply mutatis mutandis to such an entry.” (1-10-1983).
GUJARAT.—Same as that of Bombay without the words “English or”. (17
-8-1961).
6. Endorsements on documents rejected as inadmissible in evidence.—
Where a document relied on as evidence by either party is considered by
the Court to be inadmissible in evidence, there shall be endorsed thereon
the particulars mentioned in clauses (a), (b) and (c) of Rule 4, sub-rule
(1), together with a statement of its having been rejected, and the
endorsement shall be signed or initialled by the Judge.
High Court Amendment
BOMBAY (DADRA AND NAGAR HAVELI), GOA, DAMAN AND DIU.—Add the
following proviso at the end of the rule:
“Provided that in proceedings filed in the Bombay City Civil Court
the endorsement may be signed by such officer as the principal Judge
may authorise in this behalf.” (1-10-1983).
7. Recording of admitted and return of rejected documents.—(1) Every
document which has been admitted in evidence, or a copy thereof where
a copy has been substituted for the original under Rule 5, shall form part
of the record of the suit.
(2) Documents not admitted in evidence shall not form part of the
record and shall be returned to the persons respectively producing them.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY: DADRA AND NAGAR HAVELI, GOA, DAMAN AND DIU.—At the end of
the rule add the following proviso:—
(1) “Provided that in proceedings filed in Bombay City Civil Court the
endorsement may be signed by such officer as the principal Judge
may authorise in this behalf.” (1-10-1983).
(2) Add the following sub-rule (3) with marginal note:—
“(3) Documents in language other than English or Court Language, or in
script other than Devanagari.—Every document produced in evidence
which is not written in the Court language or in English, shall be
accompanied by a correct translation into English or the Court language,
and every document which is written in the Court language or in a script
other than Devanagari shall be accompanied by a correct translation into
Devanagari script. If the document is admitted in evidence, the opposite
party shall either admit the correctness of the translation or
transliteration or submit his own translation or transliteration of the
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document.”— Maharashtra Government Gazette, dt. 15-9-1983, Pt 4 Ka,
p. 405; Goa Gazette, dt 12-10-1987, Extra., S. 1, No. 28, p. 380, dt. 1-4-
1987.
KERALA.—Same as that of Madras. (9-6-1959)
MADHYA PRADESH.—Add the following as clause (3):
“Every document produced in evidence which is not written in the
Court language or in English, shall be accompanied by a correct
translation into English and every document which is written in Court
language but in a script other than foreign shall be accompanied by a
correct transliteration into Devnagri script. If the document is admitted
in evidence the opposite party shall either admit the correctness of the
translation or transliteration or submit his own translation or
transliteration of the document.” (16-9-1960).
MADRAS AND PONDICHERRY.—Add the following proviso to sub-rule (2):
“Provided that no document shall be returned which by force of the
decree has become wholly void or useless”. (Act 26 of 1968, S. 3).
8. Court may order any document to be impounded.—Notwithstanding
anything contained in Rule 5 or Rule 7 of this Order or in Rule 17 of Order
VII, the Court may, if it sees sufficient cause, direct any document or
book produced before it in any suit to be impounded and kept in the
custody of an officer of the Court, for such period and subject to such
conditions as the Court thinks fit.
9. Return of admitted documents.—(1) Any person, whether a party to
the suit or not, desirous of receiving back any document produced by him
in the suit and placed on the record shall, unless the document is
impounded under Rule 8, be entitled to receive back the same,—
(a) where the suit is one in which an appeal is not allowed, when the
suit has been disposed of, and
(b) where the suit is one in which an appeal is allowed, when the Court
is satisfied that the time for preferring an appeal has elapsed and
that no appeal has been preferred or, if an appeal has been
preferred, when the appeal has been disposed of:
407
[Provided that a document may be returned at any time earlier than
that prescribed by this rule if the person applying therefor—
(a) delivers to the proper officer for being substituted for the original,
—
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy which has been
examined, compared and certified in the manner mentioned in sub-
rule (2) of Rule 17 of Order VII, and
(b) undertakes to produce the original, if required to do so:]
Provided also, that no document shall be returned which, by force of
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the decree, has become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt shall
be given by the person receiving it.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY : DADRA AND NAGAR HAVELI : GOA, DAMAN AND DIU.—In Order
XIII, for the existing Rule 9 and its marginal note, substitute the
following as Rule 9 and marginal note:
“9. Return of admitted documents.—(1) Any person, whether a
party to the suit or not, desirous of receiving back any document,
produced by him in the suit and placed on the record shall, unless the
document is impounded under Rule 8, be entitled to receive back the
same,—
(a) where the suit is one in which an appeal is not allowed, when the
suit has been disposed of; and
(b) where the suit is one in which an appeal is allowed, when the Court
is satisfied that the time for preferring an appeal has elapsed and
that no appeal has been preferred or, if an appeal has been
preferred when the appeal has been disposed of:
Provided that a document may be returned at any time earlier than
that prescribed by this rule if the person applying therefor—
(a) delivers to the proper officer for being substituted for the original:
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy, which has
been examined, compared and certified in the manner mentioned
in sub-rule (2) or Rule 17 of Order VII, and
(b) undertakes to produce the original, if required to do so:
Provided also that a copy of the decree and of the judgment filed
with the memorandum of appeal under Order XLI, Rule 1, may be
returned after the appeal has been disposed of by the Court:
Provided also that no document shall be returned which, by force of
the decree, has become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt
shall be given by the person receiving it.” (1-10-1983). (1-4-1987)
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
GUJARAT.—(i) Add between first and second proviso to sub-rule (1), the
following proviso:
Same as 2nd proviso of Bombay.
(ii) Renumber the existing sub-rule (2) as sub-rule (3), and insert the
following as sub-rule (2):
“(2) Where the document has been produced by a person who is not
a party to the suit, the Court may order and at the request of the
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person applying for the return of the document shall order the party at
whose instance the document was produced to pay the cost of
preparing certified copy.”
KARNATAKA.—Add the following sub-rules to Rule 9:
“(3) Every application for return of a document under the first
proviso to sub-rule (1) shall be verified in the manner prescribed for
verification of plaints and shall set forth facts justifying the immediate
return of the original.”
(4) Same as that of Madras (4).
(5) Same as that of Madras (5).
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of
Madras. (9-6-1959).
MADHYA PRADESH.—Insert the following as sub-rule (2) and renumber
the present sub-rule (2) as sub-rule (3):
Same as that of Gujarat (ii).
MADRAS AND PONDICHERRY.—Add the following as sub-rules (3), (4) and
(5):
“(3) Every application for return of a document under the first
proviso to sub-rule (1) shall be made by a verified petition and shall
set forth facts justifying the immediate return of the original.
(4) The Court may make such order as it thinks fit for the costs of
any or all the parties to any application under sub-rule (1). The Court
may further direct that any costs incurred in complying with or paid on
application under sub-rule (1) or incurred in complying with the
provisions of Rule 5 of this Order, shall be included as costs in the
cause.
(5) Subject to the provisions of Rule 8 above, where a document is
produced by a person who is not a party to the suit and such person
applies for the return of the document as hereinbefore provided and
undertakes to produce it whenever required to do so, the Court shall,
except for reasons to be recorded in writing, require the party on
whose behalf the document was produced, to substitute with the least
possible delay a certified copy for the original, and shall thereupon
cause the original document to be returned to the applicant and may
further make such order as to costs and charges in this behalf as it
thinks fit. If the copy is not so provided within the time fixed by the
Court, the original document shall be returned to the applicant without
further delay.”
ORISSA.—Sub-rule (1-A) as added earlier, deleted (25-5-1984).
PATNA.—Add the following as sub-rule (1-A):
“(1-A) Where a document is produced by a person who is not a
party in the proceeding the Court may require the party on whose
behalf the document is produced, to substitute a certified copy for the
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original as hereinbefore provided.”
PUNJAB, HARYANA AND CHANDIGARH.—To sub-rule (1) the following further
proviso was added:
“Provided further that the cost of such certified copy shall be
recoverable as a fine from the party at whose instance the original
document has been produced.” (24-11-1927); Act 31 of 1966,
Sections 29 and 32” (1-11-1966).
► Expert report to prove document.—A civil suit where a document is to be
proved report of an expert may be brought on record in terms of the provisions of the
Evidence Act. Having regard to the provisions contained in Order 13, Rule 9(1) first
proviso (a)(i) of the Code, the Civil Court would furthermore be entitled to substitute
the original document by a certified copy, Lakshmi v. Chinnammal, (2009) 13 SCC
25 : (2009) 5 SCC (Civ) 1.
10. Court may send for papers from its own records or from other
Courts.—(1) The Court may of its own motion, and may in its discretion
upon the application of any of the parties to a suit, send for, either from
its own records or from any other Court, the record of any other suit or
proceeding, and inspect the same.
(2) Every application made under this rule shall (unless the Court
otherwise directs) be supported by an affidavit showing how the record is
material to the suit in which the application is made, and that the
applicant cannot without unreasonable delay or expense obtain a duly
authenticated copy of the record or of such portion thereof as the
applicant requires, or that the production of the original is necessary for
the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the Court
to use in evidence any document which under the law of evidence would
be inadmissible in the suit.
► Calling for document by court.—Where a civil proceeding as also a
criminal proceeding pending, the latter shall get primacy. Hence, while calling for a
document, court should not bring about a situation whereby a criminal proceeding
would remain stayed, Lakshmi v. Chinnammal, (2009) 13 SCC 25 : (2009) 5 SCC
(Civ) 1.
If bringing on record a document is essential for proving a case, ordinarily the
same should not be refused, Lakshmi v. Chinnammal, (2009) 13 SCC 25 : (2009) 5
SCC (Civ) 1.
11. Provisions as to documents applied to material objects.—The
provisions herein contained as to documents shall, so far as may be,
apply to all other material objects producible as evidence.
High Court Amendments
RULES 12 AND 13
ALLAHABAD.—Add the following at the end of Order XIII:
“12. Every document not written in the Court vernacular or in
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English, which is produced: (a) with a plaint, or (b) at the first
hearing, or (c) at any other time tendered in evidence in any suit,
appeal or proceeding, shall be accompanied by a correct translation of
the document into the Court vernacular. If any such document is
written in the Court vernacular but in characters other than the
ordinary Persian or Nagri characters in use, it shall be accompanied by
a correct transliteration of its contents into the Persian or Nagri
character. (22-5-1915).
The person making the translation or transliteration shall give his
name and address and verify that the translation or transliteration is
correct. In case of a document written in a script or language not
known to the translator or to the person making the transliteration, the
person who reads out the original document for the benefit of the
translator or the person making the transliteration shall also verify the
translation and transliteration by giving his name and address and
stating that he has correctly read out the original document. (10-12-
1932).
13. When a document included in the list prescribed by Rule 1, has
been admitted in evidence, the Court shall, in addition to making the
endorsement prescribed in Rule 4(1), mark such document with serial
figures in the case of documents admitted as evidence for a plaintiff,
and with serial letters in the case of documents admitted as evidence
for a defendant, and shall initial every such serial number or letter.
When there are two or more parties defendants, the documents of the
first party defendant may be marked A-1, A-2, A-3 etc., and those of
the second party B-1, B-2, B-3, etc. When a number of documents of
the same nature are admitted, as for example a series of receipts for
rent, the whole series shall bear one figure or capital letter or letters
and a small figure or small letter shall be added to distinguish each
paper of the series.” (22-5-1915 and 11-4-1936).
RULE 12
KARNATAKA.—Add the following as Rule 12:
“12. Where any document not written in the language of the Court
is produced either with the plaint or with the written statement or at
the first hearing or is at any other time tendered in evidence in any
suit the Court may require that it shall be accompanied by a correct
translation of the document into the language of the Court. Such
translation shall be made either by the translator or interpreter of the
Court, if any, or by any other competent person, and in the latter case
the translation shall be verified by an affidavit of the person making
the same declaring that he is acquainted with the character and
language of the document and with the language of the Court and that
the translation is true and correct to the best of his knowledge.” (30-3-
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1967).
ORISSA.—Insert the following as a new Rule 12:
“12. Every document not written in Oriya or English which is
produced: (a) with a plaint or (b) at the first hearing or (c) at any
other time tendered in evidence in any suit, appeal or proceeding, shall
be accompanied by a correct translation of the document into English.
The person making the translation shall give his name and address and
verify that the translation is correct. If the document is admitted in
evidence the opposite party shall either admit the correctness of the
translation or submit his own translation of the document.” (19-12-
1961).
ORDER XIV
Settlement of Issues and Determination of Suit on Issues of Law or on
Issues Agreed upon
1. Framing of issues.—(1) Issues arise when a material proposition of
fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a
plaintiff must allege in order to show a right to sue or a defendant must
allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the
other shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the
408
plaint and the written statements, if any, and [after examination under
Rule 2 of Order X and after hearing the parties or their pleaders],
ascertain upon what material propositions of fact or of law the parties are
at variance, and shall thereupon proceed to frame and record the issues
on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues
where the defendant at the first hearing of the suit makes no defence.
► Object and necessity.—The object of framing issues is to focus upon
questions on which evidence has to be led and to indicate the party on whom burden
of proof lies. It is necessary in every contested regular civil suit and not necessary
in summary proceedings, Fiza Developers & Inter-Trade (P) Ltd. v. Amci (I) (P)
Ltd., (2009) 17 SCC 796 : (2011) 2 SCC (Civ) 637.
► “Triable issues”.—Question of maintainability of suit by itself does not give
rise to a triable issue, Ajay Mohan v. H.N. Rai, (2008) 2 SCC 507.
► Duty of court.—Framing of issues is a very important stage in civil litigation
and it is bounden duty of court that due care, caution, diligence and attention must
be bestowed by Presiding Judge while framing issues, Ramrameshwari Devi v.
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Nirmala Devi, (2011) 8 SCC 249 : (2011) 4 SCC (Civ) 1.
For considering a claim, issue must be framed or any point determined based on
the pleas, Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301 : (2012) 1 SCC
(Civ) 437.
► Non-framing of an issue.—Non-framing of an issue is not significant when
parties are aware of rival cases and that issue is present in connected matters and
evidence recorded on it without demur, Sri Gangai Vinayagar Temple v. Meenakshi
Ammal, (2015) 3 SCC 624.
► Framing of issues.—In suit for eviction by landlord against trespasser,
framing of issue as to his title to property is not necessary, Sadashiv Shyama
Sawant v. Anita Anant Sawant, (2010) 3 SCC 385 : (2010) 1 SCC (Civ) 723.
► Second Appeal.—When court is called upon to interpret documents and
examine their effect, it involves questions of law. It is, therefore, obligatory upon High
Court to decide such questions on merits in second appeals, Sk. Bhikan v.
Mehamoodabee, (2017) 5 SCC 127.
409
[2. Court to pronounce judgment on all issues.—(1)
Notwithstanding that a case may be disposed of on a preliminary issue,
the Court shall, subject to the provisions of sub-rule (2), pronounce
judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the
Court is of opinion that the case or any part thereof may be disposed of
on an issue of law only, it may try that issue first if that issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the
other issues until after that issue has been determined, and may deal
with the suit in accordance with the decision on that issue.]
► Determination of issue.—Determination of issue without any pleading or
evidence adduced is impermissible, Vimal Chand Ghevarchand Jain v. Ramakant
Eknath Jadoo, (2009) 5 SCC 713 : (2009) 2 SCC (Civ) 669.
► Preliminary issues.—Preliminary issues can be those where no evidence is
required. Thus, for instance, on basis of reading of plaint or applicable law, if
jurisdiction of court or bar to suit is made out, court may decide such issues with
sole objective for expeditious decision, Sathyanath v. Sarojamani, (2022) 7 SCC
644.
Preliminary issue regarding maintainability of suit, raised for first time at appellate
stage (before Supreme Court) is not permissible. It must first be raised by defendant
in written statement for adjudication on merits by trial court as a preliminary issue
under Order 14 Rule 2, A. Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654.
► Mixed questions of law and facts.—Issues decided as preliminary issues
with respect to redemption of mortgage as well as with regard to limitation could not
have been decided as preliminary issues by trial court, being mixed questions of law
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and facts, Hareendran v. Sukumaran, (2018) 14 SCC 187.
3. Materials from which issues may be framed.—The Court may frame
the issues from all or any of the following materials:—
(a) allegations made on oath by the parties, or by any persons present
on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories
delivered in the suit;
(c) the contents of documents produced by either party.
4. Court may examine witnesses or documents before framing issues.
—Where the Court is of opinion that the issues cannot be correctly framed
without the examination of some person not before the Court or without
410
the inspection of some document not produced in the suit, it [may
adjourn the framing of issues to a day not later than seven days], and
may (subject to any law for the time being in force) compel the
attendance of any person or the production of any document by the
person in whose possession or power it is by summons or other process.
411
[5. Power to amend, and strike out, issues.—(1) The Court may at
any time before passing a decree amend the issues or frame additional
issues on such terms as it thinks fit, and all such amendments or
additional issues as may be necessary for determining the matters in
controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out
any issues that appear to it to be wrongly framed or introduced.]
6. Questions of fact or law may by agreement be stated in form of
issues.—Where the parties to a suit are agreed as to the question of fact
or of law to be decided between them, they may state the same in the
form of an issue, and enter into an agreement in writing that, upon the
finding of the Court in the affirmative or the negative of such issue,—
(a) a sum of money specified in the agreement or to be ascertained by
the Court, or in such manner as the Court may direct, shall be paid
by one of the parties to the other of them, or that one of them be
declared entitled to some right or subject to some liability specified
in the agreement;
(b) some property specified in the agreement and in dispute in the suit
shall be delivered by one of the parties to the other of them, or as
that other may direct; or
(c) one or more of the parties shall do or abstain from doing some
particular act specified in the agreement and relating to the matter
in dispute.
7. Court, if satisfied that agreement was executed in good faith, may
pronounce judgment.—Where the Court is satisfied, after making such
inquiry as it deems proper,—
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(a) that the agreement was duly executed by the parties,
(b) that they have a substantial interest in the decision of such
question as aforesaid, and
(c) that the same is fit to be tried and decided,
it shall proceed to record and try the issue and state its finding or
decision thereon in the same manner as if the issue had been framed by
the Court, and shall, upon the finding or decision on such issue,
pronounce judgment according to the terms of the agreement; and, upon
the judgment so pronounced a decree shall follow.
ORDER XV
Disposal of the Suit at the First Hearing
1. Parties not at issue.—Where at the first hearing of a suit it appears
that the parties are not at issue on any question of law or of fact, the
Court may at once pronounce judgment.
412
2. One of several defendants not at issue.— [(1)] Where there are
more defendants than one, and any one of the defendants is not at issue
with the plaintiff on any question of law or of fact, the Court may at once
pronounce judgment for or against such defendant and the suit shall
proceed only against the other defendants.
413
[(2) Whenever a judgment is pronounced under this rule, a decree
shall be drawn up in accordance with such judgment and the decree shall
bear the date on which the judgment was pronounced.]
3. Parties at issue.—(1) Where the parties are at issue on some
question of law or of fact, and issues have been framed by the Court as
hereinbefore provided, if the Court is satisfied that no further argument or
evidence than the parties can at once adduce is required upon such of the
issues as may be sufficient for the decision of the suit, and that no
injustice will result from proceeding with the suit forthwith, the Court
may proceed to determine such issues, and, if the finding thereon is
sufficient for the decision, may pronounce judgment accordingly, whether
the summons has been issued for the settlement of issues only or for the
final disposal of the suit:
Provided that, where the summons has been issued for the settlement
of issues only, the parties or their pleaders are present and none of them
objects.
(2) Where the finding is not sufficient for the decision, the Court shall
postpone the further hearing of the suit, and shall fix a day for the
production of such further evidence, or for such further argument as the
case requires.
4. Failure to produce evidence.—Where the summons has been issued
for the final disposal of the suit and either party fails without sufficient
cause to produce the evidence on which he relies, the Court may at once
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pronounce judgment, or may, if it thinks fit, after framing and recording
issues, adjourn the suit for the production of such evidence as may be
necessary for its decision upon such issues.”.
STATE AMENDMENTS
(as inserted by States)
Punjab and Haryana (Chandigarh).—In its application to Punjab and
Haryana, after R. 4 new R. 5 be inserted:—
“R. 5. Striking off defence for failure to deposit admitted rent.—(1)
In any suit by a lessor for the eviction of a lessee after the
determination of his lease and for the recovery from him of rent or
compensation for use and occupation, the defendant shall, at or before
the first hearing of the suit, deposit the entire amount admitted by
him to be due together with interest thereon at the rate of nine per
cent per annum and whether or not he admits any amount to be due,
he shall throughout the continuation of the suit regularly deposit the
monthly amount due within a week from the date of its accrual, and in
the event of any default in making the deposit of the entire amount
admitted by him to be due or the monthly amount due as aforesaid,
the Court may, subject to the provisions of sub-rule (2), strike off his
defence.
Explanation 1.—The expression ‘first hearing’ means the date for
filing written statement or for hearing mentioned in the summons or
where more than one of such dates are mentioned, the last of the
dates mentioned.
Explanation 2.—The expression ‘entire amount admitted by him to
be due’ means the entire gross amount, whether as rent or
compensation for use and occupation, calculated at the admitted rate
of rent for the admitted period of arrears after making no other
deduction except the taxes, if any, paid to a local authority in respect
of the building on lessor's account and the amount, if any, deposited in
any Court.
Explanation 3.—The expression ‘monthly amount due’ means the
amount due every month, whether as rent or compensation for use and
occupation at the admitted rate of rent, after making no other
deduction except the taxes, if any, paid to a local authority, in respect
of the building on lessor's account.
(2) Before making an order for striking off defence, the Court may
consider any representation made by the defendant in that behalf
provided such representation is made within 10 days, of the first
hearing or, of the expiry of the week referred to in sub-section (1), as
the case may be.
(3) The amount deposited under this rule may at any time be
withdrawn by plaintiff:
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Provided that such withdrawal shall not have the effect of
prejudicing any claim by the plaintiff disputing the correctness of the
amount deposited:
Provided further that if the amount deposited includes any sums
claimed by the depositor to be deductible on any account, the Court
may require the plaintiff to furnish the security for such sum before he
is allowed to withdraw the same.”—Chandigarh Amendment Gazette, 1
-5-1996, Extra., p. 524; Haryana Gazette, 14-5-1991, Pt. III (LS), p.
401; Punjab Gazette, 10-5-1991, Pt. III (LS), p. 255.
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, after Order XV, insert the
following Order, namely,—
“ORDER XV-A
1. First Case Management Hearing.—The court shall hold the first
Case Management Hearing, not later than four week's from the date of
filing of affidavit of admission or denial of documents by all parties to
the suit.
2. Orders to be passed in a Case Management Hearing.—In a Case
Management Hearing, after hearing the parties, and once it finds that
there are issues of fact and law which require to be tried, the court
may pass an order—
(a) framing the issues between the parties in accordance with Order
XIV of the Code of Civil Procedure, 1908 (5 of 1908) after
examining pleadings, documents and documents produced before it,
and on examination conducted by the court under Rule 2 of Order X,
if required;
(b) listing witnesses to be examined by the parties;
(c) fixing the date by which affidavit of evidence to be filed by parties;
(d) fixing the date on which evidence of the witnesses of the parties to
be recorded;
(e) fixing the date by which written arguments are to be filed before
the court by the parties;
(f) fixing the date on which oral arguments are to be heard by the
court; and
(g) setting time limits for parties and their advocates to address oral
arguments.
3. Time limit for the completion of a trial.—In fixing dates or setting
time limits for the purposes of Rule 2 of this order, the court shall
ensure that the arguments are closed not later than six months from
the date of the first Case Management Hearing.
4. Recording of oral evidence on a day-to-day basis.—The court
shall, as far as possible, ensure that the record of evidence shall be
carried on, on a day-to-day basis until he cross examination of all the
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witnesses is complete.
5. Case Management hearings during trial.— The court may, if
necessary, also hold Case Management Hearings anytime during the
trial to issue appropriate orders so as to ensure adherence by the
parties to the dates fixed under Rule 2 and facilitate speedy disposal of
the suit.
6. Powers of the court in a Case Management Hearing.—(1) In any
Case Management Hearing held under this order, the court shall have
the power to—
(a) prior to the framing of issues, hear and decide any pending
application filed by the parties under Order XIII-A;
(b) direct parties to file compilations of documents or pleadings
relevant and necessary for framing issues;
(c) extend or shorten the time for compliance with any practice,
direction or court order if it finds sufficient reason to do so;
(d) adjourn or bring forward a hearing if it finds sufficient reason to do
so;direct a party to attend the court for the purposes of examination
under Rule 2 of Order X;
(e) consolidate proceedings;
(f) strike off the name of any witness or evidence that it deems
irrelevant to the issues framed;
(g) direct a separate trial of any issue;
(h) decide the order in which issues are to be tried;
(i) exclude an issue from consideration;
(j) dismiss or give judgment on a claim after a decision on a
preliminary issue;
(k) direct that evidence be recorded by a Commission where necessary
in accordance with Order XXVI;
(l) reject any affidavit of evidence filed by the parties for containing
irrelevant, inadmissible or argumentative material;
(m) strike off any parts of the affidavit of evidence filed by the parties
containing irrelevant, inadmissible or argumentative
material;delegate the recording of evidence to such authority
appointed by the court for this purpose;
(n) pass any order relating to the monitoring of recording the evidence
by a commission or any other authority;
(o) order any party to file land exchange a costs budget;
(p) issue directions or pass any order for the purpose of managing the
case and furthering the overriding objective of ensuring the efficient
disposal of the suit.
(2) When the court passes an order in exercise of its powers under
this order, it may—
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(a) make it subject to conditions, including a condition to pay a sum of
money into court; and
(b) specify the consequence of failure to comply with the order or a
condition.
(3) While fixing the date for a Case Management Hearing, the court
may direct that the parties also be present for such Case Management
Hearing, if it is of the view that there is a possibility of settlement
between the parties.
7. Adjournment of Case Management Hearing.—(1) The Court shall
not adjourn the Case Management Hearing for the sole reason that the
advocate appearing on behalf of a party is not present:
Provided that an adjournment of the hearing is sought in advance
by moving an application, the court may adjourn the hearing to
another date upon the payment of such costs as the court deems fit,
by the party moving such application.
(2) Notwithstanding anything contained in this rule, if the court is
satisfied that there is a justified reason for the absence of the
advocate, it may adjourn the hearing to another date upon such terms
and conditions it deems fit.
8. Consequences of non-compliance with orders.—Where any party
fails to comply with the order of the court passed in a Case
Management Hearing, the court shall have the power to—
(a) condone such non-compliance by payment of costs to the court;
(b) foreclose the non-compliant party's right to file affidavits, conduct
cross-examination of witnesses, file written submissions, address
oral arguments or make further arguments in the trial, as the case
may be; or
(c) dismiss the plaint or allow the suit where such non-compliance is
willful, repeated and the imposition of costs is not adequate to
ensure compliance.” [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f.
18-3-2020)].
Union Territory of Ladakh.—In its application to the Union Territory
of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O. 3774(E),
dated 23-10-2020].
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Order XV, for the existing Rule 5414, the following rule shall be
substituted, namely:—
“5. Striking off defence on failure to deposit admitted rent, etc.—(1)
In any suit by a lessor for the eviction of a lessee after the
determination of his lease and for the recovery from him of rent or
compensation for use and occupation, the defendant shall, at or before
the first hearing of the suit, deposit the entire amount admitted by
him to be due together with interest thereon at the rate of nine per
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centum per annum and whether or not he admits any amount to be
due, he shall throughout the continuation of the suit regularly deposit
the monthly amount due within a week from the date of its accrual,
and in the event of any default in making, the deposit of the entire
amount admitted by him to be due or the monthly amount due as
aforesaid, the Court may, subject to the provisions of sub-rule (2),
strike off his defence.
Explanation 1.—The expression ‘first hearing’ means the date for
filing written statement or for hearing mentioned in the summons or
where more than one of such dates are mentioned, the last of the
dates mentioned.
Explanation 2.—The expression ‘entire amount admitted by him to
be due’ means the entire gross amount, whether as rent or
compensation for use and occupation, calculated at the admitted rate
of rent for the admitted period of arrears after making no other
deduction except the taxes, if any, paid to a local authority in respect
of the building on lessor's account *[and the amount, if any, paid to
the lessor acknowledged by the lessor in writing signed by him] and
the amount, if any, deposited in any Court under Section 30 of the U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
Explanation 3.—(1) The expression ‘monthly amount due’ means
the amount due every month, whether as rent or compensation for use
and occupation at the admitted rate of rent, after making no other
deduction except the taxes, if any, paid to a local authority in respect
of the building on lessor's account.
(2) Before making an order for striking off defence, the Court may
consider any representation made by the defendant in that behalf
provided such representation is made within 10 days, of the first
hearing or, of the expiry of the week referred to in sub-section (1), as
the case may be.
(3) The amount deposited under this rule may at any time be
withdrawn by the plaintiff:
Provided that such withdrawal shall not have the effect of
prejudicing any claim by the plaintiff disputing the correctness of the
amount deposited:
Provided further that if the amount deposited includes any sums
claimed by the depositor to be deductible on any account, the Court
may require the plaintiff to furnish the security for such sum before he
is allowed to withdraw the same.” [Vide U.P. Act 57 of 1976, Section 7
(1-1-1977)].
*Vide Noti. No. 121/IV-h-36-D, dated Feb. 10, 1981, w.e.f. Oct. 3,
1981.
High Court Amendment
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ANDHRA PRADESH.—Insert after Order XV, the following as Order XV-A:
—
“Order XV-A
1. In a suit for recovery of possession, on termination of lease, or
licence, with or without a prayer for recovery of arrears of rent, or
licence fee, known with whatever description, the defendant, while
filing his written statement, shall deposit the amount, representing
the undisputed arrears, calculated up to that date into the Court
and shall continue to deposit such amount, which becomes payable
thereafter within one week from the date on which it becomes due,
till the judgment is rendered in the suit.
2. Whether the defendant pleads in the written statement that no
arrears of rent or licence fee exists, it shall be competent for the
Court to pass an order in this regard, after affording opportunity to
both the parties, and in case any amount is found due, the
defendant shall be under obligation to deposit the same, within the
time stipulated by the Court and continue to deposit the amount
which becomes payable thereafter, as provided under Rule 1:
Provided that the time stipulated for payment of amount, as aforesaid,
may be extended by the Court for reasons to be recorded for a period not
exceeding 15 days.
If the defendant commits default in making the deposits, as aforesaid,
the Court shall strike off the defence.
On such deposit it shall be competent for the plaintiff to withdraw the
same.
Explanation.—The expression ‘the amount representing the undisputed
areas’ shall mean the sum of rent, or licence fee calculated for the period
for which it remained unpaid, after deducting from it, any amount.
(a) paid as tax, to a local authority, in respect of the property,
(b) paid to the plaintiff under written acknowledgment; and
(c) deposited into the Court, in any proceedings, in relation to the
said property.”—See A.P. Gazette, 23-2-2005, Pt. I, Extra., p. 1
(No. 103).
BOMBAY, (GOA, DAMAN AND DIU).—Add Or. 15-A as under:—
“Order XV-A
STRIKING OFF DEFENCE IN A SUIT BY A LESSOR
1. In any suit by a lessor or a licensor against a lessee or a licensee, as
the case may be, for his eviction with or without the arrears of rent
or licence fee and future mesne profits from him, the defendant
shall deposit such amount as the Court may direct on account of
arrears up to the date of the Order (within such time as the Court
may fix) and thereafter continue to deposit in each succeeding
month the rent or licence fee claimed in the suit as the Court may
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direct. The defendant shall unless otherwise directed continue to
deposit such amount till the decision of the suit.
In the event of any default in making the deposits, as aforesaid, the
Court may subject to the provisions of sub-rule (2) strike off the defence.
(2) Before passing an order for striking off the defence, the Court shall
serve notice on the defendant or his advocate to show cause as to
why the defence should not be struck off, and the Court shall
consider any such cause, if shown in order to decide as to whether
the defendant should be relieved from an order striking off the
defence.
415
[(3) The amount deposited under this rule shall be paid to the plaintiff
lessor or licensor or his advocate and the receipt of such amount shall not
have the effect of prejudicing the claim of the plaintiff and it shall not
also be treated as a waiver of notice of termination.
Explanation.—The suit for eviction shall include suit for mandatory
injunction seeking removal of licensee from the premises for the purpose
of this rule.]” (1-10-1983) — See Maharashtra Government Gazette, 15-9
-1983; Pt. 4, Ka, p. 406. Goa Gazette, 12-10-1987, Extra., S. 1, No. 28,
p. 380 (1-4-1987). Sub-rule (3) and Explanation were inserted by
Maharashtra Government Gazette, 11-1-1990, Pt. IV, Ka, p. 28.
DELHI.—In its application to High Court of Delhi and its subordinate
courts, insert after Order XV, the following as Order XV-A:—
Order XV-A
STRIKING OFF DEFENCE IN A SUIT BY A LESSOR
1. “In any suit by a owner/lessor for eviction of an unauthorised
occupant/lessee or for the recovery of rent and future mesne profits
from him, the defendant shall deposit such amount as the Court
may direct on account of arrears upto the date of the order (within
such time as the Court may fix) and thereafter continue to deposit
in each succeeding month the rent claimed in the suit as the Court
may direct. The defendant shall continue to deposit such amount till
the decision of the suit unless otherwise directed.
In the event of any default in making the deposit as aforesaid, the Court
may subject to the provisions of sub-rule (2) strike off the defence.
2. Before passing an order for striking off the defence, the Court shall
serve notice on the defendant or his advocate to show cause as to
why the defence should not be struck off, and the Court shall
consider any such cause, if shown in order to decide as to whether
the defendant should be relieved from an order striking off the
defence.
3. The amount deposited under this rule shall be paid to the plaintiff
owner/lessor or his advocate and the receipt of such amount shall
not have the effect of prejudicing the claim of the plaintiff and it
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would not also be treated as a waiver of notice of termination.”
Note: This amendment shall come into force within the local limits of
the Jurisdiction of the High Court of Delhi immediately on the date of its
publication in the Delhi Gazette.—Delhi Gazette 14-11-2008, Pt. IV,
Extra., p. 2 (No. 179).
ORDER XVI
Summoning and Attendance of Witnesses
416
[1. List of witnesses and summons to witnesses.—(1) On or before
such date as the Court may appoint, and not later than fifteen days after
the date on which the issues are settled, the parties shall present in Court
a list of witnesses whom they propose to call either to give evidence or to
produce documents and obtain summonses to such persons for their
attendance in Court.
(2) A party desirous of obtaining any summons for the attendance of
any person shall file in Court an application stating therein the purpose
for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call,
whether by summoning through Court or otherwise, any witness, other
than those whose names appear in the list referred to in sub-rule (1), if
such party shows sufficient cause for the omission to mention the name
of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in
this rule may be obtained by the parties on an application to the Court or
to such officer as may be appointed by the Court in this behalf 417[within
five days of presenting the list of witnesses under sub-rule (1)].
High Court Amendments
PUNJAB, HARYANA AND CHANDIGARH.—
“Summons to attend to give evidence or produce documents—At
any time after the suit is instituted, the parties may obtain, an
application to the Court or to such officer as it appoints in this behalf,
summonses to persons whose attendance is required either to give
evidence or to produce documents;
Provided that no party who has begun to call his witnesses shall be
entitled to obtain process to enforce the attendance of any witness
against whom process has not previously issued, or to produce any
witness not named in a list, which must be filed in Court on or before
the date on which the hearing of evidence on his behalf commences
and before the actual commencement of the hearing of such evidence
without an order of the Court made in writing and stating the reasons
therefor. — High Court Noti. No. 525-Gaz., JXI-Y-11, dt. 15-10-1932.
► Reasons for summoning of witness.—Discretion of Court to insist party
filing list of witnesses to briefly disclose purpose of summoning advocate/ person as
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a witness. Where sole purpose appears to be to create a situation so as to force
advocate to withdraw from case, application should be rejected, Kokkanda B.
Poondacha v. K.D. Ganapathi, (2011) 12 SCC 600 : (2012) 2 SCC (Civ) 754.
418
[1-A. Production of witnesses without summons.—Subject to the
provisions of sub-rule (3) of Rule 1, any party to the suit may, without
applying for summons under Rule 1, bring any witness to give evidence
or to produce documents.]
High Court Amendments
RULE 1-B
BOMBAY.—The following shall be added as Rule 1-B:
“(1-B) Court may permit service of summons by party applying for
summons.—(1) The Court may, on the application of any party for a
summons for the attendance of any person, permit the service of
summons to be effected by such party.
(2) When the Court has directed service of the summons by the
party applying for the same and such service is not effected, the Court
may, if it is satisfied that reasonable diligence has been used by such
party to effect such service, permit service to be effected by an officer
of the Court.” (1-11-1966).
See Act 35 of 1961, Section 11 and Reg. 6 of 1963, Section 3 (1-7-
1965).
GUJARAT.—Same as Bombay without the marginal note (17-8-1961).
RAJASTHAN.—The following shall be added as Rule 1-A, after Rule 1:
“(1-A) Subject to the provisions of sub-rule (ii) of Rule 1, any party
to the suit may, without applying for summons under Rule 1, bring any
witness to given evidence or to produce documents.” (19-11-1970).
► Production of document by witness.—Document not already on record of
the suit can be taken on record. It is not necessary that party calling the witness
must have filed copies of said document on record earlier. Only requirement is
court's leave to examine such witness. Or. 16 R. 1-A, held, is not in derogation to Or.
16 R. 1(3), Ashok Sharma v. Ram Adhar Sharma, (2009) 11 SCC 47 : (2009) 4
SCC (Civ) 429.
2. Expenses of witness to be paid into Court on applying for summons.
—(1) The party applying for a summons shall, before the summons is
419
granted and within a period to be fixed [which shall not be later than
seven days from the date of making application under sub-rule (4) of the
Rule 1], pay into Court such a sum of money as appears to the Court to
be sufficient to defray the travelling and other expenses of the person
summoned in passing to and from the Court in which he is required to
attend, and for one day's attendance.
(2) Experts.—In determining the amount payable under this rule, the
Court may, in the case of any person summoned to give evidence as an
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expert, allow reasonable remuneration for the time occupied both in
giving evidence and in performing any work of an expert character
necessary for the case.
(3) Scale of expenses.—Where the Court is subordinate to a High
Court, regard shall be had, in fixing the scale of such expenses, to any
rules made in that behalf.
420
[(4) Expenses to be directly paid to witnesses.—Where the
summons is served directly by the party on a witness, the expenses
referred to in sub-rule (1) shall be paid to the witness by the party or his
agent.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Order XVI—
(i) in sub-rule (1) at the end, the following proviso shall be inserted,
namely:—
“Provided, where Government is the party applying for a summons to a
Government servant, it shall not be necessary for it to make any such
payment into Court.”;
(ii) sub-rule (4) as inserted by the Allahabad High Court shall be
omitted and after sub-rule (4) as inserted by the Code of Civil
Procedure (Amendment) Act, 1976, the following sub-rule shall be
inserted, namely:—
“(4-A) Allowances, etc. of Government servant witnesses to be taxed as
costs.—Any travelling and daily allowances and the salary, payable to a
Government servant who attends the Court to give evidence or to produce
a document shall, on the amount being certified by such witness, be
taxable as costs.
Explanation 1.—The travelling and daily allowances shall be in accordance
with the rules governing such allowances, applicable to the Government
servant in question.
Explanation 2.—The daily allowance and salary of the Government servant
shall be proportionate to the number of days of his attendance required
by the Court.” U.P. Act 57 of 1976, Section 8 (1-1-1977).
High Court Amendments
ANDHRA PRADESH, KERALA, MADRAS AND PONDICHERRY.—Add after Rule 2
(3) as follows:
“(4) Where the summons is served on the witness by the party
directly the expenses mentioned in clause (1) shall be paid to the
witnesses by the party or his agent.” (1-11-1951)
ASSAM AND NAGALAND, CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—
Cancel clauses (1) and (2) and substitute:
“(1) The Court shall fix in respect of each summons such a sum of
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money as appears to the Court to be sufficient to defray the travelling
and other expenses of the persons summoned in passing to and from
the Court in which he is required to attend and for one day's
attendance.
(2) In fixing such an amount the Court may in the case of any
person summoned to give evidence as an expert allow reasonable
remuneration for the time occupied both in giving evidence and in
performing any work of an expert character necessary for the
case.” (25-7-1928).
BOMBAY.—Insert proviso to sub-rule (1) as follows:
“Provided that where Government or a public officer being a party to
a suit or proceeding as such public officer supported by Government in
the litigation, applies for a summons to any public officer to whom the
Civil Service Regulations apply to give evidence of facts which have
come to his knowledge or of matters which he has to deal, as a public
officer, or to produce any document from public records, the
Government or the aforesaid officer shall not be required to pay any
sum of money on account of the travelling and other expenses of such
witness.” (1-10-1983).
DELHI, HIMACHAL PRADESH, PUNJAB, HARYANA AND CHANDIGARH.—Add the
following exception to Rule 2(1):
“Exception.—When applying for a summons for any of its own
officers, Government will be exempt from the operation of clause (1).”
GAUHATI.—Same as Bombay.
GUJARAT.—Same as Bombay.
MADHYA PRADESH.—In Or. 16, in R. 2, in sub-rule (1), insert the
following as an Exception, namely:—
“Exception.—When applying for a summons for any of its own
officers, Government and State Railway Administrations will be exempt
from the operation of sub-rule (1).” (w.e.f. 16-9-1960)
ORISSA AND PATNA.—Add the following proviso to Rule 2(1):
“Provided that the Government shall not be required to pay any
expenses into Court under this rule when it is the party applying for
the summons and the person to be summoned is an officer serving
under Government, who is summoned to give evidence of facts which
have come to his knowledge or of matters with which he has to deal, in
his public capacity.” (13-2-1952).
3. Tender of expenses to witness.—The sum so paid into Court shall be
tendered to the person summoned, at the time of serving the summons,
if it can be served personally.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
ASSAM AND NAGALAND.—Same as that of Calcutta.
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BOMBAY.—Insert the proviso:
“Provided that where the witness is a public officer to whom the
Civil Service Regulations apply and is summoned to give evidence of
facts which have come to his notice or of facts which he has had to
deal, in his official capacity, or to produce a document from public
records, the sum payable by the party obtaining the summons on
account of his travelling and other expenses shall not be tendered to
him. Such officer shall, however, be required to produce a certificate
duly signed by the Head of his Office showing the rates of travelling
and other allowances admissible to him as for a journey on tour.” (1-
10-1983).
See Act 35 of 1961, Section 11 and Reg. 6 of 1963, Section 3 (1-7-
1965).
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—(a) Substitute the following
for Rule 3:
“3. The sum so fixed shall be tendered to the person summoned, at
the time of serving the summons, if it can be served personally.” (25-7
-1928).
(b) Add the following to Rule 3:
“Provided:
(i) that where the person summoned is a servant of any State
Government whose pay exceeds Rs. 10 per mensem or whose
headquarters are situated more than five miles from the Court, and
he has been summoned to appear as a witness in his official
capacity in a civil case to which Government is a party, the sum so
fixed shall be credited to the Treasury;
(ii) that where the person summoned is a Finger Print Expert of the
Criminal Investigation Department and he is summoned to give
evidence in private cases the sum so fixed, other than his travelling
allowance, shall be credited to the Treasury;
(iii) that where the person summoned is the Government Examiner of
Questioned Documents or his Assistant and is summoned to give
evidence or his opinion is sought in private cases the sum so fixed
shall be credited to the Treasury;
(iv) that where the person summoned is a servant of the Central
Government or a State Railway or any other Commercial
Department of Government and he is summoned to give evidence in
his public capacity in a civil case, whether Government is or is not a
party, the sum so fixed shall be credited in the Treasury to the
Government or the State Railway, as the case may be, to which the
employee belongs; and
(v) that where the person summoned is a State Railway employee and
he is summoned to give evidence in his private capacity in a Civil
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Court in Assam, the sum so fixed shall be credited to the Railway to
which he belongs.” (8-3-1948).
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta.
GUJARAT.—Same as that of Bombay, except for the last sentence which
is omitted. (17-8-1961).
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In Rule 3 the
following shall be added as para (2), namely:
“In the case of employees of the Central Government or the State
Government or Railway Administration, sums paid into Court as
subsistence allowance or compensation shall be credited in the
Treasury to the credit of the Central Government or the State
Government or the Railway Administration as the case may be.” (9-6-
1959); Reg. 8 of 1965, Section 3.
MADHYA PRADESH.—For Rule 3, substitute the following:
“3. (1) The sum so paid into Court shall, except in case of a
Government servant or a State Railway employee, be tendered to the
person summoned, at the time of serving the summons, if it can be
served personally.
(2) Where a party other than Government in a suit requests the
Court to summon a Government servant or a Railway employee as a
witness or to produce official documents, the party shall deposit with
the Court a sum, which in the opinion of the Court, will be sufficient to
defray the travelling and other allowances of the Government servant
or the Railway employee, as the case may be, as for a journey on tour
and out of the sum so deposited the Court shall pay to the Government
servant or the Railway employee concerned, the amount of travelling
and other allowances admissible to him as for a journey on tour.” (16-
9-1960).
MADRAS AND PONDICHERRY.—The following shall be added as separate
paragraph:
“In the case of employees of the Central Government or a State
Railway sums paid into Court as subsistence allowance or
compensation shall be credited in the Treasury to the credit of the
Central Government or State Railway as the case may be.” (7-1-
1942); Act 26 of 1968, Section 3 and Sch., Pt. II (w.e.f. 5-9-1968).
ORISSA.—Same as that of Patna except for the word and figure “Rs. 10”
substitute “Rs. 200” [14-5-1984].
PATNA.—Add the following proviso to Rule 2(1):
“Provided that the Government shall not be required to pay any
expenses into Court under this rule when it is the party applying for
the summons, and the person to be summoned is an officer serving
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under Government, who is summoned to give evidence of acts which
have come to his knowledge, or of matters with which he has to deal,
in his public capacity” (As amended on 13-2-1952).
PUNJAB : HARYANA AND CHANDIGARH.—For Rule 3, substitute:
“3. Tender of expenses to witness.—(1) The sum paid into a Court
shall, except in the case of a Government servant, be tendered to the
person summoned, at the time of serving the summons if it can be
served personally.
(2) When the person summoned is a Government servant, the sum
so paid into Court shall be credited to Government.
Exception.—(1) In cases in which Government servants have to give
evidence at a Court situate not more than five miles from their
headquarters, actual travelling expenses incurred by them may, when
the Court considers it necessary, be paid to them.
Exception.—(2) A Government servant, whose salary does not
exceed Rs. 10 per mensem, may receive his expenses from the
Court.” (9-1-1919).
See Act 31 of 1966, Sections 29 and 32 (1-11-1966).
RAJASTHAN.—Substitute for Rule 3 the following:
“3. The sum so paid into Court may, and if so required by the
person summoned, shall be tendered to him at the time of serving the
summons, if it can be served personally.” (24-7-1954).
RULE 3-A
BOMBAY.—The following shall be added as Rule 3-A:
“3-A. Special provision for public servants summoned as witnesses
in suit in which the Government is not a party.—(1) Notwithstanding
anything contained in the foregoing rules in all suits or other
proceedings to which the Government is not a party, where a servant
of the Central Government or a railway employee is summoned to give
evidence and/or to produce documents in his official capacity, the
Court shall direct the party applying for summons to deposit such sum
of money as will, in the opinion of the Court be sufficient to defray the
travelling and other expenses of the officer concerned as for a journey
on tour; and on the deposit of such sum, the Court shall direct the
summons to be issued and, out of the sum so deposited or out of any
further sum which the Court may subsequently direct the party
applying for summons to deposit, the Court shall, on the appearance
before the Court of the officer summoned, pay him the amount of
travelling and other expenses admissible to him as for a journey on
tour under the rules applicable to his service.
(2) The officer appearing before the Court in accordance with sub-
rule (1) shall produce a certificate duly signed by the Head of his
office, showing the rates of travelling and other allowances admissible
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to him as for a journey on tour, and the amount payable to him by the
Court shall be computed on the basis of rates specified in such
certificate.” (1-10-1983)
GUJARAT.—Same as that of Bombay with modification as follows:
(i) In sub-rule (1), between the words ‘Central Government’ and “or
a Railway employee” words “or State of Andhra Pradesh” are inserted;
and
(ii) For the words ‘pay him’ in the last but two lines, the words “or
as soon thereafter as practicable remit to the Central Government or
State Government (the Ministry/Department/Office) to which the
Government servant belongs.” (17-8-1961; 16-4-1970).
4. Procedure where insufficient sum paid in.—(1) Where it appears to
the Court or to such officer as it appoints in this behalf that the sum paid
into Court is not sufficient to cover such expenses or reasonable
remuneration, the Court may direct such further sum to be paid to the
person summoned as appears to be necessary on that account, and, in
case of default in payment, may order such sum to be levied by
attachment and sale of the movable property of the party obtaining the
summons; or the Court may discharge the person summoned without
requiring him to give evidence, or may both order such levy and
discharge such person as aforesaid.
(2) Expenses of witnesses detained more than one day.—Where it
is necessary to detain the person summoned for a longer period than one
day, the Court may, from time to time, order the party at whose instance
he was summoned to pay into Court such sum as is sufficient to defray
the expenses of his detention for such further period, and, in default of
such deposit being made, may order such sum to be levied by
attachment and sale of the movable property of such party; or the Court
may discharge the person summoned without requiring him to give
evidence; or may both order such levy and discharge such person as
aforesaid.
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Rule 4, the following proviso shall be inserted, namely:—
“Provided that nothing in this rule shall apply to a case where the
witness is a Government servant summoned at the instance of
Government as a party.” [Vide U.P. Act 57 of 1976, S. 8 (1-1-1977)].
High Court Amendments
ASSAM AND CALCUTTA.—Substitute for clause (1) as follows:
“Where it appears to the Court or to such officer as it appoints in
this behalf that the sum so fixed is not sufficient to cover such
expenses or reasonable remuneration the Court may direct such
further sum to be paid to the person summoned as appears to be
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necessary on that account and in the case of default in payment may
order such sum to be levied by attachment and sale of the movable
property of the party obtaining the summons or the Court may
discharge the person summoned without requiring him to give
evidence or may both order such levy and discharge the person as
aforesaid.” (25-7-1928)
DELHI AND HIMACHAL PRADESH.—After the word “summoned” where it
first occurs in Rule 4(1), insert:
“or, when such person is a Government servant, to be paid into
Court.” (9-1-1919).
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR & TRIPURA).—Same as
that of Calcutta. See Assam High Court Order, 1948 Cl. 6 and Act 27 of
1962, Ss. 13 and 15 (w.e.f. 1-12-1963), Act 81 of 1971, S. 28 (21-1-
1972).
MADHYA PRADESH.—Same as that of Himachal Pradesh.
PUNJAB, HARYANA AND CHANDIGARH.—Same as that of Himachal Pradesh.
RULES 4-A AND 4-B
ANDHRA PRADESH.—Same as that of Madras, except that for the words
“pay him” the word “remit to the Central Government in the Ministry or
department concerned” shall be substituted.” (10-3-1966)
KARNATAKA.—Insert the following as Rule 4-A:—
“4-A. (1) In the cases provided for in this rule the provisions of the
foregoing rules shall not apply or shall apply only subject to the
provisions of this rule.
(2) Where a Government or a Public Officer being a party to a suit or
proceeding as such public officer supported by Government in the
litigation, applies for a summons to any Government servant whose
salary exceeds Rs. 10 per month and whose attendance is required in a
Court situate more than 5 miles from his headquarters, no payment in
accordance with Rule 2 or with Rule 4 shall be required, and the
expenses incurred by the Government or such public officer in respect
of the attendance of such witness shall not be taken into consideration
in determining the costs incidental to the suit or proceeding.
(3) Where any other party to such a suit as is referred to in sub-rule
(2) applies for a summons to such Government servant as is
mentioned in the said sub-rule, the party summoning shall deposit in
Court along with his application a sum of money for the travelling and
other expenses of the officer determined by the Court under the
provisions of Rule 2 of this Order and shall also pay and deposit any
further sum that may be required by Court to be paid or deposited
under Rule 4 of this Order, and the money so deposited or paid shall
be credited to the Government in the treasury. Where the witness
summoned under this sub-rule is the employee of the Central
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Government or the State Railway or other Commercial Department to
whom the provisions of the Payment of Wages Act apply, sums paid
into Court shall be credited in the Treasury to the credit of the Central
Government, the Railway or the Commercial Department as the case
may be.
(4) In all cases where a Government servant appears in accordance
with the foregoing sub-rules the Court shall grant him a certificate of
attendance containing the prescribed particulars.
(5) Same as Rule 4-B(1) of Madras with the following modifications:
—(i) For the words “Notwithstanding anything …………… in his public
capacity” substitute: “Notwithstanding anything contained in the
foregoing rules and in this rule, in all suits or other proceedings to
which Government is not a party, where a servant of the Central
Government or of any Railway or of any other Commercial Department
of the Government to whom the provisions of the Payment of Wages
Act apply is summoned to give evidence of facts which have come to
his knowledge or of matters with which he has to deal as a public
officer or to produce any document for public records in his public
capacity.”
(ii) In line 8 for “such sum” substitute “the said sum” and in line 11
for “officer summoned” substitute “officer concerned”.
(iii) Add at the end: “The said officer shall be required to produce a
certificate duly signed by the Head of his office showing the rules of
travelling and other allowances admissible to him as for journey on
tour and the amount payable to him by the Court shall be computed
on the basis of the rates specified in the certificate.” (30-3-1967).
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Rules 4-A and 4-B
are the same as those of Madras subject to the following changes:
(1) Rule 4-A—
(i) in sub-rule (1) delete the words “whose salary exceeds Rs. 10 per
mensem and”;
(ii) in sub-rule (2) for the words “also pay any further sum” substitute
the words “also pay any other sum”;
(iii) renumber sub-rule (3) as sub-rule (4) and insert as sub-rule (3)
the following:
“(3) In the case of employees of the Central Government or the Railway
Administration sums paid into Court as subsistence or compensation shall
be credited in the Treasury to the credit of the Central Government or the
Railway Administration as the case may be.”
In Rule 4-B—
For words “the Central Government or a Railway employee”
substitute the words “the Central Government or a State Government
or a Railway employee.” (9-6-1959); Reg. 8 of 1965, Section 3.
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MADRAS AND PONDICHERRY
“4-A. Special provision for public servants summoned as witnesses
in suits to which the Government is a party.—(1) Notwithstanding
anything contained in the foregoing rulees, in any suit by or against
the Government no payment in accordance with Rule 2 or Rule 4 shall
be required when an application on behalf of Government is made for
summons to a Government servant whose salary exceeds Rs. 10 per
mensem and whose attendance is required in a Court situate more
than five miles from his headquarters; and the expenses incurred by
Government in respect of the attendance of the witness shall not be
taken into consideration in determining costs incidental to the suit.
(2) When any other party to such a suit applies for a summons to
such an officer, he shall deposit in Court along with his application a
sum of money for the travelling and other expenses of the officer
according to the scale prescribed (by the Government under whom the
officer is serving) and shall also pay any further sum that may be
required under Rule 4 according to the same scale and the money so
deposited or paid shall be credited to Government.
(3) In all cases where a Government servant appears in accordance
with this rule, the Court shall grant him a certificate of attendance.” (2
-3-1942).
“4-B. Special provision for public servants summoned as witnesses
in suits in which the Government is not a party.—(1) Notwithstanding
anything contained in the foregoing rules, in all suits or other
proceedings to which the Government is not a party, where a servant
of the Central Government or a Railway employee is summoned to give
evidence and/or to produce documents in his public capacity, the Court
shall direct the party applying for summons to deposit such sum of
money as will, in the opinion of the Court, be sufficient to defray the
travelling and other expenses of the officer concerned as for a journey
on tour; and on the deposit of such sum the Court shall direct the
summons to be issued and, out of the sum so deposited or out of any
further sum which the Court may subsequently direct the party
applying for summons to deposit, the Court shall, on the appearance
before Court of the officer summoned or as soon thereafter as is
practicable, pay him the amount of travelling and other expenses
admissible to him as for a journey on tour under the rules applicable to
his service.
(2) The officer appearing before Court in accordance with sub-rule
(1) shall produce a certificate duly signed by the head of his office,
showing the rate of travelling and other allowances admissible to him
as for a journey on tour and the amount payable to him by the Court
shall be computed on the basis of the rates specified in such
certificate.” (17-12-1952); Act 26 of 1968, Section 3 and Sch. Pt. II.
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5. Time, place and purpose of attendance to be specified in summons.
—Every summons for the attendance of a person to give evidence or to
produce a document shall specify the time and place at which he is
required to attend, and also whether his attendance is required for the
purpose of giving evidence or to produce a document, or for both
purposes; and any particular document, which the person summoned is
called on to produce, shall be described in the summons with reasonable
accuracy.
6. Summons to produce document.—Any person may be summoned to
produce a document, without being summoned to give evidence; and any
person summoned merely to produce a document shall be deemed to
have complied with the summons if he causes such document to be
produced instead of attending personally to produce the same.
7. Power to require persons present in Court to give evidence or
produce document.—Any person present in Court may be required by the
Court to give evidence or to produce any document then and there in his
possession or power.
421
[7-A. Summons given to party for service.—(1) The Court may, on
the application of any party for the issue of a summons for the
attendance of any person, permit such party to effect service of such
summons on such person and shall, in such a case, deliver the summons
to such party for service.
(2) The service of such summons shall be effected by or on behalf of
such party by delivering or tendering to the witness personally a copy
thereof signed by the Judge or such officer of the Court as he may
appoint in this behalf and sealed with the seal of the Court.
(3) The provisions of Rules 16 and 18 of Order V shall apply to a
summons personally served under this rule as if the person effecting
service were a serving officer.
(4) If such summons, when tendered, is refused or if the person
served refuses to sign an acknowledgement of service or for any reason
such summons cannot be served personally, the Court shall, on the
application of the party, re-issue such summons to be served by the
Court in the same manner as a summons to a defendant.
(5) Where a summons is served by a party under this rule, the party
shall not be required to pay the fees otherwise chargeable for the service
of summons.]
High Court Amendments
ASSAM AND NAGALAND.—Same as in Calcutta.
CALCUTTA.—In Or. 16, after R. 7, insert the following rule, namely:—
“7-A. (i) Except where it appears to the Court that a summons
under this order should be served by the Court in the same manner as
a summons to a defendant the Court shall make over for service all
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summons under this Order to the party applying therefor. The service
shall be effected by or on behalf of such party by delivering or
tendering to the witness in person a copy thereof signed by the Judge
or such officer as he appoints in this behalf and sealed with the seal of
the Court.
(ii) Rules 16 and 18 of Order 5 shall apply to summons personally
served under this rule, as though the person effecting service were a
serving officer.
(iii) If such summons, when tendered, is refused or if the person
served refuses to sign an acknowledgement of service or if for any
reason such summons cannot be served personally, the Court shall, on
the application of party, re-issue such summons to be served by the
Court in like manner as a summons to a defendant.” (w.e.f. 25-7-
1928)
GAUHATI.—Same as in Calcutta.
ORISSA.—Rule 7-A as inserted w.e.f. 29-12-1961 deleted (23-5-1984)
— See Orissa Gazette, 25-5-1984, Pt. III-A, p. 69.
422
8. Summon how served.—Every summons [under this Order, not
being a summons delivered to a party for service under Rule 7-A,] shall
be served as nearly as may be in the same manner as a summons to a
defendant, and the rules in Order V as to proof of service shall apply in
the case of all summonses served under this rule.
High Court Amendments
ALLAHABAD.—After “this Order” and before “shall be served,” add “may
by leave of the Court be served by the party or his agent, applying for the
same, by personal service and failing such service.” (24-7-1926).
ANDHRA PRADESH.—Substitute for Rule 8:
“A summons under this Order may be delivered by the Court to the
party applying for such summons for making service on the witness,
provided that when the service is not effected by the party or the party
is unwilling to do so the summons shall be delivered through the
proper officer of the Court. The rules in Order V as to proof of service
shall apply in the case of all summons served under this rule.”
ASSAM.—Substitute the following:
“(1) Every summons under this Order not being a summons made
over to a party for service under Rule 7-A(1) of this Order shall be
served as nearly as may be in the same manner as a summons to a
defendant and the rule in Order V as to proof of service shall apply
thereto.
(2) The party applying for a summons to be served under this rule
shall before the summons is granted and within a period to be fixed
pay into Court the sum fixed by the Court under Rule 2 of this
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Order.” (25-7-1928).
“Exception.—When applying for a summons for any of its own
officers in his official capacity, Government will be exempt from the
operation of this rule.” (8-3-1948).
CALCUTTA.—Same as that of Assam.
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta.
KARNATAKA.—For Rule 8 substitute the following:
“R. 8. A summons under this Order may be delivered by the Court
to the party applying for such summons for making service on the
witness provided that where the service is not effected by the party or
the party is unwilling or unable to do so, the summons shall be
delivered through the proper officer of the Court. The Rule contained in
Order 5 of this Code as to the mode and proof of service shall apply in
the case of all summonses served under this rule”. (30-3-1967).
KERALA.—Substitute as follows:
“(1) A summons under this Order may be delivered by this Court to
the party applying for such summons for making service on the
witness:
Provided that when the party so desires in the first instance or is
unable after due diligence to effect such service, the summons shall be
delivered through the proper officer of the Court.
(2) Service of summons on a witness by the party or by the proper
officer shall, as nearly as may be, in the same manner as on a
defendant and the rules in Order V as to proof of service shall apply in
the case of all summons served under this rule.” (9-6-1959).
MADRAS.—Same as that of Andhra Pradesh. (1-11-1951)
ORISSA.—Same as that of Calcutta. Except that delete sub-rule (1) and
renumber sub-rule (2) as Rule 8. (29-12-1961).
PATNA.—Add:—
“Provided that a summons under this Order may by leave of the
Court served by the party or his agent applying for the same by
personal service. If such service is not effected and the Court is
satisfied that reasonable diligence has been used by the party or his
agent to effect such service then the summons shall be served by the
Court in the usual manner.”
RAJASTHAN.—Add the following proviso:
“Provided that any party may by leave of the Court, by himself or
through his agent, serve any of his witness or witnesses
personally.” (24-7-1954).
9. Time for serving summons.—Service shall in all cases be made a
sufficient time before the time specified in the summons for the
attendance of the person summoned, to allow him a reasonable time for
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preparation and for travelling to the place at which his attendance is
required.
10. Procedure where witness fails to comply with summons.—423[(1)
Where a person to whom a summons has been issued either to attend to
give evidence or to produce a document, fails to attend or to produce the
document in compliance with such summons, the Court—
(a) shall, if the certificate of the serving officer has not been verified by
affidavit, or if service of the summons has been effected by a party
or his agent, or
(b) may, if the certificate of the serving officer has been so verified,
examine on oath the serving officer or the party or his agent, as the case
may be, who has effected service, or cause him to be so examined by any
Court, touching the service or non-service of the summons.]
(2) Where the Court sees reason to believe that such evidence or
production is material, and that such person has, without lawful excuse,
failed to attend on to produce the document in compliance with such
summons or has intentionally avoided service, it may issue a
proclamation requiring him to attend to give evidence or to produce the
document at a time and place to be named therein; and a copy of such
proclamation shall be affixed on the outer door or other conspicuous part
of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any
time afterwards, the Court may, in its discretion, issue a warrant, either
with or without bail, for the arrest of such person, and may make an order
for the attachment of his property to such amount as it thinks fit, not
exceeding the amount of the costs of attachment and of any fine which
may be imposed under Rule 12:
Provided that no Court of Small Causes shall make an order for the
attachment of immovable property.
High Court Amendments
ALLAHABAD.—(i) In sub-rule (1) substitute a colon for the full stop after
the word “summons” and add the proviso:
“Provided that the Court need not examine the serving officer if the
person has been summoned only to produce a document and has
attended and admitted receipt of the summons but has failed to
produce the document.
(ii) In sub-rule (2):—
(a) between the word “proclamation” and the word “requiring” insert
the words, “or, if he is present, an order in writing to be signed by
him”;
(b) for the words “and a copy of such proclamation” substitute the
words “and a copy of the proclamation if issued.”
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In sub-rule (3) between the word “proclamation” and the words “at
any time afterwards” insert the words, “or an order in writing.” (11-9-
1938).
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In Rule 10, for the
proviso to sub-rule (3) the following shall be substituted, namely:
“Provided that no Court exercising Small Cause jurisdiction shall
make an order for the attachment of immovable property”. (9-6-
1959); Reg. 8 of 1965, Section 3.
11. If witness appears attachment may be withdrawn.—Where, at any
time after the attachment of his property, such person appears and
satisfies the Court,—
(a) that he did not, without lawful excuse, fail to comply with the
summons or intentionally avoid service, and
(b) where he has failed to attend at the time and place named in a
proclamation issued under the last preceding rule, that he had no
notice of such proclamation in time to attend,
the Court shall direct that the property be released from attachment and
shall make such order as to the costs of the attachment as it thinks fit.
424
12. Procedure if witness fails to appear.— [(1)] The Court may,
where such person does not appear, or appears but fails so to satisfy the
Court, impose upon him such fine not exceeding five hundred rupees as it
thinks fit, having regard to his condition in life and all the circumstances
of the case, and may order his property, or any part thereof, to be
attached and sold or, if already attached under Rule 10, to be sold for the
purpose of satisfying all costs of such attachment, together with the
amount of the said fine, if any:
Provided that, if the person whose attendance is required pays into
Court the costs and fine aforesaid, the Court shall order the property to
be released from attachment.
425
[(2) Notwithstanding that the Court has not issued a proclamation
under sub-rule (2) of Rule 10, nor issued a warrant nor ordered
attachment under sub-rule (3) of that rule, the Court may impose fine
under sub-rule (1) of this rule after giving notice to such person to show
cause why the fine should not be imposed.]
13. Mode of attachment.—The provisions with regard to the
attachment and sale of property in the execution of a decree shall, so far
as they are applicable, be deemed to apply to any attachment and sale
under this Order as if the person whose property is so attached were a
judgment-debtor.
14. Court may of its own accord summon as witnesses strangers to
suit.—Subject to the provisions of this Code as to attendance and
appearance and to any law for the time being in force, where the Court at
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any time thinks it necessary 426[to examine any person, including a party
to the suit] and not called as a witness by a party to the suit, the Court
may, of its own motion, cause such person to be summoned as a witness
to give evidence, or to produce any document in his possession, on a day
to be appointed, and may examine him as a witness or require him to
produce such document.
15. Duty of persons summoned to give evidence or produce document.
—Subject as last aforesaid, whoever is summoned to appear and give
evidence in a suit shall attend at the time and place named in the
summons for that purpose, and whoever is summoned to produce a
document shall either attend to produce it, or cause it to be produced, at
such time and place.
16. When they may depart.—(1) A person so summoned and attending
shall, unless the Court otherwise directs, attend at each hearing until the
suit has been disposed of.
(2) On the application of either party and the payment through the
Court of all necessary expenses (if any), the Court may require any
person so summoned and attending to furnish security to attend at the
next or any other hearing or until the suit is disposed of and, in default of
his furnishing such security, may order him to be detained in the civil
prison.
High Court Amendments
DELHI, HIMACHAL PRADESH, PUNJAB, HARYANA AND CHANDIGARH.—Add the
following sub-rule (3):
“(3) In the absence of the presiding officer the powers conferred by
sub-rule (2) may be exercised by the Senior Subordinate Judge of the
first class exercising jurisdiction at the headquarters of the district, or
by any Judge or court-official nominated by him for the purpose: (25-7
-1938)
Provided that a court-official nominated for the purpose shall not
order a person who fails to furnish such security as may be required
under sub-rule (2), to be detained in prison but shall refer the case
immediately to the presiding officer on his return.” (23-1-1940).
17. Application of Rules 10 to 13.—The provisions of Rules 10 to 13
shall, so far as they are applicable, be deemed to apply to any person
who having attended in compliance with a summons departs, without
lawful excuse, in contravention of Rule 16.
18. Procedure where witness apprehended cannot give evidence or
produce document.—Where any person arrested under a warrant is
brought before the Court in custody and cannot, owing to the absence of
the parties or any of them, give the evidence or produce the document
which he has been summoned to give or produce, the Court may require
him to give reasonable bail or other security for his appearance at such
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time and place as it thinks fit, and, on such bail or security being given,
may release him, and, in default of his giving such bail or security, may
order him to be detained in the civil prison.
19. No witness to be ordered to attend in person unless resident within
certain limits.—No one shall be ordered to attend in person to give
evidence unless he resides—
(a) within the local limits of the Court's ordinary original jurisdiction, or
427
(b) without such limits but at a place less than [one hundred] or
(where there is railway or steamer communication or other
established public conveyance for five-sixths of the distance
between the place where he resides and the place where the Court
428
is situate) less than [five hundred kilometres] distance from the
court house:
429
[Provided that where transport by air is available between the two
places mentioned in this rule and the witness is paid the fare by air, he
may be ordered to attend in person.]
High Court Amendments
ALLAHABAD.—In clause (b) between the words “public conveyance” and
“for five-sixths” insert “or private conveyances run for hire.” (4-4-1959).
BOMBAY.—Amendments made in 1966 have been superseded vide
Maharashtra Gaz. dt. 15-9-1983, Pt. IV Ka p. 397.
PUNJAB, HARYANA AND CHANDIGARH.—Add the following Proviso:
“Provided that any Court situate in the State of Punjab may require
the personal attendance of any witness residing in the Punjab or Delhi
State.” [4-3-1955]
20. Consequence of refusal of party to give evidence when called on by
Court.—Where any party to a suit present in Court refuses, without lawful
excuse, when required by the Court, to give evidence or to produce any
document then and there in his possession or power, the Court may
pronounce judgment against him or make such order in relation to the
suit as it thinks fit.
21. Rules as to witnesses to apply to parties summoned.—Where any
party to a suit is required to give evidence or to produce a document, the
provisions as to witnesses shall apply to him so far as they are applicable.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS).—For Rule 21 substitute the
following:—
“R. 21. (1) When any party to a suit is required by any other party
thereto to give evidence, or to produce a document, the provisions as
to witnesses shall apply to him so far as applicable.
(2) When any party to a suit gives evidence on his own behalf the
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Court may in its discretion permit him to include as costs in the suit a
sum of money equal to the amount payable for travelling and other
expenses to other witnesses in the case of similar standing.” (11-11-
1927).
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta.
KARNATAKA.—For Rule 21 substitute the following:—
“R. 21. (1) When a party to a suit is required by any other party
thereto to give evidence or to produce a document, the provisions as to
witnesses shall apply to him so far as applicable.
(2) When a party to a suit gives evidence on his own behalf, the
Court may in its discretion, permit him to include as costs in the suit of
money equal to the amount payable for travelling and other expenses
to other witnesses in the case of similar standing.” (30-3-1967).
KERALA (LACCADIVE, MINICOY AND AMINIDIVI I SLANDS).—Same as that of
Madras (9-6-1959).
MADRAS (PONDICHERRY).—For Rule 21 substitute the following:—
“R. 21. Rules in the case of parties appearing as witnesses.—(1)
When a party to a suit is required by any other party thereto to give
evidence or to produce a document, the provisions as to witnesses
shall apply to him so far as applicable.
(2) When a party to a suit gives evidence on his own behalf, the
Court may in its discretion, permit him to include as costs in the suit a
sum of money equal to the amount payable for travelling and other
expenses to other witnesses in the case of similar standing.” (4-2-
1936)
RULES 22 AND 23
ALLAHABAD.—Add the following rules:
“22. (1) Save as provided in this rule and in Rule 2, the Court shall
allow travelling and other expenses on the following scale:
(a) in the case of witnesses of the class of cultivators, labourers, and
menials, six annas a day;
(b) in the case of witnesses of a better class, such as zamindars,
traders, pleaders and persons of corresponding rank, from eight
annas to two rupees a day, as the Court may direct; and
(c) in the case of witnesses of superior rank, including officers of
Government in receipt of a salary of not less than Rs. 200 a month
from three to five rupees a day:
Provided that where a Government servant is summoned to produce
official documents or to give evidence of facts which came to his
knowledge in the discharge of his public duties, he shall be paid
travelling and other expenses at the rates admissible to him as for
journeys on tour in accordance with the travelling allowance rules
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applicable to him. (4-3-1953).
(2) If a witness demands any sum in excess of what has been paid
to him, such sum shall be allowed if he satisfies the Court that he has
actually and necessarily incurred the additional expenses. (22-5-1915)
Illustration
A post office or railway employee summoned to give evidence is
entitled to demand from the party, on whose behalf or at whose
instance he is summoned, the travelling and other expenses allowed to
witnesses for the class or rank to which he belongs and in addition the
sum for which he is liable as payment to the substitute officiating
during his absence from duty. The sum so payable in respect of the
substitute will be certified by the official superior of the witness on a
slip which the witness will present to the Court from which the
summons issued.
(3) If a witness be detained for a longer period than one day, the
expenses of his detention shall be allowed at such rate, not usually
exceeding that payable under clause (1) of this rule, as may seem to
the Court to be reasonable and proper:
Provided that the Court may, for reasons stated in writing, allow
expenses on a higher scale than that hereinbefore prescribed. (22-5-
1915)
23. In cases to which Government is a party, Government servants
whose salary exceeds Rs. 10 per mensem and all police constables
whatever their salary may be who are summoned to give evidence in
their official capacity at a Court situated more than five miles from
their headquarters, shall be given a certificate of attendance by the
Court in lieu of travelling and other expenses.” (7-2-1920).
430
[ORDER XVI-A
Attendance of Witnesses Confined or Detained in Prisons
1. Definitions.—In this Order,—
(a) “detained” includes detained under any law providing for
preventive detention;
(b) “prison” includes—
(i) any place which has been declared by the State Government, by
general or special order, to be a subsidiary jail; and
(ii) any reformatory, borstal institution or other institution of a like
nature.
2. Power to require attendance of prisoners to give evidence.—Where it
appears to a Court that the evidence of a person confined or detained in a
prison within the State is material in a suit, the Court may make an order
requiring the officer in charge of the prison to produce that person before
the Court to give evidence:
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Provided that, if the distance from the prison to the Court-house is
more than twenty-five kilometres, no such order shall be made unless the
Court is satisfied that the examination of such person on commission will
not be adequate.
3. Expenses to be paid into Court.—(1) Before making any Order under
Rule 2, the Court shall require the party at whose instance or for whose
benefit the order is to be issued, to pay into Court such sum of money as
appears to the Court to be sufficient to defray the expenses of the
execution of the order, including the travelling and other expenses of the
escort provided for the witness.
(2) Where the Court is subordinate to a High Court, regard shall be
had, in fixing the scale of such expenses, to any rules made by the High
Court in that behalf.
4. Power of State Government to exclude certain persons from the
operation of Rule 2.—(1) The State Government may, at any time, having
regard to the matters specified in sub-rule (2), by general or special
order, direct that any person or class of persons shall not be removed
from the prison in which he or they may be confined or detained, and
thereupon, so long as the order remains in force, no order made under
Rule 2, whether before or after the date of the order made by the State
Government, shall have effect in respect of such person or class of
persons.
(2) Before making an order under sub-rule (1), the State Government
shall have regard to the following matters, namely:—
(a) the nature of the offence for which, or the grounds on which, the
person or class of persons have been ordered to be confined or
detained in prison;
(b) the likelihood of the disturbance of public order if the person or
class of persons is allowed to be removed from the prison; and
(c) the public interest, generally.
5. Officer in charge of prison to abstain from carrying out order in
certain cases.—Where the person in respect of whom an order is made
under Rule 2—
(a) is certified by the medical officer attached to the prison as unfit to
be removed from the prison by reason of sickness or infirmity; or
(b) is under committal for trial or under remand pending trial or
pending a preliminary investigation; or
(c) is in custody for a period which would expire before the expiration
of the time required for complying with the order and for taking him
back to the prison in which he is confined or detained; or
(d) is a person to whom an order made by the State Government
under Rule 4 applies,
the officer in charge of the prison shall abstain from carrying out the
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Court's order and shall send to the Court a statement of reasons for so
abstaining.
6. Prisoner to be brought to Court in custody.—In any other case, the
officer in charge of the prison shall, upon delivery of the Court's order,
cause the person named therein to be taken to the Court so as to be
present at the time mentioned in such order, and shall cause him to be
kept in custody in or near the Court until he has been examined or until
the Court authorises him to be taken back to the prison in which he is
confined or detained.
7. Power to issue commission for examination of witness in prison.—
(1) Where it appears to the Court that the evidence of a person confined
or detained in a prison, whether within the State or elsewhere in India, is
material in a suit but the attendance of such person cannot be secured
under the preceding provisions of this Order, the Court may issue a
commission for the examination of that person in the prison in which he
is confined or detained.
(2) The provisions of Order XXVI shall, so far as may be, apply in
relation to the examination on commission of such person in prison as
they apply in relation to the examination on commission of any other
person.]
ORDER XVII
Adjournments
431
1. Court may grant time and adjourn hearing.— [(1) The court may,
if sufficient cause is shown, at any stage of the suit grant time to the
parties or to any of them, and may from time to time adjourn the hearing
of the suit for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three
times to a party during hearing of the suit.]
(2) Costs of adjournment.—In every such case the Court shall fix a
432
day for the further hearing of the suit, and [shall make such orders as
to costs occasioned by the adjournment or such higher costs as the court
deems fit]:
433
[Provided that,—
(a) when the hearing of the suit has commenced, it shall be continued
from day-to-day until all the witnesses in attendance have been
examined, unless the Court finds that, for the exceptional reasons to
be recorded by it, the adjournment of the hearing beyond the
following day is necessary,
(b) no adjournment shall be granted at the request of a party, except
where the circumstances are beyond the control of that party,
(c) the fact that the pleader of a party is engaged in another Court,
shall not be a ground for adjournment,
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(d) where the illness of a pleader or his inability to conduct the case
for any reason, other than his being engaged in another Court, is
put forward as a ground for adjournment, the Court shall not grant
the adjournment unless it is satisfied that the party applying for
adjournment could not have engaged another pleader in time,
(e) where a witness is present in Court but a party or his pleader is not
present or the party or his pleader, though present in Court, is not
ready to examine or cross-examine the witness, the Court may, if it
thinks fit, record the statement of the witness and pass such orders
as it thinks fit dispensing with the examination-in-chief or cross-
examination of the witness, as the case may be, by the party or his
pleader not present or not ready as aforesaid.]
High Court Amendments
ALLAHABAD.—Add the following further proviso:
“Provided further that no such adjournment shall be granted for the
purpose of calling a witness not previously summoned or named, nor
shall any adjournment be utilised by any party for such purpose,
unless the Judge has made an order in writing under the proviso to
Order XVI, Rule 1.” (24-7-1926).
BOMBAY.—In Order XVII, for the existing Rule 1 and its marginal notes,
substitute the following as Rule 1 and marginal notes:
“1. Court may grant time and adjourn hearing.—(1) The Court may,
if sufficient cause is shown, at any stage of the suit, grant time to the
parties or to any of them, and may from time to time adjourn the
hearing of the suit:
Provided that where a case is fixed for taking evidence, the Court
shall record the evidence of all the witnesses present for either party
unless the Court hearing the case for reasons to be recorded in writing
finds it necessary to adjourn the case.”
(2) Costs of adjournment.—In every such case the Court shall fix a
day for the further hearing of the suit, and may make such order as it
thinks fit with respect to the costs occasioned by the adjournment,
ordinarily not exceeding fifty rupees in ordinary suits and one hundred
rupees in special suits:
Provided that, when the hearing of evidence has once begun, the
hearing of the suit shall be continued from day to day until all the
witnesses in attendance have been examined, unless the Court finds
the adjournment of the hearing beyond the following day to be
necessary for reasons to be recorded.” (1-11-1966)
Amendments made in 1966 have now been superseded—See
Maharashtra Govt. Gazette 15-9-1983, Pt. IV(Ka), p. 397.
CALCUTTA.—Insert after the first proviso in sub-rule (1) of Rule (1) of
Order 17 the following second proviso:
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“Provided further that in the circumstances which are proved to be
beyond the control of a party, the Court can grant adjournment for
such number of times as the interest of justice will demand.”
Note.—They shall apply to all civil courts throughout the territories in
relation to which, the High Court, Calcutta, exercises its jurisdiction.
(w.e.f. 7-12-2006).
GUJARAT.—Substitute sub-rule (2) as in Bombay except that for “fifty”
read “thirty” and for “one hundred” read “forty-five”.
PUNJAB, HIMACHAL PRADESH, DELHI.—(1) Add the following at the
beginning of sub-rule (1):
“Subject to the provision of Order XXIII, Rule 3.”
(2) Add the following as sub-rule (3):
“(3) Where sufficient cause is not shown for the grant of an
adjournment under sub-rule (1) the Court shall proceed with the suit
forthwith.” (As amended on 21-7-1937).
Rule 1-A
STATE AMENDMENTS
DELHI.—The following shall be inserted as Rule 1(A) in Order 17:—
Rule 1(A).—On the occurrence of an unanticipated holiday or in the
event of the Presiding Officer of a Court being absent owing to sudden
illness or other unexpected cause, all cases fixed for the day in
Question shall be deemed to have been automatically adjourned to
next working day when the Presiding Officer is present and it shall be
the duty of the parties or their counsel to attend Court on that day.
Explanation.—Nothing in this rule shall apply where another
Presiding Officer has been assigned the work of the Court for the said
day. — Delhi Gazette, 21-4-1998, Pt. IV, Extra., p. 2 (No. 61).
► Repeated adjournments.—Repeated adjournments breaks the litigant's back.
Courts shall not grant adjournments in routine manner and mechanically and shall
not be a party to cause for delay in dispensing the justice, Ishwarlal Mali Rathod v.
Gopal, (2021) 12 SCC 612.
► Sickness of pleader.—When a counsel seeks accommodation due to sudden
illness, the court cannot refuse a short accommodation and dismiss the appeal on
the ground that his client was cantankerous and unreasonable before the Lok Adalat.
The two issues have no relation to each other and such dismissal can only be
attributed to prejudice, B.P. Moideen Sevamandir v. A.M. Kutty Hassai, (2009) 2
SCC 198 : (2009) 1 SCC (Civ) 446.
2. Procedure if parties fail to appear on day fixed.—Where, on any day
to which the hearing of the suit is adjourned, the parties or any of them
fail to appear, the Court may proceed to dispose of the suit in one of the
modes directed in that behalf by Order IX or make such other order as it
thinks fit.
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434
[Explanation.—Where the evidence or a substantial portion of the
evidence of any party has already been recorded and such party fails to
appear on any day to which the hearing of the suit is adjourned, the
Court may, in its discretion, proceed with the case as if such party were
present.]
High Court Amendments
ALLAHABAD.—Add the following:
“Where the evidence, or a substantial portion of the evidence, of any
party has already been recorded and such party fails to appear on such
day, the Court may in its discretion proceed with the case as if such
party were present, and may dispose of it on the merits.
Explanation.—No party shall be deemed to have failed to appear if
he is either present or represented in Court by agent or pleader,
though engaged only for the purpose of making an application.” (28-5-
1943).
ANDHRA PRADESH.—Add the Explanation as follows:
“Explanation.—The mere presence in Court of a party or his counsel
not duly instructed shall not be considered to be an appearance of the
party within the meaning of this rule.” (27-4-1961).
► Ex parte proceedings.—Discretionary power of court under Expln. to Order
17 Rule 2 to proceed with the case deeming an absenting party “as if such party was
present” can be exercised only where evidence or substantial portion of evidence of
absenting party has already been recorded, G. Ratna Raj v. Sri Muthukumarasamy
Permanent Fund Ltd., (2019) 11 SCC 301.
3. Court may proceed notwithstanding either party fails to produce
evidence, etc.—Where any party to a suit to whom time has been granted
fails to produce his evidence, or to cause the attendance of his witnesses,
or to perform any other act necessary to the further progress of the suit,
435
for which time has been allowed, [the Court may, notwithstanding
such default,—
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under Rule 2].
High Court Amendments
ALLAHABAD.—In Rule 3, put a comma after the first word “where” and
insert thereafter the words “in a case to which Rule 2 does not apply”.
(17-1-1953).
ANDHRA PRADESH.—Add the following proviso:
“Provided that in a case when there is default under this rule as well
as default of appearance under Rule 2 the Court will proceed under
Rule 2.” (27-4-1961).
MADHYA PRADESH.—Same as Andhra Pradesh (27-8-1976).
STATE AMENDMENTS
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Rule 4
KARNATAKA.—In its application to the State of Karnataka, after Rule 3,
the following shall be inserted, namely—
“4. Priority of disposal of cases involving small farmers and
persons belonging to the economically weaker sections.—(1)
Where in any suit or other proceeding in any court, a small farmer or a
person belonging to the economically weaker sections is involved
either as plaintiff or as defendant, such case shall be taken up on
priority over other cases listed for the day.
(2) The Court shall hear and dispose of such case, as far as possible
within six months,—
(i) in a case pending on the date of commencement of the Code of
Civil Procedure (Karnataka Amendment) Act, 2023 from such
date of commencement or the date next fixed for hearing of the
case, or;
(ii) in a case filed after the commencement of the Code of Civil
Procedure (Karnataka Amendment) Act, 2023 from the date fixed
in the summons or notice of such suit or proceeding for the
appearance of the defendant or respondent.
(3)(i) Notwithstanding anything said in clause (i) of sub-rule (2)
above a party claiming benefit of this rule, may apply to the Court
along with an affidavit in proof of his beneficiary status, for disposal of
his case on preference in accordance with the provisions of this rule.
(ii) In cases filed after the commencement of this Amendment Act,
the beneficiary may apply to the Court, if he is the plaintiff, and if he is
a defendant on the date of his first appearance before Court, in
response to the summons, in the same manner as in clause (i) above.
(iii) Where the beneficiary status of the applicant is disputed the
Court shall try the question summarily and dispose of the application
as for as possible within fifteen days, on such terms including
compensatory costs.
(4) In disposing of a case under this rule the Court may, in
appropriate circumstances, adopt the procedure set out in the
provisions of Order X, Order XII and Order XXXVII of the Code.
(5) No adjournment shall be granted in such a case at the instance
of the opponent of the beneficiary, except for compelling reasons to be
recorded by the Court.
Explanation 1: For the purposes of this rule a ‘case’ includes a suit
or other proceeding arising out of such suit pending in the High Court,
or other Civil Courts.
Explanation 2: ‘Small farmer’ means a person who on the date of
commencement of this Act, holds whether as owner, or mortgagee
with possession or partly in one capacity and partly in another not
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more than such units of land, the annual income from which does not
exceed such amount as determined by the State Government and who
has no income from any source other than agriculture.
Explanation 3: ‘Persons belonging to weaker section’ means persons
whose annual income from all sources does not exceed as specified by
the Government from time to time.” [Vide Karnataka Act 8 of 2024, S.
2 (w.e.f. 4-3-2024)]
► Nature.—Order 17, Rule 2 does not cast a mandate on the trial court to
deliver the judgment on the same day but merely empowers it to exercise its
discretion in the manner provided, Thakur Jit Ram Janki Ji v. Shankar Dayal,
(2006) 9 SCC 187.
► Proceeding with trial without cross-examination.—Where the party did not
cross-examine the witness, though three opportunities were granted, the closure of
the evidence and decision of the case by the court was held not improper, B.V.
Smitha Rani v. M.K. Girish, (2009) 17 SCC 660.
ORDER XVIII
Hearing of the Suit and Examination of Witnesses
1. Right to begin.—The plaintiff has the right to begin unless the
defendant admits the facts alleged by the plaintiff and contends that
either in point of law or on some additional facts alleged by the defendant
the plaintiff is not entitled to any part of the relief which he seeks, in
which case the defendant has the right to begin.
High Court Amendments
PUNJAB, HARYANA AND CHANDIGARH.—Court may grant time and adjourn
hearing.—(1) Subject to the provisions of Or. 23 R. 3, the Court may, if
sufficient cause is shown at any stage of the suit, grant time to the
parties or to any of them, and may from time to time adjourn the hearing
of the suit.
(2) In every such case, the Court shall fix a day for the further hearing
of the suit, and may make such order as it thinks fit with respect to the
costs occasioned by the adjournment:
Provided that, when the hearing of evidence has once begun, the
hearing of the suit shall be continued from day to day until all the
witnesses in attendance have been examined, unless the Court finds the
adjournment of the hearing beyond the following day to be necessary for
reasons to be recorded.
(3) Where sufficient cause is not shown for the grant of an
adjournment under sub-rule (1) the Court shall proceed with the suit
forthwith. (High Court Noti. No. 95-G, dt. 26-2-1925 and No. 211-R/XI-Y-
22, dt. 21-7-1937).
► Examination of witness.—A party is not debarred from examining its
adversary as a witness on his behalf. A plaintiff can examine any witness he so likes,
the witness may be a stranger, may be a man of his own party or party himself or
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may be a defendant or his man, Balaram Rathore v. Sub-Divisional Officer (Rev.),
Bilaspur, 2011 SCC OnLine Chh 358: AIR 2011 Chh 120 (121).
2. Statement and production of evidence.—(1) On the day fixed for the
hearing of the suit or on any other day to which the hearing is adjourned,
the party having the right to begin shall state his case and produce his
evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence
(if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
436
[(3-A) Any party may address oral arguments in a case, and shall,
before he concludes the oral arguments, if any, submit if the Court so
permits concisely and under distinct headings written arguments in
support of his case to the Court and such written arguments shall form
part of the record.
(3-B) A copy of such written arguments shall be simultaneously
furnished to the opposite party.
(3-C) No adjournment shall be granted for the purpose of filing the
written arguments unless the Court, for reasons to be recorded in writing,
considers it necessary to grant such adjournment.
(3-D) The Court shall fix such time-limits for the oral arguments by
either of the parties in a case, as it thinks fit.]
437
(4) [* * *]
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Rule 2, after sub-rule (3),
insert the following sub-rules, namely:—
“(3-A) A party shall, within four weeks prior to commencing the oral
arguments, submit concisely and under distinct headings written
arguments in support of his case to the court and such written
arguments shall form part of the record.
(3-B) The written arguments shall clearly indicate the provisions of
the laws being cited in support of the arguments and the citations of
judgments being relied upon by the party and include copies of such
judgments being relied upon by the party.
(3-C) A copy of such written arguments shall be furnished
simultaneously to the opposite party.
(3-D) The court may, if it deems fit, after the conclusion of
arguments, permit the parties to file revised written arguments within
a period of not more than one week after the date of conclusion of
arguments.
(3-E) No adjournment shall be granted for the purpose of filing the
written arguments unless the court, for reasons to be recorded in
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writing, considers it necessary to grant such adjournment.
(3-F) It shall be open for the court to limit the time for oral
submissions having regard to the nature and complexity of the
matter.” [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-2020)].
Union Territory of Ladakh.—In its application to the Union Territory
of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O. 3774(E),
dated 23-10-2020].
High Court Amendments
ALLAHABAD.—For the present Rule 2, substitute the following:
“2. (1) On the day fixed for the hearing of the suit or on any other
day to which the hearing is adjourned the party having the right to
begin shall state his case, indicating the relevancy of each of the
documents produced by him, and the nature of the oral evidence which
he proposes to adduce and shall then call his witnesses in support of
the issues which he is bound to prove.
(2) The other party shall then state his case in the manner aforesaid
and produce his evidence (if any).” (24-7-1926).
ANDHRA PRADESH AND BOMBAY.—Same as that of Madras.
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
KARNATAKA.—Same as that of Madras (9-2-1967).
KERALA.—Same as that of Madras from the words “nothing……………..any
stage” after that add the following “……………….of the suit for reasons to be
recorded.” (9-6-1959)
MADHYA PRADESH.—Add the following sub-rule (4):
“(4) Notwithstanding anything contained in this rule the Court may
order that the production of evidence or the address to the Court may
be in any order which it may deem fit.” (16-9-1960).
MADRAS.—Insert the following Explanation at the end of Rule 2:
“Explanation.—Nothing in this rule shall affect the jurisdiction of the
Court for reasons to be recorded in writing to direct any party to
examine any witness at any stage.”
ORISSA.—Add the Explanation as in Madras.
PUNJAB, HARYANA AND CHANDIGARH.—Add the Explanation as in Madras as
Explanation 1:
“Explanation 2.—The expression “witness” in Explanation 1 shall
include any party as his own witness.” (9-6-1942).
RAJASTHAN.—The following shall be inserted as sub-rule (4) to Rule 2:
“(4) Where a party himself wishes to appear as a witness, he shall
so appear before any other witness on his behalf has been examined:
provided that the Court may on an application made in this behalf and
for reasons to be recorded, permit him to appear as his own witness at
a later stage.” (25-7-1957).
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ASSAM AND NAGALAND, CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—
Insert the following as Rule 2-A:
“2-A. Notwithstanding anything contained in clauses (1) and (2) of
Rule 2, the Court may for sufficient reason go on with the hearing
although the evidence of the party having the right to begin has not
been concluded, and may also allow either party to produce any
witness at any stage of the suit.”
► Stating the case: Ambit and scope.—Purpose of procedure of stating of
case by a party is to help court understand nature of evidence likely to be led by a
party in support of his case. The expression “state his case”, “produce his evidence”
and “address the court generally on the whole case” occurring in Order 18, Rules 2
(1) and (2) have different meanings and connotations. ‘State his case’- The party is
accorded an opportunity to give general outlines of the case and also indicate
generally the nature of evidence likely to be let in by him to prove his case before
production of his evidence. ‘Hearing of the suit’ does not mean an oral argument
alone but comprehends both production of evidence and arguments.
► Scheme.—Order 18 Rule 2, particularly, sub-rules (1), (2), (3) and (3-A) and
Order 18 Rule 15 enables the successor Judge to deliver the judgment without oral
arguments where one party has already lost his right of making oral arguments and
the other party does not insist on it, Rasiklal Manikchand Dhariwal v. M.S.S. Food
Products, (2012) 2 SCC 196.
► Production of evidence.—Evidence to be discarded as being outside the
pleadings is to be determined by the court when it discusses the evidence, Kishor
Kirtilal Mehta v. Lilavati Kirtilal Mehta Medical Trust, (2007) 10 SCC 21.
It is not necessary for plaintiff to establish its case from written statement, Naresh
Chandra Singhania v. Deepika, (2005) 10 SCC 299.
► Commencement and conclusion of hearing.—The hearing of suit starts
when evidence in a suit begins and it concludes when judgment is pronounced,
Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196 :
(2012) 1 SCC (Civ) 705.
3. Evidence where several issues.—Where there are several issues, the
burden of proving some of which lies on the other party, the party
beginning may, at his option, either produce his evidence on those issues
or reserve it by way of answer to the evidence produced by the other
party; and, in the latter case, the party beginning may produce evidence
on those issues after the other party has produced all his evidence, and
the other party may then reply specially on the evidence so produced by
the party beginning; but the party beginning will then be entitled to reply
generally on the whole case.
High Court Amendment
ALLAHABAD.—For the present Rule 3, substitute the following:
“3. (1) Where there are several issues the burden of proving some
of which lies on the other party, the party beginning may, at his
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option, either state his case in the manner aforesaid and produce his
evidence on those issues or reserve the statement of his case and the
production of his evidence on those issues by way of answer to the
evidence produced by the other party; and, if the latter is the case, the
party beginning may state his case in the manner aforesaid and
produce evidence on those issues after the other party has produced
all his evidence.
(2) After both parties have produced their evidence, the party
beginning may address the Court on the whole case; the other party
may then address the Court on the whole case; and the party
beginning may reply generally on the whole case, provided that in
doing so he shall not, without the leave of the Court, raise questions
which should have been raised in the opening address.” (20-6-1936).
438
[3-A. Party to appear before other witnesses.—Where a party
himself wishes to appear as a witness, he shall so appear before any
other witness on his behalf has been examined, unless the Court, for
reasons to be recorded, permits him to appear as his own witness at a
later stage.]
► Unwilling party.—If party does not wish to appear as a witness at all, the
question whether he should appear first loses its relevance, N.C. Kaladharan v.
Kamaleshwaran, (2002) 10 SCC 184.
439
[4. Recording of evidence.—(1) In every case, the examination-in-
chief of a witness shall be on affidavit and copies thereof shall be supplied
to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the
documents, the proof and admissibility of such documents which are filed
along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the
witness in attendance, whose evidence (examination-in-chief) by affidavit
has been furnished to the Court, shall be taken either by the Court or by
the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this
sub-rule, consider taking into account such relevant factors as it thinks
fit.
(3) The Court or the Commissioner, as the case may be, shall record
evidence either in writing or mechanically in the presence of the Judge or
of the Commissioner, as the case may be, and where such evidence is
recorded by the Commissioner he shall return such evidence together
with his report in writing signed by him to the Court appointing him and
the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material
respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence
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before the Commissioner shall be recorded by him and decided by the
Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court
appointing the commission within sixty days from the date of issue of the
commission unless the Court for reasons to be recorded in writing
extends the time.
(6) The High Court or the District Judge, as the case may be, shall
prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be
paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in so
far as they are applicable, shall apply to the issue, execution and return
of such commission under this rule.]
STATE AMENDMENTS
Madhya Pradesh.—In its application to the State of Madhya Pradesh,
in the First Schedule, in Order XVIII,—
(i) in Rule 4,
(a) for the existing marginal heading, the following marginal
heading shall be substituted, namely:—
“Recording of evidence in Commercial Court”;
(b) in sub-rule (1), for the words “In every case”, the words,
brackets and figures “In any suit in respect of a commercial
dispute of a specified value triable in the Commercial Courts
constituted under sub-section (1) of Section 3 of the Commercial
Courts Act, 2015 (Act 4 of 2016)” shall be substituted;
(ii) after Rule 4, the following rule shall be inserted, namely:—
“4-A. Witnesses to be examined in open Court.—Except as provided in
Rule 4, the evidence of the witnesses in attendance shall be taken orally
in open Court in the presence and under the personal direction and
superintendence of the Judge.” [Vide M.P. Act No. 12 of 2022, S. 3(1),
dated 4-5-2022.]
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Rule 4, after sub-rule (1),
insert the following sub-rules, namely:—
“(1-A) The affidavits of evidence of all witnesses whose evidence is
proposed to be led by a party shall be filed simultaneously by that
party at the time directed in the first Case Management Hearing.
(1-B) A party shall not lead additional evidence by the affidavit of
any witness (including of a witness who has already filed an affidavit)
unless sufficient cause is made out in an application for that purpose
and an order, giving reasons, permitting such additional affidavit is
passed by the court.
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(1-C) A party shall however have the right to withdraw any of the
affidavits so filed at any time prior to commencement of cross-
examination of that witness, without any adverse inference being
drawn based on such withdrawal:
Provided that any other party shall be entitled to tender as evidence
and rely upon any admission made in such withdrawn affidavit.” [Vide
S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-2020)].
Union Territory of Ladakh.—In its application to the Union Territory
of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O. 3774(E),
dated 23-10-2020].
High Court Amendment
PUNJAB, HARYANA AND U.T. CHANDIGARH.—In its application to the States
of Punjab, Haryana and U.T. Chandigarh, the following another proviso
shall be added:
“Provided further that the Court in its discretion may record the
examination-in-chief of a witness orally or by way of affidavit.” [Vide
Noti. No. 189 Rules/XI.Y.16, dt. 20-11-2023, w.e.f. 23-11-2023]
RAJASTHAN.—Insert the following at the end of the existing Rule 4.
“Subject to the provisions of Rule 1 of Order XVI.” (25-7-1957).
Rule 4-A
CALCUTTA.—Insert Rule 4-A as under:—
“4-A. Panel of Commissioners in all Courts within the District.—(1)
The District Judge shall prepare a panel of Commissioners for all the
Courts within the District in consultation with the seniormost Civil
Judge and such other Judge of each sub-division he thinks fit. There
shall be separate panels of such Commissioners for each sub-division
of the District from the lawyers having minimum practice of three
years. After such selection, the empanelled Commissioners will be
given training on the relevant provisions of the Code of Civil Procedure
and the Evidence Act under the supervision of the District Judge or
such other Civil Judge of the sub-division, as he directs, for a short
period.
(2) All such Commissions will be held in the Court premises after
the usual Court-hours or on any holiday according to the convenience
of the Court and the Commissioner and after each day's sitting, the
Commissioner shall hand over all the documents and materials to the
officer of the Court specially assigned with such duty to take charge of
such documents and materials to be preserved in safe custody and
those will be again handed over to the Commissioner on the next day
before the start of the Commission.
(3) The Commissioner shall maintain a day-to-day order-sheet
regarding the progress of the case indicating (i) the names of the
witnesses cross-examined or re-examined and objections, if any,
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raised during their examination and how those objections were
disposed of; (ii) record of the documents or materials exhibited; (iii)
demeanour of any witness, when considered necessary, after recording
objection, if any, raised by any of the parties.
(4) If a party calling a witness wants to cross-examine his own
witness, the Commissioner shall record such fact and refer the matter
to the Court for its decision on the point.”—Inserted by Kolkata
Gazette, Extra., dt. 7-12-2006.
Note.—They shall apply to all civil courts throughout the territories in
relation to which, the High Court, Calcutta, exercises its jurisdiction
(w.e.f. 7-12-2006).
► Nature and scope.—Where opportunity to cross-examine plaintiff's evidence
tendered through affidavit despite several opportunities given by the trial court,
evidence could not subsequently be assailed as unrelaible, Rasiklal Manikchand
Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196 : (2012) 1 SCC (Civ) 705.
Where the defendant-appellant could not examine attesting witness of will as the
witness was not granted leave, there being no deliberate negligence or inaction on
part of appellants closing of evidence by trial court was a failure of justice, Amrit Lal
Kapoor v. Kusum Lata Kapoor, (2010) 6 SCC 583 : (2010) 2 SCC (Civ) 742.
► Examination of witness.—Under Order 18, Rule 4(1) (as substituted by Act
22 of 2002), examination-in-chief of witness produced without summons, held, must
be in form of an affidavit, however in case of summoned witnesses, principle
incorporated in Order 18, Rule 4(1) can be waived, Salem Advocate Bar Assn. v.
Union of India, (2003) 1 SCC 49.
Under Order 18, Rule 4(2), cross-examination or re-examination of witness
whose evidence given in form of affidavit, held, may be carried out by court or by
Commissioner appointed by it, Salem Advocate Bar Assn. v. Union of India, (2003)
1 SCC 49.
Under Order 18, Rule 4(3) CPC, whenever the evidence is recorded by the
Commissioner it will be advisable that there should be simultaneously at least an
audio recording of the statement of the witnesses so as to obviate any controversy at
a later stage, Salem Advocate Bar Assn. v. Union of India, (2003) 1 SCC 49.
440
[5. How evidence shall be taken in appealable cases.—In cases in
which an appeal is allowed, the evidence of each witness shall be,—
(a) taken down in the language of the Court,—
(i) in writing by, or in the presence and under the personal direction and
superintendence of, the Judge, or
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded
mechanically in the language of the Court in the presence of the
Judge.]
► Proof of affidavit.—Where witnesses affidavit is tendered in evidence,
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affidavit is already on oath/affirmation and is therefore not required to be reproved
by deponent, Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2
SCC 196 : (2012) 1 SCC (Civ) 705.
6. When deposition to be interpreted.—Where the evidence is taken
down in language different from that in which it is given, and the witness
does not understand the language in which it is taken down, the evidence
as taken down in writing shall be interpreted to him in the language in
which it is given.
7. Evidence under Section 138.—Evidence taken down under Section
138 shall be in the form prescribed by Rule 5 and shall be read over and
signed and, as occasion may require, interpreted and corrected as if it
were evidence taken down under that rule.
8. Memorandum when evidence not taken down by Judge.—Where the
evidence is not taken down in writing by the Judge, 441[or from his
dictation in the open Court, or recorded mechanically in his presence,] he
shall be bound, as the examination of each witness proceeds, to make a
memorandum of the substance of what each witness deposes, and such
memorandum shall be written and signed by the Judge and shall form
part of the record.
High Court Amendments
ALLAHABAD.—(a) Insert the words “or from his dictation” between the
words “in writing by the Judge” and the words “he shall be bound”
occurring towards the beginning of the rule;
(b) Substitute the words “by the Judge or typed to his dictation, shall
be signed by him” for the words “and signed by the Judge” occurring
towards the end of the rule (19-5-1956).
Explanation.—However, to matters outside Greater Bombay, the State
of Goa and the Union Territories of Daman and Diu and Dadra and Nagar
Haveli and from which there is no first appeal to the High Court the
depositions given by the witnesses shall be recorded only in Marathi or in
English where the witness deposes in English. In such matter it is not
necessary to maintain memorandum as mentioned in the rule.—(31-12-
1987).
BOMBAY.—In Order XVIII for Rule 8 substitute—
“8. Memorandum when evidence not taken down by Judge.—Where
the evidence is not taken down in writing by the Judge, he shall be
bound as the examination of each witness proceeds, to make a
memorandum of the substance of what each witness deposes, and
such memorandum shall be written or dictated and signed by the
Judge and shall form part of the record.
Exception.—However in matters outside Greater Bombay, the State
of Goa and the Union Territories of Daman and Diu and Dadra and
Nagar Haveli and from which there is no first appeal to the High Court
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the depositions given by the witnesses shall be recorded only in
Marathi or in English where the witness deposes in English. In such
matter it is not necessary to maintain memorandum as mentioned in
the Rule. (31-12-1987)
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Omit Rule 8 (6-7-1967).
MADHYA PRADESH.—In Rule 8, between the words “Judge” and
“comma,” insert the words “or at his dictation in open court”. (w.e.f. 27-7
-1956)
PUNJAB AND HARYANA.—In sub-rule (1) of Rule 8, insert the words “or
from his dictation” between the words “in words by the Judge” and the
words “he shall be bound” occurring towards the beginning of the sub-
rule. In sub-rule (ii) of Rule 8, for the words “and signed by the Judge”
substitute “by the Judge or typed to his dictation, shall be signed by
him.” (Vide G.S.R. No. 153/C.A. 5/1908/74).
442
[9. When evidence may be taken in English.—(1) Where English is
not the language of the Court, but all the parties to the suit who appear
in person, and the pleaders of such of the parties as appear by pleaders,
do not object to having such evidence as is given in English, being taken
down in English, the Judge may so take it down or cause it to be taken
down.
(2) Where evidence is not given in English but all the parties who
appear in person, and the pleaders of such of the parties as appear by
pleaders, do not object to having such evidence being taken down in
English, the Judge may take down, or cause to be taken down, such
evidence in English.]
10. Any particular question and answer may be taken down.—The
Court may, of its own motion or on the application of any party or his
pleader, take down any particular question and answer, or any objection
to any question, if there appears to be any special reason for so doing.
High Court Amendment
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—After the words “take
down” add a comma and thereafter the words “or cause to be taken down
from his dictation in open Court, in the language of the Court or in
English.” (6-7-1967).
11. Questions objected to and allowed by Court.—Where any question
put to a witness is objected to by a party or his pleader, and the Court
allows the same to be put, the Judge shall take down the question, the
answer, the objection and the name of the person making it, together
with the decision of the Court thereon.
High Court Amendment
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Same as that under Rule
10 of Order XVIII.
12. Remarks on demeanour of witnesses.—The Court may record such
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remarks as it thinks material respecting the demeanour of any witness
while under examination.
High Court Amendment
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS.—Add the following at the
end of the rule:
“Or cause the same to be recorded under his dictation in open
Court, in the language of the Court or in English.” (6-7-1967).
443
[13. Memorandum of evidence in unappealable cases.—In cases in
which an appeal is not allowed, it shall not be necessary to take down or
dictate or record the evidence of the witnesses at length; but the Judge,
as the examination of each witness proceeds, shall make in writing, or
dictate directly on the typewriter, or cause to be mechanically recorded, a
memorandum of the substance of what the witness deposes, and such
memorandum shall be signed by the Judge or otherwise authenticated,
and shall form part of the record.]
High Court Amendments
BOMBAY.—In Order XVIII for Rule 13, substitute the following.—
“13. Memorandum of evidence in unappealable cases.—In cases in
which an appeal is not allowed, it shall not be necessary to take down
or dictate or record the evidence of the witnesses at length; but Judge,
as the examination of each witness proceeds, shall make in writing, or
dictate directly on the typewriter, or cause to be mechanically
recorded, a memorandum of substance of what the witness deposes,
and such memorandum shall be signed by the judge or otherwise
authenticated, and shall form part of the record. However, such
memorandum outside Greater Bombay, the State of Goa and the Union
Territories of Daman and Diu and Dadra and Nagar Haveli shall be in
Marathi or in English wherever the witnesses depose in English.”—(31-
12-1987).
14. Judge unable to make such memorandum to record reasons of his
inability.—444[* * *]
High Court Amendments
ALLAHABAD.—Delete Rule 14 (19-5-1956).
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS).—Omit Rule 14 (6-7-1967).
PUNJAB AND HARYANA (CHANDIGARH).—Omit Rule 14.—Punjab Gazette, 13
-12-1974, Pt III (L.S.), p. 796 or Haryana Gazette, 10-12-1974, Pt. III
(L.S.), p. 1421.
15. Power to deal with evidence taken before another Judge.—(1)
Where a Judge is prevented by death, transfer or other cause from
concluding the trial of a suit, his successor may deal with any evidence or
memorandum taken down or made under the foregoing rules as if such
evidence or memorandum had been taken down or made by him or under
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his direction under the said rules and may proceed with the suit from the
stage at which his predecessor left it.
(2) The provisions of sub-rule (1) shall, so far as they are applicable,
be deemed to apply to evidence taken in a suit transferred under Section
24.
► Successor Judge's power to proceed with suit.—Progress already made
in a case should not be lost. Wide meaning to be given to expression “from the stage
at which his predecessor left it” so as to take a case forward, Rasiklal Manikchand
Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196 : (2012) 1 SCC (Civ) 705.
16. Power to examine witness immediately.—(1) Where a witness is
about to leave the jurisdiction of the Court, or other sufficient cause is
shown to the satisfaction of the Court why his evidence should be taken
immediately, the Court may, upon the application of any party or of the
witness, at any time after the institution of the suit, take the evidence of
such witness in manner hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of
the parties, such notice as the Court thinks sufficient, of the day fixed for
the examination, shall be given to the parties.
(3) The evidence so taken shall be read over to the witness, and, if he
admits it to be correct, shall be signed by him, and the Judge shall, if
necessary, correct the same, and shall sign it, and it may then be read at
any hearing of the suit.
17. Court may recall and examine witness.—The Court may at any
stage of a suit recall any witness who has been examined and may
(subject to the law of evidence for the time being in force) put such
questions to him as the Court thinks fit.
► Recalling of witness.—Principles akin to Order 47 CPC may be applied
when a party makes an application under the provisions of Order 18, Rule 17 CPC,
Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC
410 : (2009) 2 SCC (Civ) 198.
► Object.—Order 18, Rule 17 is not intended to be used to fill up omissions in
the evidence of a witness who has already been examined. Main purpose of Order
18, Rule 17 is to enable court to clarify any doubts that may have arisen during the
course of his examination, Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar
Gogate, (2009) 4 SCC 410 : (2009) 2 SCC (Civ) 198.
► Exercise of power.—Power of court to recall and examination of witness can
be exercised to obtain clarification or removal of doubt on any point. Power being
discretionary should be exercised sparingly, while ensuring that trial would not be
protracted thereby, Ram Rati v. Mange Ram, (2016) 11 SCC 296 : (2016) 4 SCC
(Civ) 174, See also K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275 : (2011)
3 SCC (Civ) 665.
Application seeking invocation of powers under this rule, is not allowable when
attempt is to fill up omission/lacunae in evidence already led by witness, for instance
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“for further elaboration on left out points”, Ram Rati v. Mange Ram, (2016) 11 SCC
296 : (2016) 4 SCC (Civ) 174.
17-A. Production of evidence not previously known or which could not
445
be produced despite due diligence.— [* * *]
► Omission.—Order 18, Rule 17-A was deleted with effect from 01-7-2002,
however this deletion does not mean that no evidence can be received at all, after a
party closes his evidence. It only means that the amended structure of the CPC
found no need for such a provision, as the amended Code contemplated little or no
time gap between completion of evidence and commencement and conclusion of
arguments, K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275 : (2011) 3 SCC
(Civ) 665.
18. Power of Court to inspect.—The Court may at any stage of a suit
inspect any property or thing concerning which any question may arise
446
[and where the Court inspects any property or thing it shall, as soon as
may be practicable, make a memorandum of any relevant facts observed
at such inspection and such memorandum shall form a part of the record
of the suit.]
High Court Amendments
MADRAS AND PONDICHERRY.—Add the following at the end of Rule:
“As soon as may be, the Court shall record a memorandum of any
relevant fact observed at such inspection. Such memorandum shall
form part of the record of the case.” (28-1-1959).
447
[19. Power to get statements recorded on commission.—
Notwithstanding anything contained in these rules, the court may,
instead of examining witnesses in open Court, direct their statements to
be recorded on commission under Rule 4-A of Order XXVI.]
High Court Amendments
ALLAHABAD.—Add the following rule to the end of Order XVIII:
“19. (1) The Judge shall record in his own hand in English [or Hindi]
448
all orders passed on applications, other than orders of a purely
routine character.
449
(2) The Judge shall record in his own hand in English [or Hindi]
all admissions and denials of documents, and the [Judge's notes]450
shall show how all documents tendered in evidence have been dealt
with from the date of presentation down to the final order admitting
them in evidence or rejecting them.
(3) The Judge shall record the issues in his own hand in English [or
Hindi]451 and the issues shall be signed by the Judge and shall form
452
part of the [Judge's notes] .” (17-3-1923).
Explanation.—“Judges notes” means the notes maintained by the
Judge in his own hand of the day-to-day proceedings. (added by ibid
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w.e.f. 22-10-1994).
RAJASTHAN.—Add the following as Rule 19:
“19. Power to get statements recorded on commission.—
Notwithstanding anything contained in these rules, the Court may
instead of examining witnesses in open Court direct their statements
to be recorded on Commission under Rule 4-A of Order 26.”— (1-12-
1973).
ORDER XIX
Affidavits
1. Power to order any point to be proved by affidavit.—Any Court may
at any time for sufficient reason order that any particular fact or facts
may be proved by affidavit, or that the affidavit of any witness may be
read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide
desires the production of a witness for cross-examination, and that such
witness can be produced, an order shall not be made authorising the
evidence of such witness to be given by affidavit.
STATE AMENDMENTS
Uttar Pradesh.—In Order XIX, in Rule 1, for the existing proviso, the
following proviso shall be substituted, namely:
“Provided that if it appears to the Court, whether at the instance of
either party or otherwise and whether before or after the filing of such
affidavit, that the production of such witness for cross-examination is
necessary and his attendance can be procured, the Court shall order
the attendance of such witness, whereupon the witness may be
examined, cross-examined and re-examined.” [Vide U.P. Act 57 of
1976, Section 9. (1-1-1977)].
RULE 1-A
MADHYA PRADESH.—In Order XIX of the First Schedule to the principal
Act, after Rule 1, the following rule shall be inserted, namely:—
“1-A. Proof of fact by affidavit in certain cases.—Notwithstanding
anything to the contrary in Rule 1, the court shall, in suit or proceeding
referred to in Rule 3-B of Order 1 and whether or not any proceeding
under the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960
are pending before the competent authority appointed under that Act,
call upon the parties to prove any particular facts as it may direct, by
affidavit, unless the court looking to the nature and complexity of the
suit or proceeding and for reasons to be recorded in writing deems it
just and expedient to despense with the proof of a fact or facts by
affidavits.” [Vide M.P. Act 29 of 1984, Section 7. (14-8-1984)].
High Court Amendments
RULE 1-A
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ALLAHABAD.—After Rule 1 the following Rule 1-A shall be inserted:
“1-A. Power to permit ex parte evidence on affidavit.—Where the
case proceeds ex parte, the Court may permit the evidence of the
plaintiff to be given on affidavit.” (Vide Noti. No. 121/IV-h—36-D,
dated Feb. 10, 1981 w.e.f. Oct. 3, 1981.)
2. Power to order attendance of deponent for cross-examination.—(1)
Upon any application evidence may be given by affidavit, but the Court
may, at the instance of either party, order the attendance for cross-
examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is
exempted from personal appearance in Court, or the Court otherwise
directs.
3. Matters to which affidavits shall be confined.—(1) Affidavits shall be
confined to such facts as the deponent is able of his own knowledge to
prove, except on interlocutory applications, on which statements of his
belief may be admitted: provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth
matters of hearsay or argumentative matter, or copies of or extracts from
documents, shall (unless the Court otherwise directs) be paid by the
party filing the same.
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the
Union Territory of Jammu and Kashmir, in Order XIX, after Rule 3, insert
the following new rules, namely —
“4. Court may control evidence.—(1) The court may, by directions
regulate the evidence as to issues on which it requires evidence and
the manner in which such evidence may be placed before the court.
(2) The court may, in its discretion and for reasons to be recorded in
writing, exclude evidence that would otherwise be produced by the
parties.
5. Redacting or rejecting evidence.—A court may, in its discretion,
for reasons to be recorded in writing—
(i) redact or order the redaction of such portions of the affidavit of
examination-in-chief as do not, in its view, constitute evidence; or
(ii) return or reject an affidavit of examination-in-chief as not
constituting admissible evidence.
6. Format and guidelines of affidavit of evidence.—An affidavit must
comply with the form and requirements set forth below:—
(a) such affidavit should be confined to, and should follow the
chronological sequence of, the dates and events that are relevant for
proving any fact or any other matter dealt with;
(b) where the court is of the view that an affidavit is a mere
reproduction of the pleadings, or contains the legal grounds of any
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party's case, the court may, by order, strike out the affidavit or such
parts of the affidavit, as it deems fit and proper;
(c) each paragraph of an affidavit should, as far as possible, be
confined to a distinct portion of the subject;
(d) an affidavit shall state—
(i) which of the statements in it are made from the deponent's own
knowledge and which are matters of information or belief; and
(ii) the source for any matters of information or belief.
(e) an affidavit should—
(i) have the pages numbered consecutively as a separate document
(or as one of several documents contained in a file);
(ii) be divided into numbered paragraphs;
(iii) have all numbers, including dates, expressed in figures; and
(iv) if any of the documents referred to in the body of the affidavit
are annexed to the affidavit or any other pleadings, give the
annexures and page numbers of such documents that are relied
upon.” [Vide S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-
2020)].
Union Territory of Ladakh.—In its application to the Union Territory
of Ladakh — Same as UT of Jammu and Kashmir. [Vide S.O. 3774(E),
dated 23-10-2020].
High Court Amendments
RULES 4-15
ALLAHABAD.—Add the following Rules:
“4. Affidavit shall be entitled. In the Court of…..at……….. (naming
such court). If the affidavit be in support of or in opposition to an
application respecting any case in the Court it shall also be entitled in
such case. If there be no such case, it shall be entitled ‘in the matter
of the petition of’.
5. Affidavits shall be divided into paragraphs, and every paragraph
shall be numbered consecutively and as nearly as may be, shall be
confined to a distinct portion of the subject.
6. Every person making any affidavit shall be described therein in
such manner as shall serve to identify him clearly; and where
necessary for this purpose, it shall contain the full name, the name of
his father, of his caste or religious persuasion, his rank or degree in
life, his profession, calling, occupation or trade and the true place of
his residence.
7. Unless it be otherwise provided, an affidavit may be made by any
person having cognisance of the facts deposed to. Two or more persons
may join in an affidavit; each shall depose separately to those facts
which are within his knowledge and such facts shall be stated in
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separate paragraphs. (22-5-1915).
8. When the declarant in any affidavit speaks to any fact within his
own knowledge, he must do so directly and positively, using the words
“I affirm” or “I make oath and say”. (22-5-1915).
9. Except in interlocutory proceedings, affidavits shall strictly be
confined to such facts as the declarant is able of his own knowledge to
prove. In interlocutory proceedings, when the particular fact is not
within the declarant's own knowledge, but is stated from information
obtained from others, the declarant shall use the expression “I am in
formed”, and, if such be the case, “and verily believe it to be true”,
and shall state the name and address of, and sufficiently describe for
the purposes of identification, the person or persons from whom he
received such information. When the application or the opposition
thereto rests on facts disclosed in documents or copies of documents
produced from any Court of Justice or other source, the declarant shall
state what is the source from which they were produced, and his
information and belief as to the truth of the facts disclosed in such
documents. (22-5-1915).
10. When any place is referred to in an affidavit, it shall be correctly
described. When in an affidavit, any person referred to, such person,
the correct name and address of such person, and such further
description as may be sufficient for the purpose of the identification of
such person, shall be given in the affidavit. (22-5-1919).
11. Every person making an affidavit for use in a Civil Court, shall, if
not personally known to the person before whom the affidavit is made,
be identified to that person by someone known to him, and the person
before whom the affidavit is made shall state at the foot of the affidavit
the name, address and description of him by whom the identification
was made as well as the time and place of such identification. (22-5-
1915).
11-A. Such identification may be made by a person—
(a) personally acquainted with the person to be identified; or
(b) satisfied, from papers in that person's possession or otherwise, of
his identity:
Provided that in case (b) the person so identifying shall sign on the
petition or affidavit a declaration in the following form, after there has
been affixed to such declaration in his presence the thumb-impression
of the person so identified.
FORM
1. I (Name, address and description) declare that the person
verifying this petition (or making this affidavit) and alleging himself
to be A.B. has satisfied me, (here state by what means, e.g., from
papers in his possession or otherwise) that he is A.B. (8-2-1928).
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12. No verification of a petition and no affidavit purporting to have
been made by a pardanashin woman who has not appeared unveiled
before the person before whom the verification or affidavit was made,
shall be used unless she has been identified in manner already
specified and unless such petition or affidavit be accompanied by an
affidavit of identification of such woman made at the time by the
person who identified her. (22-5-1915).
13. The person before whom any affidavit is about to be made shall,
before the same is made, ask the person proposing to make such
affidavit if he has read the affidavit and understands the contents
thereof, and if the person proposing to make such affidavit states that
he has not read the affidavit or appears not to understand the contents
thereof, or appears to be illiterate, the person before whom the
affidavit is about to be made shall read and explain, or cause some
other competent person to read and explain in his presence, the
affidavit to the person proposing to make the same, and whom the
person before whom the affidavit is about to be made is thus satisfied
that the person proposing to make such affidavit understands the
contents thereof, the affidavit may be made. (22-5-1915).
14. The person before whom an affidavit is made, shall certify at the
foot of the affidavit the fact of making of the affidavit before him and
the time and place when and where it was made, and shall for the
purpose of identification, mark and initial any exhibits referred to in
the affidavit. (22-5-1915).
15. If it be found necessary to correct any clerical error in any
affidavit such correction may be made in the presence of the person
before whom the affidavit is about to be made, and before, but not
after, the affidavit is made. Every correction so made shall be initialled
by the person before whom the affidavit is made, and shall be made in
such manner as not to render it impossible or difficult to read the
original word or words, figure or figures, in respect of which the
correction may have been made.” (22-5-1915).
ORDER XX
Judgment and Decree
453
[1. Judgment when pronounced.—454[(1)] The Court, after the case
has been heard, shall pronounce judgment in an open Court, either at
once, or as soon thereafter as may be practicable and when the judgment
is to be pronounced on some future day, the Court shall fix a day for that
purpose, of which due notice shall be given to the parties or their
pleaders:
Provided that where the judgment is not pronounced at once, every
endeavour shall be made by the Court to pronounce the judgment within
thirty days from the date on which the hearing of the case was concluded
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but, where it is not practicable so to do on the ground of the exceptional
and extraordinary circumstances of the case, the Court shall fix a future
day for the pronouncement of the judgment, and such day shall not
ordinarily be a day beyond sixty days from the date on which the hearing
of the case was concluded, and due notice of the day so fixed shall be
given to the parties or their pleaders.
455
[(2) Where a written judgment is to be pronounced, it shall be
sufficient if the findings of the Court on each issue and the final order
passed in the case are read out and it shall not be necessary for the Court
456
to read out the whole judgment [* * *].
(3) The judgment may be pronounced by dictation in open Court to a
shorthand writer if the Judge is specially empowered by the High Court in
this behalf:
Provided that, where the judgment is pronounced by dictation in open
Court, the transcript of the judgment so pronounced shall, after making
such correction therein as may be necessary, be signed by the Judge,
bear the date on which it was pronounced, and form a part of the record.]
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY.—Delete the words “if the Judge is specially empowered by the
High Court in this behalf” appearing in Rule 1(3) of Order XX of the Civil
Procedure Code, 1908. (1-10-1983).
KARNATAKA.—Renumber Rule 1 as Rule 1(1) and add the following as
sub-rule (2):
“(2) The judgment may be pronounced by dictation to a shorthand
writer in open Court, where the Presiding Judge has been specially
empowered in that behalf by the High Court. Where the Presiding
Judge is not so empowered the judgment shall be reduced to writing
before it is pronounced.” (30-3-1967).
KERALA: (Lakshadweep).—Rule 1 shall be renumbered as sub-rule (1)
thereof and the following shall be inserted as sub-rule (2) namely:
“(2) The judgment may be pronounced by dictation to a shorthand
writer in open Court.” (9-6-1959).
MADRAS : (PONDICHERRY).—Substitute for Rule 1 the following:
“(1) The Court, after the case has been heard, shall pronounce
judgment in open Court, either, at once or on some future day, of
which due notice shall be given to the parties or their pleaders.
(2) The judgment may be pronounced by dictation to a shorthand
writer in open Court where the Presiding Judge has been specially
empowered in that behalf by the High Court.” (6-5-1930).
► Operative order pronounced, delay in reasoned judgment.—Rights of
aggrieved parties are prejudiced if reasons are not available to them to avail of legal
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remedy of approaching court where reasons can be scrutinized. It indeed amounts
to defeating rights of party aggrieved to challenge impugned judgment on merits and
even succeeding party is unable to obtain fruits of success of litigation, Sudipta
Chakrobarty v. Ranaghat SD Hospital, (2021) 12 SCC 538.
2. Power to pronounce judgment written by judge's predecessor.—457
[A Judge shall] pronounce a judgment written but not pronounced by his
predecessor.
3. Judgment to be signed.—The judgment shall be dated and signed
by the Judge in open Court at the time of pronouncing it and, when once
signed, shall not afterwards be altered or added, to save as provided by
Section 152 or on review.
High Court Amendments
ANDHRA PRADESH AND MADRAS.—Substitute for Rule 3:
“3. Judgment to be signed, transcript of shorthand.—The judgment
shall bear the date on which it is pronounced and shall be signed by
the Judge and when once signed shall not afterwards be altered or
added to save as provided by Section 152 or on review. Provided also
that where the 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.”(6-5-1930).
BOMBAY AND GUJARAT.—Substitute the following for R. 3:
“The judgment shall be dated and initialled by the Judge. When the
judgment is once initialled by the Judge it shall not afterwards be
altered or added to save as provided by Section 152 or on review:
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 and shall bear the date of its
pronouncement, and when the judgment is once so signed by the
Judge it shall not afterwards be altered or added to save as provided
by Section 152 or on review.” (1-11-1966)
KARNATAKA.—Same as that of Andhra. (30-3-1967).
KERALA.—Same as Andhra Pradesh save that “provided that where the
judgment is pronounced by dictation” be added for “provided
also…………..dictation.” (9-6-1959).
RAJASTHAN.—In Order XX, the existing Rule 3 shall be renumbered as
sub-rule (1) of that rule, and after sub-rule (1) as so renumbered the
following sub-rules shall be inserted:
“(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.
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(3) In case where judgment is not written by the Judge in his own
hand, and dictated and taken down verbatim by another person each
page of the judgment shall be initialled by the Judge.” (Notification,
dated 23rd December, 1964). (11-3-1965)
4. Judgments of Small Cause Courts.—(1) Judgments of a Court of
Small Causes need not contain more than the points for determination
and the decision thereon.
(2) Judgments of other Courts.—Judgments of other Courts shall
contain a concise statement of the case, the points for determination, the
decision thereon, and the reasons for such decision.
High Court Amendment
KERALA.—In Order XX, Rule 4.—(i) In sub-rule (1) for the marginal
note the words “Judgments in suits tried as Small Causes” shall be
substituted and for the words “Judgments of a Court of Small Causes” in
the rule, the words “Judgments in suits tried as Small Causes” shall be
substituted.
(ii) In sub-rule (2) for the marginal note the words “Judgments in
other cases” shall be substituted and for words “Judgments of other
Courts” in the rule, the words “Judgments in all other cases” shall be
substituted. (9-6-1959).
► Judgments of other courts.—The rights of the parties, it is well settled, must
be determined on the basis of the case pleaded and proved by leading proper
evidence and just not on the basis of other reported judgments, Union of India v.
Pramod Gupta, (2005) 12 SCC 1.
Decision in a case, cannot be rendered only on basis of judgment in another
case which is not conclusive between the parties. It is obligatory on court to consider
materials on record to arrive at its conclusions, Om Prakash v. Kimtu, (2005) 13
SCC 389.
5. Court to state its decision on each issue.—In suits in which issues
have been framed, the Court shall state its finding or decision, with the
reasons therefor, upon each separate issue, unless the finding upon any
one or more of the issues is sufficient for the decision of the suit.
► Dismissal of suit.—Where one of the several claims is found not
maintainable, the dismissal of the entire suit would not be proper, K.C. Skaria v.
Govt. of State of Kerala, (2006) 2 SCC 285.
458
[5-A. Court to inform parties as to where an appeal lies in cases
where parties are not represented by pleaders.—Except where both the
parties are represented by pleaders, the Court shall, when it pronounces
its judgment in a case subject to appeal, inform the parties present in
Court as to the Court to which an appeal lies and the period of limitation
for the filing of such appeal and place on record the information so given
to the parties.]
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6. Contents of decree.—(1) The decree shall agree with the judgment;
459
it shall contain the number of the suit the [names and description of
the parties, their registered addresses,] and particulars of the claim, and
shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit,
and by whom or out of what property and in what proportions such costs
are to be paid.
(3) The Court may direct that the costs payable to one party by the
other shall be set off against any sum which is admitted or found to be
due from the former to the latter.
High Court Amendments
ANDHRA PRADESH.—(a) In Rule 6 in sub-rule (1) after the words
“description of the parties” the words “their addresses for service”, shall
be inserted.
(b) After sub-rule (2) the following be inserted as sub-rule (2-A):
“(2-A) In all cases in which an element of champerty or
maintenance is proved, the Court may provide in the final decree for
costs on a special scale approximating to the actual expenses
reasonably incurred by the defendant.”
BOMBAY.—In Order XX, Rule 6, for the existing sub-rule (1) and its
marginal note, substitute the following as sub-rule (1) and marginal
note:
“6. Contents of decree.—(1) The decree shall agree with the
judgment; it shall contain the date of presentation of the plaint, the
number of the plaint, the number of the suit, the names and
descriptions of the parties, their registered addresses and particulars of
the claim, and shall specify clearly the relief granted or other
determination of the suit.” (1-10-1983).
DELHI.—Same as that of Himachal Pradesh.
HIMACHAL PRADESH.—After sub-rule (1) add the following:
“(1-A) In addition to the particulars mentioned in clause (1), the
decree shall contain the addresses of the plaintiff and the defendant as
given in O. VII, R. 19 and O. VIII, R. 11 or as subsequently altered
under O. VII, R. 24 and O. VIII, R. 12 respectively.”
KARNATAKA.—Delete Rule 6 and substitute the following:
“6. (1) The decree shall agree with the judgment; it shall contain
the number of the suit, names and descriptions of the parties, their
respective addresses for service as originally set out in their pleadings
or where they have been subsequently changed in accordance with
Rule 14 of Order VI of this Code, such modified addresses, the
particulars of the claim and shall specify clearly the relief granted or
other determination of the suit.
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(2) The decree shall also state the amount of costs incurred in the
suit and by whom or out of what property and in what proportions such
costs are to be paid.
(3) The Court may direct that the costs payable to one party by the
other shall be set off against any sum which is admitted or found to be
due from the former to the latter.
(4) In all cases in which an element of champerty or maintenance is
proved, the Court may provide in the final decree for costs on a special
scale approximating to the actual expenses reasonably incurred by the
defendant. “(30-3-1967)
KERALA.—Same as that of Andhra Pradesh (a). (9-6-1959).
MADRAS.—Same as that of Andhra Pradesh.(6-5-1930)
PUNJAB, HARYANA AND CHANDIGARH.—Sub-rule (1-A) same as Himachal
Pradesh. (10-2-1937)
(i) The following shall be substituted for sub-rule (1) to R. 6 of Or. 20:
—
“(1) The decree shall agree with the judgment, it shall contain the
number of the suit, the names and descriptions of the parties, their
correct and latest addresses, (which shall be filed by the parties at or
before the final arguments) and particulars of the claim and shall specify
clearly the relief granted or other determination of the suit.” (Vide Noti.
No. GSR 39/C.A. 5/1908/S. 12257, w.e.f. 11-4-1975)
(ii) After sub-rule (1) add the following:—
“(1A) In addition to the particulars mentioned in clause (1), the decree
shall contain the addresses of the plaintiff and the defendant as given in
O. 7 R. 19 and O. 8 R. 11 or as subsequently altered under O. 7 R. 24 and
O. 8 R. 12, respectively” (10-2-1937).
► Decree must agree with the judgment.—The decree should agree with the
judgment and should clearly specify the relief granted and other determinations,
Omprakash Verma v. State of A.P., (2010) 13 SCC 158.
460
[6-A. Preparation of decree.—(1) Every endeavour shall be made to
ensure that the decree is drawn up as expeditiously as possible and, in
any case, within fifteen days from the date on which the judgment is
pronounced.
(2) An appeal may be preferred against the decree without filing a
copy of the decree and in such a case the copy made available to the
party by the Court shall for the purposes of Rule 1 of Order XLI be treated
as the decree. But as soon as the decree is drawn, the judgment shall
cease to have the effect of a decree for the purposes of execution or for
any other purpose.]
High Court Amendment
KERALA.—In sub-rule (2) of Rule 6-A of Order 20, for the words “the
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reasons for the delay” the following shall be substituted, namely:—
“the reasons for the delay and the valuation of the suit or
proceeding and the court-fee paid thereon”. (9-2-1988)
461
[6-B. Copies of judgments when to be made available.—Where the
judgment is pronounced, copies of the judgment shall be made available
to the parties immediately after the pronouncement of the judgment for
preferring an appeal on payment of such charges as may be specified in
the rule made by the High Court.]
7. Date of decree.—The decree shall bear date the day on which the
judgment was pronounced, and, when the Judge has satisfied himself
that the decree has been drawn up in accordance with the judgment, he
shall sign the decree.
High Court Amendments
BOMBAY (DADRA AND NAGAR HAVELI).—In Order XX, Rule 7, substitute a
colon for the full stop appearing at the end of the rule and add thereafter
the following proviso:
“Provided that in proceedings taken in the Bombay City Civil Court
the decree shall bear date the day on which the judgment was
pronounced and it shall be engrossed in the office of the Registrar and
be signed by him and sealed with the seal of the Court.” (1-10-1983).
KERALA (LAKSHADWEEP I SLANDS).—Add the following proviso:
“Provided that the decrees of the High Court may be signed by the
officer empowered in that behalf.” (9-6-1959).
RULE 7-A
ALLAHABAD.—In Order XX for Rule 7-A, the following rule shall be
substituted:
“7-A. Formal order.—A Court, other than a Court subordinate to the
District Court exercising insolvency jurisdiction, passing an order under
Section 144 or an order against which an appeal is allowed by Section
104 or Rule 1 of Order XLIII, or an order in any case, against which an
appeal is allowed by law, shall, if a party applies for a copy of formal
order or the Court so directs, draw up a formal order embodying its
adjudication and the memorandum of costs incurred by the parties”. (3
-10-1981).
8. Procedure where Judge has vacated office before signing decree.—
Where a Judge has vacated office after pronouncing judgment but
without signing the decree, a decree drawn up in accordance with such
judgment may be signed by his successor or, if the Court has ceased to
exist, by the Judge of any Court to which such Court was subordinate.
9. Decree for recovery of immovable property.—Where the subject-
matter of the suit is immovable property, the decree shall contain a
description of such property sufficient to identify the same, and where
such property can be identified by boundaries or by numbers in a record
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of settlement or survey, the decree shall specify such boundaries or
numbers.
10. Decree for delivery of movable property.—Where the suit is for
movable property, and the decree is for the delivery of such property, the
decree shall also state the amount of money to be paid as an alternative
if delivery cannot be had.
► Decree.—A decree in the nature of mandatory injunction directing a party to
the suit to deliver certain movable property cannot be equated with decree for
payment of a specified sum, Ramesh Chand Daga v. Rameshwari Bai, (2005) 4
SCC 772.
11. Decree may direct payment by instalments.—(1) Where and in so
far as a decree is for the payment of money, the Court may for any
sufficient reason 462[incorporate in the decree, after hearing such of the
parties who had appeared personally or by pleader at the last hearing,
before judgment, an order that] payment of the amount decreed shall be
postponed or shall be made by instalments, with or without interest,
notwithstanding anything contained in the contract under which the
money is payable.
(2) Order, after decree, for payment by instalments.—After the
passing of any such decree the Court may, on the application of the
judgment-debtor and with the consent of the decree-holder, order that
payment of the amount decreed shall be postponed or shall be made by
instalments on such terms as to the payment of interest, the attachment
of the property of the judgment-debtor, or the taking of security from
him, or otherwise, as it thinks fit.
High Court Amendments
ANDHRA PRADESH AND MADRAS.—Substitute the following for Rule 11:
“11. Decree may direct payment by instalments.—(i) Where and in
so far a decree for is the payment of money the Court may for any
sufficient reason at the time of passing the decree order that the
payment of the amount decreed shall be postponed or shall be made
by instalments with or without interest notwithstanding anything
contained in the contract under which money is payable;
(ii) After the passing of any such decree the Court may on the
application of the judgment-debtor and after notice to the decree
holder order that payment of the amount decreed shall be postponed
or shall be made by instalments on such terms as to the payments of
interest the attachment of property of the judgment-debtor or taking
of security from him or otherwise as it thinks fit.”
MADHYA PRADESH.—In sub-rule (2) for the words “and with the consent
of the decree holder” the words “and after notice to the decree holder”
shall be substituted.
ORISSA.—Same as that of Madhya Pradesh. (7-5-1954).
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12. Decree for possession and mesne profits.—(1) Where a suit is for
the recovery of possession of immovable property and for rent or mesne
profits, the Court may pass a decree—
(a) for the possession of the property;
463
[(b) for the rents which have accrued on the property during the
period prior to the institution of the suit or directing an inquiry as to
such rent;
(ba) for the mesne profits or directing an inquiry as to such mesne
profits;]
(c) directing an inquiry as to rent or mesne profits from the institution
of the suit until—
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice
to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever
event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final
decree in respect of the rent or mesne profits shall be passed in
accordance with the result of such inquiry.
High Court Amendments
ANDHRA PRADESH.—Add the following to Order XX, Rule 12:
“(3) Where an Appellate Court directs such an inquiry, it may direct
the Court of first instance to make the inquiry, and in every case the
Court of first instance may of its own accord, and shall whenever
moved to do so by the decree-holder inquire and pass the final
decree.”
BOMBAY.—In Order XX, for the existing Rule 12 and its marginal note,
substitute the following as Rule 12 and marginal note:
“12. Decree for possession and mesne profits.—(1) Where a suit is
for the recovery of possession of immovable property and for rent or
mesne profits, the Court may pass a decree—
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on the property
during the period prior to the institution of the suit, or directing an
enquiry as to such rent or mesne profits;
(c) directing an enquiry as to rent or mesne profits from the institution
of the suit until—(i) the delivery of possession to the decree-holder,
or (ii) the relinquishment of possession by the judgment-debtor
with notice to the decree-holder through the Court.
(2) Where an enquiry is directed under clause (b) or clause (c) of
sub-rule (1) above, a final decree in respect of the rent or mesne
profits shall be passed in accordance with the result of such
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enquiry.” (1-10-1983).
KARNATAKA.—Same as that of Andhra Pradesh except that for the words
“the final decree” the words “a final decree” are substituted. (30-3-1967)
KERALA.—Same as that of Andhra Pradesh. (9-6-1959).
MADRAS.—Same as that of Andhra Pradesh.
► Grant of mesne profits.—Grant of mesne profits without any inquiry in terms
of Order 20, Rule 12 is not permissible, Ganapati Madhav Sawant v. Dattur Madhav
Sawant, (2008) 3 SCC 183 : (2008) 1 SCC (Civ) 820.
464
[12-A. Decree for specific performance of contract for the sale or
lease of immovable property.—Where a decree for the specific
performance of a contract for the sale or lease of immovable property
orders that the purchase-money or other sum be paid by the purchaser or
lessee, it shall specify the period within which the payment shall be
made.]
13. Decree in administration suit.—(1) Where a suit is for an account
of any property and for its due administration under the decree of the
Court, the Court shall, before passing the final decree, pass a preliminary
decree ordering such accounts and inquiries to be taken and made, and
giving such other directions as it thinks fit.
(2) In the administration by the Court of the property of any deceased
person, if such property proves to be insufficient for the payment in full of
his debts and liabilities, the same rules shall be observed as to the
respective rights of secured and unsecured creditors and as to debts and
liabilities provable, and as to the valuation of annuities and future and
contingent liabilities respectively, as may be in force for the time being,
within the local limits of the Court in which the administration-suit is
pending with respect to the estates of persons adjudged or declared
insolvent; and all persons who in any such case would be entitled to be
paid out of such property, may come in under the preliminary decree, and
make such claims against the same as they may respectively be entitled
to by virtue of this Code.
14. Decree in pre-emption suit.—(1) Where the Court decrees a claim
to pre-emption in respect of a particular sale of property and the
purchase-money has not been paid into Court, the decree shall—
(a) specify a day on or before which the purchase-money shall be so
paid, and
(b) direct that on payment into Court of such purchase-money,
together with the costs (if any) decreed against the plaintiff, on or
before the day referred to in clause (a), the defendant shall deliver
possession of the property to the plaintiff, whose title thereto shall
be deemed to have accrued from the date of such payment, but
that, if the purchase-money and the costs (if any) are not so paid,
the suit shall be dismissed with costs.
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(2) Where the Court has adjudicated upon rival claims to pre-emption,
the decree shall direct,—
(a) if and in so far as the claims decreed are equal in degree, that the
claim of each pre-emptor complying with the provisions of sub-rule
(1) shall take effect in respect of a proportionate share of the
property including any proportionate share in respect of which the
claim of any pre-emptor failing to comply with the said provisions
would, but for such default, have taken effect; and
(b) if and in so far as the claims decreed are different in degree, that
the claim of the inferior pre-emptor shall not take effect unless and
until the superior pre-emptor has failed to comply with the said
provisions.
High Court Amendments
BOMBAY AND MADHYA PRADESH.—In Order XX, Rule 14, substitute a colon
for the full stop appearing at the end of clause (b) of sub-rule (1) and
add thereafter the following proviso:
“Provided that if there are crops standing on the property,
possession of the property shall not be delivered to the plaintiff until
such crops have been reaped. The plaintiff shall, however, be entitled
to simple interest not exceeding 6 per cent per annum at the
discretion of the Court on the amount deposited by him to Court in
respect of the period between the date of payment into Court by him
of the purchase-money and the costs (if any) and the date on which
delivery of possession to him by the defendant takes place.” (1-10-
1983).
KARNATAKA.—Add the following proviso to Rule 14(1)(b):
“Provided that if there are crops standing on the property, the Court
may postpone the delivery of property to the plaintiff till after the
crops have been reaped and direct that the plaintiff be paid by the
defendant simple interest at such rate as may be fixed not exceeding 6
per cent per anum on the amount deposited by the plaintiff in Court in
respect of the period between the date of deposit into Court of the
purchase-money and costs, if any, and the date to which delivery of
possession has been postponed.” (30-3-1967)
15. Decree in suit for dissolution of partnership.—Where a suit is for
the dissolution of a partnership, or the taking of partnership accounts, the
Court, before passing a final decree, may pass a preliminary decree
declaring the proportionate shares of the parties, fixing the day on which
the partnership shall stand dissolved or be deemed to have been
dissolved, and directing such accounts to be taken, and other acts to be
done, as it thinks fit.
16. Decree in suit for account between principal and agent.—In a suit
for an account of pecuniary transactions between a principal and an
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agent, and in any other suit not hereinbefore provided for, where it is
necessary, in order to ascertain the amount of money due to or from any
party, that an account should be taken, the Court shall, before passing its
final decree, pass a preliminary decree directing such accounts to be
taken as it thinks fit.
► Suit for rendition of accounts.—A suit for rendition of accounts can be
maintained only if a person suing has a right to receive an account from the
defendant. Such a right can subsist when- created or recognised under a statute; or
on basis of fiduciary relationship in case of beneficiary and trustee; or claimed in
equity when rendition of accounts is the only relief to enable the person seeking
account to satisfactorily assert his legal right, K.C. Skaria v. Govt. of State of
Kerala, (2006) 2 SCC 285.
17. Special directions as to accounts.—The Court may either by the
decree directing an account to be taken or by any subsequent order give
special directions with regard to the mode in which the account is to be
taken or vouched and in particular may direct that in taking the account
the books of account in which the accounts in question have been kept
shall be taken as prima facie evidence of the truth of the matters therein
contained with liberty to the parties interested to take such objection
thereto as they may be advised.
18. Decree in suit for partition of property or separate possession of a
share therein.—Where the Court passes a decree for the partition of
property or for the separate possession of a share therein, then,—
(1) if and in so far as the decree relates to an estate assessed to the
payment of revenue to the Government, the decree shall declare the
rights of the several parties interested in the property, but shall
direct such partition or separation to be made by the Collector, or
any gazetted subordinate of the Collector deputed by him in this
behalf, in accordance with such declaration and with the provisions
of Section 54;
(2) if and in so far as such decree relates to any other immovable
property or to movable property, the Court may, if the partition or
separation cannot be conveniently made without further inquiry,
pass a preliminary decree declaring the rights of the several parties
interested in the property and giving such further directions as may
be required.
High Court Amendment
KERALA.—Following be substituted for Rule 18:
“When the Court passes a decree for the partition of property or for
the separate possession of a share therein the Court may, if the
partition or separation cannot be conveniently made without further
inquiry pass a preliminary decree declaring the rights of the several
parties interested in the property and giving such further directions as
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may be required.” (9-6-1959).
► Decree for partition of immovable property.—In partition suit, a court is
required to define the shares of the parties, identify the joint properties which are to
be partitioned, allocate properties to parties as per the respective shares and put the
parties in possession of properties allocated to them, Rachakonda Venkat Rao v. R.
Satya Bai, (2003) 7 SCC 452.
► Preliminary and final decree in partition suit.—Decree in partition suit may
be both preliminary and final or partly preliminary and partly final. Preliminary
decree declares right or share of parties and leaves it to the future for further
enquiry for finally determining rights of parties for actually partitioning the properties
and allotting divided properties to shares of each party. Decree drawn up
incorporating such final determination of rights of parties as a result of enquiry is
final, Bimal Kumar v. Shakuntala Debi, (2012) 3 SCC 548 : (2012) 2 SCC (Civ)
312.
Amendment seeking relief in final decree which goes beyond the relief granted in
preliminary decree, held, cannot be allowed, K. Thippanna v. Varalakshmi, (2012) 3
SCC 576.
465
19. Decree when set-off [or counter-claim] is allowed.—(1) Where
466
the defendant has been allowed a set-off [or counter-claim] against
the claim of the plaintiff, the decree shall state what amount is due to the
plaintiff and what amount is due to the defendant, and shall be for the
recovery of any sum which appears to be due to either party.
467
(2) Appeal from decree relating to set-off [or counter-claim].—
468
Any decree passed in a suit in which a set-off [or counter-claim] is
claimed shall be subject to the same provisions in respect of appeal to
469
which it would have been subject if not set-off [or counter-claim] had
been claimed.
(3) The provisions of this rule shall apply whether the set-off is
admissible under Rule 6 of Order VIII or otherwise.
High Court Amendment
ALLAHABAD.—In sub-rule (1), substitute a comma for the full stop at
the end and add the following:
“but no decree shall be passed against the plaintiff unless the claim
to set-off was within limitation on the date on which the written
statement was presented.”—(21-3-1936).
20. Certified copies of judgment and decree to be furnished.—Certified
copies of the judgment and decree shall be furnished to the parties on
application to the Court, and at their expense.
High Court Amendments
BOMBAY.—Substitute the following rule for Rule 20 in Order XX:—
“20. Certified copies of judgment and decree to be furnished.—(1)
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Certified copies of the judgment and decree shall be furnished to the
parties on application to the Court and at their expense.
(2) Application may be made by the party himself or his recognised
agent or by his pleader and may also be sent by post. Whenever such
application is sent by post the same shall be sent by registered post
pre-paid for acknowledgment. When the application is sent by post, it
shall be deemed to have been made on the date of posting if the
application is made by registered post, but only on the date of its
receipt by the office of the Court in case when it is sent by post other
than registered post.” (1-10-1983).
MADHYA PRADESH.—For Rule 20, substitute the following:
“20. Certified copies of judgment and decree shall be furnished to
the parties on application and at their expense.—Applications for
copies may be presented in person or by an agent or a pleader or sent
by post to the head copyist of the office at the place where the record
from which the copies are applied for, will eventually be deposited for
safe custody. When copies from a record in the temporary custody of a
Court at a station where there is no record room are required,
applications may be presented in person or by an agent or a pleader to
the Senior Judge at that station:
Provided that the Judge shall neither comply with applications
received by post nor send copies by post.” (16-9-1960).
RULE 21
ALLAHABAD.—Add the following:
“21. (1) Every decree and order as defined in Section 2, other than
a decree or order of a Court of Small Causes or of a Court in exercise of
the jurisdiction of a Court of Small Causes, shall be drawn up in the
Court vernacular, or in English, if the Court so orders. As soon as such
decree or order has been drawn up, and before it is signed, the
Munsarim shall cause a notice to be pasted on the notice board stating
that the decree or order has been drawn up and that any party or the
pleader of any party may, within six working days from the date of
such notice, peruse the draft, decree or order and may sign it or may
file with the Munsarim an objection to it on the ground that there is in
the judgment a verbal error or some accidental defect not affecting a
material part of the case, or that such decree or order is at variance
with the judgment or contains some clerical or arithmetical error. Such
objection shall state clearly, what is the error, defect, or variance
alleged, and shall be signed and dated by the person making it. (22-5-
1915).
(2) If any such objection be filed on or before the date specified in
the notice, the Munsarim shall enter the case in the earliest weekly list
practicable, and shall, on the date fixed, put up the objection together
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with the record before the Judge who pronounced the judgment, or, if
such Judge has ceased to be the Judge of the Court, before the Judge
then presiding.
(3) If no objection has been filed on or before the date specified in
the notice, or if an objection has been filed and disallowed the
Munsarim shall date the decree as of the day on which the judgment
was pronounced and shall lay it before the Judge for signature in
accordance with the provisions of Rules 7 and 8.
(4) If an objection has been duly filed and has been allowed, the
correction or alteration directed by the Judge shall be made. Every
such correction or alteration in the judgment shall be made by the
Judge in his own handwriting. A decree amended in accordance with
the correction or alteration directed by the Judge shall be drawn up,
and the Munsarim shall date the decree as of the day on which the
judgment was pronounced and shall lay it before the Judge for
signature in accordance with the provisions of Rules 7 and 8.
(5) When the Judge signs the decree, he shall make an autograph
note stating the date on which the decree was signed.” (22-5-1915 &
1-11-1941).
470
[ORDER XX-A
Costs
1. Provisions relating to certain items.—Without prejudice to the
generality of the provisions of this Code relating to costs, the Court may
award costs in respect of,—
(a) expenditure incurred for the giving of any notice required to be
given by law before the institution of the suit;
(b) expenditure incurred on any notice which, though not required to
be given by law, has been given by any party to the suit to any
other party before the institution of the suit;
(c) expenditure incurred on the typing, writing or printing of pleadings
filed by any party;
(d) charges paid by a party for inspection of the records of the Court
for the purposes of the suit;
(e) expenditure incurred by a party for producing witnesses, even
though not summoned through Court; and
(f) in the case of appeals, charges incurred by a party for obtaining any
copies of judgments and decrees which are required to be filed
along with the memorandum of appeal.
High Court Amendments
MADRAS (PONDICHERRY).—In Rule 1, after entry (1) add as under:—
“(g) in the matter of preparation of pleadings or affidavits for being
presented in Court, charges be fixed at 75 paise every page and 25
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paise for every page for the original and copy respectively. — T.N.
Govt. Gazette, 7-5-1986, Pt. III, S. 2, p. 40; Pondicherry Gazette, 10-
6-1986, p. 425, (No. 23).
2. Costs to be awarded in accordance with the rules made by High
Court.—The award of costs under this rule shall be in accordance with
such rules as the High Court may make in that behalf.]
High Court Amendments
CALCUTTA.—For Rule 2 of Order 20-A, substitute the following:—
“2(a) The award of costs will be in the discretion of the Court. While
exercising such discretion the Court shall take into consideration the
actual reasonable amount spent by the successful party in getting a
just relief or opposing a frivolous claim including the value of time
spent by him due to unjust opposition by the other side besides the
amount of court fees, lawyer's fees and the reasonable expenses
incurred by such party towards transportation and lodging of such
party and his witnesses, if any.
(b) It will be the duty of the Court to quantify such amount while
disposing of the suit not only in favour of the successful party but also
to specify the amount of costs the unsuccessful party has incurred so
that if the decree passed by the trial court is reversed in appeal and
the appellate court intends to grant costs in favour of the appellant it
will be convenient for the appellate court to assess the amount of costs
in his favour:
Provided further that the Court will also be free to award costs in
favour of a successful party while disposing of a contested interlocutory
application bearing in mind the aforesaid principles but in such a case
it is not required to mention the amount of probable costs incurred by
the unsuccessful party unless such interlocutory order is an appealable
one.”
Note.—They shall apply to all civil courts throughout the territories in
relation to which, the High Court, Calcutta, exercises its jurisdiction.
(w.e.f. 7-12-2006)
STATE AMENDMENTS
Madhya Pradesh.—In its application to the State of Madhya Pradesh,
after Order XX-A, the following order shall be inserted, namely:—
“ORDER XX-B
RECOGNITION OF ELECTRONICALLY SIGNED ORDERS, JUDGMENTS AND
DECREES
1. Recognition of Electronically Signed Orders, Judgments and
Decrees.—Any order passed, judgment pronounced or decree prepared
which is required to be signed by a Judge shall be deemed to have
been signed by the Judge, if such order, judgment or decree has been
authenticated by means of electronic signature affixed by the Judge in
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such manner as may be prescribed by the High Court.” [Vide M.P. Act
No. 12 of 2022, S. 3(2), dated 4-5-2022.]
For Section 1 to 78 click here
For Section 79 to 95 click here
For Section 96 to 131 click here
For Section 132 to 158 click here
For Schedule 1 (Order 1 to 10) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 1 (Order 41 to 51) click here
For Schedule 2 to 5 click here
———
391.
Ins. by Act 46 of 1999, S. 21 (w.e.f. 1-7-2002).
392.
Subs. for “or on any other ground” by Act 104 of 1976, S. 61 (w.e.f. 1-2-1977).
393.
Subs. for “at any time” by Act 46 of 1999, S. 21 (w.e.f. 1-7-2002).
394.
Ins. by Act 104 of 1976, S. 61 (w.e.f. 1-2-1977).
395.
Ins. by Act 104 of 1976, S. 61 (w.e.f. 1-2-1977).
396.
Renumbered as sub-rule (1) by Act 104 of 1976, S. 61 (w.e.f. 1-2-1977).
397.
Subs. by Act 104 of 1976, S. 61 (w.e.f. 1-2-1977).
398.
Ins. by Act 104 of 1976, S. 61 (w.e.f. 1-2-1977).
399.
Subs. for “to admit any document” by Act 104 of 1976, S. 62 (w.e.f. 1-2-1977).
400.
Subs. for “fifteen” by Act 46 of 1999, S. 22 (w.e.f. 1-7-2002).
401.
Ins. by Act 104 of 1976, S. 62 (w.e.f. 1-2-1977).
402.
Ins. by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957).
403.
Second Proviso omitted by Act 46 of 1999, S. 22 (w.e.f. 1-7-2002). Prior to omission it
read as:
“Provided also that the Court may at any time allow any party to amend or withdraw any
admission so made on such terms as may be just.”
404.
Subs. by Act 104 of 1976, S. 62 (w.e.f. 1-2-1977).
405.
Subs. for Rules 1 and 2 by Act 46 of 1999, S. 23 (w.e.f. 1-7-2002).
406.
Omitted by Act 46 of 1999, S. 23 (w.e.f. 1-7-2002). Prior to omission it read as:
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“2. Effect of non-production of documents.—(1) No documentary evidence in the
possession or power of any party which should have been but has not been produced in
accordance with the requirements of Rule 1 shall be received at any subsequent stage of
the proceedings unless good cause is shown to the satisfaction of the Court for the non-
production thereof; and the Court receiving any such evidence shall record the reasons for
so doing.
(2) Nothing in sub-rule (1) shall apply to documents,—
(a) produced for the cross examination of the witness of the other party, or
(b) handed over to a witness merely to refresh his memory.”
407.
Subs. by Act 104 of 1976, S. 63 (w.e.f. 1-2-1977).
408.
Subs. by Act 104 of 1976, S. 64 (w.e.f. 1-2-1977).
409.
Subs. by Act 104 of 1976, S. 64 (w.e.f. 1-2-1977).
410.
Subs. for “may adjourn the framing of the issues to a future day” by Act 46 of 1999, S. 24
(w.e.f. 1-7-2002).
411.
Subs. by Act 22 of 2002, S. 11 (w.e.f. 1-7-2002).
412.
Renumbered as sub-rule (1) by Act 104 of 1976, S. 65.
413.
Ins. by Act 104 of 1976, S. 65.
414.
The old rule inserted by U.P. Act 37 of 1972 read as follows:
“5. Striking of defence on non-deposit of admitted rent, etc.—(1) In any suit by a lessor
for the eviction of a lessee from any immovable property after the determination of his
lease, and for the recovery from him of rent in respect of the period of occupation thereof
during the continuance of the lease, or of compensation for the use or occupation thereof,
whether instituted, before or after the commencement of the Uttar Pradesh Civil Laws
Amendment Act, 1972, the defendant shall, at or before the first hearing of the suit (or in
the case of a suit instituted before the commencement of the said Act, the first hearing
after such commencement), deposit the entire amount of rent, or compensation for use and
occupation, admitted by him to be due, and thereafter throughout the continuance of the
suit, deposit regularly the amount of monthly rent, or compensation for use and occupation,
due at the rate admitted by him, and in the event of any default in this regard, the Court
may, unless after considering any representation made by him in that behalf it allows him
further time on security being furnished for the amount, refuse to entertain any defence or,
as the case may be, strike-off his defence.
(2) The provisions of this rule are in addition to and not in derogation of anything
contained in Rule 10 of Order XXXIX.” [U.P. Act No. 37 of 1972].
415.
Subs. by Maharashtra Govt. Gazette, 11-1-1990, Pt. IV, Ka, p. 28.
416.
Subs. by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
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417.
Ins. by Act 46 of 1999, S. 25 (w.e.f. 1-7-2002).
418.
Subs. by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
419.
Ins. by Act 46 of 1999, S. 25 (w.e.f. 1-7-2002).
420.
Ins. by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
421.
Ins. by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
422.
Subs. for “under this Order” by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
423.
Subs. by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
424.
Renumbered by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
425.
Ins. by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
426.
Subs. by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
427.
Subs. for “fifty” by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
428.
Subs. for “two hundred miles” by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
429.
Ins. by Act 104 of 1976, S. 66 (w.e.f. 1-2-1977).
430.
Ins. by Act 104 of 1976, S. 67 (w.e.f. 1-2-1977).
431.
Subs. by Act 46 of 1999, S. 26 (w.e.f. 1-7-2002).
432.
Subs. by Act 46 of 1999, S. 26 (w.e.f. 1-7-2002).
433.
Subs. by Act 104 of 1976, S. 68 (w.e.f. 1-2-1977).
434.
Ins. by Act 104 of 1976, S. 68 (w.e.f. 1-2-1977).
435.
Subs. by Act 104 of 1976, S. 68 (w.e.f. 1-2-1977).
436.
Ins. by Act 22 of 2002, S. 12 (w.e.f. 1-7-2002).
437.
Omitted by Act 46 of 1999, S. 27 (w.e.f. 1-7-2002). Prior to omission it read as:
“(4) Notwithstanding anything contained in this rule, the Court may, for reasons to be
recorded, direct or permit any party to examine any witness at any stage.”
438.
Ins. by Act 104 of 1976, S. 69 (w.e.f. 1-2-1977).
439.
Subs. by Act 22 of 2002, S. 12 (w.e.f. 1-7-2002).
440.
Subs. by Act 104 of 1976, S. 69 (w.e.f. 1-2-1977).
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441.
Ins. by Act 104 of 1976, S. 69 (w.e.f. 1-2-1977).
442.
Subs. by Act 104 of 1976, S. 69 (w.e.f. 1-2-1977).
443.
Subs. by Act 104 of 1976, S. 69 (w.e.f. 1-2-1977).
444.
Omitted by Act 104 of 1976, S. 69 (w.e.f. 1-2-1977). Prior to omission it read as:
“14. Judge unable to make such memorandum to record reasons of his inability.—(1)
Where the Judge is unable to make a memorandum as required by this Order, he shall cause
the reason of such inability to be recorded, and shall cause the memorandum to be made in
writing from his dictation in open Court.
(2) Every memorandum so made shall form part of the record.”
445.
Omitted by Act 46 of 1999, S. 27 (w.e.f. 1-7-2002). Prior to omission it read as:
“17-A. Production of evidence not previously known or which could not be produced
despite due diligence.—Where a party satisfies the Court that, after the exercise of due
diligence, any evidence was not within his knowledge or could not be produced by him at
the time when that party was leading his evidence, the Court may permit that party to
produce that evidence at a later stage on such terms as may appear to it to be just.”
446.
Ins. by Act 104 of 1976, S. 69 (w.e.f. 1-2-1977).
447.
Ins. by Act 46 of 1999, S. 27 (w.e.f. 1-7-2002).
448.
Ins. and subs. by Noti. 350/VII-d-60 dt. 8-8-1994 (w.e.f. 22-10-1994).
449.
Ins. and subs. by Noti. 350/VII-d-60 dt. 8-8-1994 (w.e.f. 22-10-1994).
450.
Subs. by Noti. 350/VII-d-60 dt. 8-8-1994 (w.e.f. 22-10-1994).
451.
Ins. and subs. by Noti. 350/VII-d-60 dt. 8-8-1994 (w.e.f. 22-10-1994).
452.
Subs. by Noti. 350/VII-d-60 dt. 8-8-1994 (w.e.f. 22-10-1994).
453.
Subs. by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957).
454.
Renumbered as sub-rule (1) by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
455.
Ins. by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
456.
Omitted by Act 46 of 1999, S. 28 (w.e.f. 1-7-2002). Prior to omission it read as:
“but a copy of the whole judgment shall be made available for the perusal of the parties or
the pleaders immediately after the judgment is pronounced”.
457.
Subs. for “A Judge may” by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
458.
Ins. by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
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459.
Subs. for “names and descriptions of the parties” by Act 104 of 1976, S. 70 (w.e.f. 1-2-
1977).
460.
Subs. by Act 46 of 1999, S. 28 (w.e.f. 1-7-2002).
461.
Subs. by Act 46 of 1999, S. 28 (w.e.f. 1-7-2002).
462.
Subs. by Act 104 of 1976 S. 70 (w.e.f. 1-2-1977).
463.
Subs. by Act 104 of 1976 S. 70 (w.e.f. 1-2-1977).
464.
Ins. by Act 104 of 1976 S. 70 (w.e.f. 1-2-1977).
465.
Ins. by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
466.
Ins. by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
467.
Ins. by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
468.
Ins. by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
469.
Ins. by Act 104 of 1976, S. 70 (w.e.f. 1-2-1977).
470.
Ins. by Act 104 of 1976, S. 71 (w.e.f. 1-2-1977).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Schedule 1 (Order 21 to 30))
CONTENTS
Section 1 to 78
Section 79 to 95
Section 96 to 131
Section 132 to 158
Schedule 1 (Order 1 to 10)
Schedule 1 (Order 11 to 20)
ORDER XXI
EXECUTION OF DECREES AND ORDERS
Payment under decree
1. Modes of paying money under decree
2. Payment out of Court to decree-holder
Courts executing decrees
3. Lands situate in more than one jurisdiction
4. Transfer to Court of Small Causes
5. Mode of transfer
6. Procedure where Court desires that its own decree shall be
executed by another Court
7. Court receiving copies of decree, etc., to file same without proof
8. Execution of decree or order by Court to which it is sent
9. Execution by High Court of decree transferred by other Court
Application for execution
10. Application for execution
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11. Oral application
11-A. Application for arrest to state grounds
12. Application for attachment of movable property not in
judgment-debtor's possession
13. Application for attachment of immovable property to contain
certain particulars
14. Power to require certified extract from Collector's register in
certain cases
15. Application for execution by joint decree-holder
16. Application for execution by transferee of decree
17. Procedure on receiving application for execution of decree
18. Execution in case of cross-decrees
19. Execution in case of cross-claims under same decree
20. Cross-decrees and cross-claims in mortgage-suits
21. Simultaneous execution
22. Notice to show cause against execution in certain cases
22-A. Sale not to be set aside on the death of the judgment-
debtor before the sale but after the service of the proclamation of
sale
23. Procedure after issue of notice
Process for execution
24. Process for execution
25. Endorsement on process
Stay of execution
26. When Court may stay execution
27. Liability of judgment-debtor discharged
28. Order of Court which passed decree or of Appellate Court to be
binding upon Court applied to
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29. Stay of execution pending suit between decree-holder and
judgment-debtor
Mode of execution
30. Decree for payment of money
31. Decree for specific movable property
32. Decree for specific performance for restitution of conjugal
rights, or for an injunction
33. Discretion of Court in executing decrees for restitution of
conjugal rights
34. Decree for execution of document, or endorsement of
negotiable instrument
35. Decree for immovable property
36. Decree for delivery for immovable property when in occupancy
of tenant
Arrest and detention in the civil prison
37. Discretionary power to permit judgment-debtor to show cause
against detention in prison
38. Warrant for arrest to direct judgment-debtor to be brought up
39. Subsistence allowance
40. Proceedings on appearance of judgment-debtor in obedience
to notice or after arrest
Attachment of property
41. Examination of judgment-debtor as to his property
42. Attachment in case of decree for rent or mesne profits or other
matter, amount of which to be subsequently determined
43. Attachment of movable property, other than agricultural
produce, in possession of judgment-debtor
43-A. Custody of movable property
44. Attachment of agricultural produce
45. Provisions as to agricultural produce under attachment
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46. Attachment of debt, share and other property not in
possession of judgment-debtor
46-A. Notice to garnishee
46-B. Order against garnishee
46-C. Trial of disputed questions
46-D. Procedure where debt belongs to third person
46-E. Order as regards third person
46-F. Payment by garnishee to be valid discharge
46-G. Costs
46-H. Appeals
46-I. Application to negotiable instruments
47. Attachment of share in movables
48. Attachment of salary or allowances of servant of the
Government or railway company or local authority
48-A. Attachment of salary or allowances of private employees
49. Attachment of partnership property
50. Execution of decree against firm
51. Attachment of negotiable instruments
52. Attachment of property in custody of Court or public officer
53. Attachment of decrees
54. Attachment of immovable property
55. Removal of attachment after satisfaction of decree
56. Order for payment of coin or currency notes to party entitled
under decree
57. Determination of attachment
Adjudication of claims and objections
58. Adjudication of claims to, or objections to attachment of,
property
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59. Stay of sale
60. Release of property from attachment
61. Disallowance of claim to property attached
62. Continuance of attachment subject to claim of incumbrancer
63. Saving of suits to establish right to attached property
Sale generally
64. Power to order property attached to be sold and proceeds to
be paid to person entitled
65. Sales by whom conducted and how made
66. Proclamation of sales by public auction
67. Mode of making proclamation
68. Time of sale
69. Adjournment or stoppage of sale
70. Saving of certain sales
71. Defaulting purchaser answerable for loss on re-sale
72. Decree-holder not to bid for or buy property without
permission
72-A. Mortgagee not to bid at sale without the leave of the Court
73. Restriction on bidding or purchase by officers
Sale of movable property
74. Sale of agricultural produce
75. Special provisions relating to growing crops
76. Negotiable instruments and shares in corporations
77. Sale by public auction
78. Irregularity not to vitiate sale, but any person injured may sue
79. Delivery of movable property, debts and shares
80. Transfer of negotiable instruments and shares
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81. Vesting order in case of other property
Sale of immovable property
82. What Courts may order sales
83. Postponement of sale to enable judgment-debtor to raise
amount of decree
84. Deposit by purchaser and re-sale on default
85. Time for payment in full of purchase-money
86. Procedure in default of payment
87. Notification on re-sale
88. Bid of co-sharer to have preference
89. Application to set aside sale on deposit
90. Application to set aside sale on ground of irregularity or fraud
91. Application by purchaser to set aside sale on ground of
judgment-debtor having no saleable interest
92. Sale when to become absolute or be set aside
93. Return of purchase-money in certain cases
94. Certificate to purchaser
95. Delivery of property in occupancy of judgment-debtor
96. Delivery of property in occupancy of tenant
Resistance to delivery of possession to decree-holder or purchaser
97. Resistance or obstruction to possession of immovable property
98. Orders after adjudication
99. Dispossession by decree-holder or purchaser
100. Order to be passed upon application complaining of
dispossession
101. Question to be determined
102. Rules not applicable to transferee pendente lite
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103. Orders to be treated as decrees
104. Order under Rule 101 or Rule 103 to be subject to the result
of pending suit
105. Hearing of application
106. Setting aside orders passed ex parte, etc
ORDER XXII
DEATH, MARRIAGE AND I NSOLVENCY OF PARTIES
1. No abatement by party's death, if right to sue survives
2. Procedure where one of several plaintiffs or defendants dies and
right to sue survives
3. Procedure in case of death of one of several plaintiffs or of sole
plaintiff
4. Procedure in case of death of one of several defendants or of
sole defendant
4-A. Procedure where there is no legal representative
5. Determination of question as to legal representative
6. No abatement by reason of death after hearing
7. Suit not abated by marriage of female party
8. When plaintiff's insolvency bars suit
9. Effect of abatement or dismissal
10. Procedure in case of assignment before final order in suit
10-A. Duty of pleader to communicate to Court death of a party
11. Application of Order to appeals
12. Application of Order to proceedings
ORDER XXIII
WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim
1-A. When transposition of defendants as plaintiffs may be
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permitted
2. Limitation law not affected by first suit
3. Compromise of suit
3-A. Bar to suit
3-B. No agreement or compromise to be entered in a
representative suit without leave of Court
4. Proceedings in execution of decrees not affected
ORDER XXIV
PAYMENT INTO COURT
1. Deposit by defendant of amount in satisfaction of claim
2. Notice of deposit
3. Interest on deposit not allowed to plaintiff after notice
4. Procedure where plaintiff accepts deposit as satisfaction in part
ORDER XXV
SECURITY FOR COSTS
1. When security for costs may be required from plaintiff
2. Effect of failure to furnish security
ORDER XXVI
COMMISSIONS
Commissions to examine witnesses
1. Cases in which Court may issue commission to examine
witness
2. Order for commission
3. Where witness resides within Court's jurisdiction
4. Persons for whose examination commission may issue
4-A. Commission for examination of any person resident within
the local limits of the jurisdiction of the Court
5. Commission or request to examine witness not within India
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6. Court to examine witness pursuant to commission
7. Return of commission with depositions of witnesses
8. When depositions may be read in evidence
Commissions for local investigations
9. Commissions to make local investigations
10. Procedure of Commissioner
Commission for scientific investigation performance of ministerial act
and sale of movable property
10-A. Commission for scientific investigation
10-B. Commission for performance of a ministerial act
10-C. Commission for the sale of movable property
Commissions to examine accounts
11. Commission to examine or adjust accounts
12. Court to give Commissioner necessary instructions
Commissions to make partitions
13. Commission to make partition of immovable property
14. Procedure of Commissioner
General Provisions
15. Expenses of commission to be paid into Court
16. Powers of Commissioners
16-A. Questions objected to before the Commissioner
17. Attendance and examination of witnesses before
Commissioner
18. Parties to appear before Commissioner
18-A. Application of Order to execution proceedings
18-B. Court to fix a time for return of commission
Commissions issued at the instance of foreign Tribunals
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19. Cases in which High Court may issue commission to examine
witness
20. Application for issue of commission
21. To whom commission may be issued
22. Issue, execution and return of commissions, and transmission
of evidence to foreign Court
ORDER XXVII
SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL
CAPACITY
1. Suits by or against Government
2. Persons authorised to act for Government
3. Plaints in suits by or against Government
4. Agent for Government to receive process
5. Fixing of day for appearance on behalf of Government
5-A. Government to be joined as a party in a suit against a public
officer
5-B. Duty of Court in suits against the Government or a public
officer to assist in arriving at a settlement
6. Attendance of person able to answer questions relating to suit
against Government
7. Extension of time to enable public officer to make reference to
Government
8. Procedure in suits against public officer
8-A. No security to be required from Government or a public
officer in certain cases
8-B. Definitions of “Government” and “Government pleader”
ORDER XXVII-A
SUITS I NVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE
I NTERPRETATION OF THE CONSTITUTION OR AS TO THE VALIDITY OF ANY
STATUTORY I NSTRUMENT
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1. Notice to the Attorney-General or the Advocate-General
1-A. Procedure in suits involving validity of any statutory
instrument
2. Court may add Government as party
2-A. Power of Court to add Government or other authority as a
defendant in a suit relating to the validity of any statutory
instrument
3. Costs
4. Application of Order to appeal
ORDER XXVIII
SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN
1. Officers, soldiers, sailors or airmen who cannot obtain leave
may authorise any person to sue or defend for them
2. Person so authorised may act personally or appoint pleader
3. Service on person so authorised, or on his pleader, to be good
service
ORDER XXIX
SUITS BY OR AGAINST CORPORATIONS
1. Subscription and verification of pleading
2. Service on corporation
3. Power to require personal attendance of officer of corporation
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
2. Disclosure of partners' names
3. Service
4. Right of suit on death of partner
5. Notice in what capacity served
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6. Appearance of partners
7. No appearance except by partners
8. Appearance under protest
9. Suits between co-partners
10. Suit against person carrying on business in name other than
his own
Schedule 1 (Order 31 to 40)
Schedule 1 (Order 41 to 51)
Schedule 2 to 5
———
ORDER XXI
Execution of Decrees and Orders
Payment under decree
471
[1. Modes of paying money under decree.—(1) All money, payable
under a decree shall be paid as follows, namely:
(a) by deposit into the Court whose duty it is to execute the decree, or
sent to that Court by postal money order or through a bank; or
(b) out of Court, to the decree-holder by postal money order or through a
bank or by any other mode wherein payment is evidenced in writing;
or
(c) otherwise, as the Court which made the decree, directs.
(2) Where any payment is made under clause (a) or clause (c) of
sub-rule (1), the judgment-debtor shall give notice thereof to the
decree-holder either through the Court or directly to him by registered
post, acknowledgment due.
(3) Where money is paid by postal money order or through a bank
under clause (a) or clause (b) of sub-rule (1), the money order or
payment through bank, as the case may be, shall accurately state the
following particulars, namely:—
(a) the number of the original suit;
(b) the names of the parties or where there are more than two plaintiffs
or more than two defendants, as the case may be, the names of the
first two plaintiffs and the first two defendants;
(c) how the money remitted is to be adjusted, that is to say, whether it is
towards the principal, interest or costs;
(d) the number of the execution case of the Court, where such case is
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pending; and
(e) the name and address of the payer.
(4) On any amount paid under clause (a) or clause (c) of sub-rule
(1), interest, if any, shall cease to run from the date of service of the
notice referred to in sub-rule (2).
(5) On any amount paid under clause (b) of sub-rule (1), interest, if
any, shall cease to run from the date of such payment:
Provided that, where the decree-holder refuses to accept the postal
money order or payment through a bank, interest shall cease to run
from the date on which the money was tendered to him, or where he
avoids acceptance of the postal money order or payment through bank,
interest shall cease to run from the date on which the money would
have been tendered to him in the ordinary course of business of the
postal authorities or the bank, as the case may be.]
High Court Amendments
ORISSA.—Insert the words “or order” after the word “decree”
wherever it occurs in Rule 1 of Order XXI of the Code. (14-5-1984).
► Powers of executing court to award interest.—It is not open for
executing court to award interest unless it was pleaded or specifically directed in
judgment or decree. It cannot add or alter judgment or decree on its notions of
fairness and justice, State of Punjab v. Krishan Dayal Sharma, (2011) 11 SCC
212 : (2011) 3 SCC (Civ) 653.
► Adjustment of interest.—Application of normal rule that amount deposited
by judgment-debtor to be first adjusted towards interest and costs and then
towards principal amount of compensation would not amount to imposition of
interest on interest, prohibited under Section 3(3)(c) of Interest Act, 1978 as
interest is not included in amount of compensation, V. Kala Bharathi v. Oriental
Insurance Co. Ltd., (2014) 5 SCC 577.
2. Payment out of Court to decree-holder.—(1) Where any money
payable under a decree of any kind is paid out of Court, 472[or the
decree of any kind is otherwise adjusted] in whole or in part to the
satisfaction of the decree-holder, the decree-holder shall certify such
payment or adjustment to the Court whose duty it is to execute the
decree, and the Court shall record the same accordingly.
(2) The judgment-debtor 473[or any person who has become surety
for the judgment-debtor] also may inform the Court of such payment or
adjustment, and apply to the Court to issue a notice to the decree-
holder to show cause, on a day to be fixed by the Court, why such
payment or adjustment should not be recorded as certified; and if, after
service of such notice, the decree-holder fails to show cause why the
payment or adjustment should not be recorded as certified, the Court
shall record the same accordingly.
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474
[(2-A) No payment or adjustment shall be recorded at the
instance of the judgment-debtor unless—
(a) the payment is made in the manner, provided in Rule 1; or
(b) the payment or adjustment is proved by documentary evidence; or
(c) the payment or adjustment is admitted by, or on behalf of, the decree
-holder in his reply to the notice given under sub-rule (2) of Rule 1, or
before the Court.]
475
(3) A payment or adjustment, which has not been certified or
recorded as aforesaid, shall not be recognised by any Court executing
the decree.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY, DADRA AND NAGAR HAVELI, GOA, DAMAN AND DIU.—In Order
XXI, Rule 2, for the existing (2), substitute the following as sub-rule
(2):
“(2) The judgment-debtor or any person who has become surety
for judgment-debtor may also inform the Court by an application in
writing supported by an affidavit of such payment or adjustment and
apply to the Court to issue a notice to the decree-holder to show
cause on a date to be fixed by the Court, why such payment or
adjustment should not be recorded as certified; and if, after service
of such notice, the decree-holder fails to show cause why the
payment or adjustment should not be recorded as certified, the
Court shall record the same accordingly.” (1-10-1983).
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab, see Act 26 of
1966, Sections 7 and 17.
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In sub-rule (2) for
the words “The judgment-debtor” substitute the words “Any party to
the suit or his legal representative or any person who has become
surety for the decree-debt.” (9-6-1959).
Jurisdiction of Kerala High Court has been extended to the Union
Territory of Laccadive, Minicoy and Amindivi Islands by Section 60 of
Act 37 of 1956.
MADRAS AND PONDICHERRY.—Substitute the following for the existing
sub-rule (2):
“Any party to the suit or his legal representatives or any person
who has become surety for the decree-debt also may inform the
Court of such payment or adjustment and apply to the Court to issue
a notice to the decree-holder to show cause, on a day to be fixed by
the Court, why such payment or adjustment should not be recorded
as certified; and if, after service of such notice, the decree-holder
fails to show cause why the payment or adjustment should not be
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recorded as certified, the Court shall record the same accordingly.”
ORISSA.—Same as that of Patna (i).
PATNA.—(i) In sub-rule (2) for the words “and if after service of such
notice,” substitute the following:
“and where certification has been made by an endorsement of
such payment or adjustment by the decree-holder or by any person
authorised by him in that behalf upon the process issued by the
Court, the Court shall issue such notice of its own motion. If after
service of the notice,”
(ii) Delete the existing sub-rule (3) of Rule 2. (5-4-1961)
PUNJAB, HARYANA AND CHANDIGARH.—Omit sub-rule (3). (19-4-1935)
read with Punjab Act 44 of 1960, S. 3 (30-12-1960); See also Act 31 of
1966, Ss. 29 and 32 (1-11-1966).
► Adjustment of decree.—Adjustment is an agreement which extinguishes
the decree as such in whole or in part and results in satisfaction of the decree in
respect of the particular relief or reliefs granted by decree. An adjustment is not
the same as satisfaction of the decree but is some method of setting the decree
which is not provided for in the decree itself, P.K. Singh v. S.N. Kanungo, (2010)
4 SCC 504 : (2010) 2 SCC (Civ) 198.
Courts executing decrees
3. Lands situate in more than one jurisdiction.—Where immovable
property forms one estate or tenure situate within the local limits of the
jurisdiction of two or more Courts, any one of such Courts may attach
and sell the entire estate or tenure.
4. Transfer to Court of Small Causes.—Where a decree has been
passed in a suit of which the value as set forth in the plaint did not
exceed two thousand rupees and which, as regards its subject-matter,
is not excepted by the law for the time being in force from the
cognisance of either a Presidency or a Provincial Court of Small Causes,
and the Court which passed it wishes it to be executed in Calcutta,
Madras or Bombay, such Court may send to the Court of Small Causes
in Calcutta, Madras or Bombay, as the case may be, the copies and
certificates mentioned in Rule 6; and such Court of Small Causes shall
thereupon execute the decree as if it had been passed by itself.
High Court Amendments
BOMBAY, DADRA AND NAGAR HAVELI, GOA, DAMAN AND DIU.—In Order
XXI, for the existing Rule 4 and its marginal note, substitute the
following as Rule 4 and marginal note:—
“4. Transfer to Court of Small Causes.—(1) Where a decree has
been passed in a suit of which the value as set forth in the plaint did
not exceed two thousand rupees and which, as regards its subject
matter, is not excepted by the law for the time being in force from
the cognisance of either a Presidency or a Provisional Small Causes
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Court and the Court which passed it wishes it to be executed in
Calcutta or Madras, such Court may send to the Court of Small
Causes in Calcutta or Madras, as the case may be, the copies and
certificates mentioned in Rule 6; and such Court of Small Causes
shall thereupon execute the decree as if it had been passed by itself.
(2) A decree in a suit of the nature described in sub-rule (1) but
in which the value as set forth in the plaint did not exceed ten
thousand rupees may be sent for execution to and be executed by
the Presidency Court of Small Causes at Bombay in the manner
prescribed in sub-rule (1).” (1-10-1983).
GUJARAT.—In Rule 4—
(i) delete the words “or Bombay” wherever they occur;
(ii) re-number Rule 1 as sub-rule (1); and
(iii) add as sub-rule (2) the following:
“(2) A decree in a suit of the nature described in sub-rule (1) but in
which the value as set forth in the plaint did not exceed rupees three
thousand may be sent for execution to and be executed by the
Presidency Court of Small Causes at Bombay in the manner prescribed
in sub-rule (1).” (17-8-1961)
476
[5. Mode of transfer.—Where a decree is to be sent for execution
to another Court, the Court which passed such decree shall send the
decree directly to such other Court whether or not such other Court is
situated in the same State, but the Court to which the decree is sent
for execution shall, if it has no jurisdiction to execute the decree, send
it to the Court having such jurisdiction.]
High Court Amendments
PUNJAB, HARYANA, CHANDIGARH AND DELHI.—Where the Court to which a
decree is to be sent for execution is situate within the same district as
the Court which passed such decree, such court shall send the same
directly to the former Court. But, where the Court to which the decree
is to be sent for execution is situate in a different district, the Court
which passed it shall send it to the District Court or the Court of any
Judge having jurisdiction in the place where the decree is to be
executed to whom power to receive plaints has been delegated by the
District Judge of the district in which the decree is to be executed.
(High Court Notifications. No. 193-Gaz./XI-Y-14, dt. 11-7-1933 and No.
72-R/XI-Y-14, dt. 23-3-1938.)
6. Procedure where Court desires that its own decree shall be
executed by another Court.—The Court sending a decree for execution
shall send—
(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not been
obtained by execution within the jurisdiction of the Court by which it
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was passed, or, where the decree has been executed in part, the extent
to which satisfaction has been obtained and what part of the decree
remains unsatisfied; and
(c) a copy of any order for the execution of the decree, or, if no such order
has made, a certificate to that effect.
High Court Amendments
ALLAHABAD.—Rule 6 shall be renumbered as 6(1) and add the
following sub-rule (2):
“(2) Such copies and certificates may, at the request of the
decree-holder, be handed over to him or to such person as he
appoints, in a sealed cover to be taken to the Court to which they are
to be sent.” (24-7-1926).
KARNATAKA.—For modification of the rule in relation to Small Causes
Court, Mysore, see Mysore Small Causes Courts Act, 1964 (Mys. Act 11
of 1964), Section 27.
PATNA AND ORISSA.—Insert the following after words “decree” in
clause (a) “and a copy of the suit register relating to the suit in which
the decree was passed and a memorandum showing the costs allowed
to the decree-holder subsequent to the passing of a decree.”
RULE 6-A
MADRAS : PONDICHERRY.—After Rule 6 insert the following:
“6-A. A copy of the judgment bearing the formule executoire, sent
by a Court in the Union Territory of Pondicherry, shall be deemed to
be a decree and to comply with the requirements of Rule 6:
Provided that notwithstanding anything contained in Rule 2,
where any question as to the satisfaction of (or) the discharge, in
whole or in part of such a decree arises, the Court executing the
decree shall decide it.” (15-3-1967)
7. Court receiving copies of decree, etc., to file same without proof.—
The Court to which a decree is so sent shall cause such copies and
certificates to be filed, without any further proof of the decree or order
for execution, or of the copies thereof, unless the Court, for any special
reasons to be recorded under the hand of the Judge, requires such
proof.
8. Execution of decree or order by Court to which it is sent.—Where
such copies are so filed, the decree or order may, if the Court to which
it is sent is the District Court, be executed by such Court or be
transferred for execution to any subordinate Court of competent
jurisdiction.
9. Execution by High Court of decree transferred by other Court.—
Where the Court to which the decree is sent for execution is a High
Court, the decree shall be executed by such Court in the same manner
as if it had been passed by such Court in the exercise of its ordinary
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original civil jurisdiction.
High Court Amendment
KERALA.—Omit Rule 9. (9-6-1959).
Application for execution
10. Application for execution.—Where the holder of a decree desires
to execute it, he shall apply to the Court which passed the decree or to
the officer (if any) appointed in this behalf, or if the decree has been
sent under the provisions hereinbefore contained to another Court then
to such Court or to the proper office thereof.
High Court Amendment
PUNJAB, HIMACHAL PRADESH AND DELHI.—Add the following proviso:
“Provided that if the judgment-debtor has left the jurisdiction of
the Court which passed the decree, or of the Court to which the
decree has been sent, the holder of the decree may apply to the
Court within whose jurisdiction the judgment-debtor is, or to the
officer appointed in this behalf, to order immediate execution on the
production of the decree and of an affidavit of non-satisfaction by the
holder of the decree pending the receipt of an order of transfer under
Section 39.” (7-4-1932).
► Execution of decree for rendition of accounts.—Such decree is
executable only against original defendant. After his death, such decree cannot be
executed against legal representative, Ghat Talab Kaulan Wala v. Gopal Dass,
(2020) 13 SCC 50.
11. Oral application.—(1) Where a decree is for the payment of
money the Court may, on the oral application of the decree-holder at
the time of the passing of the decree, order immediate execution
thereof by the arrest of the judgment-debtor, prior to the preparation of
a warrant if he is within the precincts of the Court.
(2) Written application.—Save as otherwise provided by sub-rule
(1), every application for the execution of a decree shall be in writing,
signed and verified by the applicant or by some other person proved to
the satisfaction of the Court to be acquainted with the facts of the case,
and shall contain in a tabular form the following particulars, namely:—
(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment of the
matter in controversy has been made between the parties
subsequently to the decree;
(f) whether any, and (if any) what, previous applications have been made
for the execution of the decree, the dates of such applications and their
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results;
(g) the amount with interest (if any) due upon the decree, or other relief
granted thereby, together with particulars of any cross-decree, whether
passed before or after the date of the decree sought to be executed;
(h) the amount of the costs (if any) awarded;
(i) the name of the person against whom execution of the decree is
sought; and
(j) the mode in which the assistance of the Court is required, whether—
(i) by the delivery of any property specifically decreed;
477
[(ii) by the attachment, or by the attachment and sale, or by the
sale without attachment, of any property;]
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise as the nature of the relief granted may require.
(3) The Court to which an application is made under sub-rule (2)
may require the applicant to produce a certified copy of the decree.
High Court Amendments
ALLAHABAD.—(1) For clause (f) of sub-rule (2), substitute the
following:
“(f) The date of the last application if any,”
(2) Add the following proviso to sub-rule (2):
“Provided that when the applicant files with his application a
certified copy of the decree, the particulars specified in clauses (b),
(c) and (h), need not be given in the application.” (24-7-1926)
(3) Add the following as sub-rule (4):
“(4) Where a decree for money is sought to be executed under
sub-rule (2) by the arrest and detention in prison of the judgment-
debtor, the application shall also state on which of the grounds
mentioned in the proviso to Section 51, detention is claimed.” (19-5-
1956).
ANDHRA PRADESH.—Same as in Madras.
KARNATAKA.—(i) after clause (f) insert clause (ff) as in Madras with
the omission of the words “original” before “decree-holder”.
(ii) after clause (j), (v) insert para as in Madras. (30-3-1967).
KERALA.—(i) after clause (f) insert clause (ff) as in Madras.
(ii) clause (j) is substituted. The effect of substitution is that after
sub-clause (v) a paragraph is added as in Madras. (9-6-1959)
MADHYA PRADESH.—Add the following proviso to sub-rule (2):—
“Provided that, when the applicant files with his application a
certified copy of the decree the particular specified in clauses (b), (c)
and (h) need not be given in the application.” (16-9-1960)
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MADRAS AND ANDHRA PRADESH (P. Dis. No. 776 to 1929).—(a) In sub-
rule (2) of Rule 11 between clauses (f) and (g) insert the following new
clause:—
“(ff) whether the original decree-holder has transferred any part
of his interest in the decree and if so, the date of the transfer and
the name and address of the parties to the transfer”.
(GOMs. No. 2084-Home of 2-9-1936).—HCP Dis. No. 691 of 13-10-
1936)
(b) Add the following to sub-rule (2) (j) after clause (v):
“In an execution petition praying for relief by way of attachment
of a decree of the nature specified in sub-rule (1) of Rule 53 of this
Order, there shall not be included any other relief mentioned in this
clause.”
(c) Add the following proviso at the end of sub-rule (2):
“Provided that when the applicant files with his application a
certified copy of the decree, the particulars specified in clauses (b),
(c) and (h) need not be given in the application.”
ORISSA.—[Amend. deleted 14-5-1984].
PATNA.—(a) Add the following as sub-rule (1-A) to Rule 11:—
“(1-A) Where an order has been made under Section 39 for the
transfer of a decree for the payment of money for execution to a
Court within the local limits of the jurisdiction of which the judgment
-debtor resides, such Court may, on the production by the decree-
holder of a certified copy of the decree and an affidavit of non-
satisfaction forthwith order immediate execution of the decree by the
arrest of the judgment-debtor.”
(b) Substitute the words and figures “sub-rules (1) and (1-A)” for
the words and figure “sub-rule (1)” in line 1 of sub-rule (2) of Rule 11.
(c) Delete clauses (b), (c), (d) and (f) and (h) of sub-rule (2). (5-4-
1961).
478
[11-A. Application for arrest to state grounds.—Where an
application is made for the arrest and detention in prison of the
judgment-debtor, it shall state, or be accompanied by an affidavit
stating, the grounds on which arrest is applied for.]
12. Application for attachment of movable property not in judgment-
debtor's possession.—Where an application is made for the attachment
of any movable property belonging to a judgment-debtor but not in his
possession, the decree-holder shall annex to the application an
inventory of the property to be attached, containing a reasonably
accurate description of the same.
13. Application for attachment of immovable property to contain
certain particulars.—Where an application is made for the attachment of
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any immovable property belonging to a judgment-debtor, it shall
contain at the foot—
(a) a description of such property sufficient to identify the same and, in
case such property can be identified by boundaries or numbers in a
record of settlement or survey, a specification of such boundaries or
numbers; and
(b) a specification of the judgment-debtor's share or interest in such
property to the best of the belief of the applicant, and so far as he has
been able to ascertain the same.
14. Power to require certified extract from Collector's register in
certain cases.—Where an application is made for the attachment of any
land which is registered in the office of the Collector, the Court may
require the applicant to produce a certified extract from the register of
such office, specifying the persons registered as proprietors of, or as
possessing any transferable interest in, the land or its revenue, or as
liable to pay revenue for the land, and the shares of the registered
proprietors.
High Court Amendment
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—(i) In Rule 14, for
the marginal note the following shall be substituted:
“Power to require certified extracts from the registers of Revenue
Accounts.”
(ii) for the words “in the office of the Collector” in the rule, the words
“in the Revenue Accounts” shall be substituted. (9-6-1959); Act 37 of
1956, Section 60 and Regulation 8 of 1965, Section 3.
15. Application for execution by joint decree-holder.—(1) Where a
decree has been passed jointly in favour of more persons than one, any
one or more of such persons may, unless the decree imposes any
condition to the contrary, apply for the execution of the whole decree
for the benefit of them all, or, where any of them has died, for the
benefit of the survivors and the legal representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to
be executed on an application made under this rule, it shall make such
order as it deems necessary for protecting the interests of the persons
who have not joined in the application.
16. Application for execution by transferee of decree.—Where a
decree or, if a decree has been passed jointly in favour of two or more
persons, the interest of any decree-holder in the decree is transferred
by assignment in writing or by operation of law, the transferee may
apply for execution of the decree to the Court which passed it; and the
decree may be executed in the same manner and subject to the same
conditions as if the application were made by such holder:
Provided that, where the decree, or such interest as aforesaid, has
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been transferred by assignment, notice of such application shall be
given to the transferor and the judgment-debtor, and the decree shall
not be executed until the Court has heard their objections (if any) to its
execution:
Provided also that, where a decree for the payment of money against
two or more persons has been transferred to one of them, it shall not
be executed against the others.
479
[Explanation.—Nothing in this rule shall affect the provisions of
Section 146, and a transferee of rights in the property, which is the
subject-matter of the suit, may apply for execution of the decree
without a separate assignment of the decree as required by this rule.]
High Court Amendments
ASSAM, CALCUTTA AND NAGALAND.—In the first proviso cancel the
words “and the decree shall not be executed until the court has heard
their objections (if any) to its execution” and substitute as follows:
“and until the court has heard their objections (if any) the decree
shall not be executed provided that if, with the application for
execution, an affidavit by the transferor admitting the transfer or an
instrument of transfer duly registered be filed, the Court may
proceed with the execution of the decree pending the hearing of
such objections.”
BOMBAY.—For Rule 16 and its marginal note substitute the following:
“16. Application for execution by transferee of decree.—Where a
decree or if a decree has been passed jointly in favour of two or more
persons the interest of any decree-holder in the decree is transferred
by assignment in writing or by operation of law, the transferee may
apply for execution of the decree to the Court which passed it, or to
the Court to which it has been sent for execution, and the decree
may be executed in the same manner and subject to the same
conditions as if the application were made by such decree-holder:
Provided that, where the decree or such interest as aforesaid, has
been transferred by assignment, notice of such application shall be
given to the transferor and the judgment-debtor, and the decree
shall not be executed until the Court has heard their objections (if
any) to its execution:
Provided further that where the transferee Court holds the
assignment provided, it shall forthwith communicate its decision in
that behalf to the Court which passed the decree, and the latter
Court shall make an entry in the Register of Suits indicating that the
assignment has been held to be proved:
Provided also that, where the decree for the payment of money
against two or more persons has been transferred to one of them, it
shall not be executed against the others.
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Explanation I.—In an application under this rule, any payment of
money made under a decree, or any adjustment in whole or in part
of the decree arrived at to the satisfaction of the decree-holder,
which payment or adjustment has not been certified or recorded by
the Court under Rule 2 of this order, shall not be recognised by the
Court entertaining the application.
Explanation II.—Nothing in this rule shall affect the provisions of
Section 146, and a transferee of rights in the property, which is the
subject-matter of the suit, may apply for execution of the decree
without a separate assignment of the decree as required by this
rule.” (1-10-1983).
CHANDIGARH, DELHI, HARYANA, HIMACHAL PRADESH AND PUNJAB.—In the
first proviso the words “J.D.” is restored and “their” is substituted for
“his” and the first proviso is now same as in Central Code. (dt. 7-4-
1932)
GAUHATI.—Same as in Calcutta.
GUJARAT.—Add Explanation I as in Bombay.
MADHYA PRADESH.—After the words “which passed it” insert the words
“or to any Court for which it has been sent for execution”.—(16-9-
1960).
PATNA AND ORISSA.—(1) Add the words “or to the Court to which the
decree has been sent for execution as the case may be” after the words
“to the Court which passed it;”
(2) Delete the words “and the J.D.” from the first proviso and the
second proviso; after the words “transferor” insert the words “unless an
affidavit of the transferor admitting the transfer is filed with the
application” and substitute the word “his” for the word “their” and the
word “objection” for “objections”.
17. Procedure on receiving application for execution of decree.—(1)
On receiving an application for the execution of a decree as provided by
Rule 11, sub-rule (2), the Court shall ascertain whether such of the
requirements of Rules 11 to 14 as may be applicable to the case have
480
been complied with; and, if they have not been complied with, [the
Court shall allow] the defect to be remedied then and there or within a
time to be fixed by it.
481
[(1-A) If the defect is not so remedied, the Court shall reject the
application:
Provided that where, in the opinion of the Court, there is some
inaccuracy as to the amount referred to in clauses (g) and (h) of sub-
rule (2) of Rule 11, the Court shall, instead of rejecting the application,
decide provisionally (without prejudice to the right of the parties to
have the amount finally decided in the course of the proceedings) the
amount and make an order for the execution of the decree for the
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amount so provisionally decided.]
(2) Where an application is amended under the provisions of sub-
rule (1), it shall be deemed to have been an application in accordance
with law and presented on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or
initialled by the Judge.
(4) When the application is admitted, the Court shall enter in the
proper register a note of the application and the date on which it was
made, and shall, subject to the provisions hereinafter contained, order
execution of the decree according to the nature of the application:
Provided that, in the case of a decree for the payment of money, the
value of the property attached shall, as nearly as may be, correspond
with the amount due under the decree.
High Court Amendments
ALLAHABAD.—Between the words “been complied with” and “the Court
may” insert the words “and if the decree-holder fails to remedy the
defect within a time to be fixed by the Court”. (24-7-1926).
ANDHRA PRADESH.—(1) For the words “or may allow………..fixed by it”
in sub-rule (1) substitute the words “if the defect is not remedied
within a time to be fixed by it”.
(2) Add the following proviso at the end of the rule:—
“Provided that where an execution application is returned on
account of inaccuracy in the particulars required under Rule 11(2)
(g), the endorsement of return shall state what in the opinion of the
returning officer is the correct amount.” Act 26 of 1968, Section 3
and Sch., Pt. II (w.e.f. 5-9-1968).
ASSAM AND NAGALAND.—Same as that of Calcutta : Assam High Court
Order, 1948, Clause 6 and see Act 27 of 1962, Sections 13 and 15
(w.e.f. 1-12-1963). See also Act 81 of 1971, S. 28(1), dt. 21-1-1972.
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—In sub-rule (1), cancel
the words, “the Court may reject the application or may allow the
defect to be remedied then and there or within a time to be fixed by it”
and substitute therefor the following:
“the Court shall allow the defect to be remedied then and there or
within a time to be fixed by it. If the defect is not remedied within
the time fixed, the Court may reject the application.”
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab—See Act 26 of
1966, Sections 7 and 17 (31-10-1966).
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In sub-rule (1) for
the words “or may allow the defect to be remedied then and there or”
substitute the words “if the defect is not remedied”. (9-6-1959) and
Reg. 8 of 1965, Section 3, Act 34 of 1973, Section 5 (1-11-1973).
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MADHYA PRADESH.—In sub-rule (1) for the words “the Court may
reject…. within a time to be fixed by it” substitute the words “the Court
may allow the defect to be remedied then and there, or may fix a time,
within which it should be remedied and, in case the decree-holder fails
to remedy the defect within such time, the Court may reject the
application”. (16-9-1960).
MADRAS AND PONDICHERRY.—Same as that of Andhra Pradesh.
KARNATAKA.—In Rule 17 delete sub-rule (1) and substitute the
following:
“(1) On receiving an application for the execution of a decree as
provided by sub-rule (2) of Rule 11 of this Order, the Court shall
ascertain whether such of the requirements of Rules 11 to 14 as may
be applicable to the case have been complied with, and if they have
not been complied with, the Court may reject the application, if the
defect is not remedied within a time to be fixed by the Court.”
At the end of Rule 17 add the following:
“Provided that where an execution application is returned on
account of inaccuracy in the particulars required by Rule 11(2)(g),
the endorsement of return shall state what in the opinion of the
returning officer is the correct amount.” (30-3-1967).
ORISSA.—Deleted. (25-5-1984).
PATNA.—In sub-rule (1) substitute the following for the words “Court
may reject the application, etc.” to the end of the sub-rule:
“the Court shall allow the defect to be remedied then and there or
within a time to be fixed by it, and, if the decree-holder fails to
remedy the defect within such time, the Court may reject the
application.”
PUNJAB, HARYANA AND CHANDIGARH.—For the words “the Court may
reject…. to be fixed by it” in sub-rule (1) substitute the following
words:
“the Court shall fix a time within which the defect shall be
remedied, and if it is not remedied within such time, the Court may
reject the application.” See Act 30 of 1966, Sections 29 and 32. (1-
11-1966).
RULE 17-A
ANDHRA PRADESH.—Add the following after Rule 17(4):
“17-A. Where an application is made to a Court for the execution
of a decree or order passed against a defendant in respect of whom
service of summons has been dispensed with under Rule 31 of Order
V, the Court shall ordinarily direct stay of the execution of the decree
or order against such defendant till the expiry of a period of one year
after cessation of hostilities with the State in whose territory such
defendant was resident:
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Provided that the Court may, if it considers that the interests of
justice so require, order execution on such terms as to security, or,
otherwise as it thinks fit.”
KARNATAKA.—Same as that of Andhra Pradesh except for the omission
of the words “or order” in both places where they occur (30-2-1967).
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—After Rule 17,
Rule 17-A is inserted, Rule 17-A same as that of Andhra Pradesh Act 37
of 1956, Section 60 and Regulation 8 of 1965, Section 8. (9-6-1959)
MADRAS AND PONDICHERRY.—Same as that of Andhra Pradesh.
18. Execution in case of cross-decrees.—(1) Where applications are
made to a Court for the execution of cross-decrees in separate suits for
the payment of two sums of money passed between the same parties
and capable of execution at the same time by such Court, then—
(a) if the two sums are equal, satisfaction shall be entered upon both
decrees; and
(b) if the two sums are unequal, execution may be taken out only by the
holder of the decree for the larger sum and for so much only as
remains after deducting the smaller sum, and satisfaction for the
smaller sum shall be entered on the decree for the larger sum as well
as satisfaction on the decree for the smaller sum.
(2) This rule shall be deemed to apply where either party is an
assignee of one of the decrees and as well in respect of judgment-debts
due by the original assignor as in respect of judgment-debts due by the
assignee himself.
(3) This rule shall not be deemed to apply unless—
(a) the decree-holder in one of the suits in which the decrees have been
made is the judgment-debtor in the other and each party fills the same
character in both suits; and
(b) the sums due under the decrees are definite.
(4) The holder of a decree passed against several persons jointly and
severally may treat it as a cross-decree in relation to a decree passed
against him singly in favour of one or more of such persons.
Illustrations
(a) A holds a decree against B for Rs. 1000. B holds a decree against
A for the payment of Rs. 1000 in case A fails to deliver certain goods at
a future day. B cannot treat his decree as a cross-decree under this
rule.
(b) A and B, co-plaintiffs, obtain a decree for Rs. 1000 against C,
and C obtains a decree for Rs. 1000 against B. C cannot treat his
decree as a cross-decree under this rule.
(c) A obtains a decree against B for Rs. 1000. C, who is a trustee for
B, obtains a decree on behalf of B against A for Rs. 1000. B cannot
treat C's decree as a cross-decree under this rule.
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(d) A, B, C, D and E are jointly and severally liable for Rs. 1000
under a decree obtained by F. A obtains a decree for Rs. 100 against F
singly and applies for execution to the Court in which the joint-decree
is being executed. F may treat his joint-decree as a cross-decree under
this rule.
High Court Amendments
MADHYA PRADESH.—Substitute the following for the existing Rule 18:
“18. (1) Where decree-holders apply to a Court for execution of
cross-decrees in separate suits between the same parties for the
payment of two sums of money passed and capable of execution at
the same time by such Court, then—
(a) if the two sums are equal, satisfaction shall be entered upon both
decrees;
(b) if the two sums are unequal, execution may be taken out only by
the holder of the decree for the larger sum and for so much only
as remains after deducting the smaller sum, and satisfaction for
the smaller sum shall be entered on the decree for the larger sum
as well as satisfaction on the decree for the smaller sum:
Provided that—
(i) each party fills the same character in both suits, and
(ii) the sums due under the decrees are definite.
(2) This rule shall be deemed to apply where either applicant is an
assignee of one of the decrees as well in respect of judgment-debts
due by the original assignor as in respect of judgment-debts due by
the assignee himself:
Provided that—
(i) Where the decrees were passed between the same parties, each
party fills the same character in each suit; and
(ii) Where the decrees were not passed between the same parties,
the decree-holder in one of the suits is the judgment-debtor in
the other suit and fills the same character in both suits; and
(iii) the sums due under the decrees are definite.
(3) The holder of a decree passed against several persons jointly
and severally may treat it as a cross-decree in relation to a decree
passed against him singly in favour of one or more of such
persons.” (16-9-1960).
19. Execution in case of cross-claims under same decree.—Where
application is made to a Court for the execution of a decree under which
two parties are entitled to recover sums of money from each other,
then,—
(a) if the two sums are equal, satisfaction for both shall be entered upon
the decree; and
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(b) if the two sums are unequal, execution may be taken out only by the
party entitled to the larger sum and for so much only as remains after
deducting the smaller sum, and satisfaction for the smaller sum shall
be entered upon the decree.
20. Cross-decrees and cross-claims in mortgage-suits.—The
provisions contained in Rules 18 and 19 shall apply to decrees for sale
in enforcement of a mortgage or charge.
21. Simultaneous execution.—The Court may, in its discretion, refuse
execution at the same time against the person and property of the
judgment-debtor.
22. Notice to show cause against execution in certain cases.—(1)
Where an application for execution is made—
482
(a) more than [two years] after the date of the decree, or
483
(b) against the legal representative of a party to the decree [or where
an application is made for execution of a decree filed under the
484
provisions of Section 44-A], [or]
485
[(c) against the assignee or receiver in insolvency, where the party to
the decree has been adjudged to be an insolvent,]
the Court executing the decree shall issue a notice to the person
against whom execution is applied for requiring him to show cause, on
a date to be fixed, why the decree should not be executed against him:
Provided that no such notice shall be necessary in consequence of
more than 486[two years] having elapsed between the date of the
decree and the application for execution if the application is made
487
within [two years] from the date of the last order against the party
against whom execution is applied for, made on any previous
application for execution, or in consequence of the application being
made against the legal representative of the judgment-debtor, if upon
a previous application for execution against the same person the Court
has ordered execution to issue against him.
(2) Nothing in the foregoing sub-rule shall be deemed to preclude
the Court from issuing any process in execution of a decree without
issuing the notice thereby prescribed, if, for reasons to be recorded, it
considers that the issue of such notice would cause unreasonable delay
or would defeat the ends of justice.
High Court Amendments
ALLAHABAD.—(1) Omit clause (a) of sub-rule (1) and from the proviso
to sub-rule (1) delete the words beginning from “in consequence of
more than one year” to “made on any previous application in execution,
or”;
(2) Omit the letter and the brackets “(b)”; (1-6-1957).
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(3) To sub-rule (2) of this rule shall be added the following proviso:
“Provided that no order for the execution of a decree shall be
invalid by reason of the omission to issue a notice substantiated
under this rule, unless the judgment-debtor has sustained injury by
reason of such omission.” (24-7-1926).
ANDHRA PRADESH.—Same as that of Madras.
ASSAM AND NAGALAND.—Same as that of Calcutta.
BOMBAY.—In Order 21, in Rule 22, after sub-rule (2), insert the
following sub-rule, namely:—
“(3) Notwithstanding anything contained in sub-rules (1) and (2)
above, no order for the execution of a decree shall be invalid merely
by reason of the omission to issue a notice under this rule, unless
the judgment-debtor has sustained injury by reason of such
omission.” (w.e.f. 1-11-1966)
CALCUTTA.—Add the following sub-rule (3):
“(3) Omission to issue a notice in a case where notice is required
under sub-rule (1), or to record reasons in a case where notice is
dispensed with under sub-rule (2), shall not affect jurisdiction of the
Court in executing the decree.”
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab. (31-10-1966)
GAUHATI.—Same as in Calcutta.
GUJARAT.—For “one year”, substitute “two years” wherever they
occur.—(17-8-1961).
KARNATAKA.—Delete Rule 22 and substitute the following:
“22. (1) Where an application for execution is made—
(a) more than two years after the date of decree, or
(b) against the legal representative of a party to the decree, or
(c) where the party to the decree has been declared insolvent
against the assignee or receiver in insolvency, or
(d) for the execution of a decree filed under the provisions of Section
44-A of this Code, the Court executing the decree shall issue a
notice to the person against whom execution is applied for
requiring him to show cause, on a date to be fixed, why the
decree should not be executed against him:
Provided that no such notice shall be necessary in consequence of
more than two years having elapsed between the date of the decree
and the application for execution if the application is made within
two years from the date of the last order against the party against
whom execution is applied for execution, or in consequence of the
application being made against the legal representative of the
judgment-debtor, if upon a previous application for execution
against the same person the Court has ordered execution to issue
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against him.
(2) Where from the particulars mentioned in the application in
compliance with Rule 11(2)(ff) of this order or otherwise the Court
has information that the decree-holder has transferred any part of
his interest in the decree, the Court shall issue notice of the
application to all parties to such transfer other than the petitioner,
where he is a party to the transfer.
(3) Nothing in the foregoing sub-rules shall be deemed to
preclude the Court from issuing any process in execution of a decree
without issuing the notice hereby prescribed, if for reasons to be
recorded in writing the Court considers that the issue of such notice
would cause unreasonable delay or would defeat the ends of justice:
Provided that no order for the execution of a decree shall be
invalid owing to the omission of the Court to issue a notice as
required by sub-rule (1) or to record its reasons where notice is
dispensed with under sub-rule (3) unless the judgment-debtor has
sustained substantial injury as a result of such omission.” (30-3-
1967)
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of
Madras. (9-6-1959).
MADHYA PRADESH.—To sub-rule (2), add the following proviso:
Same as that of Allahabad (3) except add “substantial” before
“injury”. (16-9-1960)
MADRAS AND PONDICHERRY.—(1) In sub-rule (1) the words “two years”
shall be substituted for the words “one year” wherever they occur.
(2) In sub-rule (1) after clause (b), insert the following:
“or (c) where the party to the decree has been declared insolvent,
against the assignee or Receiver in insolvency.”
(3) Between sub-rules (1) and (2), insert the following:
“(1-a) Where from the particulars mentioned in the application in
compliance with Rule 11(2)(ff) supra, or otherwise the Court has
information that the original decree-holder has transferred any part
of his interest in the decree, the Court shall issue notice of the
application to all parties to such transfer, other than the petitioner,
where he is a party to the transfer.”
(4) Add the following proviso to sub-rule (2):
“Provided that no order for execution of a decree shall be invalid
owing to the omission of the Court to record its reasons unless the
judgment-debtor has sustained substantial injury as a result of such
omission,” Act 26 of 1968, Section 3 and Sch. Pt. II (w.e.f. 5-9-
1968).
ORISSA.—(a) For sub-rule (1) substitute the following:
“Where an application for execution is made in writing under Rule
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11(2), the Court executing the decree shall issue a notice to the
person against whom execution is applied for requiring him to show
cause, on a date to be fixed, why the decree should not be executed
against him”;
(b) In Rule 22 add the following as sub-rule (3):
“(3) Proceedings held in execution of a decree shall not be invalid
solely by reason of any omission to issue or failure to serve a notice
under sub-rule (1) or to record reasons where such notice is
dispensed with under sub-rule (2) unless the judgment-debtor has
sustained injury thereby.”—(9-5-1947).
PATNA.—Same as that of Orissa. (9-5-1947)
PUNJAB, HARYANA AND CHANDIGARH AND HIMACHAL PRADESH.—Add the
following at the end of the rule:
“Failure to record such reasons shall be considered an irregularity
not amounting to a defect in jurisdiction. “(7-4-1932)
RULE 22-A
ORISSA.—Deleted. (14-5-1984)
488
[22-A. Sale not to be set aside on the death of the judgment-
debtor before the sale but after the service of the proclamation of sale.
—Where any property is sold in execution of a decree, the sale shall not
be set aside merely by reason of the death of the judgment-debtor
between the date of issue of the proclamation of sale and the date of
the sale notwithstanding the failure of the decree-holder to substitute
the legal representative of such deceased judgment-debtor, but, in
case of such failure, the Court may set aside the sale if it is satisfied
that the legal representative of the deceased judgment-debtor has
been prejudiced by the sale.]
23. Procedure after issue of notice.—(1) Where the person to whom
notice is issued under 489[Rule 22] does not appear or does not show
cause to the satisfaction of the Court why the decree should not be
executed, the Court shall order the decree to be executed.
(2) Where such person offers any objection to the execution of the
decree, the Court shall consider such objection and make such order as
it thinks fit.
Process for execution
24. Process for execution.—(1) When the preliminary measures (if
any) required by the foregoing rules have been taken, the Court shall,
unless it sees cause to the contrary, issue its process for the execution
of the decree.
(2) Every such process shall bear date the day on which it is issued,
and shall be signed by the Judge or such officer as the Court may
appoint in this behalf, and shall be sealed with the seal of the Court
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and delivered to the proper officer to be executed.
490
[(3) In every such process, a day shall be specified on or before
which it shall be executed and a day shall also be specified on or before
which it shall be returned to the Court, but no process shall be deemed
to be void if no day for its return is specified therein.]
High Court Amendments
ANDHRA PRADESH.—Substitute the following for sub-rule (3):—
“(3) In every such process, a day shall be specified on or before
which it shall be executed and a day shall be specified on or before
which it shall be returned to Court.”
BOMBAY.—Substitute the following as Rule 24 and its marginal note
for the existing Rule 24 and marginal note in Order XXI:
“24. Process for execution.—(1) When the preliminary measures
(if any) required by the foregoing rules have been taken, the Court
shall, unless it sees cause to the contrary, issue its process for the
execution of the decree.
(2) Every such process shall bear date the day on which it is
issued and shall be signed by the Judge or such officer as the Court
may appoint in this behalf, and shall be sealed with the seal of the
Court and delivered to the proper officer to be executed:
Provided that a Civil Judge, Senior Division may, in his special
jurisdiction, send the process to another Court in the same district
for execution by the proper officer in that Court.
(3) In every such process a day shall be specified on or before
which it shall be executed and day shall also be specified on or
before which it shall be returned to the Court, but no process shall
be deemed to be void, if no day for its return is specified therein.” (1
-10-1983).
GUJARAT.—Add the following proviso to Rule 24(2):
“Provided that a Civil Judge, Senior Division, may, in exercise of
his special jurisdiction, send a process to another Subordinate Court
in the same district for execution by the proper officer in that
Court.” (17-8-1961).
ORISSA.—Deleted (14-5-1984).
25. Endorsement on process.—(1) The officer entrusted with the
execution of the process shall endorse thereon the day on, and the
manner in, which it was executed, and, if the latest day specified in the
process for the return thereof has been exceeded, the reason of the
delay, or, if it was not executed, the reason why it was not executed,
and shall return the process with such endorsement to the Court.
(2) Where the endorsement is to the effect that such officer is
unable to execute the process, the Court shall examine him touching
his alleged inability, and may, if it thinks fit, summon and examine
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witnesses as to such inability, and shall record the result.
High Court Amendments
ALLAHABAD.—Substitute clause (2) as follows:
“(2) Where the endorsement is to the effect that such officer is
unable to execute the process the Court may examine him personally
or upon affidavit touching his alleged inability and may, if it thinks
fit, summon and examine witnesses as to such inability and shall
record the result.” (7-9-1918).
ANDHRA PRADESH, KERALA, MADRAS AND PONDICHERRY.—After clause (1)
add as follows and delete clause (2):
“(2) Where in the case of a decree for the payment of money the
process is not executed owing to the decree having been satisfied
such officer shall also obtain an endorsement on the process to that
effect signed by the D.H. and attested by two respectable witnesses
who can identify the D.H.
(3) When the endorsement of such officer is to the effect that he
is unable to execute the process the Court shall examine him or
cause him to be examined by any other Court touching his inability
and may if it thinks fit summon and examine witnesses as to such
inability and shall record the result:
Provided that an examination of the officer entrusted with the
execution of a process by the Nazir or the Deputy Nazir under the
general or special orders of the Court shall be deemed to be
sufficient compliance with the requirements of this clause.
Where the inability to execute the process is stated to be due to
the satisfaction of the decree and such satisfaction has been
endorsed on the process as mentioned in sub-rule (2) above, the
Court shall issue notice to the D.H. to show cause on a day to be
fixed by the Court why such satisfaction should not be recorded as
certified and if after service of such notice the D.H. fails to show
cause why the satisfaction should not be recorded as certified the
Court shall record the same accordingly.
A result of satisfaction under the provision of this sub-rule shall
have the same effect as one under the provisions of Order XXI, Rule
2(2).”
BOMBAY.—Add the following proviso to sub-rule (2):
“Provided that an examination of the officer entrusted with the
execution of a process by the Nazir or the Deputy Nazir under the
general or special orders of the Court shall be deemed to be
sufficient compliance with the requirements of this rule.” (1-10-
1983).
GUJARAT.—Same as that of Bombay excepting the words “or the
Deputy Nazir.”(17-8-1961)
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KARNATAKA.—Delete Rule 25 and substitute the following:
“25. (1) The officer entrusted with the execution of the process
shall endorse thereon the day on which and the manner in which it
was executed, and if the latest day specified in the process for the
return thereof has been exceeded, the reason for the delay, or, if it
was not executed, the reason why it was not executed and shall
return the process with such endorsement to the Court.
(2) Where the endorsement is to the effect that such officer is
unable to execute the process, the Court may on its own motion and
shall upon an application by the petitioner in the execution
application examine the officer touching his alleged inability and
may, if it thinks fit, summon and examine witnesses as to such
inability and shall record the result. Such examination of the process
server as well as of witnesses summoned under this rule shall be
made after notice to the petitioner in execution application or his
pleader.
(3) Where in the case of a decree for the payment of money the
process is not executed owing to the decree having been satisfied,
such officer shall also obtain an endorsement on the process to that
effect signed by the decree-holder and attested by two respectable
witnesses who can identify the decree-holder. On receipt of the
process with an endorsement so signed and attested, the Court shall
issue notice to the decree-holder to show cause, on a day to be fixed
by the Court why such satisfaction should not be recorded as
certified and if after service of such notice the decree-holder fails to
show such cause the Court shall record the same accordingly. A
record of satisfaction under the provisions of this sub-rule shall have
the same effect as one made under the provisions of sub-rule (2) of
Rule 2 of this Order.” (30-3-1967).
Stay of execution
26. When Court may stay execution.—(1) The Court to which a
decree has been sent for execution shall, upon sufficient cause being
shown, stay the execution of such decree for a reasonable time, to
enable the judgment-debtor to apply to the Court by which the decree
was passed, or to any Court having appellate jurisdiction in respect of
the decree or the execution thereof, for an order to stay execution, or
for any other order relating to the decree or execution which might
have been made by such Court of first instance or Appellate Court if
execution had been issued thereby, or if application for execution had
been made thereto.
(2) Where the property or person of the judgment-debtor has been
seized under an execution, the Court which issued the execution may
order the restitution of such property or the discharge of such person
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pending the result of the application.
(3) Power to require security from, or impose conditions upon,
judgment-debtor.—Before making an order to stay execution or for
the restitution of property or the discharge of the judgment-debtor, 491
[the Court shall require] such security from, or impose such conditions
upon, the judgment-debtor as it thinks fit.
High Court Amendments
ALLAHABAD.—In sub-rule (3) for the words “the Court may” read “the
Court shall, unless good cause to the contrary is shown”. (24-7-1926).
ASSAM, NAGALAND AND CALCUTTA.—In sub-rule (3) cancel the words
“the Court may ………think fit” and substitute “the Court shall require
security from the J.D. unless sufficient cause is shown to the contrary”.
DELHI, PATNA, PUNJAB, HARYANA, AND CHANDIGARH, M.P. AND H.P.—In
sub-rule (3) for the word “may” substitute “the Court shall unless
sufficient cause is shown to the contrary”.
ORISSA.—Deleted (14-5-1984).
27. Liability of judgment-debtor discharged.—No order of restitution
or discharge under Rule 26 shall prevent the property or person of a
judgment-debtor from being retaken in execution of the decree sent for
execution.
28. Order of Court which passed decree or of Appellate Court to be
binding upon Court applied to.—Any order of the Court by which the
decree was passed, or of such Court of appeal as aforesaid, in relation
to the execution of such decree, shall be binding upon the Court to
which the decree was sent for execution.
29. Stay of execution pending suit between decree-holder and
judgment-debtor.—Where a suit is pending in any Court against the
492
holder of a decree of such Court [or of a decree which is being
executed by such Court], on the part of the person against whom the
decree was passed, the Court may, on such terms as to security or
otherwise, as it thinks fit, stay execution of the decree until the
pending suit has been decided:
493
[Provided that if the decree is one for payment of money, the
Court shall, if it grants stay without requiring security, record its
reasons for so doing.]
High Court Amendments
ALLAHABAD.—In Rule 29—
(1) insert the comma and thereafter the words “or any person whose
interests are affected by the decree, or by any order made in
execution thereof” after the words “was passed” and before the
words “the Court may”;
(2) delete the words “on such terms as to security or otherwise”
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occurring in the rule;
(3) substitute “if” for “as” before the words “it thinks fit”; and
(4) add the following as proviso to the said rule, namely:
“Provided that in all cases where execution of the decree is stayed
under this rule the Court shall require the person seeking such stay to
furnish such security as it may deem fit.” (1-6-1957).
KARNATAKA.—Delete Rule 29 and substitute the following:
“29. Where a suit is pending in any Court against the holder of a
decree of such Court instituted by the person against whom the said
decree was passed the Court may, on such terms as to security or
otherwise, as it thinks fit, stay the execution of the decree until the
pending suit has been decided.” (30-3-1967).
Mode of execution
30. Decree for payment of money.—Every decree for the payment of
money, including a decree for the payment of money as the alternative
to some other relief, may be executed by the detention in the civil
prison of the judgment-debtor, or by the attachment and sale of his
property, or by both.
High Court Amendment
ALLAHABAD.—Insert the words “or any other kind of transfer” between
the words “and sale” and “of his property” occurring at the end of the
rule. (13-2-1960).
31. Decree for specific movable property.—(1) Where the decree is
for any specific movable, or for any share in a specific movable, it may
be executed by the seizure, if practicable, of the movable or share, and
by the delivery thereof to the party to whom it has been adjudged, or
to such person as he appoints to receive delivery on his behalf, or by
the detention in the civil prison of the judgment-debtor, or by the
attachment of his property, or by both.
(2) Where any attachment under sub-rule (1) has remained in force
for 494[three months] if the judgment-debtor has not obeyed the decree
and the decree-holder has applied to have the attached property sold,
such property may be sold, and out of the proceeds the Court may
award to the decree-holder, in cases where any amount has been fixed
by the decree to be paid as an alternative to delivery of movable
property, such amount, and, in other cases, such compensation as it
thinks fit, and shall pay the balance (if any) to the judgment-debtor on
his application.
(3) Where the judgment-debtor has obeyed the decree and paid all
costs of executing the same which he is bound to pay, or where, at the
495
end of [three months] from the date of the attachment, no
application to have the property sold has been made, or, if made, has
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been refused, the attachment shall cease.
High Court Amendments
ALLAHABAD.—In sub-rules (2) and (3) for the words “six months”
wherever they occur, read “three months, or such extended time as the
Court may for good cause direct.” (24-7-1926)
ANDHRA, ASSAM AND NAGALAND, CALCUTTA AND H.P., KERALA, MADRAS
AND PONDICHERRY, M.P., ORISSA, PATNA.—(i) In sub-rules (2) and (3) for
the words “six months” substitute “three months”,
(ii) Add sub-rule (4) as follows:
“(4) The Court may, for sufficient cause, extend the period of
three months mentioned in sub-rules (2) and (3) to such period not
exceeding six months in whole as it may think fit.”
BOMBAY (Prior to 1976 Amendment).—In Order 21, in Rule 31, in sub
-rules (2) and (3), for the words “six months” wherever they occur,
substitute the words “three months or such further time as the Court
may, in any special case, for good cause shown, direct”.
KARNATAKA.— (i) In Rule 31 delete sub-rules (2) and (3) and
substitute the following:—
“(2) Where any attachment under sub-rule (1) has remained in
force for three months, if the judgment-debtor has not obeyed the
decree and the decree-holder has applied to have the attached
property sold, such property may be sold; and out of the proceeds
the Court may award to the decree-holder in cases where any
amount has been fixed by the decree to be paid as an alternative to
delivery of moveable property, such amount, and in other cases such
compensation as it thinks fit, and shall pay the balance, if any, to
the judgment-debtor on his application.
“(3) Where the judgment-debtor has obeyed the decree and paid
all costs of executing it which he is bound to pay, or where, at the
end of three months from the date of attachment no application to
have the property sold has been made, or, if made, has been refused
the attachment shall cease”.
(ii) Add the following as sub-rule (4) to Rule 31.
“(4) The Court may on application extend the period of three
months mentioned in sub-rules (2) and (3) to such period not
exceeding six months on the whole as it may think fit.” (30-3-1967).
PUNJAB AND HARYANA (CHANDIGARH) AND DELHI.—(1) In sub-rule (2) for
the word “six” substitute the word “three”.
(2) Add the following proviso after sub-rule (2);
“Provided that the Court may, in any special case according to the
special circumstances thereof, extend the period beyond three months,
but it shall in no case exceed six months in all.”
(3) In sub-rule (3), for the words “six months” substitute the
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following words:—
“three months or such other period as may have been prescribed by the
Court”. (7-4-1932).
32. Decree for specific performance for restitution of conjugal rights,
or for an injunction.—(1) Where the party against whom a decree for
the specific performance of a contract, or for restitution of conjugal
rights, or for an injunction, has been passed, has had an opportunity of
obeying the decree and has wilfully failed to obey it, the decree may be
enforced 496[in the case of a decree for restitution of conjugal rights by
the attachment of his property or, in the case of a decree for the
specific performance of a contract, or for an injunction] by his detention
in the civil prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance
or for an injunction has been passed is a corporation, the decree may
be enforced by the attachment of the property of the corporation or,
with the leave of the Court, by the detention in the civil prison of the
directors or other principal officers thereof, or by both attachment and
detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has
remained in force for 497[six months] if the judgment-debtor has not
obeyed the decree and the decree-holder has applied to have the
attached property sold, such property may be sold; and out of the
proceeds the Court may award to the decree-holder such compensation
as it thinks fit, and shall pay the balance (if any) to the judgment-
debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all
costs of executing the same which he is bound to pay, or where, at the
end of 498[six months] from the date of the attachment, no application
to have the property sold has been made, or if made has been refused,
the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for
an injunction has not been obeyed, the Court may, in lieu of or in
addition to all or any of the processes aforesaid, direct that the act
required to be done may be done so far as practicable by the decree-
holder or some other person appointed by the Court, at the cost of the
judgment-debtor, and upon the act being done the expenses incurred
may be ascertained in such manner as the Court may direct and may
be recovered as if they were included in the decree.
499
[Explanation.—For the removal of doubts, it is hereby declared
that the expression “the act required to be done” covers prohibitory as
well as mandatory injunctions.]
Illustration
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A, a person of little substance, erects a building which renders
uninhabitable a family mansion belonging to B. A, in spite of his
detention in prison and the attachment of his property, declines to obey
a decree obtained against him by B and directing him to remove the
building. The Court is of opinion that no sum realisable by the sale of
A's property would adequately compensate B for the depreciation in the
value of his mansion. B may apply to the Court to remove the building
and may recover the cost of such removal from A in the execution
proceedings.
High Court Amendments
ALLAHABAD.—For the words “one year”, in sub-rule (3), read the
words “three months” and after the words at the end of the sub-rule,
“on his application”, add the words “the Court may for good cause
extend the time.” (24-7-1926).
ANDHRA, KERALA, MADRAS AND PONDICHERRY AND M.P.—(i) As in Assam,
(ii) After “application” add “the Court may on application extend
period of three months mentioned herein to such period not exceeding
one year on the whole as it may think fit.”
(iii) Add after “date of attachment” in sub-rule (4) “or to such
extended period which the Court may order under sub-rule (3)”.
ASSAM, NAGALAND, CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—For
“one year” substitute “three months” in sub-rule (3).
DELHI, H.P. AND PUNJAB, HARYANA AND CHANDIGARH.—(i) In sub-rule (3)
for “one year” substitute “three months”.
(ii) Add proviso to sub-rule (3) as follows:
“Provided that the Court may for sufficient reasons on the
application of the J.D., extend the period beyond three months but
in no case it shall exceed one year in all.”
(iii) In sub-rule (4) for the words ‘one year’ substitute the words
“three months” or such other period as may have been prescribed by
the Court. (7-4-1932)
ORISSA.—Deleted (14-5-1984).
PATNA.—In sub-rule (3) for the words “one year” substitute “for three
months or for such further period not exceeding one year in the whole
as may on sufficient cause shown be fixed by the Court.”
► Enforceable injunctions.—Order 21, Rule 32 applies to prohibitory as well
as mandatory injunction. Execution of an injunction decree is to be made in terms
of said provision since CPC provides particular manner and mode of execution.
No other mode is permissible, Kanwar Singh Saini v. High Court of Delhi, (2012)
4 SCC 307 : (2012) 2 SCC (Civ) 497.
► Injunction against Government.—A decree for injunction against the
State Govt. cannot be enforced by attachment of property of the Govt. official
dealing with the matter for the time being Yashpal Singh v. VIII A.D.J., (1992) 2
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SCC 504.
33. Discretion of Court in executing decrees for restitution of
conjugal rights.—(1) Notwithstanding anything in Rule 32, the Court,
500
either at the time of passing a decree [against a husband] for the
restitution of conjugal rights or at any time afterwards, may order that
501
the decree [shall be executed in the manner provided in this rule].
502
(2) Where the Court has made an order under sub-rule (1) [* *
*], it may order that, in the event of the decree not being obeyed
within such period as may be fixed in this behalf, the judgment-debtor
shall make to the decree-holder such periodical payments as may be
just, and, if it thinks fit, require that the judgment-debtor shall, to its
satisfaction, secure to the decree-holder such periodical payments.
(3) The Court may from time to time vary or modify any order made
under sub-rule (2) for the periodical payment of money, either by
altering the times of payment or by increasing or diminishing the
amount, or may temporarily suspend the same as to the whole or any
part of the money so ordered to be paid, and again revive the same,
either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered
as though it were payable under a decree for the payment of money.
34. Decree for execution of document, or endorsement of negotiable
instrument.—(1) Where a decree is for the execution of a document or
for the endorsement of a negotiable instrument and the judgment-
debtor neglects or refuses to obey the decree, the decree-holder may
prepare a draft of the document or endorsement in accordance with the
terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the
judgment-debtor together with a notice requiring his objections (if any)
to be made within such time as the Court fixes in this behalf.
(3) Where the judgment-debtor objects to the draft, his objections
shall be stated in writing within such time, and the Court shall make
such order approving or altering the draft, as it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft
with such alterations (if any) as the Court may have directed upon the
proper stamp-paper if a stamp is required by the law for the time being
in force; and the Judge or such officer as may be appointed in this
behalf shall execute the document so delivered.
(5) The execution of a document or the endorsement of a negotiable
instrument under this rule may be in the following form, namely:—
“C.D., Judge of the Court of
(or as the case may be), for A.B., in a suit by E.F. against A.B.”,
and shall have the same effect as the execution of the document or the
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endorsement of the negotiable instrument by the party ordered to
execute or endorse the same.
503
[(6) (a) Where the registration of the document is required under
any law for the time being in force, the Court, or such officer of the
Court as may be authorised in this behalf by the Court, shall cause the
document to be registered in accordance with such law.
(b) Where the registration of the document is not so required, but
the decree-holder desires it to be registered, the Court may make such
order as it thinks fit.
(c) Where the Court makes any order for the registration of any
document, it may make such order as it thinks fit as to the expenses of
registration.]
► Contravention of decree for execution of sale deed.—Executing court is
duty-bound upon draft sale deed being produced before it by decree-holder, to
make it over to judgment-debtor and to consider objections of judgment-debtor,
and thereafter follow procedure therein, and only thereupon, a sale deed as such
could be executed, Rajbir v. Suraj Bhan, (2022) 14 SCC 609
35. Decree for immovable property.—(1) Where a decree is for the
delivery of any immovable property, possession thereof shall be
delivered to the party to whom it has been adjudged, or to such person
as he may appoint to receive delivery on his behalf, and, if necessary,
by removing any person bound by the decree who refuses to vacate the
property.
(2) Where a decree is for the joint possession of immovable
property, such possession shall be delivered by affixing a copy of the
warrant in some conspicuous place on the property and proclaiming by
beat of drum, or other customary mode, at some convenient place, the
substance of the decree.
(3) Where possession of any building on enclosure is to be delivered
and the person in possession, being bound by the decree, does not
afford free access, the Court, through its officers, may, after giving
reasonable warning and facility to any woman not appearing in public
according to the customs of the country to withdraw, remove or open
any lock or bolt or break open any door or do any other act necessary
for putting the decree-holder in possession.
High Court Amendments
HIMACHAL PRADESH.—To sub-rule (1), proviso be added as under:—
“Provided that before issuing a warrant for delivery of possession
of immovable property, the Court executing the decree shall issue a
notice to the person against whom execution is applied for requiring
him to show cause, on a date to be fixed, why the decree should not
be executed against him.” — H.P. Gazette, 23-4-1988, Pt. 1, p. 266.
MADRAS AND PONDICHERRY.—After sub-rule (3) of Rule 35, the
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following sub-rule shall be added, namely:
“(4) 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 for delivery of possession of the same to the decree-
holder.
If it is found at the time of delivery that there are movables in the
home to which the decree-holder 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 decree-holder
after taking a bond from him for keeping the articles in safe 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 they 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 a case call upon him to receive the amount from Court within
three months”. (17-8-66).
► Removal of obstruction.—Where decree is for opening of way, heirs of
decree-holder can file execution application, Hem Raj v. Board of Revenue, 2012
SCC OnLine Raj 1939 : AIR 2012 Raj 189 (DB).
► Use of police force.—The use of police force for delivery of possession
without specific orders of court is not permissible, Om Parkash v. Amar Singh,
(2019) 10 SCC 136.
36. Decree for delivery for immovable property when in occupancy of
tenant.—Where a decree is for the delivery of any immovable property
in the occupancy of a tenant or other person entitled to occupy the
same and not bound by the decree to relinquish such occupancy, the
Court shall order delivery to be made by affixing a copy of the warrant
in some conspicuous place on the property, and proclaiming to the
occupant by beat of drum or other customary mode, at some
convenient place, the substance of the decree in regard to the property.
Arrest and detention in the civil prison
37. Discretionary power to permit judgment-debtor to show cause
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against detention in prison.—(1) Notwithstanding anything in these
rules, where an application is for the execution of a decree for the
payment of money by the arrest and detention in the civil prison of a
judgment-debtor who is liable to be arrested in pursuance of the
504
application, the Court [shall], instead of issuing a warrant for his
arrest, issue a notice calling upon him to appear before the Court on a
day to be specified in the notice and show cause why he should not be
committed to the civil prison:
505
[Provided that such notice shall not be necessary if the Court is
satisfied, by affidavit, or otherwise, that, with the object or effect of
delaying the execution of the decree, the judgment-debtor is likely to
abscond or leave the local limits of the jurisdiction of the Court.]
(2) Where appearance is not made in obedience to the notice, the
Court shall, if the decree-holder so requires, issue a warrant for the
arrest of the judgment-debtor.
High Court Amendments
ALLAHABAD.—In Rule 37(1) substitute the word “may” for the word
“shall” between the words “the Court” and “instead” and delete the
proviso to that rule. (1-6-1957)
PATNA.—In sub-rule (1) substitute “may” for “shall”. (5-4-1961)
38. Warrant for arrest to direct judgment-debtor to be brought up.—
Every warrant for the arrest of a judgment-debtor shall direct the officer
entrusted with its execution to bring him before the Court with all
convenient speed, unless the amount which he has been ordered to
pay, together with the interest thereon and the costs (if any) to which
he is liable, be sooner paid.
High Court Amendments
ANDHRA PRADESH, KERALA, MADRAS AND PONDICHERRY.—After the word
“paid” add as follows:
“or unless satisfaction of the decree be endorsed by the D.H. on
the warrant in the manner provided in Rule 25(2) above.”—(9-6-
1959)
KARNATAKA.—At the end of Rule 38: Add “or unless satisfaction of the
decree be endorsed by the D.H. on the warrant in the manner provided
in Rule 25(3)”.—(30-3-1967)
39. Subsistence allowance.—(1) No judgment-debtor shall be
arrested in execution of a decree unless and until the decree-holder
pays into Court such sum as the Judge thinks sufficient for the
subsistence of the judgment-debtor from the time of his arrest until he
can be brought before the Court.
(2) Where a judgment-debtor is committed to the civil prison in
execution of a decree, the Court shall fix for his subsistence such
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monthly allowance as he may be entitled to according to the scales
fixed under Section 57, or, where no such scales have been fixed, as it
considers sufficient with reference to the class to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by
the party on whose application the judgment-debtor has been arrested
by monthly payments in advance before the first day of each month.
(4) The first payment shall be made to the proper officer of the Court
for such portion of the current month as remains unexpired before the
judgment-debtor is committed to the civil prison, and the subsequent
payments (if any) shall be made to the officer in charge of the civil
prison.
(5) Sums disbursed by the decree-holder for the subsistence of the
judgment-debtor in the civil prison shall be deemed to be costs in the
suit:
Provided that the judgment-debtor shall not be detained in the civil
prison or arrested on account of any sum so disbursed.
High Court Amendments
ALLAHABAD, ANDHRA PRADESH, ASSAM AND NAGALAND, CALCUTTA, DELHI,
GAUHATI, HIMACHAL PRADESH, PUNJAB, HARYANA AND CHANDIGARH.—Delete
“in the civil prison” in sub-rule (5).
BOMBAY (DADRA AND NAGAR HAVELI), GOA, DAMAN AND DIU.—In Or. 21
for the existing R. 39 and its marginal note substitute the following:
“39. Subsistence allowance.—(1) No Judgment-debtor shall be
arrested in execution of a decree unless and until the decree-holder
pays into Court such sum as the Judge thinks sufficient for the
subsistence of the judgment-debtor from the time of his arrest until
he can be brought before the Court and for the cost of conveyance of
the judgment-debtor from the place of his arrest to the court house.
(2) Where a judgment-debtor is committed to the civil prison
execution of a decree, the Court shall fix for his subsistence such
monthly allowance as he may be entitled according to the scales
fixed under S. 57, or where no such scales have been fixed, as it
considers sufficient with reference to the class to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by
the party on whose application the judgment-debtor has been
arrested by monthly payments in advance before the first day of
each month.
(4) Such sum (if any) as the Judge thinks sufficient for the
subsistence and costs of conveyance of the judgment-debtor for his
journey from the court house to the civil prison and from the civil
prison on his release, to his usual place of residence, together with
the first of the payments in advance under sub-rule (3) for such
portion of the current month as remains unexpired, shall be paid to
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the proper officer of the Court before the judgment-debtor is
committed to the civil prison, and the subsequent payments (if any)
shall be paid to the officer in charge of the civil prison.
(5) Sums disbursed under this rule by the decree-holder for the
subsistence and the cost of conveyance (if any) of the judgment-
debtor shall be deemed to be cost in the suit:
Provided that the judgment-debtor shall not be detained in the
civil prison or arrested on account of any sum so disbursed.” (1-10-
1983). See Maharashtra Govt Gazette, 15-9-1983, Pt. 4 Ka, p. 411,
Goa Gazette, 12-10-1987, Extra., S. 1, No. 28, p. 383 (w.r.e.f. 1-4-
1987).
GUJARAT.—(1) In Rule 39(1) delete the full stop at the end to sub-
rule (1) and add the following:
“and for the cost of conveyance of the judgment-debtor from the
place of his arrest to the Court-house”.
(2) New sub-rules (4) and (5) have been substituted. The
substituted sub-rules (4) and (5) are the same as in Bombay. (17-8-
1961).
KARNATAKA.—In Rule 39 delete sub-rules (4) and (5) and substitute
the following:
“(4) Same as that of Madhya Pradesh (b), sub-rule (4).
(5) Sums disbursed under this rule by the decree-holder for the
subsistence and cost of conveyance, if any, of the judgment-debtor
shall not be detained in civil prison or arrested on account of any
sums so disbursed.” (9-2-1967)
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—(i) Sub-rule (1) is
the same as that in Madras (1) without the words put in brackets. (10-
9-1963).
(ii) Sub-rules (4) and (5) are the same those of Madhya Pradesh,
Item (b). (9-6-1959).
MADHYA PRADESH.—(a) Delete the full stop at the end of sub-rule (1)
and add the following, namely:
“and for the costs of conveyance of the judgment-debtor from the
place of his arrest to the Court-house.”
(b) For sub-rules (4) and (5), the following sub-rules shall be
substituted, namely:
“(4) Such sum (if any) as the Judge thinks sufficient for the
subsistence and cost of conveyance of the judgment-debtor for his
journey from the Court-house to the civil prison and from the civil
prison, on his release, to his usual place of residence together with
the first of the payments in advance under sub-rule (3) for such
portion of the current month as remains unexpired, shall be paid to
the proper officer of the Court before the judgment-debtor is
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committed to the civil prison, and the subsequent payments (if any)
shall be paid to the officer-in-charge of the civil prison.
(5) Sums disbursed under this rule by the decree-holder for the
subsistence and the costs of the conveyance (if any) of the judgment
-debtor shall be deemed to be costs in the suit.” (16-9-1960).
MAHARASHTRA.—For sub-rules (1) and (2), the following sub-rules
shall be substituted, namely—
“(1) No judgment-debtor shall be arrested in execution of a
decree, other than a decree for maintenance, unless and until the
decree-holder pays into Court such sum as the Judge thinks
sufficient for the subsistence of the judgment-debtor from the time
of his arrest until he can be brought before the Court and for the cost
of conveyance of the judgment-debtor from the place of his arrest to
the Court-house.
(2) Where a judgment-debtor is committed to the civil prison in
execution of a decree, other than a decree for maintenance, the
Court shall fix for his subsistence such monthly allowance as he may
be entitled to according to the scales fixed under Section 57 or,
where no such scales have been fixed, as it considers sufficient with
reference to the class to which he belongs.” [Vide Code of Civil
Procedure (Maharashtra Amendment) Rules, 2012]
MADRAS, PONDICHERRY.—For sub-rule (1), substitute the following:
“(i) No judgment-debtor shall be arrested in execution of a decree
unless and until the decree-holder pays into the Court such sum as
the Judge thinks sufficient for the subsistence of the judgment-
debtor from the time of his arrest until he can be brought before the
Court and for payment of the charges for conveyance of the
judgment-debtor (and of the amin or process server who executes
the warrant of arrest by bus, train or otherwise whichever is available
from the place of arrest to the court-house)*.” (4-1-1967; 16-9-
1970).
* Ins. by P, Dis. No. 353 of 1970 (16-9-1970).
(ii) Sub-rules (4) and (5) are the same as those of Madhya
Pradesh, Item (b).
ORISSA AND PATNA.—In sub-rule (5) delete the words “in the civil
prison” in the first place where they occur.
506
[40. Proceedings on appearance of judgment-debtor in obedience
to notice or after arrest.—(1) When a judgment-debtor appears before
the Court in obedience to a notice issued under Rule 37, or is brought
before the Court after being arrested in execution of a decree for the
payment of money the Court shall proceed to hear the decree-holder
and take all such evidence as may be produced by him in support of his
application for execution and shall then give the judgment-debtor an
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opportunity of showing cause why he should not be committed to the
civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the
Court may, in its discretion, order the judgment-debtor to be detained
in the custody of an officer of the Court or release him on his furnishing
security to the satisfaction of the Court for his appearance when
required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court
may, subject to the provisions of Section 51 and to the other provisions
of this Code, make an order for the detention of the judgment-debtor in
the civil prison and shall in that event cause him to be arrested if he is
not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of
satisfying the decree, the Court may, before making the order of
detention, leave the judgment-debtor in the custody of an officer of the
Court for a specified period not exceeding fifteen days or release him on
his furnishing security to the satisfaction of the Court for his
appearance at the expiration of the specified period if the decree be not
sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-
rule (3), it shall disallow the application and, if the judgment-debtor is
under arrest, direct his release.]
High Court Amendments
ALLAHABAD.—Under Section 4 of the Code of Civil Procedure
(Amendment) Act 21 of 1936 the amendments to Rule 40 made by the
above High Court prior to that Act have been repealed.
ANDHRA PRADESH.—The following sub-rules shall be added to Rule 40:
“(6) During the temporary absence of the Judge who issued the
warrant under Rule 37 or 38, the warrant of committal may be
signed by any other Judge of the same Court or by any Judicial
Officer superior in rank who has jurisdiction over the same locality or
where the arrest is made on warrant issued by the District Judge,
the warrant of committal may be signed by any Subordinate Judge
or District Munsif empowered in writing by the District Judge in this
behalf.
(7) No judgment-debtor shall be committed to the civil prison or
brought before the Court from the custody to which he has been
committed pending the consideration of any of the matters
mentioned in sub-rule (1) unless and until the decree-holder pays
into Court such sum as the Judge may think sufficient to meet the
travelling and subsistence expenses of the judgment-debtor and the
escort.
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Sub-rule (5) of Rule 39 shall apply to such payments.”
BOMBAY—In Order XXI, Rule 40, after the existing sub-rule (5), add
the following as new sub-rules (6), (7) and (8):
“(6) When a judgment-debtor is ordered to be detained in the
custody of an officer of a Court under sub-rule (2) or the proviso to
sub-rule (3) above, the Court may direct the decree-holder to
deposit such amount as, having regard to the specified or probable
length of detention, will provide:—
(a) for the subsistence of the judgment-debtor at the rate to which
he is entitled under the scales fixed under Section 57, and
(b) for the payment to the officer of the Court in whose custody the
judgment-debtor is placed or such fees (including lodging
charges) in respect thereof as the Court may by order fix:
Provided—
(i) that the subsistence allowance and the fees payable to the
officer of the Court shall not be recovered for more than one
month at a time, and
(ii) that the Court may from time to time require the decree-
holder to deposit such further sums as it deems necessary.
(7) If a decree-holder fails to deposit any sum as required under
sub-rule (6) above, the Court may disallow the application and direct
the release of the judgment-debtor.
(8) Sums disbursed by the decree-holder under sub-rule (6) shall
be deemed to be costs in the suit:
Provided that the judgment-debtor shall not be detained in the
Civil Prison or arrested on account of any sum so disbursed.” (1-10-
1983). See Maharashtra Govt. Gazette, 15-9-1983, Pt. 4 Ka, p. 412.
− Goa Gazette, 12-10-1987, Extra., S. 1, No. 28, p. 353 (w.r.e.f. 1-4
-1987).
GUJARAT.—Sub-rules (6) and (7) are same as that of Bombay. (17-8-
1961)
KARNATAKA.—To Rule 40 add the following as sub-rules (6) and (7):
“(6) During the temporary absence of the Judge who issued the
warrant under Rule 37, the warrant of committal may be signed by
any other Judge of the same Court or by any Judicial Officer superior
in rank who has jurisdiction over the same locality, or, where the
arrest is made on a warrant issued by the District Judge, the warrant
of committal may be signed by any Judge empowered in writing by
the District Judge in this behalf.
(7) No judgment-debtor shall be committed to the civil prison or
brought before the Court from the custody to which he has been
committed pending the consideration of any of the matters
mentioned in sub-rule (1) unless and until the decree-holder pays
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into Court such sum as the Judge may think sufficient to meet the
travelling and subsistence expenses of the judgment-debtor and the
escort. The provisions of sub-rule (5) of Rule 39 shall apply to such
payments.” (30-3-1967).
KERALA: (i) For sub-rule (2) substitute the following:
“(2) Pending the conclusion of the inquiry under sub-rule (1), the
Court shall release the judgment-debtor on his furnishing security to
the satisfaction of the Court for his appearance when required and if
the judgment-debtor fails to furnish the security ordered, the Court
may order the judgment-debtor to be detained in the custody of an
officer of the Court on the decree-holder depositing in Court the
necessary amounts payable to the judgment-debtor and the officer
of the Court in connection with such detention.” (16-1-1990)
(ii) sub-rules (6) and (7) are the same as in Madras with this
difference that for the words “District Munsif” in sub-rule (6) the
word “Munsif” is substituted. (9-6-1959).
MADHYA PRADESH.—Same as that of Bombay. (16-9-1960).
MADRAS AND PONDICHERRY.—For old sub-rules (6) and (7) substitute
the following:
“(6) During the temporary absence of the Judge who issued the
warrant under Rule 37 or 38 the warrant of committal may be signed
by any other Judge of the same Court or by any Judicial Officer
superior in rank who has jurisdiction over the same locality, or,
where the arrest is made on a warrant issued by the District Judge,
the warrant of committal may be signed by any Subordinate Judge
or District Munsif, empowered in writing by the District Judge in this
behalf, and the Judge signing the warrant of committal in the above
cases shall also have the same powers as the Judge who issued the
warrant in respect of passing such orders as may be appropriate
under sub-rules (1), (3) and (5) of this rule.” (17-3-1954).
“(7) No judgment-debtor shall be committed to the civil prison or
brought before the Court from the custody to which he has been
committed pending the consideration of any of the matters
mentioned in sub-rule (1) unless and until the decree-holder pays
into Court such sum as the Judge may think sufficient to meet the
travelling and subsistence expenses of the judgment-debtor and the
escort. Sub-rule (5) of Rule 39 shall apply to such payments.” See
Act 28 of 1968, Section 3 and Sch., Part II (w.e.f. 5-9-1968).
► Compliance with the rule.—Order of detention imposed after adequate
opportunity given to person concerned to explain himself personally in court, till he
had nothing further to state, is valid, Subrata Roy Sahara v. Union of India, (2014)
8 SCC 470.
Attachment of property
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507
41. Examination of judgment-debtor as to his property.— [(1)]
Where a decree is for the payment of money the decree-holder may
apply to the Court for an order that—
(a) the judgment-debtor, or
(b) 508[where the judgment-debtor is a corporation], any officer thereof,
or
(c) any other person,
be orally examined as to whether any or what debts are owing to the
judgment-debtor and whether the judgment-debtor has any and what
other property or means of satisfying the decree; and the Court may
make an order for the attendance and examination of such judgment-
debtor, or officer or other person, and for the production of any books or
documents.
509
[(2) Where a decree for the payment of money has remained
unsatisfied for a period of thirty days, the Court may, on the application
of the decree-holder and without prejudice to its power under sub-rule
(1), by order require the judgment-debtor or where the judgment-
debtor is a corporation, any officer thereof, to make an affidavit stating
the particulars of the assets of the judgment-debtor.
(3) In case of disobedience of any order made under sub-rule (2),
the Court making the order, or any Court to which the proceeding is
transferred, may direct that the person disobeying the order be
detained in the civil prison for a term not exceeding three months
unless before the expiry of such term the Court directs his release.]
42. Attachment in case of decree for rent or mesne profits or other
matter, amount of which to be subsequently determined.—Where a
decree directs an inquiry as to rent or mesne profits or any other
matter, the property of the judgment-debtor may, before the amount
due from him has ascertained, be attached, as in the case of an
ordinary decree for the payment of money.
43. Attachment of movable property, other than agricultural
produce, in possession of judgment-debtor.—Where the property to be
attached is movable property, other than agricultural produce, in the
possession of the judgment-debtor, the attachment shall be made by
actual seizure, and the attaching officer shall keep the property in his
own custody or in the custody of one of his subordinates, and shall be
responsible for the due custody thereof:
Provided that, when the property seized is subject to speedy and
natural decay, or when the expense of keeping it in custody is likely to
exceed its value, the attaching officer may sell it at once.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
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ASSAM AND NAGALAND.—Same as that of Calcutta.
CALCUTTA : ANDAMAN AND NICOBAR I SLANDS AND GAUHATI.—Read for
Rule 43 as follows:
“Where the property to be attached is moveable property, other
than agricultural produce, in the possession of the judgment-debtor,
the attachment shall be made by actual seizure at the identification
of the decree-holder or his agent, and, save as otherwise prescribed,
the attaching officer shall keep the property in his own custody or in
the custody of one of his subordinates, and shall be responsible for
the due custody thereof:
Provided that when the property seized does not, in the opinion of
the attaching officer, exceed twenty rupees in value, or is subject to
speedy and natural decay, or when the expense of keeping it in
custody is likely to exceed its value, the attaching officer may sell it
at once.” (3-11-1933 and 29-5-1941).
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab. (31-10-66)
(25-1-1971).
GAUHATI.—Same as that in Calcutta.
GUJARAT.—Same as that of Madhya Pradesh. (17-8-1961).
KARNATAKA.—Delete Rule 43 and substitute the following:
“43. (1) Same as that of Kerala up to 2nd proviso of Rule 43(1)
except for the words “agricultural implements” in 2nd proviso, and
add the following clause after the 2nd proviso:
“(a) in the charge of the person at whose instance the property is
retained if such person enters into a bond in the prescribed form
with one or more sureties for its production when called for, or”.
(b) Same as that of Patna.
(2) Same as that of Kerala. (30-3-1967).
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLAND.—For Rule 43, the
following rule shall be substituted, namely:
“43. Attachment of movable property other than agricultural
produce, in possession of judgment-debtor.—(1) Where the property
to be attached is movable property, other than agricultural produce,
in the possession of the judgment-debtor, the attachment shall be
made by actual seizure, and the attaching officer shall keep the
property in his own custody or in the custody of any of his
subordinates, and shall be responsible for the due custody thereof:
Provided that, when the property seized is subject to speedy and
natural decay, or when the expense of keeping it in custody is likely
to exceed its value, the attaching officer may sell it at once, and:
Provided also that when the property attached consists of
livestock, agricultural implements or other articles which cannot be
conveniently removed and the attaching officer does not act, under
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the first proviso to this rule, he may, at the instance of the judgment
-debtor, or of the decree-holder, or of any person claiming to be
interested in such property, leave it in the village or at the place
where it has been attached.
(a) in the charge of the person at whose instance the property is
retained in such village or place, if such person enters into a bond
in Form No. 15-A of Appendix E to this Schedule with one or more
sufficient sureties for its production when called for; or
(b) in the charge of an officer of the Court, if a suitable place for its
safe custody is provided and the remuneration of the officer for a
period of 15 days at such rate as may from time to time be fixed
by the High Court be paid in advance.
(2) Whenever an attachment made under the provisions of this
rule ceases for any of the reasons specified in Rule 55 or Rule 57 or
Rule 60 of this Order, the Court may order the restitution of the
attached property to the person in whose possession it was before
attachment.
(3) When attached property is kept in the village or place where it
is attached.—Whenever attached property is kept in the village or
place where it is attached, the attaching officer shall forthwith report
the fact to the Court and shall with his report forward a list of the
properties seized.
(4) Procedure when attached property is neither sold nor kept in
the village or place where it is attached.—If attached property is not
sold under the first proviso to Rule 43 or retained in the village or
place where it is attached under the second proviso to that rule, it
shall be brought to the Court-house and delivered to the proper
officer of the Court.
(5) Where attached property kept in the village etc. is livestock.—
Whenever attached property kept in the village or place where it is
attached is livestock, the person at whose instance it is so retained
shall provide for its maintenance, and, if he fails to do so and if it is
in charge of an officer of the Court, it shall be removed to the Court-
house.
Nothing in this rule shall prevent the judgment-debtor or any
person claiming to be interested in such live stock from making such
arrangements, for feeding the same as may not be inconsistent with
its safe custody.
(6) Direction for sums expended by attaching officer.—The Court
may direct that any sums which have been expended by the
attaching officer or are payable to him, if not duly deposited or paid,
be recovered from the proceeds of property if sold, or be paid by the
person declared entitled to delivery before he receives the same. The
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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.” (9-6-1959).
MADHYA PRADESH.—Substitute the following for Rule 43:
Same as that of Kerala up to the 2nd proviso where the words end
“………..it has been attached” and after those words add the following:
“(a) in the charge of the judgment-debtor or of the station pound-
keeper, if any or
(b) in the charge of the decree-holder, or of the person claiming to
be interested in such property or of such respectable person as
will undertake to keep such property, on his entering into a bond
with one or more sureties in an amount not less than the value of
the property, that he will take proper care of such property and
produce it when called for.
(2) The attaching officer shall make a list of the property attached
and shall obtain thereto the acknowledgment of the person in whose
custody the property is left, and if possible of the parties to the suit,
and of at least one respectable person in attestation of the
correctness of the list. If the property attached includes both
livestock the other articles, a separate list of the livestock shall
similarly be prepared and attested.” (16-9-1960)
MADRAS AND PONDICHERRY.—Substitute the following rule for Rule 43:
Sub-rules (1) and (2) of Rule 43 are the same as that of Kerala.
(5-9-1958)
ORISSA.—Same as that of Patna.
PATNA.—Substitute the following for Rule 43:
“43. Where the property to be attached is movable property, other
than agricultural produce in the possession of the judgment-debtor
the attachment shall be made by actual seizure, and the attaching
officer shall be responsible for the due custody thereof.”
Proviso is the same as that of Kerala 1st proviso. (18-10-1933).
PUNJAB, HARYANA AND CHANDIGARH.—(i) Sub-rules (1) and (2) are
same as that of Kerala (1) and (2) except that in (i) add the following
clause (c):
“(c) in the charge of a village lambardar or such other respectable
person as will undertake to keep such property, subject to the orders
of the Court, if such person enters into a bond in Form 15-B of
Appendix E with one or more sureties for its production.”
(ii) after sub-section (1) and (2) add the following:
“(3) when property is made over to a custodian under sub-clause
(a) or (c) of clause (1), the schedule of property annexed to the
bond shall be drawn up by the attaching officer in triplicate, and
dated and signed by—
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(a) the custodian and his sureties,
(b) the officer of the Court who made the attachment,
(c) the person whose property is attached and made over,
(d) two respectable witnesses.
One copy will be transmitted to the Court by the attaching officer
and placed on the record of the proceedings under which the
attachment has been ordered, one copy will be made over to the
person whose property is attached and one copy will be made over to
the custodian.” (1-11-1936).
RAJASTHAN.—Same as that of Punjab except that in clause (c) read
‘Patwari’ for ‘Lambardar’ (23-12-1964). (11-3-1965).
510
[43-A. Custody of movable property.—(1) Where the property
attached consists of live stock, agricultural implements or other articles
which cannot conveniently be removed and the attaching officer does
not act under the proviso to Rule 43, he may, at the instance of the
judgment-debtor or of the decree-holder or of any other person
claiming to be interested in such property, leave it in the village or
place where it has been attached, in the custody of any respectable
person (hereinafter referred to as the “custodian”).
(2) If the custodian fails, after due notice, to produce such property
at the place named by the Court before the officer deputed for the
purpose or to restore it to the person in whose favour restoration is
ordered by the Court, or if the property, though so produced or
restored, is not in the same condition as it was when it was entrusted
to him,—
(a) the custodian shall be liable to pay compensation to the decree-
holder, judgment-debtor or any other person who is found to be
entitled to the restoration thereof, for any loss or damage caused by
his default; and
(b) such liability may be enforced—
(i) at the instance of the decree-holder, as if the custodian were a
surety under Section 145;
(ii) at the instance of the judgment-debtor or such other person, on an
application in execution; and
(c) any order determining such liability shall be appealable as a decree.]
High Court Amendments
RULES 43-A AND 43-B
ANDHRA PRADESH.—Same as those of Madras.
RULE 43-B
BOMBAY.—In Order XXI, after the existing Rule 43-A, insert the
following rule with marginal note as new Rule 43-B and its marginal
note:
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“43-B. Attachment of livestock.—(1) When an application is made
for the attachment of livestock the Court may demand, in advance in
cash at rates to be fixed half yearly or oftener, if necessary, by the
Courts with the sanction of the District Judge, the amount requisite
for the maintenance of the livestock from the probable time of
attachment to the probable time of sale, or may, at its discretion,
make successive demands for portions of such period. The rates shall
include cost of feeding, tending and conveyance, and all other
charges requisite for the maintenance and custody of the livestock.
(2) If the livestock be entrusted to any person other than the
judgment-debtor, the amount paid by the decree-holder for the
maintenance of the livestock or a part thereof, may, at the discretion
of the Court, be paid to the custodian of the livestock for their
maintenance. The produce, such as milk, eggs, etc. if any, may
either be sold as promptly as possible for the benefit of the
judgment-debtor or may, at the discretion of the Court, be set off
against the costs of maintenance of the livestock.” (1-10-1983).
RULES 43-A TO 43-D
DELHI AND HIMACHAL PRADESH.—Same as those of Punjab. (31-10-
1966).
RULE 43-A
GUJARAT.—Same as sub-rule (1) of Rule 43-A, inserted by Madhya
Pradesh. (17-8-1961).
RULES 43-A AND 43-B
KARNATAKA.—Same as those of Madras. (30-3-1967).
RULE 43-A
MADHYA PRADESH.—In Order XXI, after the existing Rule 43, insert the
following with marginal note:
“43-A. Attachment of livestock.—(1) When an application is made
for the attachment of livestock the Court may demand, in advance in
cash at rates to be fixed half yearly or oftener, if necessary, by the
Courts with the sanction of the District Judge, the amount requisite
for the maintenance of the livestock from the probable time of
attachment to the probable time of sale, or may, at its discretion,
make successive demands for portions of such period. The rates shall
include cost of feeding, tending and conveyance, and all other
charges requisite for the maintenance and custody of the livestock.
(2) If the livestock be entrusted to any person other than the
judgment-debtor, the amount paid by the decree-holder for the
maintenance of the livestock or a part thereof, may, at the discretion
of the Court, be paid to the custodian of the livestock for their
maintenance. The produce, such as milk, eggs, etc. if any, may
either be sold as promptly as possible for the benefit of the
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judgment-debtor or may, at the discretion of the Court, be set off
against the costs of maintenance of the livestock.” (16-9-1960).
RULES 43 AND 43-B
MADRAS AND PONDICHERRY.—Insert the following as Rules 43-A and 43
-B:
“43-A. (1) Whenever attached property is kept in the village or
place where it is attached, the attaching officer shall forthwith report
the fact to the Court and shall with his report forward a list of the
property seized.
(2) If attached property is not sold under the first proviso to Rule
43 or retained in the village or place where it is attached under the
second proviso to that rule, it shall be brought to the Court-house
and delivered to the proper officer of the Court.
43-B. (1) Whenever attached property kept in the village or place
where it is attached is livestock, the person at whose instance it is so
retained shall provide for its maintenance, and, if he fails to do so
and if it is in charge of an officer of the Court, it shall be removed to
the Court-house.
Nothing in this rule shall prevent the judgment-debtor or any
person claiming to be interested in such stock from making such
arrangement for feeding the same as may not be inconsistent with
its safe custody.
(2) The Court may direct that any sums which have been
expended by the attaching officer or are payable to him, if not duly
deposited or paid, be recovered from the proceeds of 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.” (Act 26 of 1968). (5
-9-1968).
RULE 43-A
ORISSA.—Same as that of Patna.
RULE 43-A
PATNA.—Insert the following as Rule 43-A:
“43-A. (1) The attaching officer shall, in suitable cases, keep the
attached property in the village or locality either—
(a) in his own custody in any suitable place provided by the
judgment-debtor or in his absence by any adult member of his
family who is present, on his own premises or elsewhere;
(b) in the case of live-stock and provided that decree-holder
furnishes the necessary funds, in the local pound, if a pound has
been established in or near the village, in which case the pound-
keeper will be responsible for the property to the attaching officer,
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and shall receive the same rates for accommodation and
maintenance thereof as are paid in respect of impounded cattle of
the same description, or such less rate as may be agreed upon;
(c) in the custody of a respectable surety, provided the decree-
holder furnishes the cost of maintenance and other costs, if any.
(2) If in the opinion of the attaching officer the attached property
cannot be kept in the village or locality, through lack of a suitable
place, or satisfactory surety, or through failure of the decree-holder
to provide necessary funds, or for any other reason, the attaching
officer shall remove the property to the Court at the decree-holder's
expense. In the event of the decree-holder failing to provide the
necessary funds, the attachment shall be withdrawn.
(3) Whenever attached property is kept in the village or locality as
aforesaid the officer shall forthwith report the fact to the Court, and
shall with his report forward an accurate list of property seized, such
that the Court may thereon at once issue the proclamation of sale
prescribed by Rule 66.
(4) If the debtor shall give his consent in writing to the sale of
property without awaiting the expiry of the term prescribed in Rule
68, the officer shall receive the same and forward without delay to
the Court for its orders.
(5) When property is removed to the Court it shall be kept by the
Nazir 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 kept on the Court premises, or in the personal custody
of the Nazir, he may, subject to approval by the Court, make such
arrangements, for its safe custody under his own supervision as may
be most convenient and economical, and the Court may fix the
remuneration to be allowed to the persons, not being officers of the
Court, in whose custody the property is kept.
(6) When property remains in the village or locality where it is
attached and any person other than the judgment-debtor shall claim
the same, or any part of it, the attaching officer shall nevertheless,
unless the decree-holder desires to withdraw the attachment of the
property so claimed, maintain the attachment, and shall direct the
claimant to prefer his claim to the Court.
(7)(a) If the decree-holder shall withdraw an attachment or it
shall be withdrawn, under sub-rule (2) or sub-rule (9) the attaching
officer shall inform the debtor, or in his absence any adult member
of his family, that the property is at his disposal.
(b) In the absence of any person to take charge of it, or in case
the officer shall have had notice of claim by a person other than the
judgment-debtor, the officer shall, if the property has been moved
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from the premises in which it was seized, replace it where it was
found at the time of seizure.
(8) Whenever livestock is kept in the village or locality where it
has been attached the judgment-debtor shall be at liberty to
undertake the due feeding and tending of it under the supervision of
the attaching officer; but the latter shall, if required by the decree-
holder, and on his paying for the same at the rate to be fixed by the
District Judge and subject to the orders of the Court under whose
orders the attachment is made, engage the services of as many
persons as may be necessary, for the safe custody of it.
(9) In the event of the judgment-debtor failing to feed the
attached livestock in accordance with sub-rule (8), the officer shall
call upon the decree-holder to pay forthwith, for feeding the same.
In the event of his failure to do so, the officer shall proceed as
provided in sub-rule (2) and shall report the matter to the Court,
without delay.
(10) When attached livestock is brought to Court, the Nazir shall
be responsible for the safe custody and proper feeding of it so long
as the attachment continues.
(11) If a pound has been established in or near the place where
the Court is held, the Nazir shall be at liberty to place in it such
attached livestock as can be properly kept there, in which case the
pound-keeper will be responsible for the property to the Nazir and
shall receive the same rates for accommodation and maintenance
thereof as are paid in respect of impounded cattle of the same
description, or such less rate as may be agreed upon.
(12) If there be no pound available, or if, in the opinion of the
Court, it be inconvenient to lodge the attached livestock in the
pound, the Nazir may keep it in his own premises, or he may entrust
it to any person selected by himself and approved by the Court. The
Nazir will in all cases remain responsible for the custody of the
property.
(13) Each Court shall from time to time fix the rates to be allowed
for the custody and maintenance of the various descriptions of
livestock with reference to seasons and local circumstances. The
District Judge may make any alteration he deems fit in the rates
prescribed by Courts subordinate to him. Where there are two or
more Courts in the same place, the rates shall be the same for each
Court.” (18-10-1933)
RULES 43-A TO 43-D
PUNJAB, HARYANA AND CHANDIGARH.—43-A. Sub-rules (1) and (2) are
same as those of Madras (1) and (2).
“(3) A custodian appointed under the second proviso to Rule 43
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may at any time terminate his responsibilities by giving notice to the
Court of his desire to be relieved of his trust and delivering to proper
officer of the Court the property made over to him.
(4) When any property is taken back from a custodian, he shall be
granted a receipt for the same.”
43-B. Same as that of Madras.
“43-C. When an application is made for the attachment of
livestock or other movable property, the decree-holder shall pay into
Court in cash such sum as will cover the cost 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 or 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.
43-D. Any person who has undertaken to keep attached property
under Rule 43(1)(c) shall be liable to be proceeded against as surety
under Section 145 of the Code and shall be liable to pay in execution
proceedings the value of any such property wilfully lost by him.” (1-
11-1966).
44. Attachment of agricultural produce.—Where the property to be
attached is agricultural produce, the attachment shall be made by
affixing a copy of the warrant of attachment,—
(a) where such produce is a growing crop, on the land on which such crop
has grown, or
(b) where such produce has been cut or gathered, on the threshing-floor
or place for treading out grain or the like or fodder-stack on or in which
it is deposited,
and another copy on the outer door or on some other conspicuous part
of the house in which the judgment-debtor ordinarily resides or, with
the leave of the Court, on the outer door or on some other conspicuous
part of the house in which he carries on business or personally works
for gain or in which he is known to have last resided or carried on
business or personally worked for gain; and the produce shall
thereupon be deemed to have passed into the possession of the Court.
High Court Amendments
ASSAM AND NAGALAND, CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—
After “attachment shall be made” insert “at the identification of the
decree-holder or his agent”.
RULE 44-A
BOMBAY (DADRA AND NAGAR HAVELI), GOA, DAMAN AND DIU.—The
following shall be inserted, namely:
“44-A. Copy of the warrant of attachment to be sent to the
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Collector where agricultural produce is attached.—Where the
property to be attached is agricultural produce, a copy of the warrant
or the order of attachment shall be sent by post to the office of the
Collector of the District in which the land is situate.” (1-10-1983)—
See Maharashtra Govt. Gazette, 15-9-1983, Pt. 4, Ka, p. 412. Goa
Gazette, 12-10-1987, Extra., S. 1, No. 28, p. 383 (w.r.e.f. 1-4-
1987).
GUJARAT.—Same as that of Bombay, except for the marginal note.
(17-8-1961).
45. Provisions as to agricultural produce under attachment.—(1)
Where agricultural produce is attached, the Court shall make such
arrangements for the custody thereof as it may deem sufficient and, for
the purpose of enabling the Court to make such arrangements, every
application for the attachment of a growing crop shall specify the time
at which it is likely to be fit to be cut or gathered.
(2) Subject to such conditions as may be imposed by the Court in
this behalf either in the order of attachment or in any subsequent
order, the judgment-debtor may tend, cut, gather and store the
produce and do any other act necessary for maturing or preserving it;
and if the judgment-debtor fails to do all or any of such acts, the
decree-holder may, with the permission of the Court and subject to the
like conditions, do all or any of them either by himself or by any person
appointed by him in this behalf, and the costs incurred by the decree-
holder shall be recoverable from the judgment-debtor as if they were
included in, or formed part of, the decree.
(3) Agricultural produce attached as a growing crop shall not be
deemed to have ceased to be under attachment or to require re-
attachment merely because it has been severed from the soil.
(4) Where an order for the attachment of a growing crop has been
made at a considerable time before the crop is likely to be fit to be cut
or gathered, the Court may suspend the execution of the order for such
time as it thinks fit, and may, in its discretion, make a further order
prohibiting the removal of the crop pending the execution of the order
of attachment.
(5) A growing crop which from its nature does not admit of being
stored shall not be attached under this rule at any time less than
twenty days before the time at which it is likely to be fit to be cut or
gathered.
High Court Amendments
ANDHRA PRADESH, MADRAS AND KERALA.—Add in the end to sub-rule
(1)—
“and the applicant shall deposit in Court within a date to be fixed
by Court such sum as the Court may deem sufficient to defray the
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cost of watching and tending the crop till such time”.
ASSAM AND CALCUTTA.—Add to sub-rule (1):
“and the applicant shall deposit in Court such sum as the Court
shall require in order to defray the cost of watching or tending the
crop till such time”.
BOMBAY AND GUJARAT.—In Order XXI, Rule 45, for the existing sub-
rule (1), and its marginal note substitute the following as sub-rule (1)
and marginal note:—
“(1) Provisions as to agricultural produce under attachment.—
Where agricultural produce is attached, the Court shall make such
arrangement for the custody thereof as it may deem sufficient and,
for the purpose of enabling the Court to make such arrangements,
every application for the attachment of growing crop shall specify the
time at which it is likely to be fit to be cut or gathered, and the
applicant shall deposit in Court at the time of the application such
sum as the Court shall deem sufficient to defray the cost of watching
and tending the crop till such time.” (1-10-1983).
DELHI, HIMACHAL PRADESH AND PUNJAB.—Add to sub-rule (1)—
“and with every such application such charges as may be
necessary for the custody of the crops up to the time at which it is
likely to be fit to be cut or gathered shall be paid to the Court”. (1-2-
1977)
KARNATAKA.—In Rule 45 delete sub-rule (1) and substitute the
following:
“45. (1) Where agricultural produce is attached, the Court shall
make such arrangements for the custody thereof as it may deem
sufficient, and for the purpose of enabling the Court to make such
arrangements, every application for attachment of a growing crop
shall specify the time at which it is likely to be fit to be cut or
gathered and the applicant shall deposit in Court within a date to be
fixed by Court such sum as the Court may deem sufficient to defray
the cost of watching and tending the crop till such time.” (30-3-
1967).
ORISSA AND PATNA.—At the end of sub-rule (1) add—
“and the applicant shall pay into Court such sum as he may from
time to time be required by the Court to pay in order to defray the
cost of such arrangements.”
46. Attachment of debt, share and other property not in possession
of judgment-debtor.—(1) In the case of—
(a) a debt not secured by a negotiable instrument,
(b) a share in the capital of a corporation,
(c) other movable property not in the possession of the judgment-debtor,
except property deposited in, or in the custody of, any Court,
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the attachment shall be made by a written order prohibiting,—
(i) in the case of the debt, the creditor from recovering the debt and the
debtor from making payment thereof until the further order of the
Court;
(ii) in the case of the share, the person in whose name the share may be
standing from transferring the same or receiving any dividend thereon;
(iii) in the case of the other movable property except as aforesaid, the
person in possession of the same from giving it over to the judgment-
debtor.
(2) A copy of such order shall be affixed on some conspicuous part of
the Court-house, and another copy shall be sent in the case of the debt,
to the debtor, in the case of the share, to the proper officer of the
corporation, and, in the case of the other movable property (except as
aforesaid), to the person in possession of the same.
(3) A debtor prohibited under clause (i) of sub-rule (1) may pay the
amount of his debt into Court, and such payment shall discharge him
as effectually as payment to the party entitled to receive the same.
511
[46-A. Notice to garnishee.—(1) The Court may in the case of a
debt (other than a debt secured by a mortgage or a charge) which has
been attached under Rule 46, upon the application of the attaching
creditor, issue notice to the garnishee liable to pay such debt, calling
upon him either to pay into Court the debt due from him to the
judgment-debtor or so much thereof as may be sufficient to satisfy the
decree and costs of execution, or to appear and show cause why he
should not do so.
(2) An application under sub-rule (1) shall be made on affidavit
verifying the facts alleged and stating that, in the belief of the
deponent, the garnishee is indebted to the judgment-debtor.
(3) Where the garnishee pays in the Court the amount due from him
to the judgment-debtor or so much thereof as is sufficient to satisfy the
decree and the costs of the execution, the Court may direct that the
amount may be paid to the decree-holder towards satisfaction of the
decree and costs of the execution.
► Attachment of garnishee debt.—It is mandatory for executing court to
attach debt under Or. 21 R. 46 before proceeding to pass order under Or. 21 R.
46-A against garnishee. If the same is not done, the order under Or. 21 R. 46-A
shall not be efficacious, Bhagyoday Coop. Bank Ltd. v. Ravindra Balkrishna
Patel, (2022) 14 SCC 417
► Recovery of garnishee debt.—Registrar/Court Nazir cannot be
considered debtor of the judgment-debtor, and hence cannot be a garnishee.
Power of garnishee to oppose notice/ attachment/order under Rr. 46-A/46-B, duty
of court and scheme of Rr. 46-B & 46-C and Rr. 46 & 58 in this regard, explained,
Bhagyoday Coop. Bank Ltd. v. Ravindra Balkrishna Patel, (2022) 14 SCC 417
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46-B. Order against garnishee.—Where the garnishee does not
forthwith pay into Court the amount due from him to the judgment-
debtor or so much thereof as is sufficient to satisfy the decree and the
costs of execution, and does not appear and show cause in answer to
the notice, the Court may order the garnishee to comply with the terms
of such notice, and on such order, execution may issue as though such
order were a decree against him.
46-C. Trial of disputed questions.—Where the garnishee disputes
liability, the Court may order that any issue or question necessary for
the determination of liability shall be tried as if it were an issue in a
suit, and upon the determination of such issue shall make such order or
orders as it deems fit:
Provided that if the debt in respect of which the application under
Rule 46-A is made is in respect of a sum of money beyond the
pecuniary jurisdiction of the Court, the Court shall send the execution
case to the Court of the District Judge to which the said Court is
subordinate, and thereupon the Court of the District Judge or any other
competent Court to which it may be transferred by the District Judge
shall deal with it in the same manner as if the case had been originally
instituted in that Court.
46-D. Procedure where debt belongs to third person.—Where it is
suggested or appears to be probable that the debt belongs to some
third person, or that any third person has a lien or charge on, or other
interest in, such debt, the Court may order such third person to appear
and state the nature and particulars of his claim, if any, to such debt
and prove the same.
46-E. Order as regards third person.—After hearing such third person
and any person or persons who may subsequently be ordered to
appear, or where such third or other person or persons do not appear
when so ordered, the Court may make such order as is hereinbefore
provided, or such other order or orders upon such terms, if any, with
respect to the lien, charge or interest, as the case may be, of such third
or other person or persons as it may deem fit and proper.
46-F. Payment by garnishee to be valid discharge.—Payment made
by the garnishee on notice under Rule 46-A or under any such order as
aforesaid shall be a valid discharge to him as against the judgment-
debtor and any other person ordered to appear as aforesaid for the
amount paid or levied, although the decree in execution of which the
application under Rule 46-A was made, or the order passed in the
proceedings on such application, may be set aside or reversed.
46-G. Costs.—The costs of any application made under Rule 46-A
and of any proceeding arising therefrom or incidental thereto shall be in
the discretion of the Court.
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46-H. Appeals.—An order made under Rule 46-B, Rule 46-C or Rule
46-E shall be appealable as a decree.
46-I. Application to negotiable instruments.—The provisions of Rules
46-A to 46-H (both inclusive) shall, so far as may be, apply in relation
to negotiable instruments attached under Rule 51 as they apply in
relation to debts.]
High Court Amendments
ANDHRA PRADESH.—Same as those of Madras (5-1-1961).
BOMBAY.—In Order XXI, of the Civil Procedure Code, 1908 for the
existing Rules 46-A to 46-I substitute the following rules:—
“46-A. Payment of debt or amount under negotiable instrument or
delivery of movable property in Court, etc. in the hands of Garnishee.
—(1) Upon the application of the decree-holder, the Court may in the
case of,—
(1) any debt (other than a debt secured by a mortgage or a charge
or a negotiable instrument) of which the Civil Courts are not
precluded from adjudicating upon by any law for the time being in
force and which has been attached under Rule 46 of this Order; or
(2) any movable property not in possession of the judgment-debtor
which has been attached under Rule 46 of this Order; or
(3) any negotiable instrument which has been attached under Rule
51 of this Order; or
(4) any movable property of the nature referred to in (1) to (3)
above in the custody of any public officer other than officer of any
Court, which has been attached under Rule 52 of the Order,
issue notice to any person liable to pay to the judgment-debtor
such debt or the amount due under such negotiable instrument or
liable to deliver such movable property or to account for it to the
judgment-debtor (hereafter referred to as “the Garnishee”) calling
upon him within the period specified in the notice either to pay into
Court the said debt or amount payable under the said negotiable
instrument or deliver into Court the said movable property, as the
case may be, or so much thereof as may be sufficient to satisfy the
decree or order and the cost of execution or to appear before the
Court and show cause why he should not be ordered to do so.
The notice shall be served on the Garnishee and, if the Court so
directs on the judgment-debtor also. The notice shall be served eight
clear days before the returnable date thereof:
Provided that, subject to the proviso to Rule 46-C if, by any law
for the time being in force, the jurisdiction to adjudicate upon the
debt or claim relating to the negotiable instrument or movable
property in respect of which the application aforesaid is made is
conferred on a Civil Court other than the execution Court, the Court
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shall send the execution case to the District Court to which the said
Court is subordinate and thereupon the District Court shall transfer
the case to the competent Court and on such transfer the Court to
which the case is transferred will deal with it in the same manner as
if it had been originally instituted in that Court.
Explanation.—When the District Court itself is the competent
Court it may deal with the case in the same manner as if it has been
originally instituted in that Court.
(2) Such application shall be made on affidavit verifying the facts
alleged and stating that in the belief of the deponent the Garnishee
is indebted to the judgment-debtor or that the property belongs to
the judgment-debtor.
46-B. Order against Garnishee.—Where the Garnishee does not
within the time specified in the notice or within such time as the
Court may allow pay into Court the said debt or the amount payable
under the said negotiable instrument or does not deliver into Court
the said property or so much of the debt or amount or property as is
sufficient to satisfy the decree or order and the cost of the execution
or does not appear and show cause in answer to the notice, the
Court may order the Garnishee to comply with the terms of such
notice or pass such other order as it may deem fit.
46-C. Determination of disputed questions.—If the Garnishee
disputes his liability, the Court instead of making such order 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 pass such order upon the notice as it
may think fit:
Provided that if the amount of the debt or the amount payable
under negotiable instrument or the value of the property in respect
of which the application aforesaid is made exceeds the pecuniary
jurisdiction of the Court, the Court shall send the execution case to
the District Court to which the said Court is subordinate and
thereupon the District Court or any other competent Court to which
it may be transferred by the District Court will deal with it in the
same manner as if it had been originally instituted in that Court.
46-D. Discharge of Garnishee.—If the Garnishee appears in
answer to the Garnishee notice shows cause to the satisfaction of the
Court, the notice shall be dismissed and upon such dismissal the
attachment ordered under Rule 46, 51 or 52 of this Order shall stand
raised and the prohibitory order, if any, shall stand discharged.
46-E. Adjudication of claims by third party.—Whenever in the
course of proceedings against the Garnishee it is alleged or appears
to the Court to be probable that some person other than the
judgment-debtor is or claims to be entitled to the debt attached or
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the amount payable under the negotiable instrument or the property
attached or claims to have a charge or lien upon or interest in such
debt or amount or property the Court may order such third person to
appear before it and state the nature of his claim with particulars
thereof and, if necessary, prove the same.
46-F. Claim of third person to be tried as in a suit.—After hearing
such third person and any other person who may subsequently be
ordered to appear, or in case of such third person or other person not
appearing when ordered, the Court may pass such order as is
provided under Rule 46-B, 46-C or 46-D or such other order or
orders upon such terms, if any, with respect to the lien or charge or
interest if any of such third or other person as it may deem fit and
proper including an order that any question or issue necessary for
determining the validity of the claim of third or other person be tried
as though it were an issue in a suit.
46-G. Execution of order under Rules 46-B, 46-C and 46-F.—(a)
An order made by the Court under Rule 46-B, 46-C or 46-F against
the Garnishee shall be executable as if it were a decree of the Court
in favour of the decree-holder.
(b) When money or negotiable instrument or property is received
in Court as a result of an Order under Rule 46-B, 46-C or 46-F
above, the money shall not be paid and further steps in execution in
respect of the negotiable instrument or property shall not be taken
till the time for filing an appeal against the said order is over and
where an appeal is filed, till further orders of the Appellate Court.
46-H. Discharge of Garnishee's liability.—Any payment or delivery
made by a Garnishee in compliance with a Garnishee notice or order
made against him under Rule 46-B, 46-C or 46-F of this Order or any
money or property realised in execution of an order under these rules
shall be a valid discharge of the Garnishee's liability to the judgment
-debtor and to any other person or persons ordered to appear under
Rule 46-E or 46-F of this order for the amount paid or levied or
property delivered or property realised in execution, although the
decree in execution of which the application under Rule 46-A was
made, or the order passed in the proceedings on such application
may be set aside or reversed.
46-I. Garnishee proceeding against a firm.—Where a debt due by
a firm to the judgment-debtor has been attached it may be
proceeded against under Rules 46-A to 46-H of this Order in the
same manner as in the case of an ordinary Garnishee, and provisions
of Order XXX of this Code shall, so far as applicable, apply to such
proceedings although one or more partners of such firm may be
resident outside the jurisdiction of the Court:
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Provided that any person having the control or management of
the partnership business or any partner of the firm who is within the
jurisdiction of the Court is served with Garnishee notice. An
appearance by any partner pursuant to such notice shall be sufficient
appearance by the firm.
46-J. Costs.—The costs of any application made under Rule 46-A
of this Order and of any proceedings arising therefrom or incidental
thereto shall be in the discretion of the Court.
46-K. Appeal against order made under Rules 46-B, 46-C, 46-F
and 46-G.—Any order made under Rule 46-B, 46-C, 46-F or 46-G of
this Order shall be appealable as a decree.” (1-10-1983 and 20-4-
1989)
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS).—Add the following after
Rule 46:
“46-A. The Court may in case of a debt other than a debt, secured
by a mortgage or a charge or by a negotiable instrument, which has
been attached under Rule 46 or 51 of this Order, upon the
application of the attaching creditor, issue notice to the garnishee
liable to pay such debt calling upon him either to pay into Court the
debt due from him to the judgment-debtor or so much thereof as
may be sufficient to satisfy the decree and costs of execution, or to
appear and show cause why he should not do so:
Provided that if the debt in respect of which the application
aforesaid is made is in respect of a sum of money beyond the
pecuniary jurisdiction of the Court, the Court shall send the
execution case to the Court of the District Judge to which the said
court is subordinate, and thereupon the Court of the District Judge or
any other competent court to which it may be transferred by the
District Judge will deal with it in the same manner as if the case has
been originally instituted in that Court.
Such application shall be made on affidavit verifying the facts
alleged and stating that in the belief of the deponent the garnishee
is indebted to the judgment-debtor.
46-B. Where the garnishee does not forthwith pay into Court the
amount due from him to the judgment-debtor or so much thereof as
is sufficient to satisfy the decree and the costs of execution or does
not appear and show cause in answer to the notice, the Court may
order the garnishee to comply with the terms of such notice, and on
such order execution may issue as though such order were a decree
against him.
46-C. Where the garnishee disputes liability, the Court may order
that any issue or question necessary for the determination of liability
shall be tried as if it were an issue in a suit, and upon the
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determination of such issue shall make such order or orders upon the
parties as may seem just.
46-D. Where it is suggested or appears to be probable that the
debt belongs to some third person or that any third person has a lien
or charge on, or other interest in, such debt, the Court may order
such third person to appear and state the nature and particulars of
his claim (if any) to such debt and prove the same.
46-E. After hearing such third person and any person or persons
who may subsequently be ordered to appear, or where such third or
other person or persons do not appear when so ordered, the Court
may make such order as is hereinbefore provided, or such other
order or orders upon such terms, if any, with respect to the lien,
charge or interest, if any, of such third or other persons as may seem
fit and proper.
46-F. Payment made by the garnishee on a notice under Rule 46-
A or under any such order as aforesaid shall be valid discharge to
him as against the judgment-debtor and any other person ordered to
appear as aforesaid, for the amount paid or levied although such
judgment may be set aside or reversed.
46-G. The costs of any application made under Rule 46-A and of
any proceeding arising therefrom or incidental thereto, shall be in
the discretion of the Court.
46-H. An order made under Rule 46-B or 46-C or 46-E shall be
appealable as a decree.”
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as those of Calcutta.
GUJARAT.—Same as those of Bombay without the figures and letter
“46-B” in Rule 46-H (17-8-1961).
KARNATAKA.—Same as those of Madras except that in R. 46-A for the
words “attached under Or. 21 R. 46” and “attached under Or. 21 R. 51”
words “attached under R. 46 of Order 21 of this Code” and “attached
under Rule 51 of Order 21 of this Code” are to be read respectively (30-
3-1967).
KERALA (LAKSHADWEEP I SLANDS).—After R. 46, the following rules shall
be inserted, namely:
“46-A. Procedure when debt or any movable property not in the
possession of the judgment-debtor.—The Court may, in the case of
any debt due to the judgment-debtor (other than debt secured by a
mortgage or a charge or by negotiable instrument), or any movable
property in which he has an interest, but not in his possession,
which has been attached under Rule 46 of this order, upon the
application of the attaching creditor, issue notice to any person liable
to pay such debt or deliver an account for such movable property
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(such person to be hereinafter called the ‘garnishee’) calling upon
him either to 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 costs of
execution, or to appear and show cause why he should not do so.
Such application shall be supported by an affidavit verifying the fact
alleging and stating that in the belief of the deponent the garnishee
is indebted to the judgment-debtor:
Provided that if the debt or property in respect of which the
application aforesaid is made is of value beyond the pecuniary
jurisdiction of the Court, the execution case shall be sent to the
District Court to which the said Court is subordinate and thereupon
the District Court shall deal with it in the same manner, as if the
case had been originally instituted in that Court.
46-B. Procedure when garnishee does not forthwith pay the
amount.—Where the garnishee does not forthwith or within such
time as the Court may allow, pay or deliver into Court the amount
due from him or the property deliverable by him to the judgment-
debtor or so much thereof as is sufficient to satisfy the decree and
the costs of execution, or does not appear and show cause in answer
to the notice, the Court may order the garnishee to comply with the
terms of such notice and on such order execution may issue as
though such order was a decree against him.
46-C. Procedure where garnishee disputes his liability.—Where
the garnishee disputes his liability, the Court may order that any
issue or question necessary for the determination of the liability shall
be tried as if it were an issue in a suit and upon determination of
such issue shall make such order as may seem just:
Provided that where the garnishee admits his liability but disputes
its extent and the decree-holder does not seek to recover from the
garnishee any sum in excess of what he admits is due from him the
Court shall not be bound to decide the dispute and may direct the
garnishee to pay such sum or so much thereof as is sufficient to
satisfy the decree and the cost of the execution proceedings.
46-D. Procedure when debt or property belongs to a third person.
—Where in any proceeding under these rules it is alleged or appears
to the Court to be probable that the debt or property attached or
sought to be attached belongs to some third person or that any third
person has a lien or charge upon or an interest in it, the Court may
order such third person to appear and state the nature and
particulars of his claim, if any, to such debt or property and prove
the same.
46-E. Order to be made on hearing such persons.—After hearing
such third person and any other person who may subsequently be
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ordered to appear, or in the case 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 thinks fit, upon
such terms, in all cases with respect to the lien, charge or interest, if
any, of such third or other persons as may seem fit and proper.
46-F. Payment or delivery under order to be a valid discharge.—
Payment or delivery made by the garnishee on a notice under Rule
46-A or under any such order as aforesaid shall be a valid discharge
to him as against the judgment-debtor, and any other person
ordered to appear as aforesaid, for the amount paid, delivered or
realised although such order or the judgment may be set aside or
reversed.
46-G. Procedure re: debt owing from a firm.—Debts owing from a
firm carrying on business within the jurisdiction of the Court may be
proceeded against under Rules 46-A to 46-E of this Order, although
one or more members of such firm may be resident outside the
jurisdiction:
Provided that if 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 notice, an appearance by
any member pursuant to such notice shall be sufficient appearance
by the firm.
46-H. Costs to be in the discretion of the Court.—The cost of any
application made under Rule 46-A and of any proceeding arising
therefrom or incidental thereto or any order made thereon shall be in
the discretion of the Court.
46-I. Orders appealable.—An order made under Rules 46-B, 46-C
or 46-E shall have the force as a decree and shall be appealable as
such.”
MADRAS (PONDICHERRY).—Add the following rules:
“46-A. 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 debt recoverable only in a Revenue Court or a debt on a
negotiable instrument the amount of which exceeds the pecuniary
jurisdiction of the Court) which has been attached under Order 21
Rule 46, and in the case of a negotiable instrument which has been
attached under Order 21 Rule 51, upon the application of the decree-
holder, issue notice to the person liable to pay such debt (hereinafter
called the garnishee) calling upon him to appear before the Court
and show cause why he should not pay the debt due from him to
such judgment-debtor or so much thereof as may be sufficient to
satisfy the decree and costs of execution.
46-B. If the garnishee does not appear or show cause in answer to
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the notice issued under Rule 46-A or if he does not dispute his
liability or its extent, the Court may direct the garnishee within such
time as it may allow to pay into Court the debt or the amount due
under the negotiable instrument as the case may be or so much
thereof as may be sufficient to satisfy the decree and the costs of the
execution proceedings.
46-C. If the garnishee disputes his liability or its extent, the Court
may decide the dispute and thereafter direct the garnishee within
such time as it may allow to pay into Court such sum as it has found
to be due from him or so much thereof as may be sufficient to satisfy
the decree and the costs of the proceedings:
Provided that where the garnishee admits his liability but disputes
its extent and the decree-holder does not seek to recover from the
garnishee any sum in excess of what he admits is due from him, the
Court shall not be bound to decide the dispute and may direct the
garnishee to pay such sum or so much thereof as is sufficient to
satisfy the decree and the costs of the execution proceedings.
46-D. If the garnishee alleges that the debt belongs to some third
person or that a third person has a lien or charge or other interest,
upon or in it, the Court may order such third person to be served
with notice to appear and state the nature and particulars of his
claim.
46-E. After hearing the garnishee or such third person and any
other person who may subsequently 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 for in the foregoing rules or
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
person or other person as shall seem just and reasonable.
46-F. Any payment made by the garnishee in pursuance of or in
execution of an order under these rules 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, or realised although such
order or judgment may be set aside or reversed.
46-G. If at any stage of the proceedings under Rules 46-A to 46-F
the Court considers that the matter is too complicated to be dealt
with under the above said provisions, it may drop the proceedings
leaving the other rights and remedies of the parties unaffected.
46-H. The costs of any application made under foregoing rules
and of any proceedings arising from or incidental to such application,
shall be in discretion of the Court.
46-I. An Order passed by the Court determining the liability of a
garnishee or directing payment by him under Rules 46-B, 46-C and
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46-E shall be executed as if it were a decree and shall be appealable
as such.” (10-8-55).
ORISSA.—Same as those of Patna.
PATNA.—For rules dealing with the same topic, see Rules 63-A to 63-
H added by the Patna High Court.
47. Attachment of share in movables.—Where the property to be
attached consists of the share or interest of the judgment-debtor in
movable property belonging to him and another as co-owners, the
attachment shall be made by a notice to the judgment-debtor
prohibiting him from transferring the share or interest or charging it in
any way.
48. Attachment of salary or allowances of servant of the Government
or railway company or local authority.—(1) Where the property to be
512
attached is the salary or allowances of a [servant of the Government]
or of a servant of a railway company or local authority 513[or of a
servant of a corporation engaged in any trade or industry which is
established by a Central, Provincial or State Act, or a Government
company as defined in Section 617 of the Companies Act, 1956], the
Court, whether the judgment-debtor or the disbursing officer is or is
not within the local limits of the Court's jurisdiction, may order that the
amount shall, subject to the provisions of Section 60, be withheld from
such salary or allowances either in one payment or by monthly
instalments as the Court may direct; and, upon notice of the order to
514
such officer as [the appropriate Government may by notification in
515
the Official Gazette] appoint [in this behalf,—
(a) where such salary or allowances are to be disbursed within the local
limits to which this Code for the time being extends, the officer or
other person whose duty it is to disburse the same shall withhold and
remit to the Court the amount due under the order, or the monthly
instalments as the case may be;
(b) where such salary or allowances are to be disbursed beyond the said
limits, the officer or other person within those limits whose duty it is to
instruct the disbursing authority regarding the amount of the salary or
allowances to be disbursed shall remit to the Court the amount due
under the order, or the monthly instalments, as the case may be, and
shall direct the disbursing authority to reduce the aggregate of the
amounts from time to time to be disbursed by the aggregate of the
amounts from time to time remitted to the Court.]
(2) Where the attachable proportion of such salary or allowances is
already being withheld and remitted to a Court in pursuance of a
previous and unsatisfied order of attachment, the officer appointed by
516
[the appropriate Government] in this behalf shall forthwith return
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the subsequent order to the Court issuing it with a full statement of all
the particulars of the existing attachment.
517
[(3) Every order made under this rule, unless it is returned in
accordance with the provisions of sub-rule (2), shall, without further
notice or other process, bind the appropriate Government or the railway
company or local authority or corporation or Government company, as
the case may be, while the judgment-debtor is within the local limits to
which this Code for the time being extends and while he is beyond
those limits, if he is in receipt of any salary or allowances payable out of
the Consolidated Fund of India or the Consolidated Fund of the State or
the funds of a railway company or local authority or corporation or
Government company in India; and the appropriate Government or the
railway company or local authority or corporation or Government
company, as the case may be, shall be liable for any sum paid in
contravention of this rule.]
518
[Explanation.—In this rule, “appropriate Government” means,—
(i) as respects any person in the service of the Central Government, or
any servant of a railway administration or of a cantonment authority or
of the port authority of a major port, or any servant of a corporation
engaged in any trade or industry which is established by a Central Act,
or any servant of a Government company in which any part of the
share capital is held by the Central Government or by more than one
State Governments or partly by the Central Government and partly by
one or more State Governments, the Central Government;
(ii) as respects any other servant of the Government, or a servant of any
other local or other authority, or any servant of a corporation engaged
in any trade or industry which is established by a Provincial or State
Act, or a servant of any other Government company, the State
Government.]
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
MADRAS AND PONDICHERRY.—Substitute a comma for the period at the
end of the last sentence of sub-rule (1) and add the following clause
“such amount or instalment being calculated to the nearest anna by
fractions of an anna of six pies and over being considered as one anna
and omitting amounts less than six pies” (R.O.C. No. 1310 of 1926);
See Act 26 of 1968, Section 3 and Schedule Part II (w.e.f. 5-9-1968).
519
[48-A. Attachment of salary or allowances of private employees.—
(1) Where the property to be attached is the salary of allowances of an
employee other than an employee to whom Rule 48 applies, the Court,
where the disbursing officer of the employee is within the local limits of
the Court's jurisdiction, may order that the amount shall, subject to the
provisions of Section 60, be withheld from such salary or allowances
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either in one payment or by monthly instalments as the Court may
direct; and upon notice of the order to such disbursing officer, such
disbursing officer shall remit to the Court the amount due under the
order, or the monthly instalments, as the case may be.
(2) Where the attachable portion of such salary or allowances is
already being withheld or remitted to the Court in pursuance of a
previous and unsatisfied order of attachment, the disbursing officer
shall forthwith return the subsequent order to the Court issuing it with
a full statement of all the particulars of the existing attachment.
(3) Every order made under this rule, unless it is returned in
accordance with the provisions of sub-rule (2), shall, without further
notice or other process, bind the employer while the judgment-debtor
is within the local limits to which this Code for the time being extends
and while he is beyond those limits, if he is in receipt of salary or
allowances payable out of the funds of an employer in any part of
India; and the employer shall be liable for any sum paid in
contravention of this rule.]
49. Attachment of partnership property.—(1) Save as otherwise
provided by this rule, property belonging to a partnership shall not be
attached or sold in execution of a decree other than a decree passed
against the firm or against the partners in the firm as such.
(2) The Court may, on the application of the holder of a decree
against a partner, make an order charging the interest of such partner
in the partnership property and profits with payment of the amount due
under the decree, and may, by the same or a subsequent order,
appoint a receiver of the share of such partner in the profits (whether
already declared or accruing) and of any other money which may be
coming to him in respect of the partnership, and direct accounts and
inquiries and make an order for the sale of such interest or other orders
as might have been directed or made if a charge had been made in
favour of the decree-holder by such partner, or as the circumstances of
the case may require.
(3) The other partner or partners shall be at liberty at any time to
redeem the interest charged or, in the case of a sale being directed, to
purchase the same.
(4) Every application for an order under sub-rule (2) shall be served
on the judgment-debtor and on his partners or such of them as are
520
within [India].
(5) Every application made by any partner of the judgment-debtor
under sub-rule (3) shall be served on the decree-holder and on the
judgment-debtor, and on such of the other partners as do not join in
521
the application and as are within [India.]
(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be
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service on all the partners, and all orders made on such applications
shall be similarly served.
50. Execution of decree against firm.—(1) Where a decree has been
passed against a firm, execution may be granted—
(a) against any property of the partnership;
(b) against any person who has appeared in his own name under Rule 6
or Rule 7 of Order XXX or who has admitted on the pleadings that he
is, or who has been adjudged to be, a partner;
(c) against any person who has been individually served as a partner with
a summons and has failed to appear:
Provided that nothing in this sub-rule shall be deemed to limit or
522
otherwise affect the provisions of [Section 30 of the Indian
Partnership Act, 1932 (9 of 1932)].
(2) Where the decree-holder claims to be entitled to cause the
decree to be executed against any person other than such a person as
is referred to in sub-rule (1), clauses (b) and (c), as being a partner in
the firm, he may apply to the Court which passed the decree for leave,
and where the liability is not disputed, such Court may grant such
leave, or, where such liability is disputed, may order that the liability of
such person be tried and determined in any manner in which any issue
in a suit may be tried and determined.
(3) Where the liability of any person has been tried and determined
under sub-rule (2), the order made thereon shall have the same force
and be subject to the same conditions as to appeal or otherwise as if it
were a decree.
(4) Save as against any property of the partnership, a decree against
a firm shall not release, render liable or otherwise affect any partner
therein unless he has been served with a summons to appear and
answer.
523
[(5) Nothing in this rule shall apply to a decree passed against a
Hindu undivided family by virtue of the provisions of Rule 10 of Order
XXX.]
High Court Amendments
ALLAHABAD.—In sub-rule (2) add “or to which the decree is
transferred for execution” after “passed the decree”.—(Noti. No. 43/viid
-29; 1-6-1957).
ORISSA.—Same as in Patna. (1-6-1957)
PATNA.—In sub-rule (2) add “or to the Court to which it is sent for
execution” after “passed the decree” and before “for leave”.
51. Attachment of negotiable instruments.—Where the property is a
negotiable instrument not deposited in a Court, nor in the custody of a
public officer, the attachment shall be made by actual seizure, and the
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instrument shall be brought into Court and held subject to further
orders of the Court.
High Court Amendment
ALLAHABAD.—Substitute the following for Rule 51, namely,—
“51. Where any property has been attached in execution of a
decree and the Court for any reason passes an order dismissing the
execution application the attachment shall, in the absence of any
order passed by the Court, be deemed to subsist for a period of
fifteen days after the dismissal of the application for execution and
no fresh attachment of the same property shall be necessary if a
fresh application for execution is made within such period of fifteen
days. If no such application is made, the attachment shall cease:
Provided that in the case of movable property the attachment
shall not be continued after an order dismissing the execution
application has been passed unless the decree-holder has given his
consent in writing and therein deposit with the Court on his behalf a
sum of money sufficient to meet the expenses of the attachment
during the extended period.” (1-7-1957).
52. Attachment of property in custody of Court or public officer.—
Where the property to be attached is in the custody of any Court or
public officer, the attachment shall be made by a notice to such Court
or officer, requesting that such property, and any interest or dividend
becoming payable thereon, may be held subject to the further orders of
the Court from which the notice is issued:
Provided that, where such property is in the custody of a Court, any
question of title or priority arising between the decree-holder and any
other person, not being the judgment-debtor, claiming to be interested
in such property by virtue of any assignment, attachment or otherwise,
shall be determined by such Court.
High Court Amendments
ANDHRA PRADESH, MADRAS AND PONDICHERRY.—Add the following
proviso as clause (ii) and renumber existing proviso as clause (i):
“(ii) Provided further that when the Court whose attachment is
determined to be prior receives or realises such property the receipt
or realisation shall be deemed to be on behalf of all the Courts in
which there have been attachment of such property in execution of
money decree prior to the receipt of such asset.
Explanation.—Priority of attachment in the case of attachment of
property in the custody of Court shall be determined on the same
principle as in the case of attachment of property not in the custody
of Court.”
KARNATAKA.—Same as proviso (ii) of Madras except the word
“Explanation” in Para 2. (30-3-1967)
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53. Attachment of decrees.—(1) Where the property to be attached
is a decree, either for the payment of money or for sale in enforcement
of a mortgage or charge, the attachment shall be made,—
(a) if the decrees were passed by the same Court, then by order of such
Court, and
(b) if the decree sought to be attached was passed by another Court, then
by the issue to such other Court of a notice by the Court which passed
the decree sought to be executed, requesting such other Court to stay
the execution of its decree unless and until—
(i) the Court which passed the decree sought to be executed cancels
the notice, or
524
[(ii)(a) the holder of the decree sought to be executed, or
(b) his judgment-debtor with the previous consent in writing of such
decree-holder, or with the permission of the attaching Court,
applies to the Court receiving such notice to execute the attached
decree.]
(2) Where a Court makes an order under clause (a) of sub-rule (1),
or receives an application under sub-head (ii) of clause (b) of the said
sub-rule, it shall, on the application of the creditor who has attached
the decree or his judgment-debtor, proceed to execute the attached
decree and apply the net proceeds in satisfaction of the decree sought
to be executed.
(3) The holder of a decree sought to be executed by the attachment
of another decree of the nature specified in sub-rule (1) shall be
deemed to be the representative of the holder of the attached decree
and to be entitled to execute such attached decree in any manner
lawful for the holder thereof.
(4) Where the property to be attached in the execution of a decree is
a decree other than a decree of the nature referred to in sub-rule (1),
the attachment shall be made, by a notice by the Court which passed
the decree sought to be executed, to the holder of the decree sought to
be attached, prohibiting him from transferring or charging the same in
any way; and, where such decree has been passed by any other Court,
also by sending to such other Court a notice to abstain from executing
the decree sought to be attached until such notice is cancelled by the
Court from which it was sent.
(5) The holder of a decree attached under this rule shall give the
Court executing the decree such information and aid as may reasonably
be required.
(6) On the application of the holder of a decree sought to be
executed by the attachment of another decree, the Court making an
order of attachment under this rule shall give notice of such order to
the judgment-debtor bound by the decree attached; and no payment or
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adjustment of the attached decree made by the judgment-debtor in
contravention of such order 525[with knowledge thereof or] after receipt
of notice thereof, either through the Court or otherwise, shall be
recognised by any Court so long as the attachment remains in force.
High Court Amendments
ALLAHABAD.—(i) In sub-rule (1)(b) and sub-rule (4) after the words
“to such other Court” add “and to any other Court to which the decree
has been transferred for execution”.
(ii) In sub-rule (6) for words “after receipt of notice thereof” read the
words “after receipt of notice or with the knowledge thereof”. (24-7-
1926).
ANDHRA PRADESH, PONDICHERRY, MADRAS.—(i) In sub-rule (1) (b) (ii)
after the words “judgment-debtor” and before the word “applies” add
“If he has obtained the consent in writing of the decree-holder or the
permission of the attaching court” and (ii) for the words “its own”
substitute “the attached”. (16-9-1960).
(ii) Add the following as sub-rule (1)(c):
“(c) If the decree sought to be attached has been sent for
execution to another Court, the Court which passed the decree shall
send a copy of the said notice to the former Court, and thereupon
the provisions of clause (b) shall apply in the same manner as if the
former Court had passed the decree and the said notice had been
sent to it by the Court which issued it.” (11-1-1918).
ASSAM, NAGALAND, CALCUTTA, ANDAMAN AND NICOBAR I SLANDS:
(i) In sub-rule (1)(b) after the words “such other Courts” insert
“and to any Court to which it has been transferred for execution” also
insert therein the words “or Courts” after the words “requesting such
other Court”. (1-12-1963 and 21-1-1972).
(ii) In sub-rule (1)(b)(ii) cancel the words “to execute its own
decree” and substitute therefore the words “execute the attached
decree with the consent of the said decree-holder expressed in
writing or the permission of the attaching Court”.
(iii) In sub-rule (4) insert after the words “by sending to such
other Court” the words “and to any Court to which it has been
transferred for execution”.
(iv) In sub-rule (6) substitute the words “in contravention of the
said order with knowledge thereof” for the words “in contravention of
such order after the receipt of notice thereof”.
BOMBAY : DADRA AND NAGAR HAVELI.—(1) For sub-rule (1)(b) of Rule
53 substitute the following:
(b) if the decree sought to be attached was passed by another Court,
then by the issue to such other Court of a notice by the Court
which passed the decree sought to be executed, requesting such
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other Court and to any other Court to which the decree has been
transferred for execution to stay the execution of its decree unless
and until—
(i) the Court which passed the decree sought to be executed
cancels the notice, or
(ii) (a) the holder of the decree sought to be executed, or
(b) his judgment-debtor, with the previous consent in writing of
such decree-holder, or with the permission of the attaching Court,
applies to the Court receiving such notice to execute the attached
decree.” (1-10-1983).
(2) For the existing sub-rule (4) substitute, the following:
“(4) Where the property to be attached in the execution of a
decree is a decree other than a decree of the nature referred to in
sub-rule (1), the attachment shall be made, by a notice by the Court
which passed the decree sought to be executed, to the holder of the
decree sought to be attached, prohibiting him from transferring or
charging the same in any way; and, where such decree has been
passed by any other Court also by sending to such other Court and
to any other Court to which the decree has been transferred for
execution a notice to abstain from executing the decree sought to be
attached until such notice is cancelled by the Court from which it
was sent.” (1-10-1983).
HIMACHAL PRADESH, DELHI, PUNJAB, HARYANA AND CHANDIGARH.—(i) Add
to sub-rule (1)(b) after “to such other Court” the following: “and to the
Court to which it has been transferred for execution”.
(ii) In sub-rule (1) (b)(ii) substitute the words “the attached” for “its
own” and insert “with the consent of the said decree-holder expressed
in writing or with the permission of the attaching Court”, between the
words “executed or” and “his judgment-debtor”.
(iii) In sub-rule (6) substitute “with the knowledge” for “after receipt
of notice”.(7-4-1932)
KARNATAKA.—In Rule 53 delete sub-rule (1) and substitute the
following:
“53. (1) Where property to be attached is a decree either for the
payment of money or for sale in enforcement of a mortgage or charge,
the attachment shall be made—
(a) if the decrees were passed by the same court then by the order
of such court, and
(b) if the decree sought to be attached was passed by another court
then by the issue to such other court of a notice by the Court
which passed the decree sought to be executed, requesting such
other court to stay the execution of its decree unless and until:
(i) the Court which passed the decree sought to be executed
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cancels the notice, or
(ii) the holder of the decree sought to be executed or his
judgment-debtor if he has obtained the consent in writing of
the decree-holder or the permission of the attaching court
applies to the court receiving such notice to execute the
attached decree:
(c) If the decree sought to be attached has been sent for execution
to another court the Court which passed the decree shall send a
copy of the said notice to the former Court and thereupon the
provisions of clause (b) shall apply in the same manner as if the
former Court had passed the decree and the said notice had been
sent to it by the Court which issued it.” (30-3-1967).
KERALA (LAKSHADWEEP I SLANDS).—Same as those in sub-rules (1)(i)
and (2) of Madras (9-6-1959).
(a) See Act 37 of 1956, S. 60; Regn. 9 of 1965, S. (3)(2), and Act
34 of 1973, S. 5 (1-11-1973).
GAUHATI.—Same as in Calcutta.
MADHYA PRADESH.—Substitute—
(i) “to such other Court and to any other Court to which the decree
has been transferred for execution” for the words “to such other
Court” occurring in clause (b) of sub-rule (1) and in sub-rule (4)
and,
(ii) delete clause (2) and substitute the following—
“(2) the holder of the decree sought to be executed or his judgment-
debtor with the consent of the said decree-holder expressed in writing
or with the permission of the attaching Court applies to the Court
receiving such notice to execute the attached decree.” (16-9-1960)
ORISSA.—Deleted. (14-5-1984).
PATNA.—Substitute the following for sub-rule (1)(b):
“(b) If the decree sought to be attached was passed by another
Court then by the issue to such other Court (or the Court to which
the decree may have been transferred for execution) of a notice by
the Court before which the application has been made requesting
such other Court or the Court to which the decree may have been
transferred or execution as the case may be to stay the execution of
the decree sought to be attached unless and until—
(i) the Court which has issued the notice shall cancel the same, or
(ii) the holder of the decree sought to be executed or his judgment-
debtor with the consent of the said decree-holder expressed in
writing or the permission of the attaching Court applies to such
other Court (or the Court to which the decree may have been
transferred for execution) to execute the attached decree.”
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54. Attachment of immovable property.—(1) Where the property is
immovable, the attachment shall be made by an order prohibiting the
judgment-debtor from transferring or charging the property in any way,
and all persons from taking any benefit from such transfer or charge.
526
[(1-A) The order shall also require the judgment-debtor to attend
Court on a specified date to take notice of the date to be fixed for
settling the terms of the proclamation of sale.]
(2) The order shall be proclaimed at some place on or adjacent to
such property by beat of drum or other customary mode, and a copy of
the order shall be affixed on a conspicuous part of the property and
then upon a conspicuous part of the court house, and also, where the
property is land paying revenue to the Government, in the office of the
527
Collector of the district in which the land is situate [and, where the
property is land situate in a village, also in the office of the Gram
Panchayat, if any, having jurisdiction over that village].
High Court Amendments
ALLAHABAD.—(i) At the end of clause (2) substitute a comma for the
full stop and thereafter add the following:
“and, where the property, whether paying revenue to Government
or otherwise, is situate within Cantonment limits, in the office of the
Local Cantonment Board and of the Military Estates Officer
concerned.” (27-9-1941)
(ii) Add the following as sub-rule (3):
“(3) The attachment shall be deemed to have been made against
transferees without consideration from the judgment-debtor, from
the date of the order of attachment; and as against all other persons
from the date on which they respectively had knowledge of the order
of attachment or the date on which the order was duly proclaimed
under sub-rule (2) whichever is earlier.” (5-2-1983).
ANDHRA PRADESH.—Same as that of Madras;
ASSAM AND NAGALAND.—Same as that of Calcutta.
BOMBAY : DADRA AND NAGAR HAVELI.—For existing Rule 54 and its
marginal note, substitute the following:
“54. Attachment of immovable property.—(1) Where the property
is immovable, the attachment shall be made by an order prohibiting
the judgment-debtor from transferring or charging the property in
any way, and all persons from taking any benefit from such transfer
or charge, such order shall take effect, where there is no
consideration for such transfer or charge, from the date of such
order, and where there is consideration for such transfer or charge,
from the date when such order came to the knowledge of the person
to whom or in whose favour the property was transferred or charged.
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(1-A) The order shall also require the judgment-debtor to attend
Court on a specified date to take notice of the date to be fixed for
settling the terms of the proclamation of sale.
(2) Copies of the order shall also be forwarded to the Collector
with a request that appropriate entries showing the attachment
levied on the property may be caused to be made in the revenue
records, city survey records or village panchayat records as may be
required in the particular case.
(3) The order shall be proclaimed at some place on or adjacent to
such property by beat of drum or other customary mode, and a copy
of the order shall be affixed on a conspicuous part of the property
and then upon a conspicuous part of the court house, and also,
where the property is land paying revenue to the Government, in the
office of the Collector of the District in which the land is situate, and
also, where the property is situate within Cantonment limits, in the
office of the Local Cantonment Board and the Military Estates Officer
concerned, and, where the property is land situate in a village, also
in the office of the Gram Panchayat, if any, having jurisdiction over
that village. (1-10-1983). See also Goa Gaz. 12-10-1987 Ext. S. 1
No. 28 p. 385 (1-4-1987)
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—(1) Add the following to
sub-rule (2):
“and also, where the property is situated within Cantonment
limits, in the office of the Local Cantonment Board and the Military
Estates Officer concerned.” (26-7-1941).
(2) Add the following as sub-rule (3):
“(3) Such order shall take effect, where there is no consideration
for such transfer or charge from the date of the order; and where
there is consideration for such transfer or charge, ‘from the date
when such order came to the knowledge of the person to whom or in
whose favour the property was transferred or charged, or from the
date when the order is proclaimed under sub-rule (2) whichever is
earlier.” (3-2-1933).
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
GAUHATI.—Same as in Calcutta.
GUJARAT.—(1) Add the following to sub-rule (1):
“Such order shall take effect, where there is no consideration for
such transfer or charge, from the date of such order, and where
there is consideration for such transfer or charge, from the date
when such order came to the knowledge of the person to whom or in
whose favour the property was transferred or charged.”
(2) Substitute a comma for the full stop at the end of sub-rule (2)
and add the following thereafter—
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“and also, where the property is situate within Cantonment limits,
in the office of the Local Cantonment Board and the Military Estates
Officer concerned.” (17-8-1961).
KARNATAKA.—In sub-rule (2) of Rule 54 convert the full stop into a
comma and add the words—
“and where the property is situated within the limits of a
Municipality or other local authority also in the principal office of the
said Municipality or the local authority.” (30-3-1967)
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—(i) For sub-rule
(2), the following sub-rule shall be substituted, namely:
“(2) The order shall be proclaimed at some place on or adjacent to
such property by beat of drum or other customary mode and a copy
of the order shall be affixed on a conspicuous part of the property
and thereupon, a conspicuous part of the court house and also in the
village office or, in case there is no such office, in the Taluk office of
the place in which the land is situate and, where the property is
situated within the limits of a Municipality or Panchayat, in the office
of the Municipality or Panchayat within the limits of which the
property is situate.”
(ii) After sub-rule (2) the following sub-rule shall be inserted,
namely:
“(3) The attachment shall be deemed to have taken as against
transferees without consideration from the judgment-debtor from
the date of the order of attachment and as against all other persons
from the date on which they respectively had knowledge of the order
of attachment or the date on which the order was duly proclaimed
under sub-rule (2) whichever is the earlier.” (9-6-1959).
MADHYA PRADESH.—(1) In sub-rule (2) delete the full stop at the end
and add the following words:
“and also where the property is situate within Cantonment limits
in the office of the Local Cantonment Board and the Military Estates
Officer concerned.”
(2) After sub-rule (2) of Rule 54 insert.—
(3) The order shall take effect as against purchasers for value in
good faith from the date when a copy of the order is affixed on the
property and against all other transferees from the J.D. from the
date on which such order is made. (16-9-1960).
MADRAS AND PONDICHERRY.—(a) Substitute the following for sub-rule
(2):
“(2) The order shall be proclaimed at some place on or adjacent to
such property by beat of drum or other customary mode. A copy of
the order shall be affixed on a conspicuous part of the property and
on a conspicuous part of the court house. Where the property is land
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paying revenue to the Government, a copy of the order shall be
similarly affixed in the office of the Collector of the District where the
land is situated. Where the property is situated within Cantonment
limits the order shall be similarly affixed in the office of the Local
Cantonment Board and the Military Estates Officer concerned, and
where the property is situated within the limits of a Municipality, in
the office of the Municipality within the limits of which the property
is situated.”
(b) Add the following as sub-rule (3):
“(3) The order of attachment shall be deemed to have been made
as against transferees without consideration from the judgment-
debtor from the date of the order of the attachment, and as against
all other persons from the date on which they respectively had
knowledge of the order of attachment or the date on which the order
was duly proclaimed under sub-rule (2) whichever is earlier”; see
Act 26 of 1968, Section 3 and Schedule, Pt. II. (5-9-1968).
ORISSA.—Same as (1) of Madhya Pradesh.
PATNA.—Same as that of Orissa.
PUNJAB, HARYANA AND CHANDIGARH.—(1) At the end of sub-rule (2),
substitute a semi-colon for full stop and add:
“Where the property is land situated in a Cantonment, copies of
the order shall also be forwarded to the Cantonment Board and to
the Military Estates Officer in whose area that Cantonment is
situated.”
(2) Add the following as sub-rule (3):
“(3) The order shall take effect, as against persons claiming under
gratuitous transfer from the judgment-debtor, from the date of the
order of attachment, and as against others from the time they had
knowledge of the passing of the order of attachment or from the date
of the proclamation, whichever is earlier.” (7-4-1932)
► Mode of publication.—Court's order to give wide publicity to the sale did
not necessarily mean publication in newspapers. In view of Rule 67(1) read with
Rule 54(2), where sale notice was proclaimed at or adjacent to the property,
proclamation of the sale by beat of drum was not necessary, Saheb Khan v.
Mohd. Yousufuddin, (2006) 4 SCC 476.
► Prerequisites to be complied with.—At each stage of the execution of the
decree, when a property is sold, it is mandatory that notice shall be served upon
the person whose property is being sold in execution of the decree, and any
property which is sold, without notice to the person whose property is being sold is
a nullity, and all actions pursuant thereto are liable to be struck down/quashed,
Mahakal Automobiles v. Kishan Swaroop Sharma, (2008) 13 SCC 113.
55. Removal of attachment after satisfaction of decree.—Where—
(a) the amount decreed with costs and all charges and expenses resulting
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from the attachment of any property are paid into Court, or
(b) satisfaction of the decree is otherwise made through the Court or
certified to the Court, or
(c) the decree is set aside or reversed,
the attachment shall be deemed to be withdrawn, and, in the case of
immovable property, the withdrawal shall, if the judgment-debtor so
desires, be proclaimed at his expense, and a copy of the proclamation
shall be affixed in the manner prescribed by the last preceding rule.
High Court Amendment
ALLAHABAD.—Substitute the following for Rule 55:
“55. (1) Notice shall be sent to the sales officer executing a
decree of all applications for rateable distribution of assets made
under Section 73(1) in respect of the property of the same J.D. by
persons other than the holder of the decree for the execution of
which the original order was passed.
(2) Where—
(a) the amount decreed which shall include the amount of any
decree against the same J.D., notice of which has been sent to the
sales officer under sub-section (1) with costs and all charges and
expenses resulting from the attachment of any property are paid
into court, or
(b) satisfaction of the decree including any decree passed against
the same J.D. notice of which has been sent to the sales officer
under sub-section (1) is otherwise made through the Court or
certified to the Court, or
(c) the decree including any decree passed against the same
judgment-debtor, notice of which has been sent to the sales
officer under sub-section (1) is set aside or reversed, the
attachment shall be deemed to be withdrawn, and in the case of
immovable property, the withdrawal shall, if the judgment-debtor
so desires, be proclaimed at his expense and a copy of the
proclamation shall be affixed in the manner prescribed by the last
preceding rule.” (1-6-1918).
56. Order for payment of coin or currency notes to party entitled
under decree.—Where the property attached is current coin or currency
notes, the Court may, at any time during the continuance of the
attachment, direct that such coin or notes, or a part thereof sufficient to
satisfy the decree, be paid over to the party entitled under the decree
to receive the same.
528
[57. Determination of attachment.—(1) Where any property has
been attached in execution of a decree and the Court, for any reason,
passes an order dismissing the application for the execution of the
decree, the Court shall direct whether the attachment shall continue or
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cease and shall also indicate the period up to which such attachment
shall continue or the date on which such attachment shall cease.
(2) If the Court omits to give such direction, the attachment shall be
deemed to have ceased.]
High Court Amendments
BOMBAY.—In Order XXI, for the existing Rule 57 and its marginal
note, substitute the following as Rule 57 and marginal note:
“57. Determination of attachment.—Where any property has been
attached in execution of a decree and the Court for any reason
passes an order dismissing the execution application, the Court shall
direct whether the attachment shall continue or cease. If the Court
omits to make an order and if the order dismissing the execution
application is appealable the attachment shall continue till expiry of
the period prescribed for filing an appeal or where appeal has been
filed, till such further period as the appellate Court may direct,” (1-
10-1983)
ORISSA.—Deleted (14-5-1984).
High Court Amendments, prior to substitution of Rule 57 in
1976.
ALLAHABAD.—Substitute the following for Rule 57, namely:
“Where any property has been attached in execution of a decree
and the Court for any reason passes an order dismissing the
execution application the attachment shall, in the absence of any
order passed by the Court, be deemed to subsist for a period of
fifteen days after the dismissal of the application for execution and
no fresh attachment of the same property shall be necessary if a
fresh application for execution is made within such period of fifteen
days. If no such application is made, the attachment shall cease:
Provided that in the case of movable property the attachment
shall not be continued after an order dismissing the execution
application has been passed unless the decree-holder has given his
consent in writing and there is in deposit with Court on his behalf a
sum of money sufficient to meet the expenses of the attachment
during the extended period.” (1-6-1957).
ANDHRA PRADESH.—Same as that of Madras.
a
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS) .—Add the following words
at the end of the rule:
“unless the Court shall make an order to the contrary.”
(a) See S. 2 (7-A) supra.
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta; see Assam High Court Order, 1948, clause 6 and
Act 27 of 1962, Ss. 13 and 15 (w.e.f. 1-12-1963) and Act 81 of 1971,
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S. 28(1) (21-1-1972).
GUJARAT.—Same as in Madhya Pradesh (17-8-1961).
KARNATAKA.—In Rule 57, convert the full stop appearing at the end of
the rule into a comma and add the words “unless otherwise specifically
ordered” (30-3-1967).
KERALA (LAKSHADWEEP I SLANDS).—Substitute the following for the last
sentence in the rule, namely—
“If no steps are taken pursuant to the attachment within three
months of such dismissal the attachment shall cease.” (9-6-1959).
MADHYA PRADESH.—Substitute the following rule for Rule 57:
“57. Where any property has been attached in execution of a
decree, and the Court for any reason passes an order dismissing the
execution application, the Court shall direct whether the attachment
shall continue or cease. If the Court omits to make any such
direction, the attachment shall be deemed to have ceased to
exist.” (16-9-1960).
MADRAS (PONDICHERRY).—Substitute the following for Rule 57:
“57. (1) Where any property has been attached in execution of a
decree and the Court hearing the execution application either
dismisses it or adjourns the proceeding to a future date it shall state
whether the attachment continues or ceases:
Provided that when the Court dismisses such an application by
reason of the decree-holder's default the order shall state that the
attachment do cease.
(2) Where the property attached is a decree of the nature
mentioned in sub-rule (1) of Rule 53 and the Court executing the
attached decrees dismisses the application for execution of the
attached decree, it shall report to the Court which attached the
decree the fact of such dismissal. Upon the receipt of such report the
Court attaching the decree shall proceed under the provisions of sub-
rule (1) and communicate its decision to the Court whose decree is
attached.” (30-10-1936).
PATNA.—Delete the last sentence and add the following sub-
paragraph:
“Upon every order dismissing an execution case in which there is
an attachment, the attachment shall cease unless the Court
otherwise directs.” (7-1-1936).
529
[Adjudication of claims and objections]
530
[58. Adjudication of claims to, or objections to attachment of,
property.—(1) Where any claim is preferred to, or any objection is
made to the attachment of, any property attached in execution of a
decree on the ground that such property is not liable to such
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attachment, the Court shall proceed to adjudicate upon the claim or
objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained—
(a) where, before the claim is preferred or objection is made, the property
attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly
or unnecessarily delayed.
(2) All questions (including questions relating to right, the title or
interest in the property attached) arising between the parties to a
proceeding or their representatives under this rule and relevant to the
adjudication of the claim or objection, shall be determined by the Court
dealing with the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule
(2), the Court shall, in accordance with such determination,—
(a) allow the claim or objection and release the property from attachment
either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other
interest in favour of any person; or
(d) pass such order as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under
this rule, the order made thereon shall have the same force and be
subject to the same conditions as to appeal or otherwise as if it were a
decree.
(5) Where a claim or an objection is preferred and the Court, under
the proviso to sub-rule (1), refuses to entertain it, the party against
whom such order is made may institute a suit to establish the right
which he claims to the property in dispute; but, subject to the result of
such suit, if any, an order so refusing to entertain the claim or objection
shall be conclusive.]
High Court Amendments
(Prior to substitution by Act 104 of 1976)
ALLAHABAD.—Add the following words to sub-rule (2):
“or may in its discretion make an order postponing the delivery of
the property after the sale pending such investigation. And in so
case shall the sale become absolute until the claim or objection has
been decided.”
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS).—Add the following words
at the end to sub-rule (2):
“upon such terms as to security, or otherwise, as the Court shall
deem fit.” (3-3-1933).
DELHI.—Same as that of Punjab—See Act 26 of 1966, S. 7 (31-10-
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1966).
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta.
HIMACHAL PRADESH.—Same as in Delhi—See Act 53 of 1970, S. 25 (25
-1-1971).
MADHYA PRADESH.—Delete the full stop at the end of sub-rule (2) and
add the following—
“or where the property to be sold is immovable property, the
Court may, in its discretion, direct that the sale be held, but shall
not become absolute until the claim or objection is decided.” (16-9-
1960).
See Act 26 of 1968, S. 3 and Schedule, Part II (w.e.f. 5-9-1968).
ORISSA.—Rule 58 as substituted earlier deleted. (25-5-1984)
PATNA.—Substitute the following for R. 58:
“58. Disallowance of claim to property attached.—(1) When any
claim is preferred to any property, the subject-matter of the
execution proceedings, or any objection is made to the attachment
thereof on the ground that the applicant has an interest therein
which is not bound under the decree, or that such property is not
liable to attachment the Court shall proceed to investigate the claim
or objection with the like power as regards the examination of the
claimant or objector, and in all other respects, as if he was a party to
the suit:
Provided that no such investigation shall be made where the Court
considers that the claim or objection was designedly or unnecessarily
delayed.
(2) Where the property to which the claim or objection applies has
been advertised for sale, the Court ordering the sale may in its
discretion make an order postponing the delivery of the property
after the sale pending the investigation of the claim or objection.
And in no case shall the sale become absolute until the claim of
objection has been decided.”
PUNJAB AND HARYANA (CHANDIGARH).—Add the following to proviso
under sub-rule (1):
“and that if an objection is not make within a reasonable time of
the first attachment the objector shall have no further right to object
to the attachment and sale of the same property in execution of the
same decree, unless he can prove a title acquired subsequent to the
date of the first attachment. (7-4-1932).
Rule 58-A
MADRAS.—After R. 58, insert as under:
“58-A. A Order of attachment to be communicated to the
Registering Officer.— Any order of attachment passed under Rule 54
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of this order and any order raising the attachment by removal,
determination or release passed under Rule 55, 57 or 58 of this
order, shall be communicated to the Registering Officer within the
local limits of whose jurisdiction the whole or any part of the
immovable property comprised in such order, is situate.”—T.N. Govt.
Gazette, 15-7-1987, Pt. III, S. 2, p. 250 (No. 27).
Effect of amended Rule 58-A, see(2009) 2 MLJ 473, 478 (Mad).
► Essential considerations for adjudication.—Whether it is a collusive
decree affecting the rights of third party (petitioner under Or. 22 R. 58), held, is
an essential consideration for adjudication, Kancherla Lakshminarayana v.
Mattaparthi Syamala, (2008) 14 SCC 258.
► Meaning of “sold” in R. 58(1) proviso (a).—Meaning of “sold” in R. 58(1)
proviso (a) means complete sale including confirmation of auction, Kancherla
Lakshminarayana v. Mattaparthi Syamala, (2008) 14 SCC 258.
531
[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.]
High Court Amendments of Rule 59 (Old)
ORISSA.—Deleted. (14-5-1984)
PATNA.—Substituted the following for Rule 59:
“59. The claimant or objector must adduce evidence to show that
at the date of the decree or of the attachment, as the case may be,
he had some interest, in or was possessed of, the property in
question.”
532
60. Release of property from attachment.— [Omitted]
High Court Amendments of Rule 60 (Old)
ORISSA.—Deleted. (14-5-1984)
PATNA.—Substituted the following for Rule 60:
“60. Where upon the said investigation the Court is satisfied that
for the reasons stated in the claim or objection such property was
not, at the date of the decree, or when attached, as the case may be,
in the possession of the judgment-debtor or of some person in trust
for him, or in the occupancy of a tenant or other person paying rent
to him or that, being in the possession of the judgment-debtor at
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such time, it was so in his possession, not on his own account or as
his own property, but on account of or in trust for some other
person, or partly on his own account and partly on account of some
other person, the Court shall make an order releasing the property,
wholly or to such extent, as it thinks fit, from the execution
proceedings or from attachment.
Where the property has been sold, such order shall have the effect
of setting aside the sale and if it has been purchased by a third party
in good faith, the Court may make such order for his compensation
by the decree-holder or objector, to an extent not exceeding 12-1/2
per cent of the purchase price, as it thinks fit.”
533
61. Disallowance of claim to property attached.— [Omitted]
High Court Amendments of Rule 61 (Old)
ORISSA.—Deleted. (14-5-1984).
PATNA.—Substitute the following for Rule 61:
“61. Where the Court is satisfied that the property was, at the
time of the decree, or of the attachment, as the case may be, in the
possession of the judgment-debtor as his own property and not on
account of any other person, or was in the possession of some other
person in trust for him or in the occupancy of a tenant or other
person paying rent to him, the Court shall disallow the claim.” (8-10
-1937).
62. Continuance of attachment subject to claim of incumbrancer.—
534
[Omitted]
535
63. Saving of suits to establish right to attached property.—
[Omitted]
High Court Amendments
RULE 63-A
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS).—Add the following as
Rule 63-A:
“63-A. When an attachment of moveable property ceases, the
Court may order the restoration of the attachment property to the
person in whose possession it was before the attachment.” (3-11-
1933).
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Same
as that of Calcutta, see Assam High Court Order, 1948, Clause 6 and
Act 27 of 1962, Sections 13 and 15 (w.e.f. 1-12-1963). Act 81 of 1971,
Section 28(1) (21-1-1972).
RULES 63-A TO 63-H
ORISSA.—Deleted. (14-5-1984).
PATNA.—Add the following heading and Rules 63-A to 63-H.
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“GARNISHEE ORDERS
63-A. Where a debt (other than a debt secured by a mortgagor a
debt recoverable only in a 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.
63-B. (1) If the garnishee does not pay into Court the amount of
the debt due from him to the judgment-debtor, and if he does not
appear in answer to the notice issued under Rule 63-A, 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 63-A, 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 may proceed to determine such
issue, and upon the determination of such issue shall pass such
order upon the notice as shall be just.
63-C. 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.
63-D. 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.
63-E. 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
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paid or levied although such order or the judgment may be set aside
or reversed.
63-F. 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.
63-G. 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.
63-H. (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 generally
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 seem 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 AND PONDICHERRY.—Insert “After notice to the D.H. and J.D.”
after “any Court executing a decree may”. (10-4-1963).
ORISSA.—For the word “attached by it” substitute the words “in
respect of which it has made an order of attachment whether before or
after the decree”. Insert the word “which” between the words “and” and
“liable”. (14-5-1984)
PATNA.—For the words “attached by it” substitute the words “in
respect of which it has made an order of attachment”. Insert the word
“which” between the words “and” and “liable” (7-1-1936)
► Duty of executing court.—Use of the expression “necessary to satisfy the
decree”. indicates the legislative intent that no sale can be allowed beyond the
decretal amount mentioned in the sale proclamation. In all execution proceedings,
court has to first decide whether it is necessary to bring the entire property to sale
or such portion thereof as may seem necessary to satisfy the decree. If the
property is large and the decree to be satisfied is small the court must bring only
such portion of the property the proceeds of which would be sufficient to satisfy
the claim of the decree-holder, Sai Enterprises v. Bhimreddy Laxmaiah, (2007)
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13 SCC 576.
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, KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS AND MADHYA
PRADESH.—Add the following:
“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.”
66. Proclamation of sales by public auction.—(1) Where any property
is ordered to be sold by public auction in execution of a decree, the
Court shall cause a proclamation of the intended sale to be made in the
language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-
holder and the judgment-debtor and shall state the time and place of
sale, and specify as fairly and accurately as possible—
536
(a) the property to be sold [or, where a part of the property would be
sufficient to satisfy the decree, such part];
(b) the revenue assessed upon the estate or part of the estate, where the
property to be sold is an interest in an estate or in part of an estate
paying revenue to the Government;
(c) any encumbrance 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:
537
[Provided that where notice of the date for settling the terms of
the proclamation has been given to the judgment-debtor by means of
an Order under Rule 54, it shall not be necessary to give notice under
this rule to the judgment-debtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be construed as
requiring the Court to enter in the proclamation of sale its own estimate
of the value of the property, but the proclamation shall include the
estimate, if any, given, by either or both of the parties.]
(3) Every application for an order for sale under this rule shall be
accompanied by a statement signed and verified in the manner
hereinbefore prescribed for the signing and verification of pleadings and
containing, so far as they are known to or can be ascertained by the
person making the verification, the matters required by sub-rule (2) to
be specified in the proclamation.
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(4) For the purpose of ascertaining the matters to be specified in the
proclamation, the Court may summon any person whom it thinks
necessary to summon and may examine him in respect to any such
matters and require him to produce any document in his possession or
power relating thereto.
High Court Amendments
ANDHRA PRADESH AND KERALA: LACCADIVE, MINICOY AND AMINDIVI
I SLANDS.—(i) Same as that of Madras.
(ii) Read clause (e) as (f) and add the following as (e):
“(e) the value of the property as stated (i) by the D.H. and (ii) by
the J.D”. (13-10-1936).
(iii) In sub-rule (1) for “made” substitute “drawn up”. (12-11-1952).
CALCUTTA, GAUHATI, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA.—After
property in sub-rule (2)(e) add:
“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.—(i) After sub-rule (2) add the following
as sub-rule (3) and re-number the existing sub-rules (3) and (4) as (4)
and (5) respectively:
“(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.” (31-10-
1966 and 25-1-1971).
KARNATAKA.—In Rule 66, sub-rule (2) re-number clause (e) as clause
(f) and insert the following as clause (e):
“(e) The value of the property as stated by the decree-holder and
the value of the property as stated by the judgment-debtor,”
and in the same sub-rule, delete the word “and” occurring at the end
of clause (d). (30-3-1967).
MADHYA PRADESH.—Add the following in clause (a), sub-rule (2) at
the end:
“including the D.Hs' estimate of the approximate market
price.” (16-9-1960).
MADRAS AND PONDICHERRY.—(i) In sub-rule (1) for “made” substitute
“drawn up”.
(ii) substitute sub-rule (2) as follows:
“2. The term of such proclamation shall be settled in Court after
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notice to the D.H. and J.D. 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.” (5-9-1968).
ORISSA.—Deleted. (14-5-1984).
PATNA.—Omit the words “shall be drawn up after notice to the D.H.
and J.D.” from sub-rule (2). Add the following proviso after (c) to sub-
rule (2):
“Provided that no estimate of the value of the property other than
those, if any, made by the D.H. and J.D. respectively together with a
statement that the Court does vouch for the accuracy of either shall
be inserted in sale proclamation.”
PUNJAB, HARYANA AND CHANDIGARH.—Add the following words to clause
(e) of sub-rule (2) of Rule 66:
“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 of the
parties.”
After sub-rule (2) of Rule 66, add the following as sub-rule (3), and
re-number the existing sub-rules (3) and (4) as (4) and (5)
respectively:—
“(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.” (High Court Noti. No.
567-Gaz., dt. 4-11-1929 and No. 150-R/X-Y-14, dt. 16-5-1939)
► Irregularity committed in auction-sale.—Irregularity committed in
conducting the auction-sale and commission of fraud either on court or on a party
to the suit stand completely on different footings, T. Vijendradas v. M.
Subramanain, (2007) 8 SCC 751.
► Service of notice.—Service of notice on judgment-debtor is mandatory.
Sale without notice is a nullity. Court should apply its mind to the need for
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furnishing the relevant and material particulars in the sale proclamation, Desh
Bandhu Gupta v. N.L. Anand, (1994) 1 SCC 131.
► Notice to judgment-debtor.—Under Order 21, Rule 66(2) the service of
the notice has to be personally effected on the judgment-debtor, Mahakal
Automobiles v. Kishan Swaroop Sharma, (2008) 13 SCC 113.
► Irregularity in conducting sale.—Before the sale can be set aside, merely
establishing a material irregularity or fraud will not do. The applicant must go
further and establish to the satisfaction of the court that the material irregularity or
fraud has resulted in substantial injury to the applicant, Chilamkurti Bala
Subrahmanyam v. Samanthapudi Vijaya Lakshmi, (2017) 6 SCC 770.
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.—(i) Add the following as sub-rule (4):
“(4) Unless the Court so directs it shall not be necessary to send a
copy of the proclamation to the judgment-debtor.”
(ii) in Rule 67—
(a) for the marginal heading “Mode of making proclamation”
substitute the marginal heading “Mode of publishing the
proclamation of sale”;
(b) in sub-rule (1) omit the words “made and”;
(c) in sub-rule (3), for the words “to make a separate proclamation
for each lot”, substitute the words “to publish the proclamation of
sale separately for each lot”.
KARNATAKA.—Add the following as sub-rule (4) to Rule 67:
“Unless the Court so directs it shall not be necessary to send a
copy of the proclamation to the judgment-debtor.” (30-3-1967)
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of
Madras. (9-6-1959)
MADRAS AND PONDICHERRY.—(i) Add the following as sub-rule (4):
“(4) Unless the Court so directs it shall not be necessary to send a
copy of the proclamation to the judgment-debtor.”
(ii) in Rule 67—
(a) for the marginal heading “Mode of making proclamation”
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substitute the marginal heading “Mode of publishing the
proclamation of sale”;
(b) in sub-rule (1) omit the words “made and”;
(c) in sub-rule (3), for the words “to make a separate proclamation
for each lot”; substitute the words “to publish the proclamation of
sale separately for each lot”. (12-11-1952)
ORISSA.—Same as that of Patna.
PATNA.—Add the following words at the end of sub-rule (1) after
deleting the full stop at the end of the sub-rule:
“and may, if the Court so directs, on the application of the decree-
holder, be proclaimed and published simultaneously with the order
of attachment.”
► Mode of publicity of sale.—In view of Rule 67(1) read with Rule 54(2),
where sale notice was proclaimed at or adjacent to the property, proclamation of
the sale by beat of drum is not necessary, Saheb Khan v. Mohd. Yousufuddin,
(2006) 4 SCC 476.
► Publication in newspaper.—Court's order to give wide publicity to the sale
did not necessarily mean publication in newspapers, Saheb Khan v. Mohd.
Yousufuddin, (2006) 4 SCC 476.
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
538
of at least [fifteen days] in the case of immovable property, and of at
539
least [seven days] in the case of movable property, calculated from
the date on which the copy of the proclamation has been affixed on the
court house of the Judge ordering the sale.
69. Adjournment or stoppage of sale.—(1) The Court may, in its
discretion, adjourn any sale hereunder to a specified day and hour, and
the officer conducting any such sale may in his discretion adjourn the
sale, recording his reasons for such adjournment:
Provided that, where the sale is made in, or within the precincts of,
the court house, no such adjournment shall be made without the leave
of the Court.
(2) Where a sale is adjourned under sub-rule (1) for a longer period
than 540[thirty days] a fresh proclamation under Rule 67 shall be made,
unless the judgment-debtor consents to waive it.
(3) Every sale shall be stopped if, before the lot is knocked down,
the debt and costs (including the costs of the sale) or 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
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ALLAHABAD.—Substitute for sub-rule (2):
“(2) Where sale has been once adjourned under sub-rule (1), a
fresh proclamation under Rule 67 shall be made, unless the
judgment-debtor consents to waive 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, MADRAS AND PONDICHERRY.—For sub-rule (2) substitute the
following:
“(2) Where a sale is adjourned under sub-rule (1) for a longer
period than thirty days there shall be fresh proclamation in the
manner under Rule 67, unless J.D. consents to waive, or Court
otherwise orders.” (12-11-1952)
ASSAM, NAGALAND, BOMBAY, CALCUTTA, DADRA AND NAGAR HAVELI,
ANDAMAN AND NICOBAR I SLANDS, DELHI, GUJARAT, KERALA, MADHYA PRADESH,
HIMACHAL PRADESH, PUNJAB, HARYANA AND CHANDIGARH.—Substitute “thirty
days” for “seven days”.
BOMBAY.—In Order XXI, Rule 69, for the existing sub-rule (1) and the
marginal note substitute the following as sub-rule (1) and marginal
note [retaining sub-rules (2) and (3) as they are]:
“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 to a specified day and hour, 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.” (1-10-1983).
KARNATAKA.—In Rule 69 delete sub-rule (2) and substitute the
following:
“(2) Where a sale is adjourned under sub-rule (1) for a longer
period than thirty days there shall be a fresh publication of the
proclamation of sale in the manner prescribed by Rule 67 unless the
judgment-debtor consents to waive it.”
KERALA (LAKSHDWEEP I SLANDS).—(i) In sub-rule (2) for the words
‘seven days’ substitute the words, ‘thirty days’. (9-6-1959)
(ii) Add proviso to sub-rule (2):
“Provided that no such proclamation shall be necessary in cases
where the sale has been adjourned on account of the absence of the
Presiding Judge or on account of the day fixed for sale being
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declared a holiday.” (10-3-1964).
MADHYA PRADESH.—In sub-rule (2) for the words ‘seven days’,
substitute the words “thirty days” (16-9-1960).
ORISSA.—Only add proviso as in Patna. (14-5-1984).
PATNA.—In sub-rule (2) for “seven” read “14” and add:
“Provided that the Court may dispense with the consent of any
J.D. who has not appeared into proceeding.”
PUNJAB, HARYANA AND CHANDIGARH.—In sub-rule (2) “thirty days” shall
be substituted for “seven days”. (7-4-1932).
See Act 31 of 1966, Sections 29 and 32 (1-11-1966).
541
70. Saving of certain sales.— [* * *]
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
542
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 shall enter up satisfaction
of the decree in whole or in part accordingly.
(3) Where a decree-holder purchases, by himself or through another
person, without such permission, the Court may, if it thinks fit, on the
application of the judgment-debtor or any other person whose interests
are affected by the sale, by order set aside the sale; and the costs of
such application and order, and any deficiency of price which may
happen on the resale and all expenses attending it, shall be paid by the
decree-holder.
High Court Amendments
ALLAHABAD.—In sub-rule (2) for the words “with such permission”
read the words “the property sold” and re-number this sub-rule as
“Rule 72” and delete sub-rules (1) and (3). (24-7-1926).
ORISSA.—Deleted. (14-5-1984).
PATNA.—(a) Substitute the following for sub-rule (1):—
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“1. No holder of a decree in execution of which property is sold
shall be precluded from bidding for or purchasing the property
unless an express order to that effect is made by the Court.”
(b) In sub-rule (2) for the words “with such permission” substitute
“the property”.
(c) Substitute the following for sub-rule (3):
(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 J.D. 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.”
543
[72-A. 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.]
High Court Amendments
GUJARAT.—After Rule 72 the following shall be inserted, namely:
“R. 72-A. If leave to bid is granted to the mortgagee of
immovable property, a reserve price as regards him shall be fixed
(unless the Court shall otherwise think fit) at a sum not less than the
amount then due for principal, interest and costs in case the
property is sold in one lot, and not less in respect of each lot (in case
the property is sold in lots), than such figure as shall appear to be
properly attributable to it in relation to the amount aforesaid.” (17-8
-1961).
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
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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 authorised to act in his behalf
applies to have the sale postponed till the next day or, if a market is
held at the place of sale, the next market-day,
the sale shall be postponed accordingly and shall be then completed,
whatever price may be offered for the produce.
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, KERALA, MADRAS AND PONDICHERRY.—(i) In sub-rule (1) after
“yet been stored” add:
“Unless the Court decides to proceed under the provisions of sub-
rule (2), hereunder.”
(ii) In sub-rule (2) after the words “being stored” insert “or can be
sold to greater advantage in an unripe state” and after the words “and
gathered” insert “or in such unripe state”. (9-6-1959)
ASSAM, NAGALAND, CALCUTTA AND ANDAMAN AND NICOBAR I SLANDS.—
Insert “or can be sold to greater advantage in an unripe state (e.g. as
green wheat)” after “stored” and cancel the word “and” between
“tending” and “cutting”.
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BOMBAY, DADRA AND NAGAR HAVELI.—For the existing sub-rule (2),
substitute the following:—
“(2) Where the crop from its nature does not admit of being
stored, or where it appears to the Court that the crop shall be sold to
greater advantage in an unripe state, 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.” (1-10-1983) See also Goa Gaz. 12-10-1987
Ext. No. 28 p. 386 (1-4-1987)
DELHI, HIMACHAL PRADESH AND PUNJAB.—In sub-rule (2) after the word
“stored” insert “or can be sold to greater advantage in an unripe state.”
GAUHATI.—Same as Calcutta.
KARNATAKA.—Delete Rule 75 and substitute the following:
“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)
MADHYA PRADESH.—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”. (16-9-1960)
ORISSA.—Deleted (14-5-1984).
PATNA.—Substitute for Rule 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 being reaped before the sale.”—(7-1-
1936)
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, authorise the sale of such instrument or share through a
broker.
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77. Sale by public auction.—(1) Where movable property is sold by
public auction the price of each lot shall be paid at the time of sale or
as soon after as the officer or other person holding the sale directs, and
in default of payment the property shall forthwith be re-sold.
(2) On payment of the purchase-money, the officer or other person
holding the sale shall grant a receipt for the same, and the sale shall
become absolute.
(3) Where the movable property to be sold is a share in goods
belonging to the judgment-debtor and a co-owner, and two or more
persons, of whom one is such co-owner, respectively bid the same sum
for such property or for any lot, the bidding shall be deemed to be the
bidding of the co-owner.
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, or prohibiting the
person in whose name the share may be standing from making any
transfer of the share to any person except the purchaser, or receiving
payment of any dividend or interest thereon, and the manager,
secretary or other proper officer of the corporation from permitting any
such transfer or making any such payment to any person except the
purchaser.
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
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execution or endorsement shall have the same effect as an execution or
endorsement by the party.
(2) Such execution or endorsement may be in the following form,
namely:—
A.B. by C.D. Judge of the Court of (or as the case may be), in a
suit by E.F. against A.B.
(3) Until the transfer of such negotiable instrument or share, the
Court may, by order, appoint some person to receive any interest or
dividend due thereon and to sign a receipt for the same; and any
receipt so signed shall be as valid and effectual for all purposes as if the
same had been signed by the party himself.
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 Rule 82 for the words “of small causes” the words
“exercising small cause jurisdiction” shall be substituted.—(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 authorising 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 insofar as a decree
-holder is entitled to set off such money under the provisions of Rule
72, into Court:
Provided also that no 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
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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.—Add at the end of the sub-rule (2):
“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.” (17-1-1953).
PUNJAB, HARYANA & CHANDIGARH.—In Rule 84(1) after the words
“declaration a deposit” the words “in cash or cheque drawn by a
scheduled bank” shall be inserted (dt. 28-4-1938).
► Interpretation of “shall pay immediately”.—The term “immediately” is
required to be construed as meaning with all reasonable speed, considering the
circumstances of the case. In a given situation, the term “immediately” may mean
“within reasonable time”. Where an act is to be done within reasonable time, it
must be done immediately, Rosali V. v. TAICO Bank, (2009) 17 SCC 690 :
(2011) 2 SCC (Civ) 626.
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, MADRAS AND PONDICHERRY.—Substitute Rule 85:
“85. Time for payment in full of purchase-money and of stamp for
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.”
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BOMBAY.—In Order XXI, for the existing Rule 85, substitute the
following rule and marginal note:—
“85. Time for payment in full of purchase money.—The full
amount of purchase money payable, together with the amount
required for the general stamp paper for the certificate under Rule
94, shall be paid by the purchaser into Court before the Court closes
on the 15th day from the date of the sale of the property:
Provided that, in respect of the purchase money, the purchaser
shall have the advantage of any set-off 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 falls 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 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.” (1-10-1983). See also Goa Gaz. 12-10-1987 Ext. No. 28 p.
386 (1-4-1987)
HIMACHAL PRADESH.—Substitute the following for R. 85, namely:—
“85. Time for payment in full of purchase-moneys.—The full
amount of purchase-money payable, together with the amount
required for the general stamp paper for the certificate under R. 94,
shall be paid by the purchaser into Court before the Court closes on
the 15th day from the date of the sale of the property:
Provided that, in respect of the purchase-money, the purchaser
shall have the advantage of any set-off to which he may be entitled
under R. 72:
Provided further that, as a result of some bona fide mistake or
miscalculation, the amount deposited falls short of the full amount of
the purchase-money, the Court may in its discretion, allow the short-
fall to be made good 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
just and proper to do so”.—See H.P. Gazette, 27-12-2000, Extra., p.
4792.
KERALA.—For Rule 85 the following shall be substituted:—
“85. Time for payment in full of purchase money.—The full
amount of purchase money payable together with the amount
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required for the general stamp paper for the certificate under Rule
94 shall be paid by the purchaser into Court before the Court closes
on the fifteenth day from the date of the sale of the property:
Provided that, in respect of the purchase money, the purchaser
shall have the advantage of any set-off to which he may be entitled
under Rule 72.”—(1-1-1966)
MADHYA PRADESH.—Add the following Explanation:
Explanation is same as that of Bombay.(16-9-1960)
ORISSA.—Deleted (14-5-1984).
RULE 85-A
GUJARAT.—After the existing Rule 85, insert the following rule with
marginal note as new Rule 85-A:—
“85-A. Set off where execution has been transferred to Collector.
—In cases where execution has been transferred to the Collector, for
the purpose 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.”—(17-8-1961).
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.
High Court Amendment
ORISSA.—Deleted (14-5-1984).
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, BOMBAY (1-10-1983), GOA DAMAN AND DIU (1-4-1987) KERALA
(9-6-1959) AND MADRAS (28-10-1936).—Substitute “of the amounts
mentioned in Rule 85” for the words “of the purchase-money.”
88. Bid of co-sharer to have preference.—Where the property sold is
a share of undivided immovable property and two or more persons, of
whom one is a co-sharer, respectively bid the same sum for such
property or for any lot, the bid shall be deemed to be the bid of the co-
sharer.
89. Application to set aside sale on deposit.—(1) Where immovable
544
property has been sold in execution of a decree, [any person
claiming an interest in the property sold at the time of the sale or at
the time of making the application, or acting for or in the interest of
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such person,] may apply to have the sale set aside on his depositing in
Court,—
(a) for payment to the purchaser, a sum equal to five per cent of the
purchase-money, and
(b) for payment to the decree-holder, the amount specified in the
proclamation of sale as that for the recovery of which the sale was
ordered, less any amount which may, since the date of such
proclamation of sale, have been received by the decree-holder.
(2) Where a person applies under Rule 90 to set aside the sale of his
immovable property, he shall not, unless he withdraws his application,
be entitled to make or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any
liability he may be under in respect of costs and interest not covered by
the proclamation of sale.
High Court Amendments
ALLAHABAD.—In sub-rule (1) for “any person………..before such sale”
read “the J.D., or any person deriving title through the J.D., or any
person holding an interest in the property”.
ANDHRA PRADESH.—Same as in Madras.
ASSAM, NAGALAND, CALCUTTA AND NICOBAR I SLANDS.—In sub-rule (1)
for “either owning such property ….. sale” substitute “whose interest is
affected by such sale (provided that such interest has not been
voluntarily acquired by him after such sale)”.
BOMBAY (DADRA AND NAGAR HAVELI).—For the existing sub-rule (1)
and its marginal note, substitute the following:
“89. Application to set aside sale on deposit.—(1) Where
immovable property has been sold in execution of a decree, any
person claiming any interest in the property sold at the time of the
sale or at the time of the petition or acting for or in the interest of
such person, may apply to have the sale set aside on his depositing
in Court—
(a) for payment to the purchaser, a sum equal to five per cent of the
purchase-money and
(b) for payment to the decree-holder the amount specified in the
proclamation of sale as that for the recovery of which the sale was
ordered, less any amount which may since the date of such
proclamation of sale, have been received by the decree-holder:
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 miscalculation, the Court may condone the delay, if it
considers it just and proper to do so.” (1-11-1966).
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DELHI.—Same as that of Punjab. — See Act 26 of 1966, S. 7 (31-10-
1966).
HIMACHAL PRADESH.—Same as in Delhi. — See Act 53 of 1970, S. 25
(25-1-1971).
KARNATAKA.—(i) In sub-rule (1) cl. (b) for the words “such
proclamation… decree-holder” substitute:
“that proclamation of sale, have been paid or deposited towards
satisfaction of the decree.”
(ii) Add proviso as in Madras.
KERALA, LAKSHADWEEP I SLAND.—(i) In clause (b) for “date of such
proclamation” read “date of the proclamation”;
(ii) Insert the following provisions after cl. (b):—
“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. “(9-6-1959)
MADHYA PRADESH.—In sub-rule (1), for the words “any person either
owning such property or holding an interest therein by virtue of a title
acquired before such sale,” substitute the words “any person claiming
any interest in the property sold at the time of the sale or at the time of
the petition, or acting for, or in the interest of such person”. (6-9-1960)
MADRAS.—(i) in clause (b) for “date of such proclamation” read “date
of that proclamation”;
(ii) Insert the following proviso at the end of sub-rule (1):—
“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.” (13-10-1936)
ORISSA.—Deleted. (14-5-1984).
PATNA.—In sub-rule (1), for the words “any person, either owning…
before such sale,” substitute the words “the judgment-debtor or any
person deriving title through the judgment-debtor, or any person
holding an interest in the property on the date of the application under
this rule.”
PUNJAB, HARYANA AND CHANDIGARH.—In sub-rule (1) of this rule for the
words “any person…acquired before such sale,” substitute the words
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“any person claiming any interest in the property sold at the time of the
sale or at the time of making the application under this rule or acting
for or in the interest of such a person” (7-4-1932); Act 31 of 1966. Ss.
29 and 31 (1-11-1966).
545
[90. Application to set aside sale on ground of irregularity or
fraud.—(1) Where any immovable property has been sold in execution
of a decree, the decree-holder, or the purchaser, or any other person
entitled to share in a rateable distribution of assets, or whose interests
are affected by the sale, may apply to the Court to set aside the sale on
the ground of a material irregularity or fraud in publishing or
conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in
publishing or conducting it unless, upon the facts proved, the Court is
satisfied that the applicant has sustained substantial injury by reason
of such irregularity or fraud.
(3) No application to set aside a sale under this rule shall be
entertained upon any ground which the applicant could have taken on
or before the date on which the proclamation of sale was drawn up.
Explanation.—The mere absence of, or defect in, attachment of the
property sold shall not, by itself, be a ground for setting aside a sale
under this rule.]
High Court Amendments
ALLAHABAD.—Substitute the following for proviso:
(1) Renumber Rule 90 as sub-rule (1) of Rule 90.
(2) Substitute the following for the proviso:
“Provided that no application to set aside a sale shall be
entertained—
(a) upon any ground which could have been taken by the applicant
on or before the date on which the sale proclamation was drawn
up; and
(b) unless the applicant deposits such amount not exceeding twelve
and half per cent of the sum realised by the sale or furnishes such
security as the Court may in its discretion fix except when the
Court for reasons to be recorded dispenses with the requirements
of this clause:
Provided further that no sale shall be set aside on the grounds of
irregularity or fraud unless upon the facts proved the Court is
satisfied, that the applicant has sustained substantial injury by
reason of such irregularity or fraud.”
(3) Add as sub-rule (2):
“(2) Where such application is rejected the Court may award
such costs to the D.H. or A.P. or both as it may deem fit and such
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costs shall be first charged upon the security referred to in clause
(b) of the proviso, if any.” (1-6-1957).
ANDHRA PRADESH.—(i) After the first para and before proviso, insert
the following:
“Provided that the Court may after giving notice to the applicant
call upon him before admitting the application either to furnish
security to the satisfaction of the Court for an amount equal to that
mentioned in the sale warrant or to that realised by the sale
whichever is less or to deposit such amount in Court:
Provided also that the security furnished or the deposit made as
aforesaid shall be liable to be proceeded against only to the extent of
the deposit or on a resale of the property already brought to
sale.” (13-10-1936) (5-9-1969).
(ii) In the present proviso after the word “provided” insert “further”.
ASSAM, NAGALAND AND CALCUTTA.—Add to sub-rule (1) as follows:
“Or on the ground of failure to issue notice to him as required by
Rule 22 of this Order.”
Cancel the proviso and substitute as follows:
“Provided (i) that no sale shall be set aside on the ground of such
irregularity, fraud or failure unless upon the facts proved the Court is
satisfied that the applicant has sustained substantial injury by
reason of such irregularity, fraud or failure, (ii) that no sale shall be
set aside on the ground of any defect in the proclamation of sale at
the instance of any person who after notice did not attend at the
drawing up of the proclamation or any person in whose presence
proclamation was drawn up, unless objection was made by him at
the time in respect of the defect relied upon.”
DELHI, HIMACHAL PRADESH AND PUNJAB, HARYANA AND CHANDIGARH (7-4-
1932).—Add the following proviso:
“Provided further that no sale shall be set aside on any ground
which the applicant could have put forward before the sale was
conducted.”
GUJARAT.—Add the following as additional proviso to sub-rule (1) of
Rule 90:
“Provided also that no such application for setting aside the sale
shall be entertained without the leave of the Court upon any ground
which could have been, but was not put forward by the applicant
before the commencement of the sale.” (17-8-1961).
MADHYA PRADESH.—After the proviso to sub-rule (1), insert the
following further proviso:
“Provided also that no such application for setting aside the sale
shall be entertained upon any ground which could have been, but
was not put forward by the applicant before the commencement of
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the sale.”(16-9-1960)
MADRAS.—(a) After sub-rule (1) and before the existing proviso
insert the following provisos:
“Provided that the Court may after giving notice to the applicant,
call upon him before admitting the application either to furnish
security to the satisfaction of the Court for an amount equal to that
mentioned in the sale warrant or that realised by the sale, whichever
is less, or to deposit such amount in Court:
Provided also that the security furnished or the deposit made as
aforesaid, shall be liable to be proceeded against only to the extent
of the deficit on a re-sale of the property already brought to sale:”
(b) In the existing proviso after the word “Provided” insert, “further”.
(2-9-1936).
ORISSA.—(1) Delete the Orissa Amendment to sub-rule (1) which
was same as that of Patna since 20-3-1942, excepting Cl. (b) of the
first proviso which runs as follows:—
“(b) unless the applicant deposits such amount not exceeding 12
1/2 per cent of the sum realised by the sale or such other security as
the Court may in its discretion fix, unless the Court, for the reasons
to be recorded, dispenses with the deposit.”
(2) Sub-rule (2) be renumbered as sub-rule (4) (w.e.f. 25-5-1984)
and reads as follows:—
“(4) in case the application is unsuccessful the costs of the
opposite party shall be a first charge upon the deposit referred to in
the proviso (1), (b), if any”.— [Orissa Gaz., 25-5-1984, Pt. III-A, p.
69.]
PATNA.—Substitute the following for proviso to sub-rule (1):—
“Provided that no application to set aside the sale shall be
admitted—
(a) upon any ground which could have been put was not put forward
by the applicant before the sale was concluded,
(b) unless the applicant deposits such sum not exceeding 12 1/2 per
cent of the amount realised by the sale or such other security as
the Court may in its discretion fix, unless the Court, for reasons to
be recorded, dispense with the deposit:
Provided further that no sale shall be set aside on the ground of
irregularity or fraud unless upon the facts proved, the Court is
satisfied that the applicant has sustained substantial injury by
reason of such irregularity or fraud.”
Add the following as sub-rule (2):
“(2) In case the applicant is unsuccessful the case of the party
shall be a first charge upon the deposit referred to in proviso (b), if
any.”
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► Conditions.—Twin conditions precedent for setting aside sale, held, are :
(i) establishing a material irregularity or fraud, and (ii) establishing to the
satisfaction of the court that the material irregularity or fraud had resulted in
substantial injury to the applicant. Fulfilling of only one of the said two conditions,
held, not sufficient, Saheb Khan v. Mohd. Yousufuddin, (2006) 4 SCC 476.
► Material irregularity.—Sale can be set aside on ground of material
irregularity but not mere irregularity. Non-application of mind by the executing
court to mandatory requirements under the Code amounts to material irregularity,
Desh Bandhu Gupta v. N.L. Anand, (1994) 1 SCC 131, See also Saheb Khan v.
Mohd. Yousufuddin, (2006) 4 SCC 476.
► Limitation.—Section 5 of the Limitation Act which deals with extension of
time or condonation of delay is not applicable to proceedings under Order 21 Rule
90 CPC, Aarifaben Yunusbhai Patel v. Mukul Thakorebhai Amin, (2020) 5 SCC
449.
91. Application by purchaser to set aside sale on ground of judgment
-debtor having no saleable interest.—The purchaser at any such sale in
execution of a decree may apply to the Court to set aside the sale, on
the ground that the judgment-debtor had no saleable interest in the
property sold.
High Court Amendment
RULE 91-A
BOMBAY : DADRA AND NAGAR HAVELI.—The following shall be added
as R. 91-A.
“91-A. 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 Rr. 89,
90 or 91, and in the case of an application under R. 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 S. 70 of the Code, shall be
deemed to have been to, or in the Court within, the meaning of Rr.
89, 90 and 91.”(1-11-1966).
GUJARAT.—Same as that of Bombay except that for the word “where”
in the beginning of the rule the word “when” be substituted. (17-8-
1961)
92. Sale when to become absolute or be set aside.—(1) Where no
application is made under Rule 89, Rule 90 or Rule 91, or where such
application is made and disallowed, the Court shall make an order
confirming the sale, and thereupon the sale shall become absolute:
546
[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
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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 547[sixty] days from the date of sale, 548[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:
549
[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.
550
[(4) Where a third party challenges the judgment-debtor's title by
filing a suit against the auction-purchaser, the decree-holder and the
judgment-debtor shall be necessary parties to the suit.
(5) If the suit referred to in sub-rule (4) is decreed, the Court shall
direct the decree-holder to refund the money to the auction-purchaser,
and where such an order is passed the execution proceeding in which
the sale had been held shall, unless the Court otherwise directs, be
revived at the stage at which the sale was ordered.]
High Court Amendments
ALLAHABAD AND PATNA.—In sub-rule (1) after the words “the Court
shall make” insert “subject to the provision of Rule 58(2)”. (24-7-
1926).
ANDHRA PRADESH, MADRAS AND PONDICHERRY.—Same as that of Kerala
except that for the words “become deficient” in the beginning of the
rule the words “been dismissed” shall be substituted.
BOMBAY.—In Order XXI, add the following proviso at the end of sub-
rule (1) Rule 92:
“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 the
confirmation and may, notwithstanding anything contained in Rule
86, give the purchaser such time as it thinks fit for making good any
deficiency.” (1-10-1983).
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KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In sub-rule (2),
after the words “within thirty days* from the date of 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.”
*KERALA: In Rule 92(2) for “thirty days” read “sixty days” (9-2-
1988).
MADHYA PRADESH.—In sub-rule (1), after the word “make” insert the
words “subject to the provisions of Rule 58(2)”. (16-9-1960).
ORISSA.—Deleted (14-5-1984).
PATNA.—Same as that of Allahabad.
► Confirmation of sale.—Confirmation of sale in less than 30 days does not
by itself vitiate sale, Rosali V. v. TAICO Bank, (2009) 17 SCC 690 : (2011) 2
SCC (Civ) 626.
► Court sale in execution of decree.—Once sale is confirmed and sale
certificate is issued in favour of purchaser, same shall become final. Interference
with such sale which has become final, whether permissible, discussed, H.S.
Goutham v. Rama Murthy, (2021) 5 SCC 241.
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 is
declared to be the purchaser. Such certificate shall bear date the day
on which the sale became absolute.
High Court Amendments
ALLAHABAD.—Add the following as sub-rule (2), after renumbering
existing rule as sub-rule (1):
“(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.” (13-2-1960).
BOMBAY : DADRA AND NAGAR HAVELI.—For the existing Rule 94 and its
marginal note, substitute the following:
“94. Certificate to purchaser.—Where a sale of immovable
property has become absolute, the Court shall grant a certificate
specifying the property sold, the amount of the purchase-money and
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the name of the person who at the time of sale is declared to be the
purchaser. Such certificate shall bear date the day on which the sale
became absolute.” (1-10-1983).
MADHYA PRADESH.—Add a comma after the word “sold” and insert
“the amount of the purchase money” between the word “sold” and the
word “and”. (18-9-1960).
ORISSA AND PATNA.—Substitute for Rule 94:
“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 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.—Rule 95 shall be renumbered as sub-rule (1) of that rule,
and to the rule as so renumbered, the following sub-rule shall be
added, 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 their warrant for delivery shall make
an inventory of the articles so found with their probable value in the
presence of respectable person 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 safe custody
pending order of Court and disposal of the same.
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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 they 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 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 judgment-debtor shall in such
case call upon him to receive the amount from Court within three
months.”(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.—After Rule 96, add following Rule 96-A:
“96-A. (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 than 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.” (5-1-1960).
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
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of such resistance or obstruction.
551
[(2) Where any application is made under sub-rule (1), the Court
shall proceed to adjudicate upon the application in accordance with the
provisions herein contained.]
High Court Amendments
ORISSA.—Deleted (14-5-1984).
PATNA.—Add sub-rule (3):
“3. The provision of Section 5, Limitation Act shall apply to
applications under this rule.”
► Impleadment of party.—When prayer for impleadment as party by a
person who was not party is not allowed, such a person would be entitled to take
recourse to such remedies as available to them including filing of application
under Order 21, Rules 97 and 99, Niyamat Ali Molla v. Sonargon Housing Coop.
Society Ltd., (2007) 13 SCC 421.
► “Any person”—“Any person” in Order 21, Rule 97 includes judgment-
debtor, Ranchhod v. Hukmaji, 2010 SCC OnLine MP 266 : AIR 2011 MP 153
(155).
► Claim of a stranger—Application complaining of dispossession from
immovable property can be filed by stranger also. Pursuant to such application
executing court has power to adjudicate upon all questions relating to rights, title
and interest in property arising between the parties including those of the
stranger, Sameer Singh v. Abdul Rab, (2015) 1 SCC 379.
► Objection to execution of decree in respect of immovable property.—
Agreement to sell does not confer any right, title or interest in property, therefore,
based on agreement to sell only; buyer cannot claim any ownership and/or right,
title or interest in disputed properties, Kaushaliya v. Jodha Ram, (2019) 20 SCC
277.
552
[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
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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 Amendments
BOMBAY, DADRA AND NAGAR HAVELI, (GOA, DAMAN AND DIU).—Substitute
the following sub-rule (2) for the existing sub-rule (2) of Rule 98 in
Order XXI:—
“(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. 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 as if it were a decree. (1-10-1983) and (1-4-1987)
PUNJAB, HARYANA, CHANDIGARH (PRIOR TO CENTRAL AMENDMENT).—
“Resistance or obstruction by judgment-debtor.—Where 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 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. Such
detention shall be at the public expense and the person at whose
instance the detention is ordered shall not be required to pay
subsistence allowance.”
553
[99. Dispossession by decree-holder or purchaser.—(1) Where any
person other than the judgment-debtor is dispossessed of immovable
property by the holder of a decree for the possession of such property
or, where such property has been sold in execution of a decree, by the
purchaser thereof, he may make an application to the Court
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complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to
adjudicate upon the application in accordance with the provisions
herein contained.]
High Court Amendments
ORISSA.—The words in brackets “(other than the persons mentioned
in Rules 95 and 98 hereof)” as earlier substituted for the words “(other
than the judgment-debtor)” deleted (25-5-1984). See Orissa Gazette,
25-5-1984, Pt. III-A, p. 69.
554
[100. Order to be passed upon application complaining of
dispossession.—Upon the determination of the questions referred to in
Rule 101, the Court shall, in accordance with such determination,—
(a) make an order allowing the application and directing that the
applicant be put into the possession of the property or dismissing the
application; or
(b) pass such other order as, in the circumstances of the case, it may
deem fit.]
High Court Amendment
BOMBAY (GOA, DAMAN AND DIU).—Add the following proviso to Rule
100 in Order XXI:—
“Where it is determined that the application is made by person to
whom the judgment 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.” (1-10-1983) and (1-4-
1987).
555
[101. Question to be determined.—All questions (including
questions relating to right, title or interest in the property) arising
between the parties to a proceeding on an application under Rule 97 or
Rule 99 or their representatives, and relevant to the adjudication of the
application, shall be determined by the Court dealing with the
application and not by a separate suit and for this purpose, the Court
shall, notwithstanding anything to the contrary contained in any other
law for the time being in force, be deemed to have jurisdiction to
decide such questions.]
High Court Amendments
BOMBAY (GOA, DAMAN AND DIU).—Add the following proviso to Rule
101 of Order XXI:—
“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
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by the District Judge, shall deal with it in the same manner as if the
case had been originally instituted in that Court.” (1-10-1983) and
(1-4-1987)
► Effect of CPC Amendment Act 104 of 1976.—Third person other than
judgment-debtor complaining of its dispossession from suit property by decree-
holder or purchaser in execution of decree, held, can no longer be put back into
possession merely on establishing that it i.e. such third party was in possession
prior to being dispossessed from the suit property. Rather, after 1976
Amendment, all questions including right, title or interest in the property between
the parties to the proceeding arising on application under Rule 99 by such third
person, are required to be adjudicated by executing court itself dealing with
application, Shamsher Singh v. Nahar Singh, (2019) 17 SCC 279.
556
[102. Rules not applicable to transferee pendente lite.—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 Amendments
BOMBAY (GOA, DAMAN AND DIU).—Delete Rule 102 in Order XXI. (1-10-
1983) and (1-4-1987).
557
[103. Orders to be treated as decrees.—Where any application has
been adjudicated upon under Rule 98 or Rule 100, the order made
thereon shall have the same force and be subject to the same
conditions as to an appeal or otherwise as if it were a decree.]
► Deemed decree by executing court.—Where court, without going into
merits, declines to adjudicate upon lis between parties under Order 21 Rule 101
CPC on ground that it became functus officio and thereby lacked jurisdiction,
order passed by executing court cannot be deemed to be a decree. It pertains to
jurisdictional error, which is revisable by High Court under Section 115, Sameer
Singh v. Abdul Rab, (2015) 1 SCC 379.
558
[104. Order under Rule 101 or Rule 103 to be subject to the result
of 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.]
High Court Amendment
RULE 104
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ORISSA.—Deleted (14-5-1984).
PUNJAB, HARYANA AND CHANDIGARH.—For the purpose of all proceedings
under this order, service on any party shall be deemed to be sufficient
if effected at the address for service referred to in Or. 13 R. 11, subject
to the provisions of Or. 7 R. 24, provided that this rule shall not apply
to the notice prescribed by Rule 22 of this Order. (High Court Noti. No.
567-G, dt. 24-11-1927).
► Applicability.—Any order made under Rule 101 or 103 would be subject to
the result of a suit pending on the date of commencement of the proceeding in
which such order was made, Bhaskaran v. Sheela, (2008) 17 SCC 1 : (2009) 5
SCC (Civ) 793.
559
[105. Hearing of application.—(1) The Court, before which an
application under any of the foregoing rules of this Order is pending,
may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing
may be adjourned the applicant does not appear when the case is
called on for hearing, the Court may make an order that the application
be dismissed.
(3) Where the applicant appears and the opposite party to whom the
notice has been issued by the Court does not appear, the Court may
hear the application ex parte and pass such order as it thinks fit.
Explanation.—An application referred to in sub-rule (1) includes a
claim or objection made under Rule 58.]
High Court Amendments
MADRAS (PONDICHERRY).—(1) In Order 21, in R. 105, in sub-rule (3)
insert the proviso as follows:
“Provided that an application may be admitted after the said
period of thirty days if the applicant satisfies the Court that he had
sufficient cause for not making the application within such period.”
(2) In Order 21, delete sub-rule (4) of R. 105—T.N. Govt. Gazette,
27-2-1972, Pt. V, p. 1523.
560
[106. Setting aside orders passed ex parte, etc.—(1) The
applicant, against whom an order is made under sub-rule (2) of Rule
105 or the opposite party against whom an order is passed ex parte
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
on 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.
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(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 parte
order, the notice was not duly served, within thirty days from the date
when the applicant had knowledge of the order.]
High Court Amendments
RULES 106-A TO 140
ALLAHABAD.—The following rules shall be added to Order XXI:
561
“Rule [106-A]. 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.
562
Rule [106-B]. Every attachment of movable property under
Rule 43, of 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 hand writing of the presiding Judge himself in the order
for attachment.
563
Rule [106-C]. When the property which it is sought to bring to
sale is immovable property within the definition of the same
contained in the law for the time being in force relating to the
registration of documents, the decree-holder shall file with his
application for and 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 Book Nos. I and II and their indices
for the 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. (22-7-1918 and 5-6-1937).
Rule 107. Where 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 meaning of Notification No. 1887/I/238— 10, dated
7th October, 1911, of the 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.
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The result of the enquiry shall be noted in an order made for the
purpose by the presiding Judge in his own hand writing.
Rule 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.
Rule 109. The certificate of the Sub-Registrar and the report of
the Collector shall be open to the inspection of the parties or 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.
Rule 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
hand writing. 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
purpose of the inquiry.
Rule 111. If after proclamation of the intended sale has been
made any matter is brought to the notice of 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.
Rule 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.
Rule 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 of the name and address of the purchaser.
Rule 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 decrees by order of a Civil
Court the Court directing the sale shall give due notice to the
Magistrate of the district of the names and addresses of the
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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.
Rule 115. When an application is made for the attachment of
livestock 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.
Rule 116. Livestock 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 landholder or other respectable person
willing to undertake the responsibility of its custody and to produce
it when required by the Court.
Rule 117. If the custody of livestock 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, 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.
Rule 118. For every animal committed to the custody of 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. 1 of 1871.
And the sums to be levied shall be sent to the Municipal or
District Board, or the Notified Area, as the case may be, under whose
jurisdiction the pound is. (21-11-1942).
Rule 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 and 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
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shall, for animals specified in 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.
Rule 120. The charges therein authorised for the maintenance of
livestock 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 the pound-
keeper shall be refunded by him to the attaching officer.
Rule 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 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.
Rule 122. For the safe custody of movable property other than
livestock while under attachment the attaching officer shall, subject
to approval by the Court, make such arrangements as may be most
convenient and economical.
Rule 123. With the permission of the Court the attaching officer
may place one or more persons in special charge of such property.
Rule 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 four annas and shall ordinarily not be more than six annas 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 exceptional
rate.
Rule 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 Sahana by money order on requisition by the Amin, and
the presentation of the certificate may be dispensed with.
Rule 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
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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.
Rule 127. Fees paid into Court under the foregoing rules shall be
entered in the Register of Petty Receipts and Repayments.
Rule 128. When any sum levied under Rule 118 is remitted to the
Treasury, it shall be accompanied by an order in triplicate (in the
form given as Form 9 of the Municipal Account Code), of which one
part will be forwarded by the Treasury Officials to the District 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.
Rule 129. The cost of preparing attached property for sale, or of
conveying it to the place where it is to be kept 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 attachment are to be paid.
Rule 130. Nothing in these rules shall be deemed to prevent the
Court from issuing and serving on the judgment-debtor
simultaneously the notices required by Order XXI, Rules 22, 66 and
107.
Rule 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. Form see below
Rule 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, or 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.
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Rule 133. If the garnishee disputes his liability, the Court instead
of making such order, 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 as shall be just.
Rule 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 lien 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.
Rule 135. After hearing such third person, and any other person
who may subsequently be ordered to appear, or in the case 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.
Rule 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 or the judgment may be
set aside or reversed.
Rule 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 a 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.
Rule 138. The costs of any application under these rules and of
any proceedings arising therefrom or incidental thereto, or any order
made thereon, shall be in the discretion of the Court.
Rule 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
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there is no prima facie evidence of debt due. This order is appealable
as an order in execution.
Rule 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, Section 47.
The following form shall be used under the provisions of Rule 131
of Order XXI:
Suit No. of 19
Plaintiff;
Versus
Defendant.
To
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 ………. to pay into this Court the said sum of
Rs…………..or to deliver, or account to the Amin of this Court for the
movable 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 whereof 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 (15-5-1915)
Munsif/Sub-Judge,
at
ANDHRA PRADESH.—(i) Add Rules 104 and 105 after Rule 103:
“104. (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 respondent to whom the
notice has been issued by the Court does not appear, the Court may
hear the application ex parte and pass such order as it thinks fit.
Explanation.—An application referred to in sub-rule (1) includes a
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claim or objection made under Rule 58 of this Order.
105. (1) The applicant, against whom an order is made under sub
-rule (2) of the preceding rule or the respondent against whom an
order is passed ex parte under sub-rule (3) of the preceding rule or
under sub-rule (1) of Rule 23 of this Order, 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 on 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 opposite
party.
(3) An application under sub-rule (1) shall be made within thirty
days of the date of the order of where in the case of an ex parte
order the notice was not duly served, the date when the applicant
had knowledge of the order.
(4) The provisions of Section 5 of the Indian Limitation Act, 1908,
shall apply to applications under sub-rule (1).”
(ii) After Rule 105, add as Rule 106, the following:
“106. Where and insofar 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 or such part
thereof as has been varied or reversed. For this purpose, the Court
may make any 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.”
DELHI, HIMACHAL PRADESH, ORISSA, PATNA, PUNJAB, HARYANA AND
CHANDIGARH.—Add after Rule 103:
“104. For the purpose of all proceedings under this Order service
on any party shall be deemed to be sufficient if effected at the
address for service referred to in Order VIII, Rule 11, subject to the
provisions of Order VII, Rule 24, provided that this rule shall not
apply to the notice prescribed by Rule 22 of this Order.”
KARNATAKA.—At the end of Order XXI, after Rule 103, add the
following rules:
“104. (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
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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 respondent to whom
notice has been issued by the Court does not appear, the Court may
hear the application ex parte and pass such order as it thinks fit.
Explanation.—An application referred to in sub-rule (1) of this rule
includes a claim or an objection made under Rule 58 of this Order.
105. (1) The applicant against whom an order is made under sub-
rule (2) of Rule 104 or a respondent against whom an order is
passed ex parte under sub-rule (3) of the same rule or under sub-
rule (1) of Rule 23 of this Order, 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 on such terms as to costs
or otherwise as it thinks fit and shall appoint a day for the 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 opposite
party.
(3) An application under sub-rule (1) of this rule shall be made
within 30 days of the date of the order or where in the case of an ex
parte order the notice was not duly served, the date when the
applicant had knowledge of the order.
(4) The provisions of Section 5 of the Limitation Act, 1963 shall
apply to applications under sub-rule (1).” (30-3-1967).
KERALA: LACCADIVE MINICOY AND AMINDIVI I SLANDS.—Same as Rules 104
and 105 of Andhra Pradesh. (9-6-1959)
MADRAS AND PONDICHERRY.—(i) Add Rules 104 and 105 same as those
of Andhra Pradesh;
(ii) After Rule 105 add Rule 106 as follows:
“106. Where and insofar 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 or such part
thereof as has been varied or reversed.”
ORISSA.—High Court amendment deleted (25-5-1984).
ORDER XXI-A
ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA, CALCUTTA (3-11-
1933), ANDAMAN AND NICOBAR I SLANDS.—Insert the following as Order
XXI-A:
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“Order XXI-A
1. Every person applying to a Civil Court to attach moveable
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 livestock, 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.
2. The following daily rates shall be chargeable for the custody
and maintenance of livestock 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 should 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 or 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—
(a) in the charge of the decree-holder or his agent or of the
judgment-debtor or some other person, provided that the decree-
holder or his agent or the judgment-debtor or other person enters
into a bond in Form No. 15-A 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
bounded, or, (as amended on 25-9-1941).
(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
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period of fifteen days paid in advance.
4. If attached property (other than livestock) if not sold under the
proviso to Rule 43, Order XXI, or retained in the village or place
where it is attached, it shall be brought to the court house at decree-
holder's expense and delivered to the proper officer of the Court. In
the event of 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 livestock 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 livestock 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 provisions 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 livestock 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 officer
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 livestock 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 livestock 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 livestock and may direct that any sum so paid,
shall be refunded to the decree-holder by any other party to the
proceedings.
8. If under a special order of the Court livestock is to be conveyed
to the Court, the decree-holder shall make his own arrangement for
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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 livestock from
making such arrangements for feeding, watering and tending the
same as may not be inconsistent with its safe custody, or contrary to
any 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 the 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 livestock 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 livestock 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 the Court may
from time to time direct.
13. When attached livestock 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
livestock as can be properly kept there, in which case the pound-
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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 livestock 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 livestock
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
livestock 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.”
Order XXI-A
GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA)
Same as that of Calcutta. See Assam High Court Order, 1948,
Clause 6 and Act 27 of 1962, Sections 13 and 15 (w.e.f. 1-12-1963)
and Act 81 of 1971, S. 28(1). (21-1-1972).
ORDER XXII
Death, Marriage and Insolvency of Parties
► Interpretation and application.—Rules of procedure under Or. 22 CPC
are designed to advance justice and should be so interpreted as not to make them
penal statutes for punishing erring parties. On sufficient cause, delay in bringing
the legal representatives of the deceased party on record should be condoned,
Banwari Lal v. Balbir Singh, (2016) 1 SCC 607.
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.—At the end of the rule add 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.”
► Right to sue.—Whether decree under appeal could be sustained or not in
view of the subsequent event of death of decree-holder, is a question to be
examined by appellate court, but only after the applicant before it, is permitted to
be brought on record, Manovikas Kendra Rehabilitation & Research Institute v.
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Prem Prakash Lodha, (2005) 7 SCC 224.
► Rights of legal representative.—Legal representative cannot get larger
right than what was vested with original party, Ghat Talab Kaulan Wala v. Gopal
Dass, (2020) 13 SCC 50.
► Suit for enforcement of right to worship.—The abatement of suit for
enforcement of right to worship on death of plaintiff, depends on whether it was a
private or public right to worship in respect of which suit had been filed. In case of
the former, suit would abate, while in case of latter it would not, M. Siddiq (Ram
Janmabhumi Temple 5J) v. Suresh Das, (2020) 1 SCC 1.
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 that
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, HARYANA AND CHANDIGARH.—After existing Rule 2 of Order
XXII, insert:
“2-A. Every Advocate appearing in a case who becomes aware of
the death of a party to the litigation (whether 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.
2-B. 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 Noti. No. GSR. 39/C.A.
5/1908/S 12257, w.e.f. 11-4-1975)
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 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.
High Court Amendments
PUNJAB, HARYANA AND CHANDIGARH.—For existing sub-rule (2) of Rule 3
substituted:—
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Rule 3(2): Where within the time limited by law no application is
made under sub-rule (1), the suit shall not abate as against the
deceased plaintiff and the judgment may be pronounced not
withstanding his death which shall have the same effect as if it has
been pronounced before the death took place, and the contract
between the deceased and the pleader in that event shall continue to
subsist.” — Haryana Gazette, 25-2-1992, Pt. III(LS), p. 253 —
Chandigarh Administration Gazette, 21-2-1992, Extra., p. 196.
► Applicability of doctrine of abatement.—Application to bring legal
representatives of the deceased appellant on record, held, revives once appeal is
restored. Doctrine of abatement is applicable equally to a suit as well as to an
appeal, Banwari Lal v. Balbir Singh, (2016) 1 SCC 607.
► Abatement of appeal.—Appeal as a whole cannot be dismissed as abated
for not bringing on record legal representatives of co-sharers/co-owners who died
during pendency of appeal, DDA v. Diwan Chand Anand, (2022) 10 SCC 428.
► Death of one of the several appellants during appeal.—On the death of
one of the plaintiffs or appellants and the right to sue does not survive to the
remaining plaintiff/plaintiffs or appellant/appellants alone, then the legal
representatives of the deceased party can come on record. Should he not do so,
ordinarily, the proceeding will abate as far as the deceased party is concerned,
Hemareddi v. Ramachandra Yallappa Hosmani, (2019) 6 SCC 756.
► Death of party and bringing of LRs on record.—If the legal
representatives are brought on record within the prescribed time at one stage of
the suit, including at interlocutory/interim stage, it will ensure the benefit of all the
subsequent stages of the suit. Consequently, main suit would not stand abated,
Maringmei Acham v. M. Maringmei Khuripou, (2023) 2 SCC 473.
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.
564
[(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
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notwithstanding the death of such defendant and shall have the same
force and effect as if it has been pronounced before death took place.
(5) Where—
(a) the plaintiff was ignorant of the death of a defendant, and could not,
for that reason, make an application for the substitution of the legal
representative of the defendant under this rule within the period
specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in
consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified 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.]
STATE AMENDMENTS
Orissa.—High Court Amendment deleted (25-5-1984). See Orissa
Gazette, 25-5-1984, Pt. III-A, p. 69.
Punjab, Haryana and Chandigarh.—(i) In its application to the
State of Punjab, Haryana and Chandigarh, the following shall be
substituted for the existing sub-rule (3) to Rule 4 of Order XXII:
“Where within the time limited by law no application is made
under sub-rule (1) the suit shall not abate as against the deceased
defendant and judgment be pronounced notwithstanding the death
and shall have the same force and effect as it had been pronounced
before the death took place.” [Vide Noti. No. GSR 39/C.A. 5/1908/S.
12257, w.e.f. 11-4-1975].
(ii) The following shall be inserted as sub-rule (4), (5) and (6) to
Rule 4 of Order XXII:
“(4) If a decree has been passed against a deceased-defendant a
person claiming to be his legal representative may apply for setting
aside the decree qua him and if it is proved that he was not aware of
the suit or that he had not intentionally failed to make an application
to bring himself on the record, the Court shall set aside the decree
upon such terms as to costs or otherwise as it thinks fit.”
“(5) Before setting aside the decree under sub-rule (4) the Court
must be satisfied prima facie that had the legal representative been
on the record a different result might have been reached in the suit.”
“(6) The provisions of Section 5 of the Indian Limitation Act (36 of
1963) shall apply to applications under sub-rule (4).”
► Abatement of suit.—In case of death of one of the defendants and
omission to implead legal representatives (LRs) of the deceased defendant, the
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suit does not abate in entirety but only as against the deceased defendant but
where the absence of LRs prevents the court from hearing the appeal as against
other respondents, then the appeal abates in toto, Shahazada Bi v. Halimabi,
(2004) 7 SCC 354.
► Benefit of exemption.—Exemption to bring on record the heirs and legal
representatives of the deceased could be taken or granted by the court only
before the judgment is pronounced and not after it, T. Gnanavel v. T.S.
Kanagaraj, (2009) 14 SCC 294 : (2009) 5 SCC (Civ) 346.
► Impleadment of legal heirs.—If out of all the legal representatives, majority
of them are already on record and they contest the case on merits, it is not
necessary to bring other legal representatives on record, Vijay A. Mittal v.
Kulwant Rai, (2019) 3 SCC 520.
► Abatement of appeal.—For determination of abatement of appeal against
all parties or some of them, principles summarized relating to test of mutually
inconsistent or contradictory decrees, Goli Vijayalakshmi v. Yendru Sathiraju,
(2019) 11 SCC 352.
565
[4-A. 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.]
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:
566
[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
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therefor, and the Appellate Court may take the same into consideration
in determining the question.]
High Court Amendment
ORISSA.—Deleted. (14-5-1984).
► Purpose of impleadment.—Impleadment in suit/appeal is for the limited
purpose of adjudication of case and not for the purpose of determination of
proprietary rights. Proprietary rights are to be determined by way of separate suit,
Jaladi Suguna v. Satya Sai Central Trust, (2008) 8 SCC 521.
► Determination of question as to legal representative.—It is the
mandatory duty of the court determine the question as to who will come on record
as legal heir, Satyanand v. Shyam Lal Chauhan, (2018) 18 SCC 485.
Once the question as to who is legal representative is decided at the stage of
impleadment, the question cannot be reopened at later stage, Chhabil Das v.
Papu, (2006) 12 SCC 41.
► Substitution of legal representative(s).—Determination as to who is the
legal representative under Order 22 Rule 5 will of course be for the limited purpose
of representation of the estate of the deceased, for adjudication of that case.
Such determination for such limited purpose will not confer on the person held to
be the legal representative, any right to the property which is the subject-matter of
the suit, vis-à-vis other rival claimants to the estate of the deceased, Varadarajan
v. Kanakavalli, (2020) 11 SCC 598.
6. No abatement by reason of death after hearing.—Notwithstanding
anything contained in the foregoing rules, whether the cause of action
survives or not, there shall be no abatement by reason of the death of
either party between the conclusion of the hearing and the pronouncing
of the judgment, but judgment may in such case be pronounced
notwithstanding the death and shall have the same force and effect as
if it had been pronounced before the death took place.
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 plaintiff's insolvency bars suit.—(1) The insolvency of a
plaintiff in any suit which the assignee or receiver might maintain for
the benefit of his creditors, shall not cause the suit to abate, unless
such assignee or receiver declines to continue the suit or (unless for
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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 incurred
in defending the same to be proved as a debt against the plaintiff's
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
of dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the 567[Indian Limitation Act, 1877
(15 of 1877)], shall apply to applications under sub-rule (2).
568
[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.]
► Limitation.—The courts can allow the application for condonation of delay
and set aside the abatement, if: (i) the respondent had died during the period
when the appeal had been pending without any hearing dates being fixed; (ii)
neither the counsel for the deceased respondent nor the legal representatives of
the deceased respondent had reported the death of the respondent to the court
and the court has not given notice of such death to the appellant; (iii) the appellant
avers that he was unaware of the death of the respondent and there is no material
to doubt or contradict his claim, Perumon Bhagvathy Devaswom v. Bhargavi
Amma, (2008) 8 SCC 321.
► Applicability on writ petitions.—Rule 9 of Order 22, CPC has been made
applicable to writ petitions by Rule 38-A of Chapter VIII of Allahabad High Court
Rules and therefore the application for setting aside abatement would lie under
that provision, Jagannath v. Board of Revenue, 2006 SCC OnLine All 818 : AIR
2007 All 26 (27).
10. Procedure in case of assignment before final order in suit.—(1)
In other cases of an assignment, creation or devolution of any interest
during the pendency of a suit, the suit may, by leave of the Court, be
continued by or against the person to or upon whom such interest has
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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).
► Who may apply.—A beneficiary under a Will cannot file application under
Order 22, Rule 10 CPC during life time of the testator, Rakesh Kumar Gupta v.
Ravindra Kumar Gupta, 2008 SCC OnLine All 1046 : (2009) 4 All LJ 618.
► Grant of leave.—Governing principles for grant of leave are : (i) granting of
said leave is within the discretion of the court, (ii) however, the court has to
exercise its said discretion judicially and according to well-established principles,
(iii) further, unlike Rules 3 and 4 of Order 22 CPC, no limitation is prescribed for
presentation of an application under Order 22 Rule 10 CPC, and (iv) thus, the
right to make an application under Order 22 Rule 10 CPC is a right which accrues
from day to day and can be exercised at any time during the pendency of suit,
Chandra Bai v. Khandalwal Vipra Vidyalaya Samiti, (2016) 12 SCC 534.
569
[10-A. Duty of pleader to communicate to Court death of a party.
—Whenever a pleader appearing for a party to the suit comes to know
of the death of that party, he shall inform the Court about it, and the
Court shall thereupon give notice of such death to the other party, and,
for this purpose, the contract between the pleader and the deceased
party shall be deemed to subsist.]
► Nature and scope.—It is the duty on the respondent's counsel to inform
the court about the death. If the appellant pleads ignorance even after the court
notifies him about the death of the respondent that may be indication of
negligence or want of diligence, Perumon Bhagvathy Devaswom v. Bhargavi
Amma, (2008) 8 SCC 321.
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
ASSAM, MEGHALAYA, MANIPUR AND TRIPURA, GAUHATI AND CALCUTTA.—Add
the following:
“Provided always that where an appellate Court has made an
order dispensing with service of notice of appeal upon L.R. 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.”(25-7-1928)
ANDHRA PRADESH, MADRAS (28-5-1958) AND PONDICHERRY.—After Rule
11, add the following as Rule 11-A:
“11-A. The entry on the record of the name of the representative
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of a deceased appellant or respondent in a matter pending before
the High Court in its appellate jurisdiction, except in cases under
appeal to 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.” (Dis. No. 1601 of 1914 as
amended on 28-5-1958)
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—After Rule 11, the
following rule shall be added, namely:
“11-A. 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 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, may be performed by the
Registrar, provided that contested applications and applications
presented out of time shall be posted before a Judge for disposal.” (9
-6-1959)
12. Application of Order to proceedings.—Nothing in Rules 3, 4 and 8
shall apply to proceedings in execution of a decree or order.
High Court Amendments
ALLAHABAD.—Add in the end:
“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.”
ORISSA.—Add in the end:
“or to proceedings in the original Court taken after the passing of
preliminary decree where having regard to the nature of the suit a
final decree is required to be passed. “(7-5-1954)
ORDER XXIII
Withdrawal and Adjustment of Suits
570
[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,
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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
precluded from instituting any fresh suit in respect of such subject-
matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to
permit one of several plaintiffs to abandon a suit or part of a claim
under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part
of a claim, without the consent of the other plaintiffs.]
High Court Amendments
KARNATAKA.—In Rule 1, add the following as sub-rule (5):
“(5) Where the plaintiff in a suit instituted or conducted under the
provisions of Rule 8 of Order I of this Code or all plaintiffs therein if
there are more plaintiffs than one, apply for permission to withdraw
the suit, notice of such application shall be given in the manner
prescribed by sub-rule (3) of Rule 8 of Order I 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
interest as that of the plaintiffs applies for permission to be
transposed as plaintiff to conduct the suit further, he shall be
permitted to do so and the plaintiff's application dismissed.” (30-3-
1967)
ORISSA.—Insert in Rule 1 after the words “after the institution of
suit” and before the word “plaintiff” the following words: “but not after
the passing of the preliminary decree in the suit. “(7-5-1954)
► Scope of consent order.—A third party right cannot be set at naught by a
consent order, Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319.
► Right to withdraw a suit.—Right to withdraw a suit in the party bringing
the suit would be unqualified, if no right has been vested in any other party, Sneh
Gupta v. Devi Sarup, (2009) 6 SCC 194 : (2009) 2 SCC (Civ) 827.
Bar under Rule 1 would apply only to fresh suit and not to proceedings under
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Special Act, H.P. Financial Corpn. v. Anil Garg, (2017) 14 SCC 634.
► Power of appellate court to allow permission to withdraw suit.—If a
suit is to be decreed or dismissed on the basis of a compromise, even if
permission is sought to withdraw the suit pursuant thereto, Order 23, Rule 1 CPC
may not have any application. Permission to withdraw suit after passing of decree
i.e., at appellate stage could be given only with notice to those who derived benefit
under the judgment and decree passed in the suit, Sneh Gupta v. Devi Sarup,
(2009) 6 SCC 194 : (2009) 2 SCC (Civ) 827.
► Withdrawal of application for withdrawal of suit.—There is no express
bar in filing an application for withdrawal of application, Rejendra Prasad Gupta v.
Prakash Chandra Mishra, (2011) 2 SCC 705 : (2011) 1 SCC (Civ) 548.
► Effect of withdrawal of suit on interlocutory orders.—Any order in any
proceeding passed during pendency of a suit by any court (including Supreme
Court) automatically lapses with withdrawal of suit. Any act or omission of any
party to the said suit either in pursuance of or in obedience to such interlocutory
orders, would be without any legal efficacy, Messer Holdings Ltd. v. Shyam
Madanmohan Ruia, (2016) 11 SCC 484 : (2016) 4 SCC (Civ) 227.
► Withdrawal of suit with liberty leave to file fresh suit.—The power to
allow withdrawal of suit is discretionary. A suit may be withdrawn with permission
to bring a fresh suit only when court is satisfied that the suit must fail for reason of
some formal defect or that there are other sufficient grounds for allowing the
plaintiff to institute a fresh suit, V. Rajendran v. Annasamy Pandian, (2017) 5
SCC 63.
► Withdrawal of suit.—Merely by fact that in fresh suit, new relief prayer
had been added, held, did not change complexion of the case, when such relief
could have been claimed in earlier suit, University of Agricultural Sciences v.
Saroj Gupta, (2021) 16 SCC 768
571
[1-A. 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.]
► Transposition of defendants as plaintiffs.—Order 23 Rule 1-A confers
wide powers to be exercised for effectual and comprehensive adjudication. Basic
requirement for its applicability is that defendant seeking transposition must have a
substantial question to be adjudicated against other defendant(s), R.
Dhanasundari v. A.N. Umakanth, (2020) 14 SCC 1.
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.
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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
572
agreement or compromise, [in writing and signed by the parties] or
where the defendant satisfies the plaintiff in respect of the whole or any
part of the subject-matter of the suit, the Court shall order such
agreement, compromise or satisfaction to be recorded, and shall pass a
decree in accordance therewith 573[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]:
574
[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 no 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.]
575
[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.]
High Court Amendments
ALLAHABAD.—(1) In Rule 3 of Order 23 between the words “or
compromise” and “or where” insert the words “in writing duly signed by
parties”; and between the words “subject matter of the suit” and the
words “the Court” insert the words “and obtains an instrument in
writing duly signed by the plaintiff.”
(2) At the end of the Rule 3 of Order 23 add the following, 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 expression “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.”—
U.P. Gaz., 31-8-1974, Pt. II, p. 52 (31-8-1974).
DELHI.—Same as in Punjab.
HIMACHAL PRADESH.—Same as in Delhi.
KARNATAKA.—Renumber existing Rule 3 as 3(1) and add the following
as sub-rule (2):
“(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 1 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
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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.” (30-3-1967).
MADRAS AND PONDICHERRY.—In Rule 3 of Order 23, in the proviso
thereto, for the words “provided that” substitute the following:
“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 that”—T.N. Govt. Gaz., 18-2-1981, Pt. III, S. 2, p. 18.
ORISSA.—Delete High Court amendment—Ori. Gaz., 25-5-1984, Pt.
IIIA, p. 70.
PUNJAB, HARYANA AND CHANDIGARH.—Add the following provisos to the
rule:
“Provided that the hearing of a suit shall proceed and no
adjournment shall be granted in it for the purposes of deciding
whether there has been any adjustment or satisfaction unless the
Court for reasons to be recorded in writing thinks fit to grant such
adjournment, and provided further that the judgment in the suit
shall not be announced until the question of adjustment or
satisfaction has been decided:
Provided further that when an application is made by all the
parties to the suit either in writing or in open court through their
counsel that they wish to compromise the suit, the Court may fix a
date on which the parties or their counsel should appear and the
compromise be recorded but shall proceed to hear those witnesses in
the suit who are already in attendance, unless for any other reason
to be recorded in writing, it considers it impossible or undesirable to
do so. If upon the date fixed no compromise has been recorded, no
further adjournment shall be granted for this purpose, unless the
court, for reasons to be recorded in writing, considers it highly
probable that the suit will be compromise on or before the date to
which the court purposes to adjourn the hearing.” (21-7-1937).
► Consent decree : Nature of.—A compromise decree is as much a decree
as a decree passed on adjudication. A consent decree is composed of both a
command and a contract, Rama Narang v. Ramesh Narang, (2006) 11 SCC 114.
Consent decree once acted upon, cannot be set aside in subsequent suit,
Ranganayakamma v. K.S. Prakash, (2008) 15 SCC 673.
► Modification or alteration of Consent decree.—It is settled law that
consent decrees are intended to create estoppels by judgment against the parties,
thereby putting an end to further litigation between the parties and it would be slow
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to unilaterally interfere in, modify, substitute or modulate the terms of a consent
decree, unless it is done with the revised consent of all the parties thereto.
However, this formulation is far from absolute and does not apply as a blanket rule
in all cases and a consent decree would not serve as an estoppel, where the
compromise was vitiated by fraud, misrepresentation, or mistake, Compack
Enterprises (India) (P) Ltd. v. Beant Singh, (2021) 3 SCC 702, See also Ajanta
LLP v. Casio Keisanki Kabushiki Kaisha, (2022) 5 SCC 449.
► Consent order.—Consent order passed under Order 23 Rule 3, held, does
not itself amount to a decree. Hence, it is necessary for court to pass a decree,
Sir Sobha Singh & Sons (P) Ltd. v. Shashi Mohan Kapur, (2020) 20 SCC 798.
All the parties to the consent terms are required to fully comply with the terms
of settlement/consent terms and the consent order, Ashish Seth v. Sumit Mittal,
(2022) 8 SCC 724.
► Maintainability of appeal against consent decree.—Appeal against
consent decree on ground that compromise should or should not have been
recorded, is maintainable for entertaining such question where there is allegation
that consent decree had been obtained by fraud and misrepresentation, H.S.
Goutham v. Rama Murthy, (2021) 5 SCC 241.
Where it has been alleged that the compromise decree was obtained on
misrepresentation and fraud, onus lies on plaintiff to raise specific pleadings and
substantiate his averments by evidence, Arjunagouda v. Ashok Basavappa
Basarkod, (2007) 15 SCC 784.
► Proper forum to challenge compromise.—Party concerned should
approach court which recorded the compromise in the first instance rather than
straightaway filing appeals, as it is Judge before whom the compromise was
recorded who is privy to events that led to the compromise order, and is thus in a
better position to deal with validity of compromise, Y. Sleebachen v. State of T.N.,
(2015) 5 SCC 747.
► Registration of decree.—The Code of Civil Procedure (Amendment) Act,
1976 does not and cannot override the provisions of the Registration Act.
Registration of compromise decree, where required under S. 17(2)(vi) of the
Registration Act, 1908, has to be got done compulsorily, K. Raghunandan v. Ali
Hussain Sabir, (2008) 13 SCC 102.
► Withdrawal of consent.—Consenting party seeking permission of court to
withdraw consent given in different proceedings, not permissible. Soumitra Kumar
Nahar v. Parul Nahar, (2020) 7 SCC 599.
► Compromise decree.—After amendment of CPC vide Act 104 of 1976
w.e.f. 1-2-1977, a compromise decree can be passed only if the agreement or
compromise presented in the court is in writing and signed by the parties. Unless
a decree is passed complying with the said requirements, it may not be possible
to recognise the same as a compromise decree, Som Dev v. Rati Ram, (2006) 10
SCC 788.
► Consent decree passed in Lok Adalat.—Setting aside of consent decree
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passed in Lok Adalat, on ground that matter was referred to Lok Adalat by trial
court cannot be approved for doubting genuineness of consent decree, Hemantha
Kumar v. R. Mahadevaiah, (2022) 8 SCC 140.
► Family settlement.—Court will uphold the settlement between the parties if
it is not violative of any statutory provision or public policy as envisaged under
Section 23 of Contract Act, Ranganayakamma v. K.S. Prakash, (2008) 15 SCC
673.
► Compromise of suit.—1976 Amendment Act does not override
Registration Act, 1908. Registration of compromise decree, where required under
S. 17(2)(vi) of the 1908 Act has to be got done compulsorily, Khushi Ram v.
Nawal Singh, (2021) 16 SCC 279
576
[3-A. 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.]
High Court Amendment
KERALA (LAKSHADWEEP I SLANDS):—
“3-A. Settlement by 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 withdraw 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 cause
against him or pass such other order as it deems proper.” (9-6-
1959)
► Compromise “not lawful”.—The expression “not lawful” includes a
fraudulent compromise, Horil v. Keshav, (2012) 5 SCC 525 : (2012) 3 SCC (Civ)
303.
► Compromise decree.—Separate suit for setting aside of compromise
decree on the ground that it was unlawful, is not maintainable, R. Janakiammal v.
S.K. Kumarasamy, (2021) 9 SCC 114.
► Challenge to compromise.—A party challenging a compromise can file a
petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of
the Code, in which he can now question the validity of the compromise in view of
Rule 1-A of Order 43 of the Code, Banwari Lal v. Chando Devi, (1993) 1 SCC
581.
577
[3-B. 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
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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.]
► Prerequisites for compromise in a representative suit.—In order to
compromise in a representative suit, it is necessary to obtain leave of court.
Before grant of that leave, the court has to give notice, in such a manner as it may
think fit, to such persons as may appear to it to be interested in the suit,
Aliyathammuda Beethathebiyyappura Pookoya v. Pattakal Cheriyakoya, (2019)
16 SCC 1.
4. Proceedings in execution of decrees not affected.—Nothing in this
Order shall apply to any proceedings in execution of a decree or order.
ORDER XXIV
Payment into Court
1. Deposit by defendant of amount in satisfaction of claim.—The
defendant in any suit to recover a debt or damages may, at any stage
of the suit, deposit in Court such sum of money as he considers a
satisfaction in full of the claim.
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 his suit for the balance; and, if the Court
decides that the deposit by the defendant was a full satisfaction of the
plaintiff's claim, the plaintiff shall pay the costs of the suit incurred
after the deposit and the costs incurred previous thereto, so far as they
were caused by excess in the plaintiff's claim.
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(2) Procedure where he accepts it as satisfaction in full.—
Where the plaintiff accepts such amount as satisfaction in full of his
claim, he shall present to the Court a statement to that effect, and such
statement shall be filed and the Court shall pronounce judgment
accordingly; and, in directing by whom the costs of each party are to be
paid, the Court shall consider which of the parties is most to blame for
the litigation.
Illustrations
(a) A owes B Rs 100. B sues A for the amount, having made no
demand for payment and having no reason to believe that the delay
caused by making a demand would place him at a disadvantage. On
the plaint being filed, A pays the money into Court. B accepts it in full
satisfaction of his claim, but the Court should not allow him any costs,
the litigation being presumably groundless on his part.
(b) B sues A under the circumstances mentioned in illustration (a).
On the plaint being filed, A disputes the claim. Afterwards A pays the
money into Court. B accepts it in full satisfaction of his claim. The Court
should also give B his costs 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 Rs 100 in full satisfaction of his claim. The
Court should order him to pay A's costs.
ORDER XXV
Security for Costs
578
[1. When security for costs may be required from plaintiff.—(1) At
any stage of a suit, the Court may, either of its own motion or on the
application of any defendant, order the plaintiff, for reasons to be
recorded, to give within the time fixed by it security for the payment of
all costs incurred and likely to be incurred by any defendant:
Provided that such an order shall be made in all cases in which it
appears to the Court that a sole plaintiff is, or (when there are more
plaintiffs than one) that all the plaintiffs are, residing out of India and
that such plaintiff does not possess or that no one of such plaintiffs
possesses any sufficient immovable property within India other than
the property in suit.
(2) Whoever leaves India under such circumstances as to afford
reasonable probability that he will not be forthcoming whenever he may
be called upon to pay costs shall be deemed to be residing out of India
within the meaning of the proviso to sub-rule (1).]
High Court Amendments
ALLAHABAD.—In Order XXV, for the existing Rule 1, the following rule
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shall be substituted:
“1. When security for costs may be required from plaintiff.—(1) At
any stage of the suit, the Court may, either of its own motion or on
the application of any defendant, order the plaintiff for reasons to be
recorded to give within the time fixed by it, security for the payment
of all costs incurred and likely to be incurred by any defendant:
Provided that such an order shall be made in all cases in which it
appears to the Court that a sole plaintiff is, or (when there are more
plaintiffs than one) that all the plaintiffs are, residing outside the
State and that such plaintiff does not possess or that no 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).” (5-2-1983)
ANDHRA AND MADRAS—Insert sub-rule (4)—
“(4) In all cases in which an element of champerty or
maintenance is proved the Court may on the application of the
defendant demand security for the estimated amount of the
defendant's costs or such proportion thereof, as from time to time
during the progress of the suit the Court may think just.” (ROC 3019
of 1926)
MADHYA PRADESH.—At the end of proviso insert “or that any plaintiff is
being financed by a person not a party to the suit”.(16-9-1960)
ORISSA.—(i) Substitute sub-rule (3) by the following:
“(3) On the application of a defendant in any suit the Court may
at any stage of the suit make a like order if it is satisfied that the
plaintiff does not possess any sufficient immovable property within
the Union of India.”
(ii) Insert the following as sub-rule (4):
“(4) On being satisfied that there is an element of champerty or
maintenance, the Court may on the application of the defendant
order a plaintiff to furnish security for the entire estimated amount of
the defendant's costs or a portion thereof from time to time as the
Court may consider just and proper.”(7-5-1954)
Note.—Security is required by Order XVI, Rule 16, Order XXI, Rules
26, 100, Order XXII, Rules 8, 10, Order XXXII, Rule 6, and Order
XXXVII, Rule 3, Order XXXVIII, Rules 1, 2 and 5, Order XL Rule 3,
Order XLI, Rules 5, 6 and 10, Order XLV, Rules 7, 10 and 13.
2. Effect of failure to furnish security.—(1) In the event of such
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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, DADRA AND NAGAR HAVELI, GOA, DAMAN AND DIU.—In Order
XXV, after Rule 2, add the following as new rule:
“3. Power to implead and demand security from 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 the suit to a person who is not already a
party to the suit, the Court may order such person to be made
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.” (1-10-1983) and (1-4-1987)
KARNATAKA (30-3-1967) AND GUJARAT (17-8-1961).—Add the
following as sub-rule (4) to Rule 2:
“(4) The provisions of Section 5 of the Limitation Act, 1963, shall
apply to applications under this rule.”
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MADHYA PRADESH.—Same as that of Bombay except the word “a”
inserted between the words “from” and “third” in the heading of the
new rule. (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:
579
[Provided that a commission for examination on interrogatories
shall not be issued unless the Court, for reasons to be recorded, thinks
it necessary so to do.
Explanation.—The Court may, for the purpose of this rule, accept a
certificate purporting to be signed by a registered medical practitioner
as evidence of the sickness or infirmity of any person, without calling
the medical practitioner as a witness.]
High Court Amendment
ALLAHABAD.—In Order XXVI of the First Schedule to the said Code—
(1) for Rule 1 the following rule shall be substituted:
“1. Commission to examine witness.—Any Court may, in any suit,
if for reasons to be recorded in writing, it thinks it necessary so to do
in the interest of justice or expedition, issue a commission for
examination of any person on interrogatories or otherwise.” (Noti.
No. 504/VIII-B-31, dated 22-11-1980).
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.—For Rule 3 the following rule shall be substituted:
“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
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subordinate Court.” (22-11-1980).
4. Persons for whose examination commission may issue.—(1) Any
580
Court may in any suit issue a commission [for the examination on
interrogatories or otherwise of—]
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on which
he is required to be examined in Court; and
581
(c) [any person in the service of the Government] who cannot, in the
opinion of the Court, attend without detriment to the public service:
582
[Provided that where, under Rule 19 of Order XVI, a person
cannot be ordered to attend a Court in person, a commission shall be
issued for his examination if his evidence is considered necessary in the
interests of justice:
Provided further that a commission for examination of such person
on interrogatories shall not be issued unless the Court, for reasons to
be recorded, thinks it necessary so to do.]
(2) Such commission may be issued to any Court, not being a High
Court, within the local limits of whose jurisdiction such person resides,
or to any pleader or other person whom the Court issuing the
commission may appoint.
(3) The Court on issuing any commission under this rule shall direct
whether the commission shall be returned to itself or to any
subordinate Court.
High Court Amendments
ALLAHABAD.—Omit Rule 4. (18-9-1980)
MADHYA PRADESH.—(Noti. No. 3409 of 26-6-1943) Add the following
clause (d) to sub-rule (1)—
“(d) any person who by reason of anything connected with the
war cannot conveniently be spared.”
583
[4-A. Commission for examination of any person resident within
the local limits of the jurisdiction of the Court.—Notwithstanding
anything contained in these rules, any court may, in the interest of
justice or for the expeditious disposal of the case or for any other
reason, issue commission in any suit for the examination, on
interrogatories or otherwise, of any person resident within the local
limits of its jurisdiction, and the evidence so recorded shall be read in
evidence.]
High Court Amendments
PUNJAB, HARYANA AND CHANDIGARH.—After R. 4 the following shall be
inserted as R. 4-A—
“4-A. Commission for examination of any person resident within
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Court's local limits.—(1) 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.”—See Chandigarh Admn. Gazette, 1-
6-1999, Pt. II, p. 57 (No. 6), Haryana Gazette, 1-6-1999, Pt. IV
Ord., p. 27.
RAJASTHAN.—In Or. 26 add the following as new R. 4-A, after R. 4
thereof, namely—
“4-A. Commission for examination of any person resident within
Court's local limits.—(1) 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.”—Rajasthan Gazette, 1-12-1973, Pt.
IV (Ga), S. 2, Extra., pp. 259, 260.
5. Commission or request to examine witness not within India.—
Where any Court to which application is made for the issue of a
commission for the examination of a person residing at any place not
within 584[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 return thereto and the evidence taken
under it shall 585[subject to the provisions of Rule 8] form part of the
record of the suit.
High Court Amendment
ALLAHABAD.—In Rule 7 the words ‘subject to the provisions of Rule 8’
shall be omitted and the words “and shall be read as evidence in the
suit” shall be inserted in the end. (22-11-1980).
8. When depositions may be read in evidence.—Evidence taken
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under a commission shall not be read as evidence in the suit without
the consent of the party against whom the same is offered, unless—
(a) the person who gave the evidence is beyond the jurisdiction of the
Court, or dead or unable from sickness or infirmity to attend to be
personally examined, or exempted from personal appearance in Court,
or is a 586[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 authorises 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.—Omit Rule 8. (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 elucidating any matter in dispute, or of ascertaining the
market-value of any property, or the amount of any mesne profits or
damages or annual net profits, the Court may issue a commission to
such person as it thinks fit directing him to make such investigation
and to report thereon to the Court:
Provided that, where the State Government has made rules as to the
persons to whom such commission shall be issued, the Court shall be
bound by such rules.
High Court Amendment
ASSAM AND NAGALAND.—Same as in Calcutta.
CALCUTTA.—(Noti. No. 11223-G of 7-4-1933).—Omit the proviso.
► Scope of function of Commissioner appointed by court.—
Commissioner so appointed does not strictly perform a “judicial act which is
binding” but only a “ministerial act”, M.P. Rajya Tilhan Utpadak Sahakari Sangh
Maryadit, Pachama v. Modi Transport Service, (2022) 14 SCC 345
10. Procedure of Commissioner.—(1) The Commissioner, after such
local inspection as he deems necessary and after reducing to writing
the evidence taken by him, shall return such evidence, together with
his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit.—The report of
the Commissioner and the evidence taken by him (but not the evidence
without the report) shall be evidence in the suit and shall form part of
the record; but the Court or, with the permission of the Court, any of
the parties to the suit may examine the Commissioner personally in
open Court touching any of the matters referred to him or mentioned in
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his report, or as to his report, or as to the manner in which he has
made the investigation.
(3) Commissioner may be examined in person.—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.
► Dismissal of suit.—Where Local Commissioner's report is suffering from
non-compliance with applicable instructions of court regarding demarcation of
land, such non-compliance amounts to an irregularity. This cannot lead to
dismissal of suit itself. Court can either discard report and issue fresh Local
Commission or remand matter for reconsideration, Ram Lal v. Salig Ram, (2020)
11 SCC 590.
587
[Commission for scientific investigation performance of ministerial
act and sale of movable property
588
10-A. Commission for scientific investigation.—(1) Where any
question arising in a suit involves any scientific investigation which
cannot, in the opinion of the Court, be conveniently conducted before
the Court the Court may, if it thinks it necessary or expedient in the
interests of justice so to do, issue a commission to such person as it
thinks fit, directing him to inquire into such question and report
thereon to the Court.
(2) The provisions of Rule 10 of this Order shall, as far as may be,
apply in relation to a Commissioner appointed under this rule as they
apply in relation to a Commissioner appointed under Rule 9.
► Probative value of scientific investigation directed by court.—The
weight ascribed to expert evidence is based on the nature of the science on which
it is based. Archaeological findings, held, are not so subjectively inferential as to
be considered as being incapable of furnishing verifiable or reliable conclusions.
Ultimately, held, it lies within jurisdiction of court to decide whether findings that
are contained in Commissioner's Report/ASI Report subserve the cause of truth
and justice on the basis of relevance and preponderance of probabilities.
Commonsense ought to guide the exercise of judicial discretion, here as in other
branches of the law, M. Siddiq (Ram Janmabhumi Temple 5J) v. Suresh Das,
(2020) 1 SCC 1.
10-B. 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
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Commissioner appointed under Rule 9.
10-C. 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 accounts is necessary, the Court may
issue a commission to such person as it thinks fit directing him to make
such examination of 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 directed 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 equalising the value of the shares.
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(2) The Commissioner shall then prepare and sign a report or the
Commissioners (where the commission was issued to more than one
person and they cannot agree) shall prepare and sign separate reports
appointing the share of each party and distinguishing each share (if so
directed by the said order) by metes and bounds. Such report or
reports shall be annexed to the commission and transmitted to the
Court; and the Court, after hearing any objections which the parties
may make to the report or reports, shall confirm, vary or set aside the
same.
(3) Where the Court confirms or varies the report or reports it shall
pass a decree in accordance with the same as confirmed or varied; but
where the Court sets aside the report or reports it shall either issue a
new commission or make such other order as it shall think fit.
High Court Amendments
ORISSA AND PATNA (4-3-1932).—Substitute for sub-rules (2) and (3)
as follows:
“(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 plot and area
allotted to each party and also unless otherwise directed by the
Court a map showing in different colours the plots or portion of plots
allotted to each party. In the event of a plot being sub-divided the
area of such 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 objection 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 shall not ordinarily be entered in the
decree when the Court sets aside the report or reports it shall either
issue a new commission or make such other order as it shall think
fit.”
General Provisions
15. Expenses of commission to be paid into Court.—Before issuing
any commission under this Order, the Court may order such sum (if
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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, KERALA (LAKSHADWEEP I SLANDS) AND MADRAS
(PONDICHERRY).—Renumber rule 15 as sub-rule (1) and insert the
following as sub-rule (2):
“(2) Before executing and returning any commission issued by
foreign Courts under 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. “(9-6-1959)
KARNATAKA.—Renumber Rule 15 as 15(1) and add the following as
sub-rule (2):
“(2) Before executing and returning any commissions issued by
any of the Courts mentioned in clause (c) of Section 78 of this Code,
the Court or the Commissioner required to execute such 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 summonses to witnesses and for expenses of such witnesses
under Rule 2 of Order XVI of this Code.”(30-3-1967)
ORISSA.—Add in the end as follows:
“And after the issue of such commission may order such further
sum to be paid into Court from time to time by either party as the
Court may consider necessary. “(7-5-1954)
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.
589
[16-A. 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
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pleader so objecting:
Provided that the Commissioner shall not take down the answer to a
question which is objected to on the ground of privilege but may
continue with the examination of the witness, leaving the party to get
the question of privilege decided by the Court, and, where the Court
decides that there is no question of privilege the witness may be
recalled by the Commissioner and examined by him or the witness may
be examined by the Court with regard to the question which was
objected to on the ground of privilege.
(2) No answer taken down under sub-rule (1) shall be read as
evidence in the suit except by the order of the Court.]
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 590[India], and for the purposes of this rule the Commissioner
shall be deemed to be a Civil Court:
591
[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 of 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.
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 clause (1) after the words “agent or pleaders”
substitute a comma for the full stop, and add the following words:
“and shall direct the party applying for the examination of the
witness, or in its discretion any other party to the suit, to supply the
commissioner with a copy of the pleadings and issues.” (24-7-1926).
ORISSA.—Same as in Allahabad. (29-12-1961)
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592
[18-A. Application of Order to execution proceedings.—The
provisions of this Order shall apply, so far as may be, to proceedings in
execution or a decree or order.
18-B. 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.]
593
[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 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
594
jurisdiction the witness resides, or [* * *], where the witness resides
595
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 Amendments
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KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—For Rule 21, the
following rule shall be substituted, 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.”(9-6-1959)
22. Issue, execution and return of commissions, and transmission of
596
evidence to foreign Court.—The provisions of Rules 6, 15, [sub-rule
(1) of Rules 16-A, 17, 18 and 18-B] 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.]
High Court Amendments
ANDHRA PRADESH.—Rule 23 and Order XXVI-A inserted in as in
Madras.
KARNATAKA.—Add the following Rules after Rule 22:—
“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
XIII 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 a decree or order.”(30-3-1967).
KERALA, LAKSHADWEEP I SLAND.—(Noti. B1-3312/58 of 7-4-1959).—
Rule 23 and Order XXVI-A, Rules 1-3 inserted as in Madras. (9-6-1959)
MADRAS, PONDICHERRY.—(a) Add the following Rule 23:
“23. Application of Order to execution proceedings.—The
provisions of this Order and of Order XXVI-A shall apply, so far as
may be, to proceedings in execution of a decree or order.”(9-6-1923)
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(b) (Dis. No. 1685 of 1914).—Insert the following as order XXVI-A:—
ORDER XXVI-A
“1. Court may issue commission to translate account or other
document: The Court may, in any suit issue a commission to such
persons, as it thinks fit to translate accounts and other documents
which are not in the language of the Court.
2. Report of commissioner is evidence in the suit. The report of
the commissioner shall be evidence in the suit and shall form part of
the record.
3. Court may order deposit of expense of Commissioner. 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 into Court by the
party at whose instance or for whose benefit the commission is
issued.” (9-6-1959)
ORISSA.—Add the following rules after Rule 22:—
“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) Same as Madras Order XXVI-A, Rule 2.
(iii) Same as Madras Order XXVI-A, Rule 3 with substitution of the
words “under this Order” by the words “under this rule”.
24. Same as Madras Rule 24.”(29-12-1961).
ORDER XXVII
Suits by or Against the Government or Public Officers in their Official
Capacity597
1. Suits by or against Government.—In any suit by or against 598[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 its application to the State of Uttar Pradesh, in
the marginal heading, after the words ‘official capacity’ insert the words
‘or Statutory Authorities, etc.’ [Vide U.P. Act 57 of 1976, S. 11 (1-1-
1977)].
2. Persons authorised to act for Government.—Persons being ex
offico 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, acts and applications under this Code may be
made or done on behalf of the Government.
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3. Plaints in suits by or against Government.—In suits by or against
the Government, instead of inserting in the plaint the name and
description and place of residence of the plaintiff or defendant, it shall
be sufficient to insert the appropriate name as provided in Section 79
599
[* * *].
600
[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.]
High Court Amendments
RAJASTHAN.—In its application to Rajasthan, R. 4 be substituted:
“4. The Government Pleader in any court or an officer appointed
for the purpose by the Government shall be the agent of the
Government for the purpose of receiving processes against the
Government, issued by such court.”—See Rajasthan Gazette, 9-10-
1997, Pt. 1¼ [K½ Ord., p. 63 (9-10-1997).
5. Fixing of day for appearance on behalf of Government.—The Court,
601
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
602
instructions to the [Government pleader] to appear and answer on
603 604
behalf of [the Government] [* * *], and may extend the time at
605
its discretion [but the time so extended shall not exceed two months
in the aggregate].
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
KARNATAKA.—In Or. 27, in R. 5, after the words “instructions to the
Government Pleader”, insert the words “or recognised agents of the
Government”.
KERALA (LAKSHADWEEP I SLANDS).—Same as that of Madras. (9-6-
1959)
MADRAS.—For “a reasonable time” substitute “not less than three
months time from the date of summons”. (2-3-1942)
PATNA.—Same as that of Madras (20-12-1960).
606
[5-A. 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.
5-B. 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
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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.]
► Suits against government.—Rule 5-B of Order 27 casts a duty on court in
a suit filed against Government to assist the parties to the suit in arriving at a
settlement when no endeavour was made by court or by the parties to arrive at a
settlement, Haryana State v. Gram Panchayat Village Kalehri, (2016) 11 SCC
374 : (2016) 4 SCC (Civ) 193.
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 be
necessary to enable him to make such reference and to receive orders
thereon through the proper channel.
(2) Upon such application the Court shall extend the time for so long
as appears to it to be necessary.
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.
607
[8-A. No security to be required from Government or a public
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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 that of Madras.
MADRAS (PONDICHERRY).—Rules 8-A and 8-B shall be renumbered as
Rules 9 and 10 respectively (2-3-1942).
► “Government”.—“Government” under Order 27 Rules 8-A and 8-B of CPC
means Government proper i.e. Central Government or State Government in
exclusivity. Hence, Order 27 Rules 8-A and 8-B are not applicable to
instrumentality or agency of the State, Kanpur Jal Sansthan v. Bapu
Constructions, (2015) 5 SCC 267.
608
[8-B. Definitions of “Government” and “Government pleader”.—In
609
this Order [unless otherwise expressly provided] “Government” and
610
[“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 the Government, the Central
Government and such pleader as that Government may appoint
whether generally or specially for the purposes of this Order;
611
(b) [* * *]
(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 612[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.]
High Court Amendments
ALLAHABAD.—(1) Add the following to Order XXVII, as Rule 9:
“Rule 9. In every case in which the Government pleader 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 or 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. A.B., Government pleader, appears on behalf of the Secretary
of State for India in Council (or the Government of the Uttar Pradesh,
or as the case may be) respondent (for etc.) in the suit.
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Or, on behalf of the Government [which, under Order XXVII, Rule
8(1) of Act V of 1908 has undertaken the defence of the suit],
respondent (or etc.) in the suit.”
Note.—This local amendment was made before Rule 8 was amended
by the Government of India (Adaptation of Indian Laws) Order, 1937.
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Order XXVII, after Rule 9, as inserted by the Allahabad High Court, the
following rules shall be inserted, namely:—
“10. Suits by or against statutory authority.—(1) Any authority or
Corporation, constituted by or under any law, may, from time to
time, appoint a Standing Counsel, to be called Corporation pleader of
that authority in any district and give information of such
appointment to the District Judge [and to Registrar of the High Court
at Allahabad or at Lucknow Bench, as the case may be.] (Vide Noti.
121/IV-h—36-D dated Feb. 10, 1981 w.e.f. Oct. 3, 1981).
(2) The Corporation pleader so appointed shall be the agent in
that district of the appointing authority or Corporation for purposes
or receiving processes against it, but shall not act or plead without
filing a Vakalatnama or memorandum of appearance.”— U.P. Act 57
of 1976, S. 11 (1-1-1977).
ANDHRA PRADESH.—Same as that of Madras.
MADRAS (PONDICHERRY).—Rules 8-A and 8-B shall be renumbered as
Rules 9 and 10 respectively (2-3-1942).
ORISSA.—Same as in Allahabad except the last sentence and the pro
forma following thereafter.
613
[ORDER XXVII-A
Suits Involving a Substantial Question of Law as to the Interpretation
of614[the Constitution] 615
[Or as to the Validity of any Statutory
Instrument]
1. Notice to the Attorney-General or the Advocate-General.—In any
616
suit in which it appears to the Court that [any such question as is
617
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 618[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.
619
[1-A. 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
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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.]
2. Court may add Government as party.—The Court may at any
stage of the proceedings order that the Central Government or a State
620
Government shall be added as defendant in any suit involving [any
621
such question as is referred to [in clause (1) of Article 132 read with
622
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.
623
[2-A. 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 1-A, 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 1-A 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.]
624
[3. Costs.—Where, under Rule 2 or Rule 2-A, the Government or
any 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.]
4. Application of Order to appeal.—In the application of this Order to
appeals the word “defendant”, shall be held to include a respondent
and the word, “suit” an appeal.]
625
[Explanation.—In this Order, “statutory instrument” means a rule,
notification, bye-law, order, scheme or form made as specified under
any enactment.]
ORDER XXVIII
626 627
Suits by or Against Military [or Naval] Men [Or Airmen]
1. Officers, soldiers, sailors or airmen who cannot obtain leave may
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authorise any person to sue or defend for them.—(1) Where any officer,
628 629 630
[soldier [, sailor] or airman] actually [serving under the
631
Government] in [such] capacity is a party to a suit, and cannot
obtain leave of absence for the purpose of prosecuting or defending the
suit in person, he may authorise any person to sue or defend in his
stead.
(2) The authority shall be in writing and shall be signed by the
632 633
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
634 635
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 or 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
636
regiment, corps, [ship,] detachment or depot to which the officer,
soldier, sailor or airman belongs.
2. Person so authorised may act personally or appoint pleader.—Any
person authorised by an officer, 637[solider 638[, 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 authorised, or on his pleader, to be good
639
service.—Processes served upon any person authorised by an officer,
640
[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 suit by or against a
corporation, any pleading may be signed and verified on behalf of the
corporation by the secretary or by any director or other principal officer
of the corporation who is able to depose to the facts of the case.
High Court Amendments
ANDHRA PRADESH, KERALA, MADRAS AND PONDICHERRY.—Add Rule 1-A
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after Rule 1:
“1-A. Time to be fixed in summons for appearance in suits against
a local authority.—In the 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.”(9-6-1959)
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 AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Rule 2, after clause (a), the following clause shall be inserted, namely:
—
“(aa) on its corporation pleader in the district where the Court
issuing summons is located, if one has been appointed and the
appointment has been notified to the District Judge under Rule 10 of
Order XXVII, or”.—U.P. Act 57 of 1976, S. 12 (1-1-1977).
High Court Amendment
RULE 2-A
KARNATAKA.—After Rule 2 and before Rule 3 add the following as Rule
2-A:
“2-A. 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 necessary
instructions to the pleader of the authority, and may extend the time
at its discretion.”
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
641
claiming or being liable as partners and carrying on business in
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[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 person 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 as 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 if such pleading or
other document is signed, verified or certified by any one of such
persons.
High Court Amendments
DELHI, H.P., PUNJAB, HARYANA AND CHANDIGARH.—Add the following
Explanation:
“Explanation.—This rule applies to a joint Hindu family trading
partnership”. (12-5-1909).
2. Disclosure of partners' names.—(1) Where a suit is instituted by
partners in the name of their firm, the plaintiff or their pleader shall, on
demand in 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 plaintiff or their pleader fails 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:
642
[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.]
High Court Amendment
ORISSA.—Deleted (18-5-1984).
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 643[India] upon any person having, at the time of service, the
control or management of the partnership business there,
as the Court may direct; and such service shall be deemed good service
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upon the firm so sued, whether all or any of the partners are within or
644
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
645
summons shall be served upon every person within [India] whom it
is sought to make liable.
4. Right 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 affect 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.—At the end of Rule 6 add as follows:
“But the decree shall, however, contain the names of all such
partners.”
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.
646
[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
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determining whether that person was a partner of the firm and liable as
such.
(3) If, on such application, the Court holds that he was a partner at
the material time, that shall not preclude the person from filing a
defence denying the liability of the firm in respect of the claim against
the defendant.
(4) If the Court, however, holds that such person was not a partner
of the firm and was not liable as such, that shall not preclude the
plaintiff from otherwise serving a summons on the firm and proceeding
with the suit; but in that event, the plaintiff shall be precluded from
alleging the liability of that person as a partner of the firm in execution
of any decree that may be passed against the firm.]
9. Suits between co-partners.—This Order shall apply to suits
between a firm and one or more of the partners therein and to suits
between firms having one or more partners in common; but no
execution shall be issued in such suits except by leave of the Court,
and, on an application for leave to issue such execution, all such
accounts and inquiries may be directed to be taken and made and
directions given as may be just.
647
[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 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, insofar as the nature of such case permits, all rules under
this Order shall apply accordingly.]
► Nature and scope.—Analogy of enabling provision in Rule 10, held, cannot
be extended to plaintiff filing suit in name other than his own, Rasiklal Manikchand
Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196 : (2012) 1 SCC (Civ) 705.
For Section 1 to 78 click here
For Section 79 to 95 click here
For Section 96 to 131 click here
For Section 132 to 158 click here
For Schedule 1 (Order 1 to 10) click here
For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 1 (Order 41 to 51) click here
For Schedule 2 to 5 click here
———
471.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
472.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
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473.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
474.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
475.
In the application of the Act to the Punjab, sub-rule (3) has been rep. by the Punjab
Relief of Indebtedness Act, 1934 (Pun. 7 of 1934), S. 36.
476.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
477.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
478.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
479.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
480.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
481.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
482.
Subs. for “one year” by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
483.
Ins. by Act 8 of 1937, S. 3.
484.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
485.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
486.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
487.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
488.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
489.
Subs. for “the last preceding rule” by Act No. 38 of 1978, S. 3 and Second Schedule
(w.e.f. 26-11-1978).
490.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
491.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
492.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
493.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
494.
Subs. for “six months” by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
495.
Subs. for “six months” by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
496.
Ins. by Act 29 of 1923, S. 2.
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497.
Subs. for “one year” by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
498.
Subs. for “one year” by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
499.
Ins. by Act 22 of 2002, S. 14 (w.e.f. 1-7-2002).
500.
Ins. by Act 29 of 1963, S. 3.
501.
Subs. for “shall not be executed by detention in prison” by Act 29 of 1963, S. 3.
502.
The words “and the decree-holder is the wife” omitted by Act 29 of 1963, S. 3.
503.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
504.
Subs. for “may” by Act 21 of 1936, S. 3.
505.
Ins. by Act 21 of 1936, S. 3.
506.
Subs. by Act 21 of 1936, S. 4.
507.
Renumbered by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
508.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
509.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
510.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
511.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
512.
Subs. for “public officer” by Act 5 of 1943, S. 3.
513.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
514.
Subs. by Act 25 of 1942, S. 3 and Sch. II. Prior to substitution it read as:
“the Central Govt. or the Provincial Govt. may by notification in their Official Gazette”
515.
Subs. by Act 26 of 1939, S. 2.
516.
Subs. by Act 25 of 1942, S. 3 and Sch. II. Prior to substitution it read as:
“the Central Govt. or the Provincial Govt., as the case may be”
517.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
518.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
519.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
520.
Subs. for “the States” by Act 2 of 1951, S. 3.
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521.
Subs. for “the States” by Act 2 of 1951, S. 3.
522.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
523.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
524.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
525.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
526.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
527.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
528.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
529.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
530.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
531.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
532.
Omitted by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977). Prior to omission it read as:
“60. Release of property from attachment.—Where upon the said investigation the
Court is satisfied that for the reason stated in the claim or objection such property was
not, when attached, in the possession of the judgment-debtor or of some person in trust
for him, or in the occupancy of a tenant or other person paying rent to him, or that,
being in the possession of the judgment-debtor at such time, it was so in his possession,
not on his own account or as his own property, but on account of or in trust for some
other person, or partly on his own account and partly on account of some other person,
the Court shall make an order releasing the property, wholly, or to such extent as it
thinks fit, from attachment.”
533.
Omitted by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977). Prior to omission it read as:
“61. Disallowance of claim to property attached.—Where the Court is satisfied that the
property was, at the time it was attached, in the possession of the judgment-debtor as
his own property and not on account of any other person, or was in the possession of
some other person in trust for him, or in the occupancy of a tenant or other person
paying rent to him, the Court shall disallow the claim.”
534.
Omitted by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977). Prior to omission it read as:
“62. Continuance of attachment subject to claim of incumbrancer.—Where the Court is
satisfied that the property is subject to a mortgage or charge in favour of some person
not in possession, and thinks fit to continue the attachment, it may do so, subject to
such mortgage or charge.”
535.
Omitted by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977). Prior to omission it read as:
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“63. Saving of suits to establish right to attached property.—Where a claim or an
objection is preferred, the party against whom an order is made may institute a suit to
establish the right which he claims to the property in dispute, but, subject to the result
of such suit, if any, the order shall be conclusive.”
536.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
537.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
538.
Subs. for “thirty days” by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
539.
Subs. for “fifteen days” by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
540.
Subs. for “seven days” by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
541.
Omitted by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957). Prior to omission it read as:
“70. Saving of certain sales.—Nothing in Rules 66 to 69 shall be deemed to apply to any
case in which the execution of a decree has been transferred to the Collector.”
542.
The words “or to the Collector or subordinate of the Collector, as the case may be”
omitted by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957).
543.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
544.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
545.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
546.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
547.
Subs. for “thirty” by Act 22 of 2002, S. 14 (w.e.f. 1-7-2002).
548.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
549.
Ins. by Act 22 of 2002, S. 14 (w.e.f. 1-7-2002).
550.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
551.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
552.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
553.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
554.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
555.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
556.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
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557.
Subs. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
558.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
559.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
560.
Ins. by Act 104 of 1976, S. 72 (w.e.f. 1-2-1977).
561.
Renumbered by U.P. Act 57 of 1976, S. 10 (1-1-1977).
562.
Renumbered by U.P. Act 57 of 1976, S. 10 (1-1-1977).
563.
Renumbered by U.P. Act 57 of 1976, S. 10 (1-1-1977).
564.
Ins. by Act 104 of 1976, S. 73 (w.e.f. 1-2-1977).
565.
Ins. by Act 104 of 1976, S. 73 (w.e.f. 1-2-1977).
566.
Ins. by Act 104 of 1976, S. 73 (w.e.f. 1-2-1977).
567.
See now the Limitation Act, 1963 (36 of 1963), Ss. 4 and 5.
568.
Ins. by Act 104 of 1976, S. 73 (w.e.f. 1-2-1977).
569.
Ins. by Act 104 of 1976, S. 73 (w.e.f. 1-2-1977).
570.
Subs. by Act 104 of 1976, S. 74 (w.e.f. 1-2-1977).
571.
Ins. by Act 104 of 1976, S. 74 (w.e.f. 1-2-1977).
572.
Ins. by Act 104 of 1976, S. 74 (w.e.f. 1-2-1977).
573.
Subs. by Act 104 of 1976, S. 74 (w.e.f. 1-2-1977).
574.
Ins. by Act 104 of 1976, S. 74 (w.e.f. 1-2-1977).
575.
Ins. by Act 104 of 1976, S. 74 (w.e.f. 1-2-1977).
576.
Ins. by Act 104 of 1976, S. 74 (w.e.f. 1-2-1977).
577.
Ins. by Act 104 of 1976, S. 74 (w.e.f. 1-2-1977).
578.
Subs. by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957).
579.
Ins. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
580.
Subs. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
581.
Subs. for “any civil or military officer of the Government” by the A.O. 1937.
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582.
Ins. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
583.
Ins. by Act 46 of 1999, S. 29 (w.e.f. 1-7-2002).
584.
Subs. by Act 2 of 1951, S. 3, for “the States”.
585.
Subs. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
586.
Subs. for “civil or military officer of the Govt.” by A.O. 1937.
587.
Ins. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
588.
Ins. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
589.
Ins. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
590.
Subs. for “the States” by Act 2 of 1951, S. 3.
591.
Ins. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
592.
Ins. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
593.
The heading and Rules 19 to 22 ins. by Act 10 of 1932, S. 3.
594.
Omitted by the A.O. 1937. Prior to omission it read as:
“the high Court is established under the Indian high Courts Act 1861, or the Government
of India Act, 1915, and”
595.
Subs. for “its ordinary original civil jurisdiction” by the A.O., 1937.
596.
Subs. by Act 104 of 1976, S. 75 (w.e.f. 1-2-1977).
597.
In U.P. words “or Statutory Authorities, etc.” inserted by U.P. Act 57 of 1976, S. 11 (1-1
-1977).
598.
Subs. for “the Secretary of State for India in Council” by the A.O. 1937.
599.
Omitted by the A.O. 1948.
600.
Subs. by the A.O. 1937.
601.
Subs. for “the Secretary of State for India in Council” by A.O. 1937.
602.
Subs. by A.O. 1950.
603.
Subs. for “the Secretary of State for India in Council” by A.O. 1937.
604.
The words “or the Govt.” omitted by the A.O. 1948.
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605.
Ins. by Act 104 of 1976, S. 76 (w.e.f. 1-2-1977).
606.
Ins. by Act 104 of 1976, S. 76 (w.e.f. 1-2-1977).
607.
Ins. by the A.O. 1937.
608.
Ins. by the A.O. 1937.
609.
Ins. by the A.O. 1950.
610.
Subs. by the A.O. 1950.
611.
Omitted by the A.O. 1948. Prior to omission it read as:
“(b) in relation to any suit by or against the Crown Representative, or against a public
officer employed in connection with the exercise of the functions of the Crown in its
relations with Indian States, the Crown Representative and such pleader as he may
appoint, whether generally or specially, for the purposes of this Order; and”
612.
Ins. by the A.O. 1950 (w.e.f. 26-1-1950).
613.
Ins. by Act 23 of 1942, S. 2.
614.
Subs. by the A.O. 1950 (w.e.f. 26-1-1950). Prior to substitution it read as:
“the Government of India Act, 1935, or any Order-in-Council made thereunder”.
615.
Ins. by Act 104 of 1976, S. 77 (w.e.f. 1-2-1977).
616.
Subs. by the A.O. 1948. Prior to substitution it read as:
“a substantial question of law as to the interpretation of the Government of India Act,
1935, or any Order-in-Council made thereunder”.
617.
Subs. by the A.O. 1950 (w.e.f. 26-1-1950). Prior to substitution it read as:
“in sub-section (1) of S. 205 of the Government of India Act, 1935”.
618.
Subs. for “the Advocate-General of India” by the A.O. 1950 (w.e.f. 26-1-1950).
619.
Ins. by Act 104 of 1976, S. 77 (w.e.f. 1-2-1977).
620.
Subs. by the A.O. 1948. Prior to substitution it read as:
“a substantial question of law as to the interpretation of the Government of India Act,
1935, or any Order-in-Council made thereunder”.
621.
Subs. by the A.O. 1950 (w.e.f. 26-1-1950). Prior to substitution it read as:
“in sub-section (1) of S. 205 of the Government of India Act, 1935”.
622.
Subs. for “the Advocate-General of India” by the A.O. 1950 (w.e.f. 26-1-1950).
623.
Ins. by Act 104 of 1976, S. 77 (w.e.f. 1-2-1977).
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624.
Subs. by Act 104 of 1976, S. 77 (w.e.f. 1-2-1977).
625.
Ins. by Act 104 of 1976, S. 77 (w.e.f. 1-2-1977).
626.
Ins. by Act 35 of 1934, S. 2 and Sch.
627.
Ins. by Act 10 of 1927, S. 2 and Sch. I.
628.
Subs. for “or soldier” by Act 10 of 1927, S. 2 and Sch. I.
629.
Ins. by Act 35 of 1934, S. 2 and Sch.
630.
Subs. for “serving the Govt.” by the A.O. 1937.
631.
Subs. for “a military or air force” by Act 35 of 1934, S. 2 and Sch.
632.
Subs. for “or soldier” by Act 10 of 1927, S. 2 and Sch. I.
633.
Ins. by Act 35 of 1934, S. 2 and Sch.
634.
Subs. for “or soldier” by Act 10 of 1927, S. 2 and Sch. I.
635.
Ins. by Act 35 of 1934, S. 2 and Sch.
636.
Ins. by Act 35 of 1934, S. 2 and Sch.
637.
Subs. for “or a soldier” by Act 10 of 1927, S. 2 and Sch. I.
638.
Ins. by Act 35 of 1934, S. 2 and Sch.
639.
Subs. for “or soldier” by Act 10 of 1927, S. 2 and Sch. I.
640.
Ins. by Act 35 of 1934, S. 2 and Sch.
641.
Subs. for “the States” by Act 2 of 1951, S. 3.
642.
Subs. by Act 104 of 1976, S. 78 (w.e.f. 1-2-1977).
643.
Subs. for “the States” by Act 2 of 1951, S. 3.
644.
Subs. for “the States” by Act 2 of 1951, S. 3.
645.
Subs. for “the States” by Act 2 of 1951, S. 3.
646.
Subs. by Act 104 of 1976, S. 78 (w.e.f. 1-2-1977).
647.
Subs. by Act 104 of 1976, S. 78 (w.e.f. 1-2-1977).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
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disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
this text must be verified from the original source.
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Schedule 1 (Order 31 to 40))
CONTENTS
Section 1 to 78
Section 79 to 95
Section 96 to 131
Section 132 to 158
Schedule 1 (Order 1 to 10)
Schedule 1 (Order 11 to 20)
Schedule 1 (Order 21 to 30)
ORDER XXXI
SUIT BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
1. Representation of beneficiaries in suits concerning property vested
in trustees, etc
2. Joinder of trustees, executors and administrators
3. Husband of married executrix not to join
ORDER XXXII
SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
1. Minor to sue by next friend
2. Where suit is instituted without next friend, plaint to be taken off
the file
2-A. Security to be furnished by next friend when so ordered
3. Guardian for the suit to be appointed by Court for minor
defendant
3-A. Decree against minor not to be set aside unless prejudice has
been caused to his interests
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4. Who may act as next friend or be appointed guardian for the suit
5. Representation of minor by next friend or guardian for the suit
6. Receipt by next friend or guardian for the suit of property under
decree for minor
7. Agreement or compromise by next friend or guardian for the suit
8. Retirement of next friend
9. Removal of next friend
10. Stay of proceedings on removal, etc., of next friend
11. Retirement, removal or death of guardian for the suit
12. Course to be followed by minor plaintiff or applicant on attaining
majority
13. Where minor co-plaintiff attaining majority desires to repudiate
suit
14. Unreasonable or improper suit
15. Rules 1 to 14 (except Rule 2-A) to apply to persons of unsound
mind
16. Savings
ORDER XXXII-A
SUITS RELATING TO MATTERS CONCERNING THE FAMILY
1. Application of the Order
2. Proceedings to be held in camera
3. Duty of Court to make efforts for settlement
4. Assistance of welfare expert
5. Duty to inquire into facts
6. “Family”—Meaning of
ORDER XXXIII
SUITS BY I NDIGENT PERSONS
1. Suits may be instituted by indigent persons
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1-A. Inquiry into the means of an indigent person
2. Contents of application
3. Presentation of application
4. Examination of applicant
5. Rejection of application
6. Notice of day for receiving evidence of applicant's indigency
7. Procedure at hearing
8. Procedure if application admitted
9. Withdrawal of permission to sue as an indigent person]
9-A. Court to assign a pleader to an unrepresented indigent person
10. Costs where indigent person succeeds
11. Procedure where indigent person fails
11-A. Procedure where an indigent person's suit abates
12. State Government may apply for payment of Court-fees
13. State Government to be deemed a party
14. Recovery of amount of court-fees
15. Refusal to allow applicant to sue as indigent person to bar
subsequent application of like nature
15-A. Grant of time for payment of court-fee
16. Costs
17. Defence by an indigent person
18. Power of Government to provide for free legal services to
indigent persons
ORDER XXXIV
SUITS RELATING TO MORTGAGES OF I MMOVABLE PROPERTY
1. Parties to suits for foreclosure, sale and redemption
2. Preliminary decree in foreclosure suit
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3. Final decree in foreclosure suit
4. Preliminary decree in suit for sale
5. Final decree in suit for sale
6. Recovery of balance due on mortgage in suit for sale
7. Preliminary decree in redemption suit
8. Final decree in redemption suit
8-A. Recovery of balance due on mortgage in suit for redemption
9. Decree where nothing is found due or where mortgagee has been
overpaid
10. Costs of mortgagee subsequent to decree
10-A. Power of Court to direct mortgagee to pay mesne profits
11. Payment of interest
12. Sale of property subject to prior mortgage
13. Application of proceeds
14. Suit for sale necessary for bringing mortgaged property to sale
15. Mortgages by the deposit of title-deeds and charges
ORDER XXXV
I NTERPLEADER
1. Plaint in interpleader-suit
2. Payment of thing claimed into Court
3. Procedure where defendant is suing plaintiff
4. Procedure at first hearing
5. Agents and tenants may not institute interpleader-suits
6. Charge for plaintiff's costs
ORDER XXXVI
SPECIAL CASE
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1. Power to state case for Court's opinion
2. Where value of subject-matter must be stated
3. Agreement to be filed and registered as suit
4. Parties to be subject to Court's jurisdiction
5. Hearing and disposal of case
6. No appeal from a decree passed under Rule 5
ORDER XXXVII
SUMMARY PROCEDURE [* * *]
1. Courts and classes of suits to which the Order is to apply
2. Institution of summary suits
3. Procedure for the appearance of defendant
4. Power to set aside decree
5. Power to order bill, etc., to be deposited with officer of Court
6. Recovery of cost of noting non-acceptance of dishonoured bill or
note
7. Procedure in suits
ORDER XXXVIII
ARREST AND ATTACHMENT BEFORE JUDGMENT
Arrest before judgment
1. Where defendant may be called upon to furnish security for
appearance
2. Security
3. Procedure on application by surety to be discharged
4. Procedure where defendant fails to furnish security or find fresh
security
Attachment before judgment
5. Where defendant may be called upon to furnish security for
production of property
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6. Attachment where cause not shown or security not furnished
7. Mode of making attachment
8. Adjudication of claim to property attached before judgment
9. Removal of attachment when security furnished or suit dismissed
10. Attachment before judgment not to affect rights of strangers,
nor bar decree-holder from applying for sale
11. Property attached before judgment not to be re-attached in
execution of decree
11-A. Provisions applicable to attachment
12. Agricultural produce not attachable before judgment
13. Small Cause Court not to attach immovable property
ORDER XXXIX
TEMPORARY I NJUNCTIONS & INTERLOCUTORY ORDERS
Temporary injunctions
1. Cases in which temporary injunction may be granted
2. Injunction to restrain repetition or continuance of breach
2-A. Consequence of disobedience or breach of injunction
3. Before granting injunction, Court to direct notice to opposite party
3-A. Court to dispose of application for injunction within thirty days
4. Order for injunction may be discharged, varied or set aside
5. Injunction to corporation binding on its officers
Interlocutory orders
6. Power to order interim sale
7. Detention, preservation, inspection, etc., of subject-matter of suit
8. Application for such orders to be after notice
9. When party may be put in immediate possession of land the
subject-matter of suit
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10. Deposit of money, etc. in Court
ORDER XL
APPOINTMENT OF RECEIVERS
1. Appointment of receivers
2. Remuneration
3. Duties
4. Enforcement of receiver's duties
5. When Collector may be appointed receiver
Schedule 1 (Order 41 to 51)
Schedule 2 to 5
———
ORDER XXXI
Suit 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 administrator shall represent the persons so interested, and it
shall not ordinarily be necessary to make them parties to the suit. But the
Court may, if it thinks fit, order them or any of them to be made parties.
2. Joinder of trustees, executors and administrators.—Where there are
several trustees, executors or administrators, they shall all be made
parties to a suit against one or more of them:
Provided that the executors who have not proved their testator's will,
648
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, administratix 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
1. Minor to sue by next friend.—Every suit by a minor shall be
instituted in his name by a person who in such suit shall be called the
next friend of the minor.
649
[Explanation.—In this Order, “minor” means a person who has not
attained his majority within the meaning of Section 3 of the Indian
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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.]
High Court Amendments
DELHI.—Same as that of Punjab.
HIMACHAL PRADESH.—Same as in Delhi.
PUNJAB, HARYANA AND CHANDIGARH.—The following words were added:
“Such person may be ordered to pay any costs in the suit as if he
were the plaintiff.” (12-5-1909)
► Who may act as next friend.—“Next friend” is not confined to the natural
guardian only. A next friend can be any person, not necessarily any of the guardians
enumerated in Section 4 of the Hindu Minority and Guardianship Act, 1956, Iqbal
Ahmad Khan v. Master Mahmood Raza Khan Sherwani, 2011 SCC OnLine All 739 :
AIR 2011 All 136 (137).
► Next friend and guardian ad litem.—For institution of suit by next friend,
court's permission is not necessary, if next friend is not otherwise incapacitated. Any
person can act as next friend if he has no adverse interest against minor, Nagaiah v.
Chowdamma, (2018) 2 SCC 504.
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.
650
[2-A. Security to be furnished by next friend when so ordered.—(1)
Where a suit has been instituted on behalf of the minor by his next friend,
the Court may, at any stage of the suit, either of its own motion or on the
application of any defendant, and for reasons to be recorded, order the
next friend to give security for the payment of all costs incurred or likely
to be incurred by the defendant.
(2) Where such a suit is instituted by an indigent person, the security
shall include the Court fees payable to the Government.
(3) The provisions of Rule 2 of Order XXV shall, so far as may be, apply
to a suit where the Court makes an order under this rule directing security
to be furnished.]
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
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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) No order shall be made on any application under this rule except
651
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, 652[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]
653
of the minor, or, where there is [no father, mother or other natural
guardian], to the person in whose care the minor is, and after hearing any
objection which may be urged on behalf of any person served with notice
under this sub-rule.
654
[(4-A) The Court may, in any case, if it thinks fit, issue notice under
sub-rule (4) to the minor also.]
655
[(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.]
High Court Amendments
ALLAHABAD.—(i) In Rule 3—Delete the full stop at the end of sub-rule
(3) and add the following namely,—
“and shall also contain the names and addresses of all 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.”(1-6-1957).
(ii) for sub-rule (4) (as it is in the body of the Code without any
Proviso) substitute the following, 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 person as it may deem fit calling upon them
to file objections, if any, to the appointment of the proposed or any
other probable guardian as 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 that
he has no interest in the matter 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, considering the
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respective claims of all persons, desirous of being appointed guardian
including the proposed guardian, appoint such person as guardian of
the minor as it may deem fit.”
(iii) to sub-rule (4), add the following, namely:
“Provided that if the minor is under twelve years of age no such
notice shall be issued to him.” (1-6-1957).
ANDHRA PRADESH, MADRAS AND PONDICHERRY.—Delete Rules 3 and 4 and
substitute in lieu thereof the new Rule 3 setforth below:
“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 of a next friend, a defendent, 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) Guardian 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.
(3-a) 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. 11-A
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,
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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 a person, if any, who in the event of
either the natural or the de facto guardian or the guardians 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 into the extent
that is possible at that stage for the issue simultaneously of notice to at
least two 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
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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) above, 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 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 his 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 allowances 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 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 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.”
BOMBAY (DADRA AND NAGAR HAVELI).—In Order 32, Rule 3, for the
existing sub-rule (4) substitute the following as sub-rule (4):
“(4) No order shall be made on any application under this rule
except upon notice to the minor, if the minor is above 14 years of age,
and 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 the 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.” (1-11-1966).
DELHI AND HIMACHAL PRADESH.—(i) The following sub-rules were
substituted for sub-rules (3) and (4):
“(3) The plaintiff shall file with his plaint a list of relatives of the
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minor and other persons, with their addresses, who prima facie are
most likely to be capable of acting a 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.”
(ii) The following sub-rules (6) and (7) were added:
“(6) 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.
(7) 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 notices under this sub-rule:
Provided that the Court may, if it sees fit, issue notice to the minor
also.”
GUJARAT.—The words “to the minor and” in sub-rule (4) shall be
deleted.
KARNATAKA.—Delete Rule 3 and substitute the following:
“3(1) and (2) same as that of Andhra Pradesh.
(3) 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. A person appointed as guardian under this sub-
rule shall, unless his appointment is terminated by retirement or
removal by 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 process in
any such proceeding on the said guardian if duly made shall be deemed
to be good service for the purpose of such proceedings.
(4) An order for the appointment of a guardian for the suit may be
obtained upon an application in the name and on behalf of the minor or
by the plaintiff. The application where it is by the plaintiff shall
wherever necessary set forth in the order of their suitability a list of
persons who are competent and qualified to act as guardian for the suit
for the minor defendant.
(5) Same as that of Andhra Pradesh, except with certain
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modifications in the opening line for the words “to in the above” the
words “in the last proceedings” shall be substituted.
(6) 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 representative of a deceased party.
(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) 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 a guardian and may direct that costs to be
incurred by that officer or pleader in the performance of his 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 direction for the payment or allowance of the
costs as justice and the circumstances of the case may require.
(11) 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 costs of plaintiff in the suit. The order
shall direct that the guardian as and when required by the Court shall
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file into Court the account of the moneys so received by him.”
KERALA.—In Rule 3—
(i) for sub-rule (2), the following shall be substituted, namely:
“(2) 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 as for service of notice in Form No. 11-A 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.”
(ii) in sub-rule (3) at the end, the following shall be added, 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) to sub-rule (4) the following proviso shall be added, namely:
“Provided that if the minor is under 15 years of age no such notice shall
be issued to him.” (9-6-1959)
MADHYA PRADESH.—For Rule 3, substitute the following:
“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 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
proceedings arising out of the suit including proceedings in any
appellate or revisional Court and any proceedings in the execution of a
decree.”
PUNJAB, HARYANA AND CHANDIGARH.—(i) The following sub-rules were
substituted for sub-rules (3) and (4):
“(3) The plaintiff shall file with his plaint a list of relatives of the
minor and other persons, with their addresses, 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.”
(ii) The following sub-rules (6) and (7) were added:
“(6) Any application for the appointment of a guardian for the suit
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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.
(7) 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 seems fit, issue notice to the minor
also.” (24-11-1927).”
► Appointment of guardian ad litem.—Where the doctor reported the mental
state of health of the petitioner impaired one, it was found appropriate to appoint
guardian ad litem for the petitioner, Maharaja Sawai Tej Singh v. Jitender Singh,
(2007) 14 SCC 765.
656
[3-A. Decree against minor not 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 reason of such adverse interest
of the next friend or guardian for the suit, prejudice has been caused to
the interests of the minor, shall be a ground for setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any
relief available under any law by reason of the misconduct or gross
negligence on the part of the next friend or guardian for the suit resulting
in prejudice to the interests of the minor.]
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 recorded, that it is for the minor's welfare that
another person be permitted to act or be appointed, as the case may be.
657
(3) No person shall without his consent [in writing] be appointed
guardian for the suit.
(4) Where there is no other person fit and willing to act as guardian for
the suit, the Court may appoint any of its officers to be such guardian,
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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 658[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.
High Court Amendments
ALLAHABAD.—Substitute the following for Rule 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.
(3) 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
cost of the suit or compensation under Section 85-A 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.” (24-7-
1926).
ANDHRA PRADESH, MADRAS AND KARNATAKA.—Delete Rule 4.
ASSAM AND CALCUTTA.—Substitute “Except as otherwise provided in the
order” for “where there is no other person fit and willing to act as guardian
for the suit”.
DELHI, HIMACHAL PRADESH, HARYANA, CHANDIGARH AND PUNJAB.—(i) Insert
new sub-rule (2)(a). “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.”
(ii) Add to sub-rule (3) as follows:
“but the Court may presume such consent to have been given unless
it is expressly refused.”
(iii) In sub-rule (4) after the word “officers” insert “or a pleader” and
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for “officer” substitute “person”.
KERALA.—(i) Add in the end of sub-rule (3):
“Whenever an application is made proposing the name of a person
as a 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.”
(ii) Add Explanation to sub-rule (4):
“Explanation.—An officer of the Court shall for the purpose of this
sub-rule include a pleader of the Court.”
(iii) Add sub-rule (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 fund for the conduct of the suit on behalf of the
defendant and the defendant will be prejudiced in his defence thereby
the Court may from time to time order the plaintiff to advance money
to the guardian for the purpose of his defence and all moneys so
advanced shall form part of the cost 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.”
MADHYA PRADESH.—Substitute Rule 4 as follows:
“(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 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.”
ORISSA AND PATNA.—In sub-rule (4) for the words “when there is no
other person fit and willing to act as guardian for the suit” in the first
sentence substitute “when the person whom the Court after hearing
objection if any under sub-rule (4) of Rule 3 proposes to appoint as
guardian for the suit fails within the time fixed in the notice to him to
express his consent to be so appointed”.
RULE 4-A
ALLAHABAD.—Add the following Rule 4-A:
“Rule 4-A. (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
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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.
(3) No person shall without his consent be appointed guardian for
the suit: Provided that in all cases the consent of such person shall be
presumed, unless within fifteen days of receipt of notice from the
Court, he notifies to the Court his refusal to accept appointment as
such guardian. Refusal to accept notice shall be presumed to be refusal
to act.
(4) Where an officer of the Court is appointed guardian for the suit
under sub-rule (2) the Court 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
and may give directions for the repayment or allowance of such costs
as justice and the circumstances of the case may require.”
MADHYA PRADESH.—Add the following Rule 4-A:
“4-A. 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 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
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minor also.
(5) Where, on or before the specified day, such proposed 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 officers, or 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.”
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 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:
659
[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
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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.]
High Court Amendment
ANDHRA PRADESH, MADRAS AND PONDICHERRY.—(1) Add the following
proviso to sub-rule (2):
“Provided that the Court may, in its discretion, dispense with such
security in cases where the next friend or guardian for the suit is the
manager of a joint Hindu family or the Karnavan of a Malabar Tharward
or the Ejaman of an Aliyasanthana family and the decree is passed in
favour of the joint family or the Tharwards or the Aliyasanthana family.”
(2) Add the following proviso at the end of sub-rule (2):
“Provided also that the Court may in its discretion dispense with
such security and impose such other condition as it thinks fit, in cases
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.”
KARNATAKA. —Add the following proviso to sub-rule (2) of R. 6:
“Provided that the Court may in its discretion dispense with the
security in cases where the next friend or guardian for the suit is a
manager of a joint Hindu family or the Karnavan of a Tharward or the
Ejaman of an Aliyasanthana family and the decree is passed in favour
of such joint family or Tharward or the Aliyasanthana family as the case
may be.”
KERALA: LACCADIVE, MINICOY AND AMINIDIVI I SLANDS.— In R. 6, to sub-rule
(2) the following proviso shall be added:
“Provided that, where the next friend or guardian for the minor
happens to be the parent or Karnavan of such minor, the Court may, for
any special reason to be recorded, dispense with the security, when
such next friend or guardian is after decree allowed to receive any sum
of money or any property on behalf of the minor.”
ORISSA.—Deleted. (25-5-1984).
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.
660
[(1-A) An application for leave under sub-rule (1) shall be
accompanied by an affidavit of the next friend or the guardian for the suit,
as the case may be, and also, if the minor is represented by a pleader, by
the certificate of the pleader, to the effect that the agreement or
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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.
High Court Amendment
ANDHRA PRADESH, MADRAS AND PONDICHERRY.—Insert the following as sub
-rule (1-A):
“(1-A) 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 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.”
KARNATAKA.—Renumber existing sub-rule (2) of R. 7 as sub-rule (3)
and insert the following as sub-rule (2):
“(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 other 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 effect the interests
of the minor or other person under the 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 the 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
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particulars of other action.” (30-3-1967)
KERALA, LACCADIVE, MINICOY AND AMINIDIVI I SLANDS.—Same as that of
Madras.
ORISSA.—Deleted. (25-5-1984).
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 661[India], or for any other sufficient cause, application
may be made on behalf of the minor or by a defendant for his removal;
and the Court, if satisfied of the sufficiency of the cause assigned, may
order the next friend to be removed accordingly, and make such other
order as to costs as it thinks fit.
(2) Where the next friend is not a guardian appointed or declared by an
authority competent in this behalf, and an application is made by a
guardian so appointed or declared, who desires to be himself appointed in
the place of the next friend, the Court shall remove the next friend unless
it considers, for reasons to be recorded by it, that the guardian ought not
to be appointed the next friend of the minor, and shall thereupon appoint
the applicant to be next friend in his place upon such terms as to the
costs already incurred in the suit as it thinks fit.
10. Stay of proceedings on removal, etc., of next friend.—(1) On the
retirement, removal or death of the next friend of a minor, further
proceedings shall be stayed until the appointment of a next friend in his
place.
(2) Where the pleader of such minor omits, within a reasonable time, to
take steps to get a new next friend appointed any person interested in the
minor or in the matter in issue may apply to the Court for the
appointment of one, and the Court may appoint such person as it thinks
fit.
11. Retirement, removal or death of guardian for the suit.—(1) Where
the guardian for the suit desires to retire or does not do his duty, or where
other sufficient ground is made to appear, the Court may permit such
guardian to retire or may remove him, and may make such order as to
costs as it thinks fit.
(2) Where the guardian for the suit retires, dies or is removed by the
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Court during the pendency of the suit, the Court shall appoint a new
guardian in his place.
High Court Amendment
ALLAHABAD.—In sub-rule (1) of Rule 11—
(i) delete the words “and may make such orders as to costs as it thinks
fit” occurring at the end of the said sub-rule; and
(ii) add to said sub-rule the following as proviso:
“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.” (1-6-
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 ex parte; but no order
discharging a next friend and permitting a minor plaintiff to proceed in his
own name shall be made without notice to the next friend.
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 cost of all parties of such application, and of all or any
proceedings theretofore had in the suit, shall be paid by such persons as
the Court directs.
(4) Where the applicant is a necessary party to the suit, the Court may
direct him to be made a defendant.
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14. Unreasonable or improper suit.—(1) A minor on attaining majority
may, if a sole plaintiff, apply that a suit instituted in his name by his next
friend be dismissed on the ground that it was unreasonable or improper.
(2) Notice of the application shall be served on all the parties
concerned; and the Court, upon being satisfied of such unreasonableness
or impropriety, may grant the application and order the next friend to pay
the costs of all parties in respect of the application and of anything done
in the suit, or make such other order as it thinks fit.
High Court Amendments
ANDHRA PRADESH, MADRAS AND PONDICHERRY.—Add the following as Rule
14-A:
“14-A. 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.”
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of
Madras (above) without the words beginning from “shall be deemed to be
a quasi-judicial” and ending with “the Code of Civil Procedure”. (9-6-
1959)
KARNATAKA.—Add the following as Rule 14-A:
“14-A. 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 the 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.”
662
[15. Rules 1 to 14 (except Rule 2-A) to apply to persons of unsound
mind.—Rules 1 to 14 (except Rule 2-A) shall, so far as may be, apply to
persons adjudged, before or during the pendency of the suit, to be of
unsound mind and shall also apply to persons who, though not so
adjudged, are found by the Court on enquiry to be incapable, by reason of
any mental infirmity, of protecting their interest when suing or being
sued.]
663
[16. Savings.—(1) Nothing contained in this Order shall apply to the
Ruler of a foreign State suing or being sued in the name of his State, or
being sued by the direction of the Central Government in the name of an
agent or in any other name.
(2) Nothing contained in this Order shall be construed as affecting or in
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any way derogating from the provisions of any local law for the time being
in force relating to suits by or against minors or by or against lunatics or
other persons of unsound mind.]
High Court Amendments
ANDHRA PRADESH, MADRAS AND PONDICHERRY.—Add the following as Rule
17:
“Rule 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.” (Dis. No. 644 of 1911)
664
[ORDER XXXII-A
Suits Relating to Matters Concerning the Family
1. Application of the Order.—(1) The provisions of this Order shall apply
to suits or proceedings relating to matters concerning the family.
(2) In particular, and without prejudice to the generality of the
provisions of sub-rule (1), the provisions of this Order shall apply to the
following suits or proceeding 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 the 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 proceedings 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
proceedings 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 of proceeding, at any stage it appears to the
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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 of 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 it
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 of theirs; or of such man or such wife,
(iii) any child or children being maintained by such man and wife;
(b) a man not having a wife or not living together with his wife, any child or
children, being issue of his, and any child or children being maintained by
him;
(c) a 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
665
[Suits by Indigent Persons]
666
1. Suits may be instituted by [indigent persons].—Subject to the
667
following provisions, any suit may be instituted by an [indigent
person].
668
[Explanation I.—A person is an indigent person,—
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(a) if he is not possessed of sufficient means (other than property exempt
from attachment in execution of a decree and the subject-matter of the
suit) to enable him to pay the fee prescribed by law for the plaint in such
suit, or
(b) where no such fee is prescribed, if he is not entitled to property worth
one thousand rupees other than the property exempt from attachment in
execution of a decree, and the subject-matter of the suit.
Explanation II.—Any property which is acquired by a person after the
presentation of his application for permission to sue as an indigent person,
and before the decision of the application, shall be taken into account in
considering the question whether or not the applicant is an indigent
person.
Explanation III.—Where the plaintiff sues in a representative capacity,
the question whether he is an indigent person shall be determined with
reference to the means possessed by him in such capacity.]
High Court Amendment
ANDHRA PRADESH.—Same as Madras.
BOMBAY.—In Order XXXIII, Rule 1, for Explanation I below Rule 1,
substitute the following Explanation I:—
“Explanation I.—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.” (1-10-1983).
GUJARAT AND KARNATAKA.—(1) Insert the following sentence to the
Explanation to Rule 1:
“In determining whether he is possessed of sufficient means, the
subject-matter of the suit shall be excluded.”
(2) In Explanation to Rule 1, for “one hundred rupees”, substitute “five
hundred rupees”.
KARNATAKA.—For Rule 1, substitute the following:
“1. Subject to the following provisions, any suit may be instituted by
a pauper.
Explanation 1.—A person is a pauper—
(a) when he is not possessed of sufficient means to enable him to pay
the fee prescribed by law for the plaint in such suit, or
(b) where no fee is prescribed, when he is not entitled to property
worth Rs 100 other than property exempt from attachment under
clauses (a) and (b) of Section 60(1) of this Code and the subject-
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matter of the suit.
Explanation 2.—Any part of the subject-matter of the suit which the
opposite party relinquishes and places at the immediate disposal of the
plaintiff shall be taken into account in considering the question of the
possession of sufficient means by the plaintiff.
Explanation 3.—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.”
KERALA (LAKSHADWEEP I SLANDS).—In Rule 1—
(i) for Explanation, the following shall be substituted, namely:—
Explanation I.—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 II.—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. (9-6-1959)
MADRAS.—For the existing Explanation to Rule 1, substitute the
following:
“Explanation (i).—A person is pauper—
(a) when he is not possessed of sufficient means to enable him to pay
the fee prescribed by law for the plaint in such suit, or
(b) where no fee is prescribed, when he is not entitled to property
worth one hundred rupees other than his wearing apparel and the
subject-matter of the suit.
Explanation (ii).—Any part of the subject-matter of the suit which
the opposite party relinquishes and places at the immediate disposal of
the plaintiff shall be taken into account in considering the question of
the possession of sufficient means by the plaintiff.
Explanation (iii).—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.”
ORISSA.—Deleted (14-5-1984).
► Object.—The object of the provision is to exempt an indigent person from
paying requisite court fee at the first instance and allows him to institute suit or
prosecute appeal in forma pauperis, Mathai M. Paikeday v. C.K. Antony, (2011) 13
SCC 174 : (2012) 3 SCC (Civ) 413, See also A.A. Haja Muniuddin v. Indian
Railways, (1992) 4 SCC 736.
► Scope of “sufficient means”.—Financial assistance received from family
members or close friends shall not be considered, Mathai M. Paikeday v. C.K.
Antony, (2011) 13 SCC 174 : (2012) 3 SCC (Civ) 413.
► Legal representative of indigent person.—Legal representatives of the
deceased plaintiff are not entitled to claim benefit of the deceased plaintiff, they must
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prove that they themselves are indigent persons, Lakshmi v. Vijaya Bank, 2010 SCC
OnLine Kar 4562; AIR 2011 Kar 89.
669
[1-A. 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.]
2. Contents of application.—Every application for permission to sue as
670
[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.
3. Presentation of application.—Notwithstanding anything contained in
these rules, the application shall be presented to the Court by the
applicant in person, unless he is exempted from appearing in Court, in
which case the application may be presented by an authorised agent who
can answer all material questions relating to the application, and who may
be examined in the same manner as the party represented by him might
have been examined had such party attended in person:
671
[Provided that, where there are more plaintiffs than one, it shall be
sufficient if the application is presented by one of the plaintiffs.]
High Court Amendments
ALLAHABAD.—After the words “unless he is exempted from appearing in
Court” add the words “or detained in prison”. (8-5-1937).
ANDHRA PRADESH.—Same as that of Madras.
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—To Rule 3, the
following Explanation shall be added, namely:
“Explanation.—Where there are more applicants than one
presentation by one shall be deemed to be sufficient compliance with
the provisions of the rule.”(9-6-1959)
MADRAS : PONDICHERRY, KARNATAKA.—The following shall be added to
Rule 9:
“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 by agent, Court may order applicant to be
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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
672
permission to sue as an [indigent person]—
(a) where it is not framed and presented in the manner prescribed by Rules
2 and 3, or
673
(b) where the applicant is not an [indigent person], or
(c) where he has, within two months next before the presentation of the
application, disposed of any property fraudulently or in order to be able to
674
apply for permission to sue as an [indigent person]:
675
[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
676
an interest in such subject-matter, [or]
677
[(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.]
High Court Amendments
ALLAHABAD.—(1) Add the following Explanation at the end:
“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.”
(2) Add in clause (a) between the figure “3” and the word “or” the
following:
“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”. (15-
4-1933).
ANDHRA PRADESH.—In Order XXXIII,
(1)(a) in Rule 5, for clause (d) the following clause shall be substituted,
namely:—
“(d) where the allegations in the application show that suit is barred
by law or do not show a cause of action”;
(b) clause (d-1) shall be omitted; (4-3-1975)
KERALA (LAKSHADWEEP I SLAND).—After clause (d) insert “(d-1) where the
suit appears to be barred by any law, or” (9-6-1959).
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KARNATAKA.—In Rule 5, substitute the following for clause (a):
“5(a) Where it is not framed and presented in the manner prescribed
by Rules 2 and 3 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.”
MADRAS (PONDICHERRY).—Substitute the following for clause (d):
“(d) where the allegations do no show a cause of action, or
(d-1) where the suit appears to be barred by any law, or,” (22-10-
1940).
ORISSA.—Deleted (14-5-1984).
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 days' clear notice
shall be given to the opposite party and the Government pleader) for
receiving such evidence as the applicant may adduce in proof of his 678
[indigency], and for hearing any evidence which may be adduced in
disproof thereof.
High Court Amendments
ANDHRA PRADESH.—(2) for Rule 6, the following rule shall be substituted,
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).” (4-3-1975)
KERALA, MADRAS AND KARNATAKA.—Substitute for Rule 6—
Notice of day for enquiring 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.” (9-6-1959)
679
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
680
agent, and shall make [a full record of their evidence].
681
[(1-A) The examination of the witnesses under sub-rule (1) shall be
confined to the matters specified in clause (b), clause (c) and clause (e)
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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
682
of the evidence (if any) taken by the Court [under Rule 6 or under this
rule], the applicant is or is not subject to any of the prohibitions specified
in Rule 5.
(3) The Court shall then either allow or refuse to allow the applicant to
683
sue as [an indigent person].
High Court Amendments
ANDHRA, MADRAS AND KARNATAKA.—Add sub-rule (4) as follows:
“(4) Where the application is for leave to sue in representative
capacity under Explanation III to Rule 1, or under Sections 91, 92 or
under Order I, Rule 8, this 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.”
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Add in the end of
sub-rule (3) after converting full stop in comma as follows:
“Or direct that the application to be filed as a plaint on the applicant
paying the requisite court-fee within 30 days or such reasonable time
as the Court may fix.” (9-6-1959)
8. Procedure if application admitted.—Where the application is granted,
it shall be numbered and registered, and shall be deemed the plaint in the
suit, and the suit shall proceed in all other respects as a suit instituted in
the ordinary manner, except that the plaintiff shall not be liable to pay
any court-fee 684[or fees payable for service of process] in respect of any
petition, appointment of a pleader or other proceedings connected with
the suit.
685
[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
686
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
687
sue as an [indigent person]; or
(c) if he has entered into any agreement with reference to the subject-
matter of the suit under which any other person has obtained an interest
in such subject-matter.
High Court Amendment
ORISSA.—At the end of clause (c) add the word ‘or’ and thereafter add a
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new clause (d) as follows:
“(d) If he has entered into an arrangement with any other person to
finance the litigation.”
688
[9-A. 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).]
High Court Amendment
BOMBAY (No. P. 0106 of 1977, dated August 19, 1980).—In exercise of
the powers conferred by sub-rule (2) of Rule 9-A 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
person:
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 constitute the panel.
3. The authority referred to in column No. 1 below shall constitute
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 the Constituting Name of the Court for which
Authority panel to be constituted
1. Prothonotary and Senior Master, High Court, Original Side,
High Court, Original Side, Bombay Bombay
2. Registrar, High Court, Appellate High Court, Appellate Side,
Side, Bombay. Bombay
3. Special Officer, Nagpur High Court Bench at Nagpur
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4. District Judge Courts at District Headquarters
5. Principal Judge, Bombay City Civil Bombay City, Civil Court
Court.
6. Chief Judge, Small Causes Court Small Causes Court, Bombay
7. Seniormost Judge at the Station For Courts outside District
Headquarters
Provided that the panel constituted by the Seniormost 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, if any, and if there be no Bar
Association, in consultation with the members of the Bar 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 an
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 Pleader to represent the
indigent person. On such permission for withdrawal being granted, the
Pleader originally assigned, shall hand over the papers relating to the
proceedings 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.
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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, profit or reward for the conduct of his business 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 Rs 50 per day subject to a
Court at Bombay and Nagpur and in maximum of Rs 150 in any
City Civil Court in Bombay. one case.
(b) in all proceedings in Courts at District Rs 25 per day subject to a
Headquarters and in Small Causes maximum Rs 100 in any
Courts in Bombay, Poona and one case.
Nagpur.
(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 counsels—M(i) and M(ii).
15. Intimation of unwillingness to continue on Panel.—The Pleader
taken on the Panel may if he so desires 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 the
Constituting Authority may request the Pleader assigned to continue to
represent the indigent person in the matter or matters already assigned.
[By order of the Hon'ble the Chief Justice and Judges. (Mah. Gaz., Part IV-
Ka, dated 18-9-1980)].
CALCUTTA (Appellate Side: 15425-G. 29th November, 1979).—In
exercise of the powers conferred by Article 227(2)(b) of the Constitution
of India and by sub-rule (2) of Rule 9-A of Order XXXIII of the Code of
Civil Procedure the High Court of Calcutta, with the approval of the
Governor of West Bengal, has framed the following rules which are
published for general information:
Rules under Order XXXIII, Rule 9-A(2) of the Code of Civil Procedure—
(1) 1. (a) For the purpose of selection of Pleaders to be assigned under
sub-rule (1) of Rule 9-A of Order XXXIII of the Code, the District Judge in
consultation with the seniormost judicial officers of the outlying stations
shall prepare and maintain a panel of Pleaders for: (a) the district
headquarters and (b) the outlying stations.
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The District Judge in his discretion may also consult the President of
the Civil Bar Association.
(b) The panel to be prepared 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
Council 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 seniormost 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. (a) 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 names of advocates
willing to appear for undefended indigent persons without charging any
fee. In cases 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 a 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;
and (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.
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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 as possible after the delivery of the judgment of the case
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 the Register of Work shall then be submitted to the
District Judge for passing and after satisfying himself as to the correctness
thereof, he shall pass the bill for payment.
10. The District Judge shall be the 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
Court: Name of Advocate Month:
Date No. and Actual Full or half Serial No. of Initial of
Nature of daily day consecutive Presiding
case duration of days of Officer
hearing hearing
1 2 3 4 5 6
Total number of days:
Certified correct
Signature of
Presiding Officer.
Date:
Form II-(Rule 8)
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Bill of fees due to……………in………… No. …………of the Court of………
Date Register of Full or half Amount of Remarks
Work No. days fee charged
1 2 3 4 5
Total…………………… Rupees Paise only
Verified with Pleader
the Register
of
Work as
correct.
Signature of Passed for Rupees…………..
Chief (in words and figures)
Ministerial
Officer with
date.
Signature of Presiding Officer with date.
District Judge.
HARYANA.—The following rules have been framed for regulating the
appointment of pleaders to represent indigent persons in civil suits:—
LEGAL AID TO I NDIGENT 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 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 charge.
(d) ‘Code’ means the Code of Civil Procedure, 1908, as amended from
time to time.
PART II
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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 seniormost 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:—
(1) Name of the advocate
(2) Date of birth
(3) Qualification: University Distinctions
degrees earned in Law (if
any)
(4) Date of enrolment at the
Bar.
(5) Place of practice.
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(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 of Duration Work Signature Remarks
name the party of done of the
and represented hearing Presiding
title of Officer
the
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case
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 shall submit their bills to the District Judge within
one month of the disposal of the case by the Court. (Vide Noti. No.
70/133/C.A./5/1908-R9A/Or-der/XXXIII/81, dated May 7, 1981, pub. in
Haryana Gazette, dated May 19, 1981, L.S. pp. 509-511.)
HIMACHAL PRADESH.—The following rule have been made for regulating
the appointment of Pleaders to represent indigent persons in civil suits,
namely:—
LEGAL AID TO I NDIGENT 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.
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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 seniormost 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 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:—
(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 seven 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
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stenographer during trial shall, supply copies of such depositions to the
advocate so appointed free of cost.
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
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 Name Duration Work Signature Remarks
and title of of the of done of the
the case Party hearing Presiding
Officer
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 of 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-
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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 Noti. No. HHC Admn. 22(6)/78, dt. Nov. 6,
1979, pub. in HP Gaz., Pt. III, dt. Dec. 15, 1979.)
10. Costs where 689[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
690
to sue as an [indigent person]; such amount shall be recoverable by
691
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.
11. Procedure where 692[indigent person] fails.—Where the plaintiff fails
in the suit or the permission granted to him to sue as an indigent person
has been withdrawn, or where the suit is withdrawn or 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
693
the court-fee or postal charges (if any) chargeable for such service [or
to present copies of the plaint or concise statement], or
(b) because the plaintiff does not appear when the suit is called on for
hearing,
the Court shall order the plaintiff, or any person added as a co-plaintiff to
the suit, to pay the court-fees which would have been paid by the plaintiff
694
if he had not been permitted to sue as an [indigent person].
High Court Amendments
ANDHRA PRADESH.—The existing Rule 11, which is same as that of
Madras, shall be renumbered as sub-rule (1) to Rule 11 and the following
shall be added as sub-rule (2) thereof:
“(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.”
KERALA: LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of
Madras, (9-6-1959); See Act 37 of 1956, Section 60 and Reg. 8 of 1965,
Section 3(2).
MADRAS AND PONDICHERRY.—Substitute the following for Rule 11:
“11. 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
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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 charges (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 cases where the plaintiff in 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 in 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.”
KARNATAKA.—Delete Rule 11 and substitute the following:
“11. (1) 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 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 plaintiff if he had not been permitted to
sue as pauper.”
Paragraphs (2) and (3) same as that of Madras 11(b) which begins
from “In cases… court-fee.”
695
[11-A. Procedure where 696[an indigent person's] suit abates.—
Where the suit abates by reason of the death of the plaintiff or of any
person added as a co-plaintiff, the Court shall order that the amount of
court-fees which would have been paid by the plaintiff if he had not been
697
permitted to sue as an [indigent person] shall be recoverable by the
State Government from the estate of the deceased plaintiff.]
698
12. State Government may apply for payment of Court-fees.—The
[State Government] shall have the right at any time to apply to the Court
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699
to make an order for the payment of Court-fees under Rule 10, [Rule
11 or Rule 11-A].
High Court Amendments
KERALA: LACCADIVE, MINICOY, AMINDIVI I SLANDS, MADRAS AND PONDICHERRY.
—Add the following sub-rule (2) and make the existing one as sub-rule
(1):
“(2) Notice to State Government before payment.—No order for
payment out of money standing to the credit of any suit instituted in
forma pauperis shall be made on the application of any party except
after notice duly served to the Government pleader on behalf of the
Government.”
13. State Government to be deemed a party.—All matters arising
700
between the [State Government] and any party to the suit under Rule
701
10, Rule 11, [Rule 11-A] 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.—After Rule 13, add the following:
“13-A. If any money is outstanding to the credit of a suit or appeal
or other proceeding instituted, preferred or taken in forma pauperis no
order for payment out of such money shall be made on application of
any party except after due notice to the State Government.”
702
[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.]
15. Refusal to allow applicant to sue as 703[indigent person] to bar
subsequent application of like nature.—An order refusing to allow the
704
applicant to sue as an [indigent person] shall be a bar to any
subsequent application of the like nature by him in respect of the same
right to sue; but the applicant shall be at liberty to institute a suit in the
ordinary manner in respect of such right, 705[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
706
any) incurred by the [State Government] and by the opposite party in
707
the opposing his application for leave to sue as an [indigent person].
High Court Amendment
RAJASTHAN.—Renumber Rule 15 as Rule 15(1) and add Rule 15(2) as
follows:
“15. (2) Nothing in sub-rule (1) shall prevent the Court while
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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.”
708
[15-A. 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;
709
and upon such payment and on payment of the costs referred to in [* *
*] of Rule 15 within that time, the suit shall be deemed to have been
instituted on the date on which the application for permission to sue as an
indigent person was presented.]
710
16. Costs.—The costs of an application for permission to sue as [an
711
indigent person] and of an inquiry into [indigency] shall be costs in the
suit.
High Court Amendments
ANDHRA PRADESH.—After Rule 16 add the following rules:
“Rule 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 has
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.
Rule 18. Where the pauper is unable to engage a counsel, the Court
may assign an advocate or pleader to assist him.
Rule 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.
Rule 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 adverse party or out of the
property recovered in the suit and to direct payment thereof to the
advocate or pleader representing the pauper.
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Rule 21. The word ‘suit’ in these rules includes ‘appeal’.”
GUJARAT.—After Rule 16 add the following:
“Rule 17. Any person may be allowed to defend as a pauper either
before or after he has entered appearance and the rules in this Order
shall apply to him mutatis mutandis as if he was a plaintiff and his
written statement was a plaint.
Rule 18. No cause, suit or matter commenced or carried on by a
pauper plaintiff or defendant shall be compromised on any account
whatever without leave first had and obtained from the Court.”
712
[17. Defence by an indigent person.—Any defendant, who desires 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.]
High Court Amendment
BOMBAY.—In Order XXXIII, for the existing Rule 17 and its marginal
note substitute the following rule and the marginal note.—
“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. (1-10-1983)
Rules 17 to 21
ANDHRA PRADESH.—After R. 16 add the following rules:
“Rule 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 has
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.
Rule 18. Where the pauper is unable to engage a counsel, the Court
may assign an advocate or pleader to assist him.
Rule 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 petition presented only on good and sufficient
grounds and he shall also report to the Court every six months the
progress of the suit.
Rule 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
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to Court under R. 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 adverse party or out of the
property recovered in the suit and to direct payment thereof to the
advocate or pleader representing the pauper.
Rule 21. The word ‘suit’ in these rules includes ‘appeal’.” (9-4-1958)
Rules 17 and 18
GUJARAT.—After R. 16 add the following:
Rule 17. Any person may be allowed to defend as a pauper either
before or after he has entered appearance and the rules in this Order
shall apply to him mutatis mutandis as if he was a plaintiff and his
written statement was a plaint.
Rule 18. No cause, suit or matter commenced or carried on by a
pauper plaintiff or defendant shall be compromised on any account
whatever without leave first had and obtained from the Court.” (17-8-
1961)
713
[18. Power of Government to provide for free legal services to
indigent persons.—(1) Subject to the provisions of this Order, the Central
or State Government may make such supplementary provisions as it
thinks fit for providing free legal services to those who have been
permitted to sue as indigent persons.
(2) The High Court may, with the previous approval of the State
Government, make rules for carrying out the supplementary provisions
made by the Central or State Government for providing free legal services
to indigent persons referred to in sub-rule (1), and such rules may include
the nature and extent of such legal services, the conditions under which
they may be made available, the matters in respect of which, and the
agencies through which, such services may be rendered.]
High Court Amendment
Rule 18 See Andhra Pradesh and Gujarat below R. 17, above.
RULE 19
BOMBAY.—In Or. 33, after the existing R. 18 add the following rule with
marginal note as new R. 19 and the marginal note:—
“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 without
leave first had and obtained from the Judge in Chambers or the
Court.” (1-10-1983).—See Maharashtra Govt. Gazette, dt. 15-9-1983,
Pt. 4 Ka, p. 421. Goa Gazette, 12-10-1987, Extra., S. 1, No. 28, p. 387
(1-4-1987).
ORDER XXXIV
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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.
► Redemption of mortgage.—Conditional sale in default of redemption of
mortgage within such period would be a clog and is not valid in law. The document
would not be a conditional sale but it is only an usufructuary mortgage and the
provisions of Order 34 CPC would be applicable for redemption of mortgage,
Mannathan v. Chinnu, 2012 SCC OnLine Mad 383 : AIR 2012 Mad 210 .
► Lessee.—Where in suit for realisation of rent filed by the mortgagee money
decree was passed and in execution of decree the mortgagee purchased the
property, it merely created trust, the relationship of mortgagor and mortgagee
continued. The mortgagor had right to redeem the property, Ram Pyari Devi v.
Nazimal Haque, 2012 SCC OnLine Pat 804 : AIR 2013 Pat 23.
► Locus standi to challenge redemption decree.—Tenant/Lessee of
mortgagor/mortgagee, held, does not have locus standi/standing to challenge
redemption decree, Mohan Chandra Tamta v. Ali Ahmad, (2019) 9 SCC 471.
714
[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
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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.]
High Court Amendments
PATNA AND ORISSA.—In sub-rule (2), insert the words “of its own motion
or” after the words “the Court may”. (7-1-1936)
715
[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 of the defendant the mortgaged
property as directed in the said decree,
and also, if necessary,—
(c) ordering him to put the defendant in possession of the property.
(2) Where payment in accordance with sub-rule (1) has not been
made, the Court shall, on application made by the plaintiff in this behalf,
pass a final decree declaring that the defendant and all persons claiming
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through or under him are 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.]
716
[4. Preliminary decree in suit for sale.—(1) In a suit for sale, if the
plaintiff succeeds, the Court shall pass a preliminary decree to the effect
mentioned in clauses (a), (b) and (c)(i) of sub-rule (1) of Rule 2, and
further directing that, in default of the defendant paying as therein
mentioned, the plaintiff shall be entitled to apply for a final decree
directing that the mortgaged property or a sufficient part thereof be sold,
and the proceeds of the sale (after deduction therefrom of the expenses of
the sale) be paid into Court and applied in payment of what has been
found or declared under or by the preliminary decree due to the plaintiff,
together with such amount as may have been adjudged due in respect of
subsequent costs, charges, expenses and interest and the balance, if any,
be paid to the defendant or other persons entitled to receive the same.
(2) The Court may, on good cause shown and upon terms to be fixed
by the Court, from time to time, at any time before a final decree for sale
is passed, extend the time fixed for the payment of the amount found or
declared due under sub-rule (1) or of the amount adjudged due in respect
of subsequent costs, charges, expenses and interest.
(3) Power to decree sale in foreclosure suit.—In a suit for
foreclosure in the case of an anomalous mortgage, if the plaintiff
succeeds, the Court may, at the instance of any party to the suit or of any
other person interested in the mortgage-security or the right of
redemption, pass a like decree (in lieu of a decree for foreclosure) on such
terms as it thinks fit, including the deposit in Court of a reasonable sum
fixed by the Court to meet the expenses of the sale and to secure the
performance of the terms.
(4) Where, in a suit for sale or a suit 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 the
circumstances of the case may require.]
High Court Amendments
ALLAHABAD.—In sub-rule (2) after the words “the Court may” insert “of
its own motion or”. (24-7-1926).
ASSAM AND NAGALAND, CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—
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Renumber clauses (3) and (4) as (4) and (5) and insert (3) as follows:
“(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 debt
mortgagor shall pay the balance personally.”
717
[5. Final decree in suit for sale.—(1) Where, on or before the day
fixed or at any time before the confirmation of a sale made in pursuance
of a final decree passed under sub-rule (3) of this rule, the defendant
makes payment into Court of all amounts due from him under sub-rule
(1) of Rule 4, the Court shall, on application made by the defendant in
this behalf, pass a final decree or, if such decree has been passed, an
order—
(a) ordering the plaintiff to deliver up the documents referred to in the
preliminary decree,
and, if necessary,—
(b) ordering him to transfer the mortgaged property as directed in the said
decree,
and, also, if necessary,—
(c) ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in
pursuance of a decree passed under sub-rule (3) of this rule, the Court
shall not pass an order under sub-rule (1) of this rule, unless the
defendant, in addition to the amount mentioned in sub-rule (1), deposits
in Court for payment to the purchaser a sum equal to five per cent of the
amount of the purchase-money paid into Court by the purchaser.
Where such deposits have been made, the purchaser shall be entitled
to an order for repayment of the amount of the purchase-money paid into
Court by him, together with a sum equal to five per cent thereof.
(3) Where payment in accordance with sub-rule (1) has not been
made, the Court shall, on application made by the plaintiff in this behalf,
pass a final decree directing that the mortgaged property or a sufficient
part thereof be sold, and that the proceeds of the sale be dealt with in the
manner provided in sub-rule (1) of Rule 4.]
High Court Amendments
ANDHRA, MADRAS AND PONDICHERRY.—Substitute sub-rule (3) as follows:
“Where payment in accordance with sub-rule (1) has not been made
the Court shall on application made by the plaintiff in this behalf and
after notice to all the parties, pass a final decree directing that the
mortgaged property or a sufficient part thereof be sold, and that the
proceeds of the sale be dealt within the manner provided in sub-rule
(1) of Rule 4.”
KERALA, LACCADIVE AND MINICOY I SLANDS.—In sub-rule (3) between the
words “in this behalf” and “pass a final decree” insert the words “after
notice to all parties”.
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► Right of redemption.—Right of redemption of a mortgage is a substantive
right of the mortgagor which has accrued to him to be exercised under Order 34,
Rule 5 of the Code when the decree was passed, which cannot be taken away by the
amendment of Order 34 of the Code which was made only after the decree in this
case, Philomina Jose v. Federal Bank Ltd., (2006) 2 SCC 608.
► Extension of date of redemption.—Once the court exercises its power under
Order 34, Rule 5 CPC (as amended by the State of Kerala) to postpone the date fixed
for deposit of the amount due under the mortgage, the same can be challenged, K.
Vilasini v. Edwin Periera, (2008) 14 SCC 349.
718
[6. Recovery of balance due on mortgage in suit for sale.—Where the
719
net proceeds of any sale held under [Rule 5] are found insufficient to
pay the amount due to the plaintiff, the Court, on application by him may,
if the balance is legally recoverable from the defendant otherwise than out
of the property sold, pass a decree for such balance.]
720
[7. Preliminary decree in redemption suit.—(1) In a suit for
redemption, if the plaintiff succeeds, the Court shall pass a preliminary
decree—
(a) ordering that an account be taken of what was due to the defendant at
the date of such decree for—
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him up to
that date, in respect of his mortgage-security, together with interest
thereon; or
(b) declaring the amount so due at that date; and
(c) directing—
(i) that, if the plaintiff pays into Court the amount so found or declared
due on or before such date as the Court may fix within six months from
the date on which the Court confirms and countersigns the account
taken under clause (a), or from the date on which such amount is
declared in Court under clause (b), as the case may be, and thereafter
pays such amount as may be adjudged due in respect of subsequent
costs, charges and expenses as provided in Rule 10, together with
subsequent interest on such sums respectively as provided in Rule 11,
the defendant shall deliver up to the plaintiff, or to such person as the
plaintiff appoints, all documents in his possession or power relating to
the mortgaged property, and shall, if so required, re-transfer 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, or, 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
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(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
interests, 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
mortgaged property be sold, or
(b) in the case of a mortgage by conditional sale or such an anomalous
mortgage as aforesaid, that the plaintiff be debarred from all right
to redeem the property.
(2) The Court may, on good cause shown and upon terms to be fixed
by the Court, from time to time, at any time before the passing of a final
decree for foreclosure or sale, as the case may be, extend the time fixed
for the payment of the amount found or declared due under sub-rule (1)
or of the amount adjudged due in respect of subsequent costs, charges,
expenses and interest.]
721
[8. Final decree in redemption suit.—(1) Where, before a final decree
debarring the plaintiff from all right to redeem the mortgaged property
has been passed or before the confirmation of a sale held in pursuance of
a final decree passed under sub-rule (3) of this rule, the plaintiff makes
payment into Court of all amounts due from him under sub-rule (1) of
Rule 7, the Court shall, on application made by the plaintiff in this behalf,
pass a final decree, or, if such decree has been passed, an order—
(a) ordering the defendant to 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 in sub-rule (1), deposit in Court for
payment to the purchaser a sum equal to five per cent of the amount of
the purchase-money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to
an order for repayment of the amount of the purchase-money paid into
Court by him, together with a sum equal to five per cent thereof.
(3) Where payment in accordance with sub-rule (1) has not been
made, the Court shall, on application made by the defendant in this
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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.]
722
[8-A. Recovery of balance due on mortgage in suit for redemption.—
723
Where the net proceeds of any sale held under [Rule 8] are found
insufficient to pay the amount due to the defendant, the Court, 724[on
application made 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.]
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 the amount which may be found due to him; and the
plaintiff shall, if necessary, be put in possession of the mortgaged
property.
725
[10. Costs of mortgagee subsequent to decree.—In finally adjusting
the amount to be paid to a mortgagee in case of a foreclosure, sale or
redemption, the Court shall, unless in the case of costs of the suit the
conduct of the mortgagee has been such as to disentitle him thereto, add
to the mortgage-money such costs of the suit and other costs, charges
and expenses as have been properly incurred by him since the date of the
preliminary decree for foreclosure, sale or redemption up to the time of
actual payment:
726
[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.]
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727
[10-A. Power of Court to direct mortgagee to pay mesne profits.—
Where in a suit for foreclosure, the mortgagor has, before or at the time of
the institution of the suit, tendered or deposited the sum due on the
mortgage, or such sum as is not substantially deficient in the opinion of
the Court, the Court shall direct the mortgagee to pay to the mortgagor
mesne profits for the period beginning with the institution of the suit.]
High Court Amendments
BOMBAY.—In Order 34 for the existing Rule 10-A, the following rule shall
be substituted, namely:—
“10-A. 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.” Mah. Govt. Gaz. 31-12-1987 Pt. IV Ka.
728
[11. Payment of interest.—In any decree passed in a suit for
foreclosure, sale or redemption, where interest is legally recoverable, the
Court may order payment of interest to the mortgagee as follows, namely:
—
(a) interest up to the date on or before which payment of the amount found
or declared due is under the preliminary decree to be made by the
mortgagor or other person redeeming the mortgage—
(i) on the principal amount found or declared due on the mortgage,—at
the rate payable on the principal, or, where no such rate is fixed, at
such rate as the Court deems reasonable,
729
(ii) [* * *], and
(iii) on the amount adjudged due to the mortgagee for costs, charges and
expenses properly incurred by the mortgagee in respect of the
mortgage-security up to the date of the preliminary decree and added
to the mortgage-money,—at the rate agreed between the parties, or,
730
failing such rate, [at such rate not exceeding six per cent per annum
as the Court deems reasonable]; and
731
[(b) subsequent interest up to the date of realisation or actual payment
on the aggregate of the principal sums specified in clause (a) as
calculated in accordance with that clause at such rate as the Court deems
reasonable.]
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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 property 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 in
consequence whereof the sale was directed, and of the costs of the suit in
which the decree directing the sale was made;
fourthly, in payment of the principal money due on account of that
mortgage; and
lastly, the residue (if any) shall be paid to the person proving himself to
be interested in the property sold, or if there are more such persons than
one, 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 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
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Omit sub-rule (2).
RULE 14-A
BOMBAY, GOA, DAMAN AND DIU.—After the existing Rule 14, insert the
following as new Rule 14-A:
“14-A. Special provisions regarding a composite decree combining in
itself a preliminary as well as 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
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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 that date, under the said decree,
order, award or adjudication, including all subsequent costs, charges,
expenses and interest, and also deposits in Court for payment to the
purchaser a sum equal to five per cent of the amount of the purchase
money paid into Court by the purchaser, 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 an order—
(a) ordering the decree-holder (mortgagee) to deliver up to the
judgment-debtor (mortgagor) or his nominee, all documents in his
possession or power relating to the mortgaged property, and, if
necessary,
(b) ordering him to re-transfer the mortgaged property to the
judgment-debtor (mortgagor) or his nominee at his cost free from
the mortgage and from all encumbrances 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, 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) 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, order, award or adjudication, including all
subsequent costs, charges, expenses and interest.” (1-10-1983 and 1-
4-1987).
► Relative scope of Order 34, Rule 14 and Order 2, Rule 2.—In respect of a
suit in enforcement of a mortgage, the bar under Order 2, Rule 2 has been kept out
by Order 34, Rule 14 CPC. Rule 15 of Order 34 makes the rules of Order 34
applicable to a mortgage by deposit of title deeds, S. Nazeer Ahmed v. State Bank of
Mysore, (2007) 11 SCC 75.
732
[15. Mortgages by the deposit of title-deeds and charges.—733[(1)]
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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).
734
[(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.]
High Court Amendments
ALLAHABAD.—Read present Rule 15 as Rule 15(1) and add as sub-rule
(2), thus:
“(2) Where a decree orders payment of money and charges it on
immovable property on default of payment, the amount can be realised
by sale of that property in execution of that very decree.” (17-1-1953)
KERALA.—For Order 34 substitute the following:
“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 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 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
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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 subrogated 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
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all the parties to the suit in the manner and form set forth in Form No.
9, Form No. 10 or Form No. 11, as the case may be, of Appendix D,
with such variations as the circumstances of the case may require.
4. Decree in suit for redemption.—In a suit for redemption, if the
plaintiff succeeds, the Court shall pass a 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
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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 hereinbefore 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
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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. (15-1-1974)—
(Kerala Gaz. 20-11-1990, Part III, No. 46 p. 143).
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 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
of 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
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(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
this Order shall be deemed to enable agents to sue their principals, or
tenants to sue their landlords, for the purpose of compelling them to
interplead with any persons other than persons making claim through
such principals or landlords.
Illustrations
(a) A deposits a box of jewels with B as his agent. C alleges that the
jewels were wrongfully obtained from him by A, and claims them from B.
B cannot institute an interpleader suit against A and C.
(b) A deposits a box of jewels with B as his agent. He then writes to C
for the purpose of making the jewels a security for a debt due from
himself to C. A afterwards alleges that C's debt is satisfied, and C alleges
the contrary. Both claim the jewels from B. B may institute an
interpleader-suit against A and C.
► Right of redemption.—Pendency of petition under Order 21, Rule 89 not a
bar to filing application under Order 35, Rule 5 (for redemption of mortgage) which is
a special provision applicable to mortgage suits, Makuneni Amruth v. Thailam,
(2010) 15 SCC 707 : (2013) 2 SCC (Civ) 291.
6. Charge for plaintiff's costs.—Where the suit is properly instituted the
Court may provide for the costs of the original plaintiff by giving him a
charge on the thing claimed or in some other effectual way.
ORDER XXXVI
Special Case
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
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agreement is for the delivery of any property, or for the doing, or
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 agreement, if
framed in accordance with the rules hereinbefore contained, may be filed
735
[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.
736
(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
737
agreement, other than the party or parties by whom [the application
was presented].
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.
738
[6. No appeal from a decree passed under Rule 5.—No appeal shall
lie from a decree passed under Rule 5.]
ORDER XXXVII
739
Summary Procedure [* * *]
740
[1. Courts and classes of suits to which the Order is to apply.—(1)
This Order shall apply to the following Courts, namely:—
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) other Courts:
Provided that in respect of the Courts referred to in clause (b), the High
Court may, by notification in the Official Gazette restrict the operation of
this Order only to such categories of suits as it deems proper, and may
also, from time to time, as the circumstances of the case may require, by
subsequent notification in the Official Gazette, further restrict, enlarge or
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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.]
741
[(iv) suit for recovery of receivables instituted by any assignee of a
receivable.]
Notification
ALLAHABAD.—In exercise of the powers under clause (b) of Rule 1 of
Order XXXVII of the First Schedule to the Code of Civil Procedure, 1908 (V
of 1908), the Governor is pleased to empower the Courts of all District
Judges, Additional District Judges, Civil Judges, Additional Civil Judges,
Munsifs and Additional Munsifs to entertain, try and to do all other acts
incidental or consequential thereto in respect of, all suits triable according
to the summary procedure prescribed in the said Order XXXVII. (Vide
Noti. No. 3788/VII—A-N-75, dated October 1, 1975, published in U.P.
Gazette, Extra., dated 1st October, 1975).
High Court Amendments
BOMBAY, GOA, DAMAN AND DIU.—In Order XXXVII, substitute the
following sub-rule (1) for the existing sub-rule (1) of Rule 1:—
“1. (i) 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 the 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
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.” (1-10-1983) and
(1-10-1987).
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Order XXXVII shall
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be omitted (9-6-1959).
PUNJAB, HARYANA AND CHANDIGARH.—
“Application for order.—Summary Procedure on Negotiable
Instruments — This order shall apply only to—
(a) the High Courts of Judicature at Fort William, Madras, and Bombay;
(b) *
(c) any other Court to which Sections 532 to 537 of the Code of Civil
Procedure, 1882, have been already applied; and
(d) the Courts of the District Judges and Subordinate Judges of the first
class of the Union Territory of Delhi and the Courts of the District
Judges and Subordinate Judges of the First Class in the civil district
of Amritsar in the State of Punjab. (High Court Noti. No. 225-G, dt. 5
-7-1923, and No. 456-Gazette/XI-Y-15, dt. 29-7-1932)
742
[2. Institution of summary suits.—(1) A suit, to which this Order
applies, may if the plaintiff desires to proceed hereunder, be instituted by
presenting a plaint which shall contain,—
(a) a specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule, has been
claimed in the plaint; and
(c) the following inscription, immediately below the number of the suit in
the title of the suit, namely:—
“(Under Order XXXVII of the Code of Civil Procedure, 1908).”
(2) The summons of the suit shall be in Form No. 4 in Appendix B or in
such other Form as may, from time to time, be prescribed.
(3) The defendant shall not defend the suit referred to in sub-rule (1)
unless he enters an appearance and in default of his entering an
appearance the allegations in the plaint shall be deemed to be admitted
and the plaintiff shall be entitled to a decree for any sum, not exceeding
the sum mentioned in the summons, together with interest at the rate
specified, if any, up to the date of the decree and such sum for costs as
may be determined by the High Court from time to time by rules made in
that behalf and such decree may be executed forthwith.]
► Grant of leave to defend summary suit.—While dealing with an application
seeking leave to defend, held, it would not be a correct approach to proceed as if
denying leave is the rule or that leave to defend is to be granted only in exceptional
cases or only in cases where defence would appear to be a meritorious one.
Principles to be followed for grant of leave to defend summary suit, summarised, B.L.
Kashyap&Sons Ltd. v. JMS Steels&Power Corpn., (2022) 3 SCC 294.
743
[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
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service, enter an appearance either in person or by pleader and, in either
case, he shall file in Court an address for service of notices on him.
(2) Unless otherwise ordered, all summonses, notices and other judicial
processes, required to be served on the defendant, shall be deemed to
have been duly served on him if they are left at the address given by him
for such service.
(3) On the day of entering the appearance, notice of such appearance
shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff
sues in person, to the plaintiff himself, either by notice delivered at or
sent by a pre-paid letter directed to the address of the plaintiff's pleader
or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance, the plaintiff shall thereafter
serve on the defendant a summons for judgment in Form No. 4-A in
Appendix B or such other Form as may be prescribed from time to time,
returnable not less than ten days from the date of service supported by an
affidavit verifying the cause of action and the amount claimed and stating
that in his belief there is no defence to the suit.
(5) The defendant may, at any time within ten days from the service of
such summons for judgment, by affidavit or otherwise disclosing such
facts as may be deemed sufficient to entitle him to defend, apply on such
summons for leave to defend such suit, and leave to defend may be
granted to him unconditionally or upon such terms as may appear to the
Court or Judge to be just:
Provided that leave to defend shall not be refused unless the Court is
satisfied that the facts disclosed by the defendant do not indicate that he
has a substantial defence to raise or that the defence intended to be put
up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the
plaintiff is admitted by the defendant to be due from him, leave to defend
the suit shall not be granted unless the amount so admitted to be due is
deposited by the defendant in Court.
(6) At the hearing of such summons for judgment,—
(a) if the defendant has not applied for leave to defend, or if such
application has been made and is refused, the plaintiff shall be entitled to
judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the
claim, the Court or Judge may direct him to give such security and within
such time as may be fixed by the Court or Judge and that, on failure to
give such security within the time specified by the Court or Judge or to
carry out such other directions as may have been given by the Court or
Judge, the plaintiff shall be entitled to judgment forthwith.
(7) The Court or Judge may, for sufficient cause shown by the
defendant, excuse the delay of the defendant in entering an appearance or
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in applying for leave to defend the suit.]
High Court Amendments
PUNJAB, HARYANA, CHANDIGARH, DELHI AND HIMACHAL PRADESH.—(1) The
Court shall, upon application by the defendant, give leave to appear and
to defend the suit, upon affidavits which disclose such facts as would
make it incumbent on the holder to prove consideration, or such other
facts as the court may deem sufficient to support the application.
(2) Leave to defend may be given unconditionally, or subject to such
terms as to payment into Court, giving security, framing and recording
issues or otherwise, as the Court thinks fit.
(3) The provisions of Section 5 of the Indian Limitation Act, 1908, shall
apply to applications under sub-rule (1). (High Court Noti. No. 577-G., dt.
15-11-1978).
► Leave to defend.—Principles to be followed while granting leave,
unconditional or conditional, summarized, Sudin Dilip Talaulikar v. Polycap Wires
(P) Ltd., (2019) 7 SCC 577.
4. Power to set aside decree.—After decree the Court may, under
special circumstances set aside the decree, and if necessary stay or set
aside execution, and may give leave to the defendant to appear to the
summons and to defend the suit, if it seems reasonable to the Court so to
do, and on such terms as the Court thinks fit.
► Exercise of power.—Exercise of power for setting aside ex parte decree in
summary proceedings may be exercised only in special circumstances, when
defendant can make out debatable case, with imposition of conditions by court.
Principles therefor, summarised, Mahesh Kumar Joshi v. Madan Singh Negi, (2015)
12 SCC 254.
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, or
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
ORDER XXXVII-A
KARNATAKA.—After Order XXXVII and before Order XXXVIII insert the
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following Order:
“Order XXXVII-A
Interlocutory 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 a 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.” (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, or
(iii) has disposed of or removed from the local limits of the jurisdiction of
the Court his property or any part thereof, or
744
(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
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against the defendant in the suit,
the Court may issue a warrant to arrest the defendant and bring him
before the Court to show cause why he should not furnish security for his
appearance:
Provided that the defendant shall not be arrested if he pays to the
officer entrusted with the execution of the warrant any sum specified in
the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall
be held in deposit by the Court until the suit is disposed of or until the
further order of the Court.
2. Security.—(1) Where the defendant fails to show such cause the
Court shall order him either to deposit in Court money or other property
sufficient to answer the claim against him, or to furnish security for his
appearance at any time when called upon while the suit is pending and
until satisfaction of any decree that may be passed against him in the
suit, or make such order as it thinks fit in regard to the sum which may
have been paid by the defendant under the proviso to the last preceding
rule.
(2) Every surety for the appearance of a defendant shall bind himself,
in default of such appearance, to pay any sum of money which the
defendant may be ordered to pay in the suit.
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 that no person shall be detained in prison under this
rule after he has complied with such order.
High Court Amendments
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Renumber Rule 4 as
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sub-rule (1) and insert sub-rule (2) as follows:
“(2) The provisions of Order XXI, Rule 39 as to allowances payable
for the subsistence of J.D. shall apply to all defendants arrested under
this order.” (9-6-1959)
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 jurisdiction of the Court,
the Court may direct the defendant, within a time to be fixed by it, either
to furnish security, in such sum as may be specified in the order, to
produce and place at the disposal of the Court, when required, the said
property or the value of the same, or such portion thereof as may be
sufficient to satisfy the decree, or to appear and show cause why he
should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the
property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of
the whole or any portion of the property so specified.
745
[(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.]
► Appeal.—An order dismissing an application under Order 38, Rule (5) is not
appealable, New India Assurance Co. Ltd. v. Bhagyanagar Ventures Ltd., 2009 SCC
OnLine AP 838 : AIR 2010 AP 96 (99)(AP)(DB).
6. Attachment where cause not shown or security not furnished.—(1)
Where the defendant fails to show cause why he should not furnish
security, or fails to furnish the security required, within the time fixed by
the Court, the Court may order that the property specified, or such portion
thereof as appears sufficient to satisfy any decree which may be passed in
the suit, be attached.
(2) Where the defendant shows such cause or furnishes the required
security, and the property specified or any portion of it has been attached,
the Court shall order the attachment to be withdrawn, or make such other
order as it thinks fit.
High Court Amendments
BOMBAY, GOA, DAMAN AND DIU.—For the existing sub-rule (2), substitute
the following:
“(2) Where the defendant shows such cause or furnishes the
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required security or gives an undertaking to the Court to do or not to do
a thing, 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.” (1-10-1983 and 1-4-1987).
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.
746
[8. Adjudication of claim to property attached before judgment.—
Where any claim is preferred to property attached before judgment, such
claim shall be adjudicated upon in the manner hereinbefore provided for
the adjudication of claims to property attached in execution of a decree for
the payment of money.]
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 costs 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.
747
[11-A. 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.]
High Court Amendment
RULE 11-B
MADRAS (PONDICHERRY).—After Rule 11-A insert Rule 11-B:
“11-B. 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
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of whose jurisdictions the whole or any part of the immovable property
completed in such order, is situate.” T.N. Govt. Gaz., 15-7-1987 Pt. III,
S. 2, p. 250.
12. Agricultural produce not attachable before judgment.—Nothing in
this Order shall be deemed to authorise the plaintiff to apply for the
attachment of any agricultural produce in the possession of an
agriculturist, or to empower the Court to order the attachment or
production of such produce.
748
[13. Small Cause Court not to attach immovable property.—Nothing
in this Order shall be deemed to empower any Court of Small Causes to
make an order for the attachment of immovable property.]
High Court Amendments
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—For “Court of Small
Cause” substitute “Court exercising Small Cause Jurisdiction”. (9-6-1959)
ORDER XXXIX
Temporary Injunctions & Interlocutory Orders
► Interim or interlocutory order.—Compliance with an effective and substantial
order is essential, violation of an interim or an interlocutory order passed by a court
of competent jurisdiction ought to be viewed strictly if the rule of law is to be
maintained, Surya Vadanan v. State of T.N., (2015) 5 SCC 450.
Temporary injunctions
1. Cases in which temporary injunction may be granted.—749[* * *]
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
750
property with a view to [defrauding] his creditors,
751
[(c) that the defendant threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in the
suit,]
the Court may by order grant a temporary injunction to restrain such act,
or make such other order for the purpose of staying and preventing the
wasting, damaging, alienation, sale, removal or disposition of the property
752
[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.
753
(2) [* * *]
High Court Amendments
ALLAHABAD.—In clause (a) the words “or wrongfully sold. . . . . . . . . . . .
alienation” are now restored which were deleted by former amendment.
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ANDHRA PRADESH.—Substitute the following for Rule 1:
“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.” (26-7-1956).
ASSAM AND NAGALAND, CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—Add
sub-rules (2) and (3) as follows:
“(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 prison for a term not exceeding six months
unless in the meantime the Court direct 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.”
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS) AND GAUHATI (ASSAM),
MEGHALAYA, MANIPUR AND TRIPURA:
Renumber Rule 1 as Rule 1(1) and add the following as sub-rules (2)
and (3):
“(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 prison 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 sale 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.” (3-2-1933)
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—(i) Rule 1 shall be
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renumbered as sub-rule (1) and after the words “wrongfully sold” insert
the words “or delivered.”
(ii) After sub-rule (1) insert the following sub-rule (2):
“(2) In case of disobedience of any order passed under sub-rule (1),
the Court granting the injunction may proceed against the person
guilty of such disobedience under sub-rules (3) and (4) of Rule 2 of
this order.” (9-6-1959)
PATNA AND ORISSA.—Substitute the word “the” for the word “as” in line 1
of clause (a) and add the following proviso after Rule 1:
“Provided that no such temporary injunction shall be granted if it
would contravene the provisions of Section 56, Specific Relief Act (Act
1 of 1877):
Provided further that an injunction to restrain a sale, or confirmation
of 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.” (8-10-1937)
► Scope of powers at interim stage.—Passing of final order on issue
concerned at interlocutory stage, is impermissible, Vishnu Babu Tambe v. Apurva
Vishnu Tambe, (2017) 2 SCC 454, See also BSNL v. Prem Chand Premi, (2005) 13
SCC 505 : 2006 SCC (L&S) 1502.
► Principles.—While passing an interim order of injunction under Order 39,
Rules 1 and 2 CPC, the court is required to consider three basic principles, namely,
(a) prima facie case, (b) balance of convenience and inconvenience, and (c)
irreparable loss and injury, Makers Development Services (P) Ltd. v. M.
Visvesvaraya Industrial Research & Development Centre, (2012) 1 SCC 735 :
(2012) 1 SCC (Civ) 379, See also Ramrameshwari Devi v. Nirmala Devi, (2011) 8
SCC 249 : (2011) 4 SCC (Civ) 1.
An interim arrangement is normally made on a prima facie consideration of the
matter and on broad principles without examining the matter in depth. BSES Ltd. v.
Tata Power Co. Ltd., (2004) 1 SCC 195, See also Best Sellers (India) (P) Ltd. v.
Aditya Birla Nuvo Ltd., (2012) 6 SCC 792 : (2012) 3 SCC (Civ) 1044.
► Limitation for interlocutory application.—An interlocutory application is not
subject to any period of limitation, unless otherwise specifically provided by law. An
interlocutory application is nothing but an application in the course of an action. It is
a request made to a court, for its interference, in a matter arising in the progress of a
proceeding, Harihar Nath v. SBI, (2006) 4 SCC 457.
► Grant of interim injunction.—Grant of interim injunction by appellate court is
not permissible, when jurisdiction vests with trial court, Shyam Sel & Power Ltd. v.
Shyam Steel Industries Ltd., (2023) 1 SCC 634.
► Operation of interim orders.—Interim orders cease to be operative on
passing of final order, with which they ultimately merge, Jaipur Municipal Corpn. v.
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C.L. Mishra, (2005) 8 SCC 423.
► Grant of interim anti-suit injunction.—If the other party had already resorted
to proceedings before another court including outside India, an anti-suit injunction
can be issued if the fact situation so warrants, Madhavendra L. Bhatnagar v. Bhavna
Lall, (2021) 2 SCC 775.
► Recording of reasons.—While granting or rejecting injunction recording of
reasons is mandatory, Rayat Shikshan Sanstha v. Suneel Shiva Gaikwad, (2010) 15
SCC 539 : (2013) 2 SCC (Civ) 116.
► Trade Marks and Copyright matters.—There are far-reaching
consequences of temporary injunction in trade mark/intellectual property matters.
Principles summarised relating to interference by appellate court and Supreme Court
under Art. 136 of the Constitution, Neon Laboratories Ltd. v. Medical Technologies
Ltd., (2016) 2 SCC 672 : (2016) 2 SCC (Civ) 190.
► Injunction when may not be granted.—Where temporary injunction has
been granted without court satisfying itself as to whether prerequisites therefor were
met, it is not permissible, Jyoti Ltd. v. Bharat J. Patel, (2015) 14 SCC 566.
► Interlocutory mandatory injunction.—Such relief can be granted only in
exceptional circumstances where requirements for grant thereof are clearly made
out, Samir Narain Bhojwani v. Aurora Properties & Investments, (2018) 17 SCC
203.
► Grant of temporary injunction.—Temporary injunction in a suit for specific
performance of contract for sale cannot be granted when there are doubts as to
existence of a concluded contract and there is delay in instituting the suit. The onus
is on plaintiff to demonstrate that the parties were ad idem qua their
obligations/concluded contract, Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace
LLP Ltd., (2020) 5 SCC 410.
2. Injunction to restrain repetition or continuance of breach.—(1) In
any suit for restraining the defendant from committing a breach of
contract or other injury of any kind, whether compensation is claimed in
the suit or not, the plaintiff may, at any time after the commencement of
the suit, and either before or after judgment, apply to the Court for a
temporary injunction to restrain the defendant from committing the
breach of contract or injury complained of, or any breach of contract or
injury of a like kind arising out of the same contract or relating to the
same property or right.
(2) The Court may by order grant such injunction, on such terms as to
the duration of the injunction, keeping an account, giving security, or
otherwise, as the Court thinks fit.
754
(3) [* * *]
755
(4) [* * *]
STATE AMENDMENTS
Madhya Pradesh.—In its application to the State of Madhya Pradesh,
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in Order XXXIX of the First Schedule to the principal Act,—
(a) in Rule 2, in sub-rule (2), the following proviso shall be inserted,
namely:—
“Provided that no such injunction shall be granted—
(a) where no perpetual injunction could be granted in view of the
provisions of Section 38 and Section 41 of the Specific Relief Act,
1963 (47 of 1963); or
(b) to stay, the operation of an order for transfer, suspension, reduction
in rank, compulsory retirement, dismissal, removal or otherwise
termination of service of, or taking charge from, any person
appointed to public service and post in connection with the affairs of
the State including any employee of any Company or Corporation
owned or controlled by the State Government; or
(c) to stay, any disciplinary proceeding, pending or intended or, the
effect of any adverse entry against any person appointed to public
service and post in connection with the affairs of the State including
any employee of the Company owned or controlled by the State
Government; or
(d) to restrain any election; or
(e) to restrain any auction intended to be made or, to restrain the
effect of any auction made by the Government; or to stay the
proceedings for the recovery of any dues recoverable as land revenue
unless adequate security is furnished;
and any order for injunction granted in contravention of these
provisions shall be void.” [Vide M.P. Act 29 of 1984, S. 8 (14-8-1984)].
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Rule 2, in sub-rule (2), the following proviso shall be inserted, namely:—
“Provided that no such injunction shall be granted—
(a) where no perpetual injunction could be granted in view of the
provisions of Section 38 and Section 41 of the Specific Relief Act,
1963 (Act 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
756
(d) [omitted]
(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
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furnished], or
(g) to stay the proceedings for the recovery of any dues recoverable as
land revenue unless adequate security is furnished, or
(h) in any matter where a reference can be made to the Chancellor of a
University under any enactment for the time being in force;
and any order for injunction granted in contravention of these
provisions shall be void.” [Vide U.P. Act 57 of 1976, S. 13 (w.e.f. 1-1-
1977)].
*Ins. w.e.f 2-10-1981 (Vide Noti. dt. 3-2-1981).
► Scope.—A simple suit for recovery of an ascertained amount of money for
non-payment of the dues for the construction work already done, does not come
within the purview of this provision, Sunil Kakrania v. Saltee Infrastructure Ltd., AIR
2009 Cal 260 (263) (DB).
757
[2-A. 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, of the Court granting the
injunction or making the order, or any Court to which the suit or
proceeding is transferred, may order the property of the person guilty of
such disobedience or breach to be attached, and may also order such
person to be detained in the civil prison for a term not exceeding three
months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more
than one year, at the end of which time, if the disobedience or breach
continues, the property attached may be sold and out of the proceeds, the
Court may award such compensation as it thinks fit to the injured party
and shall pay the balance, if any, to the party entitled thereto.]
High Court Amendment
PATNA.—Insert the words and figures “or Section 151” after the word
and figure “Rule 2” and before the words “or breach of any”. (Noti. No.
243/R, dt. 3-8-1979).
► Nature and scope.—An application under Order 39, Rule 2-A CPC lies only
where disobedience/breach of an injunction granted or order complained of was one
that is granted by the court under Order 39, Rules 1 and 2 CPC, which is naturally to
enure during the pendency of the suit. However, once a suit is decreed, the interim
order, if any, merges into the final order and the court cannot entertain an application
under Order 39, Rule 2-A. An application under Order 39, Rule 2-A is maintainable
only during the pendency of the suit in case the interim order passed by the court or
undertaking given by the party is violated, Kanwar Singh Saini v. High Court of Delhi,
(2012) 4 SCC 307 : (2012) 2 SCC (Cri) 423 : (2012) 2 SCC (Civ) 497.
In case where there is sale of property during subsistence of interim orders of
court restraining parties not to sell, encumber or dispose of scheduled property
without disclosing/recognising rights of respondent, it is not open to parties to the lis
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or to any third party to determine validity of an order passed by court. Parties who
consider an order passed by a court as voidable or non est, must approach court of
competent jurisdiction to have said order set aside on such grounds, as available in
law. Order of court has to be complied with and sale held in violation of said order
has to be set aside, Robust Hotels (P) Ltd. v. EIH Ltd., (2017) 1 SCC 622.
► Decree passed without jurisdiction.—Unless the decree is set aside it is
binding on the parties. The plea that the decree was passed by the court having no
jurisdiction is no ground to disobey the injunction, Vijay Kumar Pandey v. Union of
India, AIR 2008 (NOC) 1943 : (2008) 4 All LJ 117 (All) (DB).
► “Wilful disobedience” as opposed to mere “disobedience”.—For finding a
person guilty of wilful disobedience of the order under Order 39 Rule 2-A there has to
be not mere “disobedience” but “wilful disobedience” and the allegation of wilful
disobedience being in the nature of criminal liability, has to be proved to the
satisfaction of the court, U.C. Surendranath v. Mambally's Bakery, (2019) 20 SCC
666.
3. Before granting injunction, Court to direct notice to opposite party.—
The Court shall in all cases, except where it appears that the object of
granting the injunction would be defeated by the delay, before granting
an injunction, direct notice of the application for the same to be given to
the opposite party:
758
[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.]
► Revision.—Order 39, Rule 3 is a procedural provision. The court, in the event,
arrives at a conclusion that the grant of ex parte injunction would be defeated by
delay, can grant an injunction. If the injunction is granted or rejected, it would be
appealable under Order 43. Merely issuing a notice on arriving at a conclusion that
there is no urgency would not be an order which is revisable, Ram Dhani v. Raja
Ram, 2011 SCC OnLine All 2223 : AIR 2011 All 121 (131) (DB).
759
[3-A. 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
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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.]
High Court Amendment
ALLAHABAD.—Rule 3-A shall be omitted (Vide Noti. No. 103/IV-h—360
dt. Feb. 3, 1981, w.e.f. Oct. 3, 1981.)
ANDHRA PRADESH.—As quoted in A.P.H.C. judgment. Gram Panchayat v.
G. Narendra Prasad, (2007) 2 Andh LD 75. These Rules read as under:
“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 latter by reason of the
injunction.
3-B. The Court shall, on application made after the disposal of the
suit, determine the amount payable under Rule 3-A and make an order
awarding it to the applicant.”
[Note: Cited from (2007) 2 Andh LD 75 and also available in (2007) 1
Andh LT 223].
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:
760
[Provided that if in an application for temporary injunction or in any
affidavit supporting such application, a party has knowingly made a false
or misleading statement in relation to a material particular and the
injunction was granted without giving notice to the opposite party, the
Court shall vacate the injunction unless, for reasons to be recorded, it
considers that it is not necessary so to do in the interest of justice:
Provided further that where an order for injunction has been passed
after giving to a party an opportunity of being heard, the order shall not
be discharged, varied or set aside on the application of that party except
where such discharge, variation or setting aside has been necessitated by
a change in the circumstances, or unless the Court is satisfied that the
order has caused undue hardship to that party.]
High Court Amendments
MADHYA PRADESH.—In Rule 4,—
(i) after the words “by the Court”, the words “for reasons to be
recorded, either on its own motion or” shall be inserted;
(ii) at the end, the following proviso shall be inserted, namely:—
“Provided also that if at any stage of the suit appears to the Court that the
party in whose favour the order of injunction exists is delaying the
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proceedings or is otherwise abusing the process of Court, it shall set aside
the order for injunction.” —M.P. Act 29 of 1984, S. 8 (w.e.f. 14-8-1984).
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in
Rule 4—
(i) after the words “by the Court”, the words “for reasons to be
recorded, either on its own motion or” shall be inserted;
(ii) at the end, the following proviso shall be inserted, namely:—
“Provided that if at any stage of the suit it appears to the Court that the
party in whose favour the order of injunction exists is dilating the
proceeding or is otherwise abusing the process of Courts, it shall set aside
the order for injunction.” [Vide U.P. Act 57 of 1976, S. 13. (1-1-1977)].
5. Injunction to corporation binding on its officers.—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 authorise any person to enter
upon or into any land or building in the possession of any other party to
such suit; and
(c) for all or any of the purposes aforesaid authorise any samples to be
taken, or any observation to be made or experiment to be tried, which
may seem necessary or expedient for the purpose of obtaining full
information or evidence.
(2) The provisions as to execution of process shall apply, mutatis
mutandis, to persons authorised to enter under this rule.
High Court Amendments
PUNJAB, HARYANA AND CHANDIGARH.—For existing sub-rule (1)(a)
substitute the following:—
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“(a) make an order for detention, preservation or inspection of any
relevant document(s), or other evidence, or of any property which is
subject-matter of such suit or as to which any question may arise
therein.” (11-4-1975), (23-3-1975), (1-5-1975).
8. Application for such orders to be after notice.—(1) An application by
761
the plaintiff for an Order under Rule 6 or Rule 7 may be made [* * *]
at any time after institution of the suit.
762
(2) An application by the defendant for a like order may be made [*
* *] at any time after appearance.
763
[(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.]
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 Amendments
BOMBAY, DADRA AND NAGAR HAVELI—GOA, DAMAN AND DIU.—In Order
XXXIX, after the existing Rule 10, add the following rule with marginal
note as new Rule 11 and its marginal note:—
“11. Procedure on parties, defying orders of Court and committing
breach of undertaking to the Court.—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
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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 default 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 default 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.” (1-10-1983) and (1-4-1987).
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) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the
receiver; and
(d) confer upon the receiver all such powers, as to bringing and defending
suit and for the realisation, management, protection, preservation and
improvement of the property, the collection of the rents and profits
thereof, the application and disposal of such rents and profits, and the
execution of documents as the owner himself has, or such of those
powers as the Court thinks fit.
(2) Nothing in this rule shall authorise the Court to remove from the
possession or custody of property, any person whom any party to the suit
has not a present right so to remove.
High Court Amendments
ALLAHABAD AND KARNATAKA.—In sub-rule (2) after the words “any
person” insert a “comma” and add words “not being a party to the suit”.
(10-7-1943; 30-3-1967).
► Powers of Receiver.—Powers of receiver as to bringing suit for preservation
of property must be conferred on receiver by court expressly or by necessary
implication. Terms of appointment specifying powers of receiver should not be
narrowly construed, Shree Ram Urban Infrastructure Ltd. v. High Court of Bombay,
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(2015) 5 SCC 539.
► Functions of Receiver.—Ordinarily function of Receiver comes to an end with
final decision of case. However, even after final decision, court can take further
assistance of Receiver as and when need arises. Objective of appointment of
Receivers is to preserve and keep accounts of property till lis is pending, Sherali
Khan Mohamed Manekia v. State of Maharashtra, (2015) 12 SCC 192.
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.—Substitute the following for sub-clauses (a) and (b)
of Rule 3:
“(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 form as may be
prescribed.”
KARNATAKA.—Delete Rule 3 and substitute the following:
“3. Every receiver so appointed shall.—(a) unless the Court
otherwise orders, furnish security in such form and 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 time and in such form as the Court
may direct or may be prescribed;
(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.” (30-3-1967)
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of
Andhra Pradesh subject to the change, namely, in clause (a) the word
“immovable” is substituted for the word “movable”. (9-6-1959)
MADRAS AND PONDICHERRY.—Same as that of Andhra Pradesh.
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
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(b) fails to pay the amount due from him as the Court directs, or
(c) occasional loss to the property by his wilful default or gross negligence,
the Court may direct his property to be attached and may sell such
property, and may apply the proceeds to make good any amount found to
be due from him or any loss occasioned by him, and shall pay the balance
(if any) to the receiver.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY, DADRA AND NAGAR HAVELI (GOA, DAMAN AND DIU).—In Order XL,
for the existing Rule 4 and its marginal note, substitute the following as
Rule 4 and marginal note:
“4. Enforcement of receiver's duties.—(1) 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 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 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.” (1-10-1983) and (1-4-
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1987)
KERALA, LACCADIVE, MINICOY AND AMINIDIVI I SLANDS.—Same as that of
Madras with the addition of the following marginal note to the rule:
“Enforcement of Receiver's duties”. (9-6-1959)
MADRAS, KARNATAKA AND PONDICHERRY.—Substitute the following for Rule
4:
(1) Same as that of Bombay,
(2) Same as that of Bombay, except in between the words “if any” and
before the words “make an enquiry. . . . . . . .” omit the words “not
beyond three years from the date of his discharge by the Court”. (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
MADRAS, (PONDICHERRY).—Substitute for Rule 5 as follows:
“Where the property is land paying revenue to the Government or
land of which revenue has been assigned or redeemed and the Court
considers that the interest of those concerned will be promoted by the
management of a Gazetted Officer of the Revenue Department the
Court may with the consent of the Collector appoint a Gazetted Officer
of the Revenue Department to be receiver of such property”. (9-7-
1967)
RULE 6
ANDHRA AND MADRAS.—Add Rule 6 as follows:
“6. Where property belongs to a cooperative society registered under
the Madras Co-operative Societies Act or to a member of such
cooperative society and the Court considers that the interest of those
concerned will be promoted by the management of an officer of the
Cooperative Department the Court may with the consent of the officer
appoint him to be Receiver of such property.” (8-1-1987)
KARNATAKA.—Same as that of Madras, except for the words “Madras
Cooperative Societies Act” the words “an appropriate statute” shall be
substituted.
RULE 7
ANDHRA PRADESH.—After Rule 6, add as under—
“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
a 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
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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.”—A.P. Gazette, 8-1-1987, Pt. II (RS), p. 2
(No. 2).
Order XL-A
BOMBAY, (GOA, DAMAN AND DIU).—Insert following Order XL-A after Order
XL: (1-10-1983 and 1-4-1987)
ORDER XL-A
Caveat Rules
1. Every Caveat under Section 148-A shall be signed by the Caveator or
his Advocate and shall be in 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 receive 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 matter has not been able to secure a Vakalatnama in the
prescribed form duly signed by the client, he may file a 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 148-A(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 148-A(2) is received by him or if received whether the applicant
has furnished the copies of the application together with the copies of the
papers or documents which have been filed or may be filed in support of
the application of the Caveator as required by Section 148-A(4).
6. A notice under Section 148-A(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
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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 . . . . . . . . . . . . . . . . . .
In the matter of Caveat under
Section 148-A of the Code
of Civil Procedure.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.Caveator
Pray that no orders be passed without due notice under Section 148-A
of the Code of Civil Procedure to the Caveator abovenamed in any
application for. . . . . . . . . . . (State in short reliefs to be prayed for) in
Suit/Petition/Appeal No. . . . . . . . . . .of 19 . . . . . . . . . . . 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 abovementioned, at the following
address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Caveator
REGISTER OF CAVEAT (O. XL-A.R. 3)
COURT OF THE OF AT
REGISTER OF CAVEAT IN THE YEAR 19
Sl. Date Name of Nature Name Name Date Date Rem
No. of Caveator of of of and of -
Caveat and his procee- plain- defen- number notice arks
address ding tiff dant of served
for anticip- Appli- Respo- procee- on
service ated by cant in ndent ding Cavea
Cavea- the in filed as -tor
tor and procee procee antici-
its -ding -ding pated
number in in by
if same column column Cavea-
is filed No. 4 No. 4 tor
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1 2 3 4 5 6 7 8 9
MADRAS AND PONDICHERRY.—For caveat rules see Order LII.
For Section 1 to 78 click here
For Section 79 to 95 click here
For Section 96 to 131 click here
For Section 132 to 158 click here
For Schedule 1 (Order 1 to 10) click here
For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 41 to 51) click here
For Schedule 2 to 5 click here
———
648.
Subs. for “the States” by Act 2 of 1951, S. 3.
649.
Ins. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
650.
Ins. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
651.
The words “to the minor and” omitted by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
652.
Subs. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
653.
Subs. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
654.
Ins. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
655.
Ins. by Act 16 of 1937, S. 2.
656.
Ins. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
657.
Ins. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
658.
Ins. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
659.
Ins. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
660.
Ins. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
661.
Subs. for “the States” by Act 2 of 1951, S. 3.
662.
Subs. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
663.
Subs. by Act 104 of 1976, S. 79 (w.e.f. 1-2-1977).
664.
Ins. by Act 104 of 1976, S. 80 (w.e.f. 1-2-1977).
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665.
Subs. for “SUITS BY PAUPER” by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
666.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
667.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
668.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
669.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
670.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
671.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
672.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
673.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
674.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
675.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
676.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
677.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
678.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
679.
The provisions of this rule so far as it relates to the making of the memorandum are not
applicable to the Chief Court of Oudh, see Oudh Courts Act, 1925 (U.P. Act 4 of 1925) S. 16(2).
680.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
681.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
682.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
683.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
684.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
685.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
686.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
687.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
688.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
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689.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
690.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
691.
Subs. for “Provincial Government” by the A.O. 1950 (w.e.f. 26-1-1950).
692.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
693.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
694.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
695.
Ins. by Act 24 of 1942, S. 2.
696.
Subs. for “pauper” by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
697.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
698.
Subs. by the A.O. 1950 (w.e.f. 26-1-1950). Prior to substitution it read as:
“Provincial Government” which had been subs. by the A.O. 1937 for “Government”
699.
Subs. by Act 24 of 1942, S. 2, for “or R. 11”.
700.
Subs. by the A.O. 1950 (w.e.f. 26-1-1950). Prior to substitution it read as:
“Provincial Government” which had been subs. by the A.O. 1937 for “Government”
701.
Ins. by Act 24 of 1942, S. 2.
702.
Subs. by Act 24 of 1942, S. 2.
703.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
704.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
705.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
706.
Subs. by A.O. 1950 (w.e.f. 26-1-1950). Prior to substitution it read as:
“Provincial Government” which had been subs. by the A.O. 1937 for “Government”
707.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
708.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
709.
Words “sub-rule (2) of” omitted by Act 19 of 1988, S. 3 & Sch. II.
710.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
711.
Subs. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
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712.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
713.
Ins. by Act 104 of 1976, S. 81 (w.e.f. 1-2-1977).
714.
Subs. by Act 21 of 1929, S. 4.
715.
Subs. by Act 21 of 1929, S. 4.
716.
Subs. by Act 21 of 1929, S. 4.
717.
Subs. by Act 21 of 1929, S. 4.
718.
Subs. by Act 21 of 1929, S. 4.
719.
Subs. for “the last preceding Rule” by Act 104 of 1976, S. 82 (w.e.f. 1-2-1977).
720.
Subs. by Act 21 of 1929, S. 4.
721.
Subs. by Act 21 of 1929, S. 4.
722.
Ins. by Act 21 of 1929, S. 5.
723.
Subs. for “the last preceding Rule” by Act 104 of 1976, S. 82 (w.e.f. 1-2-1977).
724.
Subs. by Act 104 of 1976, S. 82 (w.e.f. 1-2-1977).
725.
Subs. by Act 21 of 1929, S. 6.
726.
Ins. by Act 104 of 1976, S. 82 (w.e.f. 1-2-1977).
727.
Ins. by Act 104 of 1976, S. 82 (w.e.f. 1-2-1977).
728.
Subs. by Act 21 of 1929, S. 6.
729.
Omitted by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957). Prior to omission it read as:
“(ii) on the amount of the costs of the suit awarded to the mortgagee,—at such rate as
the Court deems reasonable from the date of the preliminary decree,”
730.
Subs. by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957).
731.
Subs. by Act 66 of 1956, S. 14 (w.e.f. 1-1-1957).
732.
Subs. by Act 21 of 1929, S. 7.
733.
Renumbered by Act 104 of 1976, S. 82 (w.e.f. 1-2-1977).
734.
Ins. by Act 104 of 1976, S. 82 (w.e.f. 1-2-1977).
735.
Ins. by Act 104 of 1976, S. 83 (w.e.f. 1-2-1977).
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736.
Subs. by Act 104 of 1976, S. 83 (w.e.f. 1-2-1977).
737.
Subs. by Act 104 of 1976, S. 83 (w.e.f. 1-2-1977).
738.
Ins. by Act 104 of 1976, S. 83 (w.e.f. 1-2-1977).
739.
The words “ON NEGOTIABLE INSTRUMENTS” omitted by Act 104 of 1976, S. 84 (w.e.f. 1-2-
1977).
740.
Subs. by Act 104 of 1976, S. 84 (w.e.f. 1-2-1977).
741.
Ins. by Act 12 of 2012, S. 35 and Sch. (w.e.f. 1-2-2012).
742.
Subs. by Act 104 of 1976, S. 84 (w.e.f. 1-2-1977).
743.
Subs. by Act 104 of 1976, S. 84 (w.e.f. 1-2-1977).
744.
Subs. for “the States” by Act 2 of 1951, S. 3.
745.
Ins. by Act 104 of 1976, S. 85 (w.e.f. 1-2-1977).
746.
Subs. by Act 104 of 1976, S. 85 (w.e.f. 1-2-1977).
747.
Ins. by Act 104 of 1976, S. 85 (w.e.f. 1-2-1977).
748.
Ins. by Act 1 of 1926, S. 4.
749.
Rule 1 numbered as sub-rule (1) by Act 46 of 1999, S. 30. And S. 30 has been omitted by
Act 22 of 2002, S. 15 (w.e.f. 1-7-2002).
750.
Subs. by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977).
751.
Ins. by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977).
752.
Ins. by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977).
753.
Sub-rule (2) ins. by Act 46 of 1999, S. 30. And S. 30 has been omitted by Act 22 of 2002,
S. 15 (w.e.f. 1-7-2002).
754.
Omitted by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977). Prior to omission it read as:
“(3) In case of disobedience, or of breach of any such terms, the Court granting an
injunction may order the property of the person guilty of such disobedience or breach to be
attached, and may also order such person to be detained in the civil prison for a term not
exceeding six months, unless in the meantime the Court directs his release.”
755.
Omitted by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977). Prior to omission it read as:
“(4) No attachment 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,
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and out of the proceeds the Court may award such compensation as it thinks fit, and shall
pay the balance, if any, to the party entitled thereto.”
756.
Clause (d) in U.P. Amendment which read: “to affect the internal management or affairs of,
any educational institution including a University, or a society, or” omitted by U.P. Act 17 of
1991, S. 8 (w.e.f. 15-1-1991) — 1991 LLT-IV-63.
757.
Ins. by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977).
758.
Ins. by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977).
759.
Ins. by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977).
760.
Ins. by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977).
761.
The words “after notice to the defendant” omitted by Act 104 of 1976, S. 86 (w.e.f. 1-2-
1977).
762.
The words “after notice to the plaintiff” omitted by Act 104 of 1976, S. 86 (w.e.f. 1-2-
1977).
763.
Ins. by Act 104 of 1976, S. 86 (w.e.f. 1-2-1977).
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Schedule 1 (Order 41 to 51))
CONTENTS
Section 1 to 78
Section 79 to 95
Section 96 to 131
Section 132 to 158
Schedule 1 (Order 1 to 10)
Schedule 1 (Order 11 to 20)
Schedule 1 (Order 21 to 30)
Schedule 1 (Order 31 to 40)
ORDER XLI
APPEALS FROM ORIGINAL DECREES
1. Form of appeal. What to accompany memorandum
2. Grounds which may be taken in appeal
3. Rejection or amendment of memorandum
3-A. Application for condonation of delay
4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all
Stay of proceedings and of execution
5. Stay by Appellate Court
6. Security in case of order for execution of decree appealed from
7. No security to be required from the Government or a public officer in certain cases
8. Exercise of powers in appeal from order made in execution of decree
Procedure on admission of appeal
9. Registry of memorandum of appeal
10. Appellate Court may require appellant to furnish security for costs
11. Power to dismiss appeal without sending notice to Lower Court
11-A. Time within which hearing under Rule 11 should be concluded
12. Day for hearing appeal
13. Appellate Court to give notice to Court whose decree appealed from
14. Publication and service of notice of day for hearing appeal
15. Contents of notice
Procedure on hearing
16. Right to begin
17. Dismissal of appeal for appellant's default
18. Dismissal of appeal where notice not served in consequence of appellant's failure to deposit costs
19. Readmission of appeal dismissed for default
20. Power to adjourn hearing and direct persons appearing interested to be made respondents
21. Rehearing on application of respondent against whom ex parte decree made
22. Upon hearing respondent may object to decree as if he had preferred separate appeal
23. Remand of case by Appellate Court
23-A. Remand in other cases
24. Where evidence on record sufficient, Appellate Court may determine case finally
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from
26. Findings and evidence to be put on record: Objections to finding
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26-A. Order of remand to mention date of next hearing
27. Production of additional evidence in Appellate Court
28. Mode of taking additional evidence
29. Points to be defined and recorded
Judgment in appeal
30. Judgment when and where pronounced
31. Contents, date and signature of judgment
32. What judgment may direct
33. Power of Court of Appeal
34. Dissent to be recorded
Decree in appeal
35. Date and contents of decree
36. Copies of judgment and decree to be furnished to parties
37. Certified copy of decree to be sent to Court whose decree appealed from
ORDER XLII
APPEALS FROM APPELLATE DECREES
1. Procedure
2. Power of Court to direct that the appeal be heard on the question formulated by it
3. Application of Rule 14 of Order XLI
ORDER XLIII
APPEALS FROM ORDERS
1. Appeals from orders
1-A. Right to challenge non-appealable orders in appeal against decrees
2. Procedure
ORDER XLIV
APPEALS BY I NDIGENT PERSONS
1. Who may appeal as an indigent person
2. Grant of time for payment of Court-fee
3. Inquiry as to whether applicant is an indigent person
ORDER XLV
APPEALS TO THE SUPREME COURT
1. “Decree” defined
2. Application to Court whose decree complained of
3. Certificate as to value or fitness
4. Consolidation of suits
5. Remission of dispute to Court of first instance
6. Effect of refusal of certificate
7. Security and deposit required on grant of certificate
8. Admission of appeal and procedure thereon
9. Revocation of acceptance of security
9-A. Power to dispense with notices in case of deceased parties
10. Power to order further security or payment
11. Effect of failure to comply with order
12. Refund of balance deposit
13. Powers of Court pending appeal
14. Increase of security found inadequate
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15. Procedure to enforce orders of the Supreme Court
16. Appeal from order relating to execution
17. Appeals to Federal Court
ORDER XLVI
REFERENCE
1. Reference of question to High Court
2. Court may pass decree contingent upon decision of High Court
3. Judgment of High Court to be transmitted, and case disposed of accordingly
4. Costs of reference to High Court
4-A. Reference to High Court under proviso to Section 113
5. Power to alter, etc., decree of Court making reference
6. Power to refer High Court questions as to jurisdiction in small causes
7. Power to District Court to submit for revision proceedings had under mistake as to jurisdiction in small causes
ORDER XLVII
REVIEW
1. Application for review of judgment
2. To whom applications for review may be made
3. Form of applications for review
4. Application where rejected
5. Application for review in Court consisting of two or more Judges
6. Application where rejected
7. Order of rejection not appealable. Objections to order granting application
8. Registry of application granted, and order for rehearing
9. Bar of certain applications
ORDER XLVIII
MISCELLANEOUS
1. Process to be served at expense of party issuing
2. Orders and notices how served
3. Use of forms in appendices
ORDER XLIX
CHARTERED HIGH COURTS
1. Who may serve processes of High Court
2. Saving in respect of Chartered High Courts
3. Application of rules
ORDER L
PROVINCIAL SMALL CAUSE COURTS
1. Provincial Small Cause Courts
ORDER LI
PRESIDENCY SMALL CAUSE COURTS
1. Presidency Small Cause Courts
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDIX G
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APPENDIX H
Schedule 2 to 5
———
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
764
his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the
[judgment]:
765
[Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are
filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the
filing of more than one copy of the judgment.]
(2) Contents of memorandum.—The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree
appealed from without any argument or narrative and such grounds shall be numbered consecutively.
766
[(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.]
High Court Amendments
ALLAHABAD.—(1) In sub-rule (1) of Rule 1, after the proviso the following Explanation shall be inserted, 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.” (Noti. No. 345-VII-d-134, dt. 8-8-1994, w.e.f. 22-10-1994)
(2) Add the following proviso to sub-rule (2) of Rule 1:
“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.” (13-12-1969). [Note.—This amendment shall come into force with effect from the date of its publication in the Uttar Pradesh
Gazette.]
(3) Sub-rule (3) of Rule 1 deleted [Noti. No. 552/VII-d-184 dt. 30-10-1993 published in U.P. Gaz. Pt. 2, dt. 1-1-1994 pp. 1-2.]
ANDHRA PRADESH.—Existing R. 1 deleted, and, substituted as under:
“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 such number of copies of judgment as may be required by the rules or
the 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”.—A.P. Gazette, 2-8-1988, Pt. II (RS) Extra., p. 1 (No. 31).
BOMBAY, GOA, DAMAN AND DIU.—Substitute the following rule as Rule 1 for the existing Rule 1 in Order XLI:—
1. Form of appeal what to accompany memorandum.—(1) Every appeal shall be preferred in the form of a memorandum signed by the applicant 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) and of judgment on which it is founded:
Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are
filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with
the filing of more than one copy of the judgment.
*Explanation.—The copy of 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.
(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 his behalf. (1-10-1983 and (1-4-1987) and *Explanation added on 31-12-1987)
DELHI, HIMACHAL PRADESH, PUNJAB, (11-4-1975), HARYANA (25-3-1975) AND CHANDIGARH (1-5-1975):—(1) Add the following proviso to sub-rule (1):
“Provided that when two or more cases are tried together and decided by the same judgment and two or more appeals are filed against the decree,
whether by the same or different appellants, the officer appointed in this behalf may, if satisfied that the questions for decision are analogous in each
appeal, dispense with the production of more than one copy of the judgment.”
(2) Add the following as further proviso to sub-rule (1):
“Provided further the Court may permit the appeal to be filed with true copies duly authenticated by the Advocate as correct.”
KARNATAKA.—(i) Add the following proviso to sub-rule (1):
“Provided that in appeals from decrees or orders under any special or local Act to which the provisions of Parts II and in 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 a memorandum of appeal subject to the production of the copy of the decree order appealed from within such time as
may be fixed by the Court.”
(ii) Add the following to sub-rule (2):
“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 and a statement of the amount of Court-fee paid or payable on the
appeal together with the provision of law under which it is calculated.”
(iii) Add the following as sub-rule (3):
(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.” (5-11-1959)
KERALA (LAKSHADWEEP I SLANDS):
Same as Items (2), (4) and (5) of MADRAS (PONDICHERRY)
MADRAS (PONDICHERRY).—(i) In Order 41, Rule 1, for sub-rule (1) substitute the following:
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“(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 of appeal shall be accompanied by a certified copy of the decree appealed from and (unless
the Appellate Court dispenses therewith) by a certified copy of the judgment on which is founded and by such number of typewritten or cyclostyled
or printed or mechanically reproduced copies of the judgments as are necessary to serve on the respondents to the appeal and four additional copies
for the use of the Court. The copies so filed shall be neatly and legibly prepared without any error, of which four copies intended for the use of the
Court, shall be on thick paper, in case the judgment is typed or cyclostyled, the four copies intended for the use of the Court must be typed or
cyclostyled on one side of the paper only:
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, it shall not be necessary to file more
than one set of copies of the judgment as provided for in this rule:
Provided further that the Court shall have the copies of the judgment so filed compared with the certified copy of the judgment on payment of the
prescribed charges.” (T.N. Govt. Gaz., Pt. III, S. 2, dt. 4-1-1984.
(ii) Omit sub-rule (3). (T.N. Govt. Gaz. dt. 17-9-1980 and Pondicherry Gazette dt. 19-10-1980).
ORISSA.—Deleted 2nd proviso to Rule 1 (14-5-1984).
PATNA.—(i) Add the following proviso to sub-rule (1):
“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) Add the following as second proviso to sub-rule (1):
“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.” (5-4-1961)
RAJASTHAN:—Add the following proviso to sub-rule (1):
“Provided that when the 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 files 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 Amendments
ALLAHABAD.—Substitute the following for sub-rule (1):
“Rule 3(1) Where the memorandum of appeal is not drawn up in the manner 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 amended then and there”. (17-6-1916).
RULES 3-A
BOMBAY : DADRA AND NAGAR HAVELI.—In Order XLI, after the existing Rule 3, insert the following rule with marginal note as new Rule 3-A and its
marginal note—
“3-A. Procedure where appellant applies for condonation of delay in filing the appeal.—Where an appellant applies for delay in filing the appeal to
be excused, notice to show cause shall be issued to the respondent and the application shall be decided before notice is issued to the Court, from
whose decree the appeal is preferred, under Rule 13.”
GUJARAT.—Same as in Bombay with following modifications—
(i) Add ‘at once’ between ‘shall’ be issued.
(ii) for ‘application’ read ‘matter’ and add ‘finally’ between the words ‘shall be’ and ‘decided’.
767
[3-A. 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 thereof 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.]
► Application for condonation of delay.—Non-filing of application for condonation of delay along with memorandum of appeal when appeal presented after expiry of
prescribed period of limitation, would not result in rejection of appeal, H. Dohil Constructions Co. (P) Ltd. v. Nahar Exports Ltd., (2015) 1 SCC 680.
4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.—Where there are more
plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the
defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the
decree in favour of all the plaintiffs or defendants, as the case may be.
► Maintainability.—Petition for reversal of decree against which appeal stood abated, sought by resort to Order 41 Rules 4 and 33, is not maintainable, Vijayalakshmi v.
Yendru Sathiraju, (2019) 11 SCC 352.
► Relief for non-appealing plaintiffs.—Entitlement to relief in appeal filed by some of the other co-plaintiffs or even the defendant(s) and significance of interchangeability of
the parties i.e. plaintiff and defendant in partition suit, explained, Azgar Barid v. Mazambi, (2022) 5 SCC 334.
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.
768
[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.]
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(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.
769
(4) [Subject to the provisions of sub-rule (3)], the Court may make an ex parte order for stay of execution pending the hearing of the application.
770
[(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.]
High Court Amendments
ALLAHABAD—Sub-rule (5) of Rule 5 of Order 41 CPC shall be substituted by the following:
“(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.” Noti. No. 552/VII-d-134
dt. 3-10-1993 published in U.P. Gaz., Part 2 dt. 1-1-1994.
ANDHRA PRADESH.—(i) Delete the full stop at the end of sub-rule (1), and add the following to the sub-rule:
“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.”
(ii) In sub-rule (1), after the words “but the Appellate Court may for sufficient cause order stay of execution of such decree” insert.
“On such terms and conditions as the Court deems fit.”
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—At the end of sub-rule (1) of Rule 5, for the words “but the Appellate Court may for sufficient cause order
stay of execution such decree” substitute the following:
“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.” (5-10-
1948)
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—
(i) Same as that of Andhra Pradesh.
(ii) In sub-rule (3), add the following proviso to clause (c):
“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.” (9-6-1959)
MADRAS AND PONDICHERRY.—Same as that of Andhra Pradesh (17-9-1980)
KARNATAKA.—Add the following at the end of sub-rule (1) of Rule 5 in continuation:
“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.” (5-11-1959)
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 Amendments
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—In Rule 6 add the following as sub-rule (3):
“(3) Where no such application has been presented to the Court which made the order, an application for stay of the sale shall not be entertained
by the Appellate Court.” (5-10-1948)
771
7. No security to be required from the Government or a public officer in certain cases.—772[* * *]
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
773
[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.]
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:
774
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
775
[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 the proviso to sub-rule (1) of Rule 10, substitute the words “the State” for the words “India” where it occurs for the second time. (1-6
-1957).
776
11. Power to dismiss appeal without sending notice to Lower Court.— [(1) The Appellate Court after fixing a day for hearing the appellant or his
pleader and hearing him accordingly if he appears on that day may dismiss the appeal.]
(2) If on the day fixed or 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.
777
[(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.]
High Court Amendment
ORISSA.—Deleted proviso to sub-rule (1) added by Orissa amendment. (14-5-1984).
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778
[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.]
12. Day for hearing appeal.—(1) Unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal.
779
[(2) Such day shall be fixed with reference to the current business of the Court.]
780
13. Appellate Court to give notice to Court whose decree appealed from.— [* * *]
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.
781
[(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.]
High Court Amendments
ALLAHABAD.—In Order XLI in Rule 14, in sub-rule (1), for the words “or on his pleader in the Appellate Court” the following words shall be substituted,
namely—
“or on his pleader competent to receive the notice on his behalf”. [Noti. No. 714-IV-H-36-A, dt. 21-3-1981]
ANDHRA PRADESH AND KARNATAKA.—Insert the following as a proviso to sub-rule (1):
“Provided that the Appellate Court may dispense with service of notice on respondents, against whom the suit has proceeded ex parte in the Court
from whose decree the appeal is preferred.”
CALCUTTA (ANDAMAN AND NICOBAR I SLANDS) AND GAUHATI (ASSAM, NAGALAND, MEGHALAYA, MANIPUR AND TRIPURA).—Insert the following as sub-rule (3):
“(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 preclude any such respondent or legal representative from appearing to contest the appeal.”
DELHI, HIMACHAL PRADESH AND PUNJAB, HARYANA AND CHANDIGARH.—(i) Add the following as sub-rule (3):
“(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.”
(ii) Add the following as sub-rules (4) and (5):
“(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.”
(iii) After sub-rule (5) add the following as sub-rule (6):
“(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.”
MADRAS AND PONDICHERRY.—Insert the following as a proviso to sub-rule (1):—
Provided that the Appellate Court may dispense with service of notice 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.” (P. Dis. No. 221 of
1976)—T.N. Gaz., 17-11-1976, Pt. III, S. 2, p. 108.
ORISSA.—(i) Add the following as sub-rule (2-A):
“(2-A) 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 unserved 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.” (14-5-1984)
(ii) Delete sub-rule (4) of Orissa Amendment. (14-5-1984).
PUNJAB, HARYANA AND CHANDIGARH.—The following proviso shall be added to sub-rule (2) to Rule 14 of Order XLI:
“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 GSR. 39 C.A. 5/1908/S. 12257 w.e.f. 11-4-1975)
RULE 14-A
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Add the following as Rule 14-A, namely:
“Rule 14-A. Substitution of letter for notice.—(1) 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.
(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. “(16-7-
1963)
ORISSA.—Same as that of Patna.
PATNA.—Add the following Rule 14-A:
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“Rule 14-A. The Appellate Court may, in its discretion, dispense with the service of notice hereinbefore 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 the 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.”
782
15. Contents of notice.— [* * *]
High Court Amendments
RULE 15-A
BOMBAY, DADRA AND NAGAR HAVELI.—In Order XLI after the existing Rule 15, insert the following rule with marginal note as new Rule 15-A:—
“Rule 15-A. 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.—Insert the following as Rule 15-A:
“Rule 15-A. 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 must 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.” (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 be heard in support of the
appeal.
(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be
entitled to reply.
High Court Amendment
ALLAHABAD.—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.” (22-12-1951).
17. Dismissal of appeal for appellant's default.—(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the
appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
783
[Explanation.—Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]
(2) Hearing appeal ex parte.—Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
High Court Amendment
ALLAHABAD.—In sub-rule (1) delete the words “on the day fixed, or on any other day to which the hearing may be adjourned.” (22-12-1951).
► Dismissal for default.—In case of non-appearance of appellant or non-representation on his behalf on date of hearing of appeal, court can dismiss appeal for appellant's
default but cannot decide and dismiss appeal on merits, Ghanshyam Dass Gupta v. Makhan Lal, (2012) 8 SCC 745 : (2012) 4 SCC (Civ) 605.
18. Dismissal of appeal where notice not served in consequence of appellant's failure to deposit costs.—784[* * *]
High Court Amendments
ALLAHABAD.—In para (1), for the words “where on the day fixed or on any other day to which the hearing may be adjourned”, substitute the words
“when the appeal is called for hearing”. (22-12-1951).
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY, GOA, DAMAN AND DIU.—In Order XLI, after the existing Rule 18, insert the following rule with marginal note as new Rule 18-A and its marginal
note:—
“18-A. 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. (1-10-1983) and (1-4-1987)
MADRAS AND PONDICHERRY.—After the words “costs of serving the notice” insert the words “or if the notice is returned unserved, to deposit within any
subsequent period fixed, the sum required to defray the costs of any further attempt to serve the notice”.
19. Readmission of appeal dismissed for default.—Where an appeal is dismissed under Rule 11, sub-rule (2), or Rule 17 785[* * *], the appellant may
apply to the Appellate Court for the readmission 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 readmit the appeal on such terms as to costs or
otherwise as it thinks fit.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY, DADRA AND NAGAR HAVELI, GOA, DAMAN AND DIU.—In Order XLI, for the existing Rule 19 and its marginal note substitute the following as Rule
19 and marginal note:
“19. Readmission of appeal dismissed for default.—Where an appeal is dismissed under Rule 11, sub-rule (2), or Rule 18-A or Rule 17 or Rule 18,
the appellant may apply to the Appellate Court for readmission 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 readmit the appeal on such terms as to costs or otherwise as it thinks fit.” (1-10-1983) and (1-4-1987)
DELHI, GUJARAT, KARNATAKA, HIMACHAL PRADESH, MADRAS, PUNJAB, HARYANA AND CHANDIGARH (15-4-1955).—Renumber Rule 19 as Rule 19(1) and insert
the following as sub-rule (2):
“(2) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to applications under sub-rule (1).” (15th April, 1955).
KERALA.—Same as that of Madras (9-6-1959).
MADHYA PRADESH.—Substitute “sub-rule (2), or Rule 15-A, or Rule 17” for “sub-rule (2) of Rule 17”. (16-9-1960).
ORISSA.—Deleted (14-5-1984).
► Restoration of Appeal.—Merely because the appeal has been dismissed on merits that could not have been a ground to refuse restoration of the appeal, Sarwan Singh v.
Kishan Singh, (2007) 13 SCC 574.
786
20. Power to adjourn hearing and direct persons appearing interested to be made respondents.— [(1)] Where it appears to the Court at the hearing
that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is
interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a
respondent.
787
[(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.]
21. Rehearing on application of respondent against whom ex parte decree made.—Where an appeal is heard ex parte and judgment is pronounced
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against the respondent, he may apply to the Appellate Court to rehear 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 rehear the appeal on such terms as
to costs or otherwise as it thinks fit to impose upon him.
High Court Amendments
ANDHRA PRADESH, GUJARAT, KARNATAKA, KERALA, MADRAS, MADHYA PRADESH, PONDICHERRY AND KARNATAKA.—Renumber Rule 19 as Rule 19(1) and insert
the following Rule 19(2) as follows:
“(2) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to application under sub-rule (1).”
ORISSA.—Deleted (14-5-1984).
22. Upon hearing respondent may object to decree as if he had preferred separate appeal.—(1) Any respondent, though he may not have appealed
788
from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any
issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal, provided he
has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the
appeal, or within such further time as the Appellate Court may see fit to allow.
789
[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.
790
(3) [* * *]
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed
for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.
High Court Amendment
ALLAHABAD.—In Rule 22, the following words be inserted after the word “hearing” and before the word “the”:“or appearance in” (Noti. No. 348/VII-d-
168, dated 8-8-1994, w.e.f. 22-10-1994).
► Cross-objection.—Cross-objection need not be filed when respondent does not want any alteration in decree dismissing suit but even without filing appeal against any part
of decree and instead while seeking to have decree confirmed entirely, respondent can challenge only a finding recorded against him in court below, for which no cross-objection
or appeal necessary, Prabhakar Gones Prabhu Navelkar v. Saradchandra Suria Prabhu Navelkar, (2020) 20 SCC 465.
► When cross-objections may be filed.—For supporting decree by trial court, it is not necessary for respondent in appeal to file a memorandum of cross-objections
challenging a particular finding by trial court against him when the ultimate decree itself is in his favour. Memorandum of cross-objections, is needed only if respondent claims any
relief, negative to him by trial court and in addition to what he has already been given by decree under challenge, S. Nazeer Ahmed v. State Bank of Mysore, (2007) 11 SCC 75.
► Mode of disposal of cross-objections.—Merely because High Court dismissed the appeals though on merits, yet that by itself would not result in dismissal of the cross-
objections also. Cross-objections had to be disposed of on their own merits notwithstanding dismissal of the appeals, as provided for in Order 41 Rule 22(4) CPC, by assigning
reasons, Badru v. NTPC, (2019) 20 SCC 652.
► Non-filing of cross-objections.—A party cannot challenge findings of trial court before appellate court without filing cross-objections against findings of trial court, Laxman
Tatyaba Kankate v. Taramati Harishchandra Dhatrak, (2010) 7 SCC 717 : (2010) 3 SCC (Civ) 191.
► Re-adjudication of issues.—Issues decided in favour of appellant, not having been challenged by respondent, cannot be re-adjudicated by appellate court, Biswajit Sukul
v. Deo Chand Sarda, (2018) 10 SCC 584.
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, with
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 Rule 23:
(i) Insert the following after the words “and the decree is reversed in appeal”, namely:
“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”; and
(ii) Delete the words “the Appellate Court” occurring thereafter and delete also the words “if it thinks fit”, occurring after the words “may”.
ANDHRA PRADESH.—Same as that of Madras.
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Same as that of Madras. (9-6-1959)
MADRAS AND PONDICHERRY.—(a) Same as that of Allahabad.
(b) Delete the words “if it thinks fit”, occurring after the words “the Appellate Court may”.
KARNATAKA.—(i) Same as that of Madras (a) and (b).
(ii) After the words “in the case so remanded”, insert the words “and whether any further evidence shall or shall not be taken after remand”. (5-11-
1959)
(iii) For the words “judgment and order”, substitute the words “judgment or order”.
RAJASTHAN.—For Rule 23, the following rule shall be substituted, 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.” (11-3-1965)
► Applicability.—Court should be slow in exercising its discretionary power under Rule 23 and unless the conditions precedent therefor are satisfied, Rule 23 should not be
invoked. Rule 23 is an enabling provision, Municipal Corpn., Hyderabad v. Sunder Singh, (2008) 8 SCC 485.
► Inherent power of remand.—Remand of matter to trial court for de novo trial without there being express pleadings before lower appellate court or High Court, is not
permissible. Principles explained relating to exercise of power to remand case and when remand power may be exercised in second appeal, Syeda Rahimunnisa v. Malan Bi,
(2016) 10 SCC 315.
► Scope of remand by appellate court.—Where decree under challenge is reversed in appeal and retrial is considered necessary, appellate court shall remand case. Order
of remand not to be passed in routine manner since unwarranted remand order merely elongates life of litigation without serving cause of justice, Shivakumar v. Sharanabasappa,
(2021) 11 SCC 277.
791
[23-A. Remand in other cases.—Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a
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preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has
under Rule 23.]
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 the
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
792
such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may
be fixed by the Appellate Court or extended by it from time to time].
26. Findings 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.
793
[26-A. Order of remand to mention date of next hearing.—Where the Appellate Court remands a case under Rule 23 or Rule 23-A, 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.
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
794
[(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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
High Court Amendment
ALLAHABAD.—(1) Insert the following as clause (b):
“(b) the evidence sought to be adduced by a party to the appeal is evidence, which after exercise of due diligence, was not within his knowledge or
could not be produced by him at the time when the decree under appeal was passed or made, or.”; and
(2) Renumber the existing clause (b) as clause (c).
ANDHRA PRADESH.—Same as in Madras.
BOMBAY.—Substitute Rule 27 as follows:
“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 if preferred has refused to admit evidence which ought to have been admitted, or
(b) the party seeking to adduce evidence satisfies the appellate court that such evidence, notwithstanding the exercise of due diligence, was not
within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or
(a) 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.”
KARNATAKA.—Same as in Madras.
KERALA.—Same as in Madras.
MADHYA PRADESH.—After sub-rule (1)(a), insert the following as clause (b) and renumber the existing clause (b) as clause (c):
“(b) the party seeking to adduce additional evidence satisfies the appellate court that such evidence, notwithstanding the exercise of due
diligence, was not within his knowledge or could not be produced by him at or before the time when the decree or order under appeal was passed or
made; or”
MADRAS.—(1) Insert the following clause (b) in sub-rule (1):
“(b) the party seeking to adduce additional evidence satisfies the appellate court that such evidence, notwithstanding the exercise of due
diligence, was not within his knowledge or could not be produced by him at or before the time when the decree or order under appeal was passed or
made; or”; and
(2) Renumber the existing clause (b) as clause (c).
ORISSA.—Deleted Orissa Amendment to sub-rule (1) (14-5-1984).
PATNA.—(1) Insert the following as clause (b) in sub-rule (1):
“(b) the party seeking to adduce additional evidence satisfies the appellate court that such evidence, notwithstanding the exercise of due
diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made;
or”; and
(2) Renumber the existing clause (b) as clause (c).
► Discretionary power.—Discretion of appellate court to allow production of, in exceptional circumstances should be exercised judicially and with circumspection, only where
any of the prerequisite conditions provided under Rule 27 exist, Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362.
► Admissibility of additional evidence/documents.—Production of additional evidence/documents at the appellate stage is permissible, when such evidence/documents
have material bearing on the issues involved in thesuit and in determining the rights of the parties, Uttaradi Mutt v. Raghavendra Swamy Mutt, (2018) 10 SCC 484.
Allowing of the applications filed under Order 41 Rule 27 CPC, does not lead to the result that the additional documents/additional evidence can be straightaway exhibited
rather, the respondent/applicant would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, in accordance with
law, Uttaradi Mutt v. Raghavendra Swamy Mutt, (2018) 10 SCC 484.
Admissibility of additional evidence under Order 41 Rule 27 CPC does not depend upon the relevancy of the issue on hand, or whether the applicant had an opportunity for
adducing such evidence at an earlier stage or not, but it depends upon whether or not appellate court requires the evidence sought to be adduced to enable it to pronounce
judgment or for any other substantial cause. That is, whether such additional evidence has a direct bearing on pronouncement of the judgment, Sanjay Kumar Singh v. State of
Jharkhand, (2022) 7 SCC 247.
Order for taking additional evidence in appeal without following procedure under Order 41 Rules 27, 28 and 29 is not permissible, H.S. Goutham v. Rama Murthy, (2021) 5
SCC 241.
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► Procedure to be followed by appellate courts after receiving additional evidence.—Once additional evidence is permitted at appellate stage, other side must be given
opportunity to lead rebuttal evidence to counter additional evidence. Appellate courts have two options (i) to take recourse remanding entire matter under Order 41 Rule 23-A for
retrial, or (ii) to make limited remand under Order 41 Rule 25 by retaining main appeal with itself so that parties can lead evidence on particular issues in light of additional
evidence and then to decide main appeal on merits, Corporation of Madras v. M. Parthasarathy, (2018) 9 SCC 445, See also Akhilesh Singh v. Lal Babu Singh, (2018) 4 SCC
659.
► Conditions.—The appellate court, in exercise of its discretionary jurisdiction and subject of fulfilment of the conditions laid down under Order 41, Rule 27 CPC, may allow
the parties to adduce additional evidence, Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713 : (2009) 2 SCC (Civ) 669, See also Lekhraj Bansal v.
State of Rajasthan, (2014) 15 SCC 686 : (2015) 4 SCC (Civ) 480.
Conditions for allowing additional evidence to be produced in appellate court, if not satisfied, additional evidence cannot be permitted to fill in lacunae or to patch up weak points
in the case, Satish Kumar Gupta v. State of Haryana, (2017) 4 SCC 760.
► Due diligence of party.—Party guilty of remissness in not producing evidence in trial court cannot be allowed to produce it in appellate court. There must be satisfactory
reasons for non-production of the evidence in trial court for seeking production thereof in appellate court, Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ)
362.
► Recording of reasons.—Though reasons need not be recorded in a separate order but they should be embodied in appellate judgment, Union of India v. Ibrahim Uddin,
(2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362.
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.—795[(1)] The Appellate Court, after hearing the parties or their pleaders and referring to any part of the
proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall
pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.
796
[(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order
passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be
made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced.]
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.—At the end of the rule, substitute a semi-colon for the full stop and add the following:
“Provided that where that 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.” (13-1-1939)
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY, (DADRA AND NAGAR HAVELI), GOA, DAMAN AND DIU.—In Order XLI, Rule 31, substitute a colon for the full stop appearing at the end of the rule
and add thereafter the following proviso:
“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.” (1-10-1983 and 1-4-1987)
GUJARAT.—Same as that of Allahabad. (17-8-1961)
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Rule 31 shall be renumbered as sub-rule (1) thereof and the following shall be inserted as sub-
rules (2) and (3), namely:
“(2) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down by another verbatim, 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.” (9-6-1959)
KARNATAKA.—Add the following proviso to Rule 31:
“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.” (5-11-
1959)
MADRAS AND PONDICHERRY.—The following is substituted for Rule 31:
“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.” (4-9-1917)
ORISSA.—Same as that of Allahabad. (21-9-1960)
PATNA.—The amendment made in Rule 31 is the same as that made by Allahabad, except after the words “signed by the Judge” the words “or by the
Judges concurring therein” are inserted.
RAJASTHAN.—In Order XLI, Rule 31, the existing Rule 31, shall be renumbered as sub-rule (1) of that rule, and after sub-rule (1) as so renumbered,
the following sub-rules shall be inserted:
“(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.” (11-3-1965)
► Mandatory requirement of compliance with Order 41 Rule 31.—First appellate court is mandatorily required to comply with requirements of Order 41 Rule 31 and non-
observance of these requirements lead to infirmity in judgment, Manjula v. Shyamsundar, (2022) 3 SCC 90.
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
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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
make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding
that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or
797
parties may not have filed any appeal or objection [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]:
798
[Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose
decree the appeal is preferred has omitted or refused to make such order.]
Illustration
A claims a sum of money as due to him from X or Y, and suit against both obtains a decree against X. X appeals and A and Y are respondents. The
Appellate Court decides in favour of X. It has power to pass a decree against Y.
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 on which the judgment was pronounced.
(2) The decree shall contain the number of the appeal, the names and descriptions of the appellant and respondent, and a clear specification of the
relief granted or other adjudication made.
(3) The decree shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportions such costs
and the costs in the suit are to be paid.
(4) The decree shall be signed and dated by the Judge or Judges who passed it:
Judge dissenting from judgment need not sign decree.—Provided that where there are more Judges than one and there is a difference of opinion
among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
BOMBAY, DADRA AND NAGAR HAVELI.—In Order XLI, Rules 35, for the existing sub-rule (2), substitute the following as sub-rule (2):
“(2) The decree shall contain the number of the appeal, the names and descriptions of the appellant and the respondent, their registered
addresses and a clear specification of the relief granted or the adjudication made.” (1-10-1983)
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In Rule 35—
(i) in sub-rule (2) the full stop at the end of the rule shall be omitted and the words “in appeal as also in the decree appealed from” shall be inserted,
(ii) to sub-rule (4) the following proviso shall be added, namely:
“Provided that the provisions of the sub-rule shall not apply to decree passed by High Court. “(9-6-1959)
MADRAS, PONDICHERRY.—Same as that of Bombay.
PUNJAB, HARYANA AND CHANDIGARH.—Add the following as a proviso to Rule 35(4):
“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.” (Noti. No. 20-R/X1-Y-1, dt. 29-1-1937).
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.—(1) Delete the words “and shall be filed with the original proceedings in the suit”.
(2) Add a new paragraph as follows:
“Where the Appellate Court is the High Court, the copies aforesaid shall be filed with the original proceedings in the suit.”
RULE 38
ALLAHABAD.—Add the following as Rule 38:
“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 addresses.
(3) Rules 21, 22, 23 and 24 of Order VII shall apply, so far as may be, to appellate proceedings.”
BOMBAY, DADRA AND NAGAR HAVELI, GOA, DAMAN AND DIU.—In Order XLI, after the existing Rule 37, add the following rule and marginal note as new
Rule 38 and its marginal note:—
“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.” (1-10-1983 and 1-4-1987)
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
GUJARAT.—Add the following as Rule 38:
“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.” (17-8-1961)
ORISSA.—Same as that of Patna.
PATNA.—(i) Sub-rules (1) and (2) same as that of Allahabad only with certain modifications. In sub-rule (1) for the words “……….altered under Order
VII, Rule 24………”, substitute the words “…………….altered under Order VII, Rule 22…………”
(ii) In sub-rule (3), for the words “Rules 21, 22, 23 and 24…………” substitute the words “Rules 21 and 22…………”
PUNJAB, HARYANA AND CHANDIGARH.—The following shall be added as Rule 38:
(1) Same as that of Allahabad.
(2) The notice of appeal and other processes connected with proceedings therein, shall issue to the addresses mentioned in clause (1), 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.” (24-11-1927)
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Order XLI-A
ALLAHABAD.—After Order XLI insert the following as Order XLI-A:
“ORDER XLI-A
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 appeal 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 of Order XLI on the date on 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 that 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:
(a) In sub-rule (1) of Rule 16 for the words “on the day fixed, or on any other day to which the hearing may be adjourned” the words “when the
appeal is called on for hearing” shall be substituted.
(b) In sub-rule (1) of Rule 17 the words “on the day fixed, or on any other date to which the hearing may be adjourned” shall be omitted.
(c) In Rule 18 for the words “where on the day fixed, or on any other day to which the hearing may be adjourned” the words “when the appeal is
called on for hearing” shall be substituted.
9. Dismissal of appeal for default.—Where default is made in compliance with any rules of the Court which provides 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.” [Noti.
No. 14186/VII(d)-147, dated 22-12-1951].
Rules 1 to 14
ANDHRA PRADESH.—Same as in Madras, except that in Rule 11 after the word “awarded” in line 1 add “unless the Court otherwise orders” and after the
words “before the Registrar” add “or the Court”; for Rs 25 substitute Rs 15 and add thereafter, “and the cost of appearing when the appeal is in the
daily cause list for final hearing and is adjourned shall be Rs 30.”
KERALA, LACCADIVE, MINICOY & AMINDIVI I SLANDS.—After Order XLI the following Order as Order shall be added, namely:
“ORDER XLI-A
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 the
modifications contained in this Order.
2. (1) Notice fee, etc. to accompany appeal memo.—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) 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. (1) Appearance to be filed by respondent.—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 vakalat 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.
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(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 readmission of the appeal; and when the Court is
satisfied that there was sufficient cause for the default, it shall readmit the appeal on such terms as to costs or otherwise as it thinks fit. (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 costs 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. (9-6-1959)
MADRAS AND PONDICHERRY.—After Order XLI insert the following as Order XLI-A:
“ORDER XLI-A
Appeals to the High Court from Original Decrees of Subordinate Courts
Rules 1 to 3 same as that of Kerala.
Rule 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 filing memorandum.
(2) Same as that of Kerala:
Provided that if such party subsequently appears by a pleader he shall state in the vakalat and address for service within the City of Madras and shall
give notice thereof to each party who has appeared.
(3) Same as that of Kerala.
Rule 5. Same as that of Kerala.
Rule 6. All notices and process, 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.
Rule 7. Notice which may be served by a party or his pleader under Rule 6, or which are sent from the office 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 at the time of service thereof and the posting thereof shall be a sufficient service.
Rule 8. Same as that of Rule 6 of Kerala.
Rule 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.
Rule 10. Same as that of Rule 7 of Kerala.
Rule 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.
Memorandum of Objections
Rule 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.
Rule 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 acknowledgment 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).
Rule 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.”
KARNATAKA, Rules 1 to 7—
After Order XLI and before Order XLII add the following Order as Order XLI-A:
“ORDER XLI-A
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 by post 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 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 have been tendered has refused or neglected for three days from the date
of such tender to give the acknowledgment 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 readmitted by Court if an application for re-admission is made accompanied by a
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certificate signed by the Registrar certifying that the default or omission for which the order of dismissal was passed has been rectified.”
Order XLI-B
ANDHRA PRADESH.—Same as that of Madras.
MADRAS AND PONDICHERRY
“Letters Patent Appeals
Rule 1. The Rules of Order XLI-A 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.
Rule 2. Notice of the appeal shall be given in manner prescribed by Order XLI-A, Rule 6, or if the party to be served has appeared in person, in
manner prescribed by Rule 5 of the said Order.”
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.—Substitute the following for Rule 1:
“1. The rules of Order XLI and Order XLI-A 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 and 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 founded;
(2) a copy of the judgment of the Court of first instance; and
(3) a copy of the finding of the civil or the revenue court, as the case may be, where an issue is remitted to such Court for decision.” (22-12-1951)
ASSAM AND NAGALAND.—Same as that of Calcutta.
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—For Rule 1, substitute the following:
“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 with 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.”
KERALA.—After “Order XLI” and before “shall apply” insert “as modified by Order XLI-A”.
RAJASTHAN.—Rule 1 shall be amended as follows:
“1. Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees, subject to the following proviso.”
Proviso same as that of Allahabad. (30-5-1956)
799
[2. Power of Court to direct that the appeal be heard on the question formulated by it.—At the time of making an Order under Rule 11 of Order XLI
for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by Section 100, and in doing so, the Court may
direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal
without the leave of the Court, given in accordance with the provision of Section 100.
High Court Amendments
PUNJAB, HARYANA AND CHANDIGARH, DELHI AND HIMACHAL PRADESH.—In addition to the copies specified in Or. 41 R. 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. (High Court Noti. No. 4685-G of 17
-10-1919 and 138-G, dt. 19-3-1926)
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 that of Madras.
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In Order XLII, after Rule I the following rule shall be inserted, 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.”
KARNATAKA.—Substitute the following for Order XLII:
“1. The Rules contained in Order XLI and Order XLI-A 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 construction 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”. (5-11-1959)
MADRAS AND PONDICHERRY.—Substitute the following for Order XLII:
“ORDER XLII
Appeals from Appellate decrees
1. The rules of Order XLI and Order XLI-A 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. If the appellant fails to comply with this rule, the appeal may be dismissed”. (18-10-1917)
PUNJAB, HARYANA AND CHANDIGARH.—Add the following as Rule 2:
“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
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Court of first instance, unless the Appellate Court dispenses therewith.”
Order XLII-A
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—After Order XLII, the following Order shall be added, namely:
“ORDER XLII-A
Appeals from Decrees and Orders of Single Judge to Division Bench of the High Court
Procedure.—The Rules of Orders XLI and XLI-A shall apply, so far as may be, to appeals from decrees and orders of a Single Judge to a Division
Bench.” (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:—
800
(a) an Order under Rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in Rule 10-A of
Order VII has been followed];
801
(b) [* * *]
(c) an Order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an Order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
802
(e) [* * *]
(f) an Order under Rule 21 of Order XI;
803
(g) [* * *]
804
(h) [* * *]
(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;
805
[(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;
806
(m) [* * *]
(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;
807
[(na) an Order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]
808
(o) [* * *]
(p) orders in interpleader-suit 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;
809
(r) an Order under Rule 1, Rule 2, [Rule 2-A], 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 readmit, or under Rule 21 of Order XLI to rehear, an appeal;
810
(u) an Order under Rule 23 [or Rule 23-A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
811
(v) [* * *]
(w) an Order under Rule 4 of Order XLVII granting an application for review.
High Court Amendments
ALLAHABAD.—In Or. 43 R. 1—
Delete clauses (g), (i) and (o). (1-6-1957)
Add in clause (r) the words “Rule 2-A” between the words “Rule 2” and “Rule 4” (19-4-1958).
ANDHRA PRADESH.—
(i) Same as those of Madras Items (2), (3) and (4).
(ii) Insert the following as R. 1, clause (jjj): “(jjj) an order under R. 106 of Or. 21”. (19-4-1956)
(iii) Substitute the following as R. 1, clause (r): “(r) an order under R. 1, R. 2, R. 3-A, R. 3-B, R. 4 or R. 10 of the Or. 39” (12-7-1962)
ASSAM AND NAGALAND.—Same as that of Calcutta.
BOMBAY, DADRA AND NAGAR HAVELI, GOA, DAMAN AND DIU.—(1) Substitute the following for existing clause (r):
“(r) an order under R. 1, R. 2, R. 4, R. 10 and R. 11 of Or. 39.” (1-10-1983) and (1-4-1987)
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—Insert the following after clause (i):
“(i)(a) an order under R. 57 of Or. 21 directing that an attachment shall cease or directing or omitting to direct that an attachment shall
continue.” (3-2-1933)
DELHI AND HIMACHAL PRADESH.—Same as that of Punjab.
GUJARAT.—Same as in Bombay.
KERALA, LACCADIVE, MINICOY AND AMINIDIVI I SLANDS.—Clauses (jj), (nn) and (s)—Same as those of Madras. (9-6-1959)
MADRAS AND PONDICHERRY.—(1) Add the following after R. 1(i):
“(ii) an order under R. 106 of Or. 21”; (19-5-1954)
(2) Add the following after R. 1(j):
“(jj) An order rejecting an application made under sub-rule (1) of Rule 105 of Order 21 provided an order on the main application referred to in
sub-rule (1) of Rule 104 of that Order is appealable;” (P. Dis. No. 397 of 1945).
(3) Add the following after R. 1(n):
“(nn) An Order under Rule 5 or Rule 7 of Order 33 rejecting an application for permission to sue as a pauper on the ground specified in clause (d)
or clause (d-1) of Rule 5 aforesaid.” (P. Dis. No. 108 of 1947).
(4) Substitute the following for clause (s) or R. 1:
“(s) An order under R. 1 or R. 4 of Or. 40 except an order under the proviso to sub-rule (2) of R. 4.” (P. Dis No. 60 of 1933).
ORISSA.—Deleted (14-5-1984).
PATNA.—Add the following as clause (ii) after clause (i):
“(ii) An order in garnishee proceedings other than an order referred to in R. 63-H(1) of Or. 21.” (7-1-1936)
PUNJAB, HARYANA AND CHANDIGARH.—In clause (u) after the word and figure “R. 23” insert the words and figure “or R. 23-A” (3-8-1928).
► Maintainability of appeals under Order 43 Rule 1(u).—An appeal under Order 43, Rule 1(u) from an order of remand under Order 43, Rule 23-A, held, is maintainable.
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However, said appeal under Order 43, Rule 1(u) can only be heard on grounds a second appeal may be heard under Section 100, Jagannathan v. Raju Sigamani, (2012) 5 SCC
540 : (2012) 3 SCC (Civ) 308, See also Narayanan v. Kumaran, (2004) 4 SCC 26.
► Tests for quality of finality.—Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and would be
“judgments” within the meaning of the letters patent and, therefore, appealable thereunder. However, there may be interlocutory orders which are not covered by Order 43 Rule 1
CPC but which also possess the characteristics and trappings of finality inasmuch as such orders may adversely affect a valuable right of the party or decide an important aspect
of the trial in an ancillary proceeding. However, for such an order to be a “judgment”, an adverse effect on the party concerned must be direct and immediate rather than indirect
or remote, Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd., (2023) 1 SCC 634.
812
[1-A. Right to challenge non-appealable orders in appeal against decrees.—(1) Where any order is made under this Code against a party and
thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that
such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant
to contest the decree on the ground that the compromise should, or should not, have been recorded.]
2. Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from orders.
High Court Amendments
ALLAHABAD.—In Rule 2 between the words “the rules of Order XLI” and “shall apply” insert the words “and Order XLI-A”. (22-12-1951)
ANDHRA PRADESH.—Same as those of Madras.
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—Substitute the following for Rule 2:
“2. The Rules of Order XLI, Order XLI-A and Order XLII, Rule 2(2) 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. “(9-6-1959) and (15-10-1968)
KARNATAKA.—Omit Rule 2. Add the following rules:
“2. The rules contained in Orders XLI and XLI-A 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 and apply, so far as may be, to appeals from appellate order.”
MADRAS AND PONDICHERRY.—(1) Substitute the following for Rule 2:
“2. The Rules of Order XLI and Order XLI-A 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:”
Proviso same as in Rule 2 of Kerala.
(2) Add the following as Rule 3:
“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 decree or 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 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.”
PUNJAB, HARYANA (CHANDIGARH).—Substitute Rule 2 as follows—
“2. The rules of Order 41 shall apply, so far as may be, to appeals from orders:
Provided that in the case of appeals against interlocutory orders, the Court which passed the order appealed from shall not send the records of the
case unless summoned by the Appellate Court”. (17-1-1983)
ORDER XLIV
813
[Appeals by Indigent Persons]
814 815
1. Who may appeal [as an indigent person].— [(1)] Any person entitled to prefer an appeal, who is unable to pay the fee required for the
816
memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an [indigent
817
person], subject, in all matters, including the presentation of such application, to the provisions relating to suits by [indigent persons], insofar as
those provisions are applicable:
818
[* * *]
819
(2) [* * *]
► Object.—The object of the provision is to enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court fee, to seek justice. These provisions
exempt such indigent person from paying requisite court fee at the first instance and allows him to institute suit or prosecute appeal in forma pauperis, Mathai M. Paikeday v. C.K.
Antony, (2011) 13 SCC 174 : (2012) 3 SCC (Civ) 413.
High Court Amendments
ANDHRA PRADESH.—To sub-rule (1) of Rule 1 or Order XLIV in the said Schedule, the following proviso shall be added:—
“Provided that in case where the appeal is presented in 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.” (R.O.C. No. 338 of 69-B). (30-4-1970)
RAJASTHAN.—(Noti. No. 33/SRO of 21-7-1954).—Add the following as Rule 1-A:—
“1-A. 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 time to be fixed by it; and upon such payment the memorandum of appeal in respect of which such fee is payable shall have the same force
and effect as if such fee had been paid in the first instance.” (14-8-1954)
820
[2. Grant of time for payment of Court-fee.—Where an application is rejected under Rule 1, the Court may, while rejecting the application, allow
the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court or extended by it from time to time; and upon such
payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the
first instance.
3. Inquiry as to whether applicant is an indigent person.—(1) Where an applicant, referred to in Rule 1, was allowed to sue or appeal as an indigent
person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall
be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from;
but if the Government pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall
be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of that Court.
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(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.—For Rule 3 of Order XLIV, the following rule shall be substituted:
“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.” (25-4-1987).
ORDER XLV
Appeals to the821[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.
High Court Amendment
PUNJAB AND HARYANA (CHANDIGARH).—For Order 45 substitute the following.—
“ORDER XLV
Appeals to the Supreme Court
Rule 1. “Decree” defined.—In this Order unless there is something repugnant in the subject or context, the expression “decree” shall include a final
order.
Rule 2. Application to Court whose decree complained of.—Whoever desired to appeal to the Supreme Court shall apply by petition to the Court
whose decree is complained of.
Rule 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) Upon receipt of such petition, the Court shall, unless, it dismissed 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.
Rule 4. Omitted
Rule 5. Omitted
Rule 6. Effect of refusal of certificate.—Where such certificate is refused the petition shall be dismissed.
Rule 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(1), 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 of 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.
Rule 8. Power to order further payment.—Where at any time after the admission of an appeal but before the transmission of the copy of 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.
Rule 9. 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 mean time execution of the decree appealed from shall not be stayed.
Rule 9-A. Power to dispense with notice in case of deceased.—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 notice under sub-rule (2) of Rule 3 shall be given by affixing the same in some conspicuous place in the court house of the Judge of
the district in which the suit was originally brought and by publication in such newspapers as the Court may direct.
Rule 10. Refund of balance deposit.—When the copy of the record except as aforesaid, has been transmitted to the Supreme Court the appellant
may obtain a refund of the balance, if any, of the amount which he has deposited under Rule 7.
Rule 11. 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 excluded unless the Court otherwise directs.
(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court—
(a) impound any movable property in dispute or any part thereof; or
(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any
order which the Supreme Court may make on the appeal, or
(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the
decree appealed from or of any decree or order which the Supreme Court may make on the appeal, or
(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the
appeal, as it thinks fit, by the appointment of a receiver or otherwise.
Rule 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 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 the original decrees.
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(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 proceedings subsequent to the decree of that Court, but such
order shall have the same force and effect as if it had been made before the death took place.
Rule 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.” GSR CA/5/1908/S. 122/73 dt. 21-12-1973 published in Punj. Govt. Gaz. L.S. dated 4-1-1974.
2. Application to Court whose decree complained of.—822[(1)] Whoever desires to appeal to 823
[the Supreme Court] shall apply by petition to the
Court whose decree is complained of.
824
[(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)].
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in Rule 2 after sub-rule (2) the following sub-rule shall be inserted, namely:—
“(3) Notwithstanding anything contained in sub-rule (1), whoever desires to appeal to the Supreme Court, may apply orally to the Court whose
decree is to be complained of, immediately before or after the pronouncement of the judgment by the Court, and 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.” [Vide U.P. Act 57 of 1976, S. 14 (1-
1-1977)].
High Court Amendments
ANDHRA PRADESH.—For Rules 2 and 3 in Order 45, substitute the following namely:—
“2. Application to 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 has been delivered:
Provided further where the certificate has been refused on an oral application no subsequent petition for the certificate shall lie.
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 133 of the Constitution.” (10-2-1977).—A.P. Gaz. 10-2-1977, Pt. II, (R.S.), p. 132.
BOMBAY.—In Order XLV, after sub-rule (2) of Rule 2 insert the following as sub-rule (3):—
“3. (i) 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.
(ii) 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.” (1
-10-1983) and (12-10-1987)
MADRAS.—Substitute sub-rule (1) as under—
“(1) Whoever desires to appeal to the Supreme Court, may, make an oral application to the Court whose decree is complained of, 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” —T.N. Govt. Gaz. 16-11-1988, Pt. III, S. 2, p. 136.
PATNA.—For R. 2, substitute the following:—
“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 (1) 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.”—Bihar
Gazette, 11-1-1978, Pt. III, p. 3.
PUNJAB AND HARYANA (CHANDIGARH).—Omit sub-rule (2) (1-1-1974).
825
3. Certificate as to value or fitness.— [(1) Every petition shall state the grounds of appeal and pray for a certificate—
(i) that the case involves a substantial question of law of general importance, and
(ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court.]
(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be
granted.
High Court Amendments
ALLAHABAD.—After the word “granted” and before the full stop at the end of sub-rule (2) of Rule 3, insert the words “unless it thinks fit to refuse the
certificate”. (4-1-1960).
ANDHRA PRADESH.—See amendment of Rule 2 above.
BOMBAY, (DADRA AND NAGAR HAVELI) GOA, DAMAN AND DIU.—In Order XLV, Rule 3 for the existing sub-rule (2) substitute the following as sub-rule (2):—
“(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, unless it thinks fit to refuse the certificate.” (1-10-1983) and (1-4-1987)
GUJARAT.—At the end of sub-rule (2) substitute a comma for the full stop and add:
“Unless it thinks fit to refuse the certificate.”
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In Rule 3:
(i) for sub-rule (2) the following sub-rule shall be substituted, 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), the following sub-rule shall be inserted, namely:
“(3) Unless the Court dismisses such 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.” (9-6-1959)
MADHYA PRADESH.—(1) Substitute the following for the existing sub-rule (2):
“(2) Upon receipt of such petition, 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.”
(2) Add the following as sub-rule (3):
“(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
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certificate should not be granted.” (16-9-1960)
MADRAS AND PONDICHERRY.—To sub-rule (2) of Rule 3, add the following proviso:
“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.” (16-7-1969)
ORISSA.—For sub-rule (2) of Rule 3, substitute the following:
“(2) Upon receipt of such petition, the Court may, after giving the appellant or his pleader an opportunity of being heard, dismiss the petition
summarily and the Court, unless dismisses the petition summarily, 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 appeared 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.” (14-5-1984).
PUNJAB, HARYANA (CHANDIGARH).—R. 3 same as Central except the marginal note “Certificate as to the fitness” and sub-rule (2) as under:
“(2) Upon 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.—Punjab Govt. Gaz., 4-1-1974, Pt. III (L.S.), Extra., p. 3 (No. 1).
826
4. Consolidation of suits.— [* * *]
5. Remission of dispute to Court of first instance.—827[* * *]
6. Effect of refusal of certificate.—Where such certificate is refused, the petition shall be dismissed.
828
7. Security and deposit required on grant of certificate.—(1) Where the certificate is granted, the applicant shall, within [ninety days of 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,—
829
(a) furnish security [in cash or in Government securities] for the costs of the respondent, and
830 831
(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—
832
(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 the 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:
833
[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.]
834
(2) [* * *]
High Court Amendments
ALLAHABAD.—In Rule 7(1)(a) between the words “the respondent” and the word “and” insert the following words:
“except when the Government is the applicant.”
In the first proviso to Rule 7(1) for the words “at the time of granting the certificate” substitute the words “at any time before expiry of the period for
furnishing security”. (4-2-1939).
ANDHRA PRADESH.—Rule 7 shall be omitted. (4-8-1975).
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In Rule 7, after sub-rule (1), the following sub-rule shall be inserted, 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 of done by him in his official capacity.” (9-6-1959)
MADRAS.—(i) Substitute the following for the existing sub-rule (2)—
“(2) No such security as is mentioned in clause (a) of the foregoing sub-rule shall be required from the Government or a public officer sued in
respect of an act purporting to be done by him in his official capacity where the Government has undertaken the defence of the suit.” (28-5-1958)
PUNJAB, HARYANA (CHANDIGARH).—Substitute the following for Rule 7:—
“R. 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(1), whichever is later:—
(a) deposit the amount required to defray the expenses 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; and
(4) such other documents as the High Court may direct to be excluded.— Punjab Govt. Gazette, 4-1-1974, Pt. III (L.S.), p. 3.
RULE 7-A
BOMBAY.—After Rule 7, the following rule shall be inserted, namely:
“7-A. 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.” (1-10-
1983)
GUJARAT.—Same as that of Bombay except the words put in brackets and for “have been” in last line read “be”. (17-8-1961)
MADHYA PRADESH.—Same as that of Gujarat.(16-9-1960)
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,
835
(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 therefor and paying the reasonable expenses
incurred in preparing them.
High Court Amendments
ANDHRA PRADESH.—In Order XLV of the First Schedule to the Civil Procedure Code, 1908.
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For the existing Rule 8, the following shall be substituted, 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 lodgement 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.” (4-8-1975)
MADRAS AND PONDICHERRY.—(1) for clause (b) of Rule 8, substitute the following:
“(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 notice issued under Rule 3(2) supra.”
(2) In clause (c), add the following at the end:
“give notice of such transmission to the respondents specified in Rule 8(b) above, and”.
(28-1-1959)
PUNJAB, HARYANA (CHANDIGARH).—
“R. 8. Power to order further payment.—Where at any time after the admission of an appeal but before the transmission of the copy of 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.”— Punjab Govt. Gazette, 4-1-1974,
Pt. III (L.S.), p. 4.
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.—Rule 9 shall be omitted. (4-8-1975)
PUNJAB, HARYANA, CHANDIGARH.—Substitute the following for Rule 9:—
“R. 9. 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”.— Punjab Govt. Gazette, 4-1-1974, Pt. III, (L.S.), p. 4.
836
[9-A. 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 Amendments
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In the proviso for the figure (2), after the words “sub-rule”, the figure “(3)” shall be substituted. (9
-6-1959)
PUNJAB, HARYANA, CHANDIGARH.—Substitute the following for Rule 9-A:—
“R. 9-A. Power to dispense with notice in case of deceased.—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 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 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.”— Punjab Govt. Gazette, 4-1-
1974, Pt. III (L.S.), p. 4.
10. Power to order further security or payment.—Where at any time after the admission of an appeal but before the transmission of the copy of the
record, except as aforesaid, to the Supreme Court, such security appears inadequate,
or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as
aforesaid,
the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within like time, the
required payment.
High Court Amendment
ANDHRA PRADESH.—Rule 10 shall be omitted. (4-8-1975)
PUNJAB, HARYANA, CHANDIGARH.—Substitute the following for Rule 10:—
“R. 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, of the amount which he has deposited under Rule 7.” — Punjab Govt. Gazette, 4-1-1974, Pt. III (L.S.), p.
4.
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.—Rule 11 shall be omitted. (4-8-1975)
PUNJAB, HARYANA, CHANDIGARH.—
“R. 11. 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 the
decree appealed from, or of any decree or 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.”— Punjab Govt. Gazette, 1-4-1974, Pt. III (L.S.), p. 3.
12. Refund of balance deposit.—When the copy of the record, except as aforesaid, has been transmitted to the Supreme Court, the appellant may
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obtain a refund of the balance (if any) of the amount which he has deposited under Rule 7.
High Court Amendment
ANDHRA PRADESH.—Rule 12 shall be omitted. (4-8-1975)
PUNJAB, HARYANA, CHANDIGARH.—
“R. 12. Procedures to enforce orders of the Supreme Court.— (1) Whoever desires to obtain execution of any decree or order of the Supreme Court
shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from
which the appeal to the Supreme Court was preferred.
(2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other
Court as the Supreme Court by such decree or order may direct, and shall upon the application of either party give such directions as may be
required for the execution of the same, and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner
and according to the provisions applicable to the execution of 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 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.”— Punjab Govt. Gazette, 4-1-1974, Pt. III (L.S.), p. 3.
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.
High Court Amendments
PUNJAB, HARYANA, CHANDIGARH.—
“R. 13. Appeal from order relating to execution.—The order made by the Court which executes the decree or order of the Supreme Court, relating
to such execution, shall be applicable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its
own decrees.”— Punjab Govt. Gazette, 4-1-1974, Pt. III (L.S.), p. 3.
14. Increase of security found inadequate.—(1) Where at any time during the pendency of appeal the security furnished by either party appears
inadequate, the Court may, on the application of the other party, require further security.
(2) In default of such further security being furnished as required by the Court,—
(a) if the original security was furnished by the appellant, the Court may on the application of the respondent, execute the decree appealed from as if the
appellant had furnished no such security;
(b) if the original security was furnished by the respondent, the Court shall, so far as may be practicable, stay the further execution of the decree, and
restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction
respecting the subject-matter of the appeal as it thinks fit.
High Court Amendment
ANDHRA PRADESH.—Rule 14 shall be omitted. (4-8-1975)
837
15. Procedure to enforce orders of the Supreme Court.—(1) Whoever desires to obtain execution of [any decree or order] of the Supreme Court
shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from
which the appeal to the Supreme Court was preferred.
838 839
(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
840 841
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
842
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.
843
(3) [* * *]
844
[(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.]
High Court Amendments
ALLAHABAD.—For Rule 15(1) substitute the following:
“Rule 15(1). Whoever desires to obtain:
(a) execution of any order of the 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 certified
copy of the decree passed or order made by the Supreme Court of which execution is desired or to which effect is to be given and a memorandum
of all costs incurred in India that are claimed in pursuance thereof.”
ANDHRA PRADESH.—(a) Substitute the following for sub-rule (1) of Rule 15:
[Same as Rule 15(1) and Explanation as substituted in Madras];
(b) Delete sub-rule (2) and (3); and
(c) Renumber sub-rule (4) as sub-rule (2). (28-9-1957)
BOMBAY, (DADRA AND NAGAR HAVELI), GOA, DAMAN AND DIU.—In Order XLV, for the existing Rule 15 and its marginal note, substitute the following as
Rule 15 and marginal note:
“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.
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(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 if it had been made before the death took place. (1-10-1983) and (1-4-1987)
KARNATAKA.—For Rule 15, delete sub-rules (1) and (2). (30-3-1967)
MADRAS AND PONDICHERRY.—(i) Substitute the following for the existing sub-rule (1):
“15. (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”. (28-5-1958)
(ii) Delete sub-rules (2) and (3) and renumber the present sub-rule (4) as sub-rule (2).
16. Appeal from order relating to execution.—The orders made by the Court which executes the 845[decree or order] of 846[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
RULE 16-A
ANDHRA PRADESH.—Same as Madras.
KERALA AND MADRAS.—After R. 16, the following rule shall be inserted, namely:
“16-A. Appeals to Federal Court.—The provisions of sub-rules (1) and (2) of R. 15 and the provisions of R. 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 (Noti. No. 3409; 20-6-1943).—Insert Rule 17 which is same as in Allahabad with insertion of the words “in accordance with the
declaration or order made” after “orders for costs passed”.
17. Appeals to Federal Court.—847[* * *]
High Court Amendments
ALLAHABAD.—Add the following as new rule:
“17. The provisions of sub-rules (1) and (2) of Rule 15 shall apply mutatis mutandis to the execution of decrees or orders for costs passed by the
Federal Court in appeals from the High Court.” (14-8-1948).
MADHYA PRADESH.—Insert Rule 17 which is same as in Allahabad with insertion of the words “in accordance with the declaration or order made” after
“orders for costs passed”.
Order 45-A
Madras.—Insert the following after Order 45—
“Order XLV-A
Appeals to the Supreme Court.
R. 1. Decree defined.—In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final
order.
848
[R. 2. Application to Court whose decree is complained of.—Whoever desires to appeal to the Supreme Court may make an oral application to
the Court whose decree is complained of immediately after the pronouncement of the judgment and in such a case, it shall be heard and disposed of
immediately or may apply by petition to the Court whose decree is complained of.”
849 850
R. 3. [Certificate as to fitness].— [(1) Every petition shall state the grounds of appeal and pray for a certificate:
(i) that the case involves substantial question of law of general importance; and
(ii) that in the opinion of the Court, the said question needs to be decided by the Supreme Court.]
(2) Upon receipt of such petition the Court shall direct notice to be served on the opposite party to show cause why the said Certificate should not
be granted:
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.
R. 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.
R. 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 of the suit in the court of first instance, or as to the amount of 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.
R. 6. Effects of refusal of certificate.—Where a certificate is refused, the petition shall be dismissed.
R. 7. Power 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 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
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.
R. 8. Procedure to enforce orders of the Supreme Court.—(1) Whoever desires to obtain execution of any appellate decree or order of 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 the deceased opposite party or deceased respondent in a case, where such opposite party or
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respondent did not appear either at the hearing, in 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.
R. 9. 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 as the orders of such court relating to the execution of its own decrees.” (21-4-1971)
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 Courts (if any) consequent on a reference for the decision of the High Court shall be costs in the case.
851
[4-A. 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.]
852
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 which the reference arose, and make such order as it think fit.
6. Power to refer High Court questions as to jurisdiction in small causes.—(1) Where at any time before judgment a Court in which a suit has been
instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a
statement of its reasons for the doubt as to the nature of the suit.
(2) On receiving the record and statement, the High Court may order the Court either to proceed with the suit or to return the plaint for presentation
to such other Court as it may in its order declare to be competent to take cognizance of the suit.
High Court Amendments
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In sub-rule (1) for the words “of small causes” substitute the words “exercising small cause
jurisdiction.” (9-6-1959)
7. Power to District Court to submit for revision proceedings had under mistake as to jurisdiction in small causes.—(1) Where it appears to a District
Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so
cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party
shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature
of the suit to be erroneous.
(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.
(3) With respect to any proceedings subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such
order as in the circumstance appears to it to be just and proper.
(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the
purposes of this rule.
High Court Amendments
KERALA: LACCADIVE, MINICOY, AMINDIVI I SLANDS.—Rule 7 shall be omitted.
Rule 8
ALLAHABAD.—Add after Rule 7 to Order XLVI the following as Rule 8:
“8. Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this Order.”
BOMBAY, (DADRA AND NAGAR HAVELI) GOA, DAMAN AND DIU.—In Order XLVI, after the existing Rule 7, add the following Rule 8:
“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.” (1-10-1983) (1-4-
1987)
GUJARAT.—Same as that of Allahabad.
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, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment
of the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some
other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the
Appellate Court the case on which he applies for the review.
853
[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.]
High Court Amendments
KERALA, LACCADIVE, MINICOY AND AMINDIVI I SLANDS.—In clause (c) to sub-rule (1) for the words “of small causes” substitute the words “exercising small
cause jurisdiction”. (9-6-1959)
PATNA.—Delete the words “or on account of non-payment, in spite of due diligence, of Court-fee within the time allowed by the Court.” as inserted in
1958. (5-12-1973)
► Review jurisdiction — Scope and extent.—Court of review has only limited jurisdiction circumscribed by definitive limits fixed by language used in Order 47 Rule 1,
Diesel LOCO Shed & South Eastern Railway House Building Coop. Society Ltd. v. Attili Appala Swamy, (2015) 2 SCC 390.
► Grounds for Review.—Expression “any other sufficient reason” appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds. An error which is
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not self-evident and which can be discovered only by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of review
power. An erroneous order/decision cannot be corrected in the guise of exercise of review power, Shri Ram Sahu v. Vinod Kumar Rawat, (2021) 13 SCC 1.
► Review of a decree.—The decree that is subsequently passed on review whether it modifies, reverses or confirms the decree originally passed is a new decree
superseding the original one, Sushil Kumar v. State of Bihar, (1975) 1 SCC 774.
► Review of judgment in second appeal.—Review of judgment in second appeal is maintainable subject to availability of a ground within the meaning of Order 47, Rule 1 of
the Code, Pandit Dhana Mali v. Bhimbai, (2007) 15 SCC 434.
► Applications for review.—In law, there is no bar in filing application for review successively if the same is otherwise maintainable in law, Jaya Chandra Mohapatra v. Land
Acquisition Officer, (2005) 9 SCC 123.
2. To whom applications for review may be made.—854[* * *]
3. Form of applications for review.—The provisions as to the form of referring appeals shall apply, mutatis mutandis, to applications for review.
4. Application where rejected.—(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.
Application where granted.—(2) 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 are 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 Amendment
BOMBAY, DADRA AND NAGAR HAVELI (GOA, DAMAN AND DIU).—In Order XLVII, for existing Rule 5 and its marginal note, substitute the following as Rule 5
and marginal note:
“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.” (1-10-1983) and (1-4-1987)
DELHI.—The following shall be substituted for the existing Rule in Order 47 of the Code of Civil Procedure, 1908:—
“R. 5. Where the Judge or Judges, or any 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 are not precluded by absence or other cause
for a period of six months 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 in Judge or Judges of the Court shall hear the same.
Provided that if the said Judge or Judges, or any of the Judges, who passed the decree or made the order is or are precluded by absence or other
cause for a period of six months after the application from considering the decree or order to which the application refers, it shall be heard (a) if the
decree was passed or the order was made by a Judge sitting alones by a Judge sitting alone, (b) if the decree was passed or the order was made by a
Bench of two or more Judges, by a Bench consisting of as many Judges as the Bench whose decree or order a review is applied for, The Judges who
passed the decree or made the order, as are available, shall be members of the Bench — Delhi Gazette, 21-4-1998, Pt. IV, Extra., p. 2 (No. 61) (21-4
-1998).
GUJARAT.— For the word “six”, the word “two” shall be substituted (17-8-1961).
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.
855
7. Order of rejection not appealable. Objections to order granting application.— [(1) An order of the Court rejecting the application shall not be
appealable; but an order granting the application may be objected to at once by an appeal from the order granting the application or in an appeal from
the decree or order finally passed or made in the suit.]
(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected
application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing
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.
8. Registry of application granted, and order for rehearing.—When an application for review is granted, a note thereof shall be made in the register
and the Court may at once rehear the case or make such order in regard to the rehearing 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 AND BOMBAY.—Add the following as R. 10:
“10. R. 38 of Or. 41 shall apply, so far as may be, to proceedings under this Order.” (1-10-1983)
BOMBAY (DADRA AND NAGAR HAVELI) (GOA, DAMAN AND DIU).—In Order 47, after the existing Rule 9, add the following rule with marginal note as new
Rule 10 and its marginal note:—
“R. 10. “Applicability of Rule 38 of Order 41.— Rule 38 of Order 41 shall apply, so far as may be, to proceedings under this Order. (1-10-1983)—
See Maharashtra Govt. Gazette, 15-9-1983, Pt. 4 Ka, p. 429.— Goa Gazette, 12-10-1987, Extra., S. 1, No. 28, p. 392 (1-4-1987).
GUJARAT.—Same as that of Allahabad except that for the word “so” read “as” (17-8-1961).
Order 47-A
BOMBAY, (DADRA AND NAGAR HAVELI), (GOA, DAMAN AND DIU).—After the existing Or. 47, add the following Order with heading as new Or. 47-A and
its heading:
“ORDER XLVII-A
Revision
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1. Applicability of R. 38 of Or. 41.—R. 38 of Or. 41 shall apply, so far as may be, to proceeding under S. 115 of this Code.” (1-10-1983) and (1-4-
1987).
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.
Costs of service.—(2) 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.—Before the words “every process issued” prefix the words “Except as provided in Order IV, Rule 1(2)”. (24-7-1926).
ASSAM AND NAGALAND.—Same as that of Calcutta.
BOMBAY, (DADRA AND NAGAR HAVELI) GOA, DAMAN AND DIU.—For the existing sub-rule (2) of Rule 1, substitute the following:
“(2) Costs 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,” (1-10-1983) and (1-4-1987)
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS, GAUHATI.—Substitute for sub-rule (2), the following:
“(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.” (17-1-1934)
GUJARAT.—Same as in Bombay except for the words, “shall, except as provided for in sub-rule (2) of Rule 1 of Or. 4”, substitute the words, “other
than the summons to the defendants, shall”.
MADHYA PRADESH.—Substitute the following for the words “the Court-fee” occurring in sub-rule (2):
“Except as provided in Order IV, Rule 1(2), the Court-fee.” (16-9-1960)
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 of each case may require, shall be used
for the purposes therein mentioned.
High Court Amendments
ASSAM AND NAGALAND.—Same as that of Calcutta.
CALCUTTA, ANDAMAN AND NICOBAR I SLANDS.—Insert the following words after the word “appendices”:
“or such other forms as may be prescribed by the High Court of Judicature at Fort William in Bengal.” (18-4-1935)
PUNJAB, HARYANA AND CHANDIGARH.—After Rule 3, add the following:—
“4. The provisions of Rules 11(2), 17, 18, 19 and 21 of Order 41-B of the Code of Civil Procedure 1908, shall apply mutatis mutandis to Civil
Revision Petitions.” (16-10-1970).
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 Amendments
KERALA (LAKSHADWEEP I SLANDS).—Omit Order 49 (9-6-1959).
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 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
ASSAM AND NAGALAND.—Insert Rule 4 as in Calcutta (vi).
BOMBAY, (DADRA AND NAGAR HAVELI) GOA, DAMAN AND DIU.—(1) In Order XLIX, for the existing Rule 3 and its marginal note, substitute the following as
Rule 3 and marginal note:—
“3. Application of Rules.—The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary civil
jurisdiction, namely:—
(1) Rule 19-A, Order V,
(2) Rule 10, clauses (b) and (c) of Rule 11 and Rule 14-A of Order VI,
(3) Rule 14-A of Order VI,
(4) Rule 3 of Order X,
(5) Rule 2 of Order XVI,
(6) 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,
(7) Rules 1 to 8 (both inclusive) of Order XX,
(8) Rule 72-A 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(4) of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction.”
Rule 4
(2) In Order XLIX, after Rule 3 as substituted above, add the following rule with marginal note as new Rule 4 and its marginal note:—
“Powers of the Registrar of the High Court to accept Court-fees after the presentation of the appeal.—Where on a memorandum of appeal
presented to the High Court within the time prescribed for the same the whole of 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 desecration, allow the appellant to pay the whole or part, as the case may be, of
such Court-fee after the presentation of the memorandum of appeal, and may admit the appeal to the Registrar even though the Court-fee or part of
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it may have been paid after the time prescribed for the presentation of the appeal.” (1-10-1983) and (1-4-1987)
CALCUTTA.—(i) For words and figure “Rule 35” substitute “Rules 12, 14, 15 and 35”; (21-10-1948)
(ii) clause (1) deleted (1-8-1974)
Rule 4
(iii) (Notification No. 7376—G of 8-8-1940).—Add the following as new rule:—
“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 Judge of such Court but is prevented by absence or any other reason from pronouncing that judgment or opinion in open Court.” (8-8
-1940)
GUJARAT.—(i) Substitute Rule 3 as below:—
“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 21-A of Order V;
(1a) Rule 10, clauses (b) and (c) of Rule 11 and Rules 19 to 26 (both inclusive) of Order VII;
(1b) 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) Rules 1 to 8 of Order XX;
(5a) Rule 72-A 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 Rules 31 and 35 of Order XLI shall not apply to such High Court in the exercise of its appellate jurisdiction.”
Rule 4
(ii) After Rule 3 add the following as Rule 4:—
“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 (9-6-1959)
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
856 857
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
858 859
[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 AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in Rule 1, in clause (b) after words “….at once of judgment” add the words “and
Rule 5”. [Vide President Act 19 of 1973 as re-enacted by U.P. Act 30 of 1974].
High Court Amendments
KERALA.—Substitute the heading by “Suits Triable as Small Causes.”
(b) Substitute for the first para the following.—
“1. The provisions contained hereinafter specified shall not extend to Civil Courts exercising Small Cause Jurisdiction”. (9-6-1959)
(c) Delete the words “Order XLI” from clause (b).
ORDER LI
Presidency Small Cause Courts
1. Presidency Small Cause Courts.—Save as provided in Rules 22 and 23 of Order V, Rules 4 and 7 of Order XXI, and Rule 4 of Order XXVI, and by
the Presidency Small Cause Courts Act, 1882 (15 of 1882), this schedule shall not extend to any suit or proceeding in any Court of Small Causes
established in the towns of Calcutta, Madras and Bombay.
STATE AMENDMENTS
Tamil Nadu.—In Or. 51 in R. 1, for the expression “and Rule 4 of Order 26” substitute the expression “Rule 4 of Order 26 and Order 33.”— T.N. Act
43 of 1979, S. 4 (1-1-1980).
High Court Amendments
BOMBAY.—In sub-rule (1) after the proviso insert:—
“Explanation.—The copy of 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.” Mah. Govt. Gaz., 31-12-1987 Pt. IV Ka p. 788.
GUJARAT.—For “in the town of Calcutta, Madras and Bombay” substitute “in the cities of Ahmedabad, Bombay, Calcutta and Madras”. (20-3-1962)
KERALA.—Order LI be omitted. (9-6-1959)
Order LII
ALLAHABAD.—Add the following as Order LII, Rule 1:
“ORDER LII
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“Rule 1.—Rule 38 of Order XLI shall apply, so far as may be, to proceedings under Section 115 of the Code.” (1-6-1918).
GUJARAT.—Same as for Allahabad.
MADRAS AND PONDICHERRY.—After Order LI add Order LII as follows:
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 D-1. 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 hereafter called the Register of Caveats containing the following particulars, namely:—
(1) Serial Number.
(2) Date of presentation of Caveat.
(3) Date up to 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 Court.
(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 filed.
(8) The number of the proceedings 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 endorsement in the application as to whether or not 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 acknowledgment 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
application on the Pleader for the Caveator, if any, or on the Caveator in the manner provided for service on a defendant respondent or opposite party, of
summons to appeal. 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 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 D-I
Form of Caveat
IN THE COURT OF
Application/Petition No. . . . . . . . . . . . . . . . . . . . . . . in . . . . . . . . . . . . . . . . . . . . . . of 19. . . . . . . . . . . . . . . . . . . . . . No. . . . . . . . . . . . . . . . . .
. . . . of 19 . . . . . . . . . . . . . . . . . . . . . . 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 forthwith serve a notice of the Caveat by Registered Post with acknowledgment due on the
applicant/petitioner or expected applicant/petitioner and file proof of such service.
DATED. . . . . . . . . . . . . . .
Counsel for Caveator
CAVEATOR
(T.N. Govt. Gaz. Pt. III, S. 2, dated 6-8-1980)
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
860
[The Union of India or the State of . . . . . . . . . ., as the case may be.]
———
The Advocate General of
———
The Collector of
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———
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 20 , he lent the defendant rupees repayable on the day of 20 .
2. The defendant has not paid the same, except rupees paid on the day of 20 .
[If the plaintiff claims exemption from any law of limitation, say:—]
3. The plaintiff was a minor [or insane] from the day of till the day of 20 .
4. [Facts showing when the cause of action arose and that the Court has jurisdiction.]
5. The value of the subject-matter of the suit for the purpose of jurisdiction is rupees and for the purpose of court-fees is rupees.
6. The plaintiff claims rupees, with interest at per cent from the day of 20 .
No. 2
MONEY OVERPAID
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the plaintiff agreed to buy and the defendant agreed to sell bars of silver at annas per tola of fine silver.
2. The plaintiff procured the said bars to be assayed by E.F., who was paid by the defendant for such assay, and E.F. declared each for the bars to
contain 1500 tolas of fine silver, and the plaintiff accordingly paid the defendant rupees.
3. Each of the said bars contained only 1200 tolas of fine silver, of which fact the plaintiff was ignorant when he made the payment.
4. The defendant has not repaid the sum so overpaid.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 3
GOODS SOLD AT A FIXED PRICE AND DELIVERED
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , E.F. sold and delivered to the defendant [one hundred barrels of flour, or the goods mentioned in the schedule
hereto annexed, or sundry goods.]
2. The defendant promised to pay rupees for the said goods on delivery [or on the day of 20 , some day before the plaint was filed].
3. He has not paid the same.
4. E.F. died on the day of 20 . By his last will he appointed his brother, the plaintiff, his executor.
[As in paras 4 and 5 of Form No. 1]
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 20 , plaintiff sold and delivered to the defendant [sundry articles of house-furniture], but no express agreement was made
as to the price.
2. The goods were reasonably worth rupees.
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 5
GOODS MADE AT DEFENDANT'S REQUEST, AND NOT ACCEPTED
(Title)
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A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , E.F. agreed with the plaintiff that the plaintiff should make for him [six tables and fifty chairs] and that E.F. should
pay for the goods on delivery rupees.
2. The plaintiff made the goods, and on the day of 20 , offered to deliver them to E.F., and has ever since been ready and willing so to do.
3. E.F. has not accepted the goods or paid for them.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 6
DEFICIENCY UPON A RESALE [GOODS SOLD AT AUCTION]
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the plaintiff put up at auction sundry [goods], subject to the condition that all goods not paid for and removed by the
purchaser within [ten days] after the sale should be resold 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 20 , the plaintiff resold the [crate of crockery], on account of the defendant, by public auction, for rupees.
6. The expenses attendant upon such resale 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
SERVICE AT A REASONABLE RATE
(Title)
A.B., the above-named plaintiff, states as follows:—
1. Between the day of 20 , and the day of 20 , at , plaintiff [executed sundry drawings, designs and diagrams] for the
defendant, at his request; but no express agreement was made as to the sum to be paid for such services.
2. The services were reasonably worth rupees.
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 8
SERVICES AND MATERIALS AT A REASONABLE COST
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , at , the plaintiff built a house [known as No. , in ], and furnished the materials therefor, for the defendant, at
his request, but no express agreement was made as to the amount to be paid for such work and materials.
2. The work done and materials supplied were reasonably worth rupees.
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 9
USE AND OCCUPATION
(Title)
A.B., the above-named plaintiff, executor of the will of X.Y., deceased, states as follows:—
1. That the defendant occupied the [house No. , Street], by permission of the said X.Y., from the day of 20 , until the day of 20 , and
no agreement was made as to payment for the use of the said premises.
2. That the use of the said premises for the said period was reasonably worth rupees.
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 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 20 , 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 20 , the arbitrators awarded that the defendant should [pay the plaintiff rupees].
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 11
ON A FOREIGN JUDGMENT
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , at in the State [or Kingdom] of , the Court of that State [or Kingdom], in a suit therein pending between the
plaintiff and the defendant, duly adjudged that the defendant should pay to the plaintiff rupees, with interest from the said date.
2. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 12
AGAINST SURETY FOR PAYMENT OF RENT
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , E.F. hired from the plaintiff for the term of years, the [house No. , Street], at the annual rent
of rupees, payable [monthly].
2. The defendant agreed, in consideration of the letting of the premises to E.F., to guarantee the punctual payment of the rent.
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3. The rent for the month of 20 , amounting to rupees, has not been paid.
[If, by the terms of the agreement, notice is required to be given to the surety, add:—]
4. On the day of 20 , 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 20 , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed.
[Or On the day 20 , the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant and that the defendant should
purchase from the plaintiff forty bighas of land in the village of for rupees.]
2. On the day of 20 , the plaintiff, being then the absolute owner of the property [and the same being free from all incumbrances as was
made to appear to the defendant], tendered to the defendant a sufficient instrument of transfer of the same [or, was ready and willing, and is still
ready and willing, and offered, to transfer the same to the defendant by a sufficient instrument] on the payment by the defendant of the 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 Amendments
CALCUTTA AND GAUHATI.—In Appendix A, in Form No. 13, for the word, “bighas”, substituted the word “acres”.
No. 14
NOT DELIVERING GOODS SOLD
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the
plaintiff on the day of 20 , and that the plaintiff should pay 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 20 , the plaintiff and defendant mutually agreed that the plaintiff should serve the defendant as [an accountant, or in the
capacity of foreman, or as the case may be], and that the defendant should employ the plaintiff as such for the term of [one year] and pay him for
his services rupees [monthly].
2. On the day of 20 , the plaintiff entered upon the service of the defendant and has ever since been and still is, ready and willing to
continue in such service during the remainder of the said year whereof the defendant always has had notice.
3. On the day of 20 , the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, or to pay him for his
services.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
High Court Amendments
PUNJAB, HARYANA AND CHANDIGARH
No. 15-A
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF ANY PERSON INTERESTED AND SURETIES
(Order 21 Rule 43)
In the Court of at Civil Suit No. of.
A.B. of
Against
C.D. of
Know all men by these presents that we, I.J. 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 presents.
Dated this . . . . . . . day of 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 . . . . . . . . . . of . . . . . . 20. . in execution of a decree in favour of ………………. in suit No. . . . . of ………………… 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 the 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
No. 15-B
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF ANY PERSON AND SURETIES
(Order 21 Rule 43(1)(c))
In the Court of at Civil Suit No. . . . . . . of . . . . . .
A.B. of
Against
C.D., 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
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our heirs, executors and administrators jointly and severally, by these presents.
Dated this day of 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 . . . . . . 20 . . . . . . in execution of a decree in favour of in suit No. of 20 . . . . . . on the file of and 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 the 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 me above bounden in the presence of
No. 16
BREACH OF CONTRACT TO SERVE
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at an [annual] salary
of rupees, and that the defendant should serve the plaintiff as [an artist] for the term [one year].
2. The plaintiff has always been ready and willing to perform his part of the agreement [and on the day of 20 , offered so to do].
3. The defendant [entered upon] the service of plaintiff on the abovementioned day, but afterwards, on the day of 20 , he refused to serve the
plaintiff as aforesaid.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 17
AGAINST A BUILDER FOR DEFECTIVE WORKMANSHIP
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed. [Or state the
tenor of the contract.]
[2. The plaintiff duly performed all the conditions of the agreement on his part.]
3. The defendant [built the house referred to in the agreement in a bad and 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 20 , the plaintiff took E.F. into his employment as a clerk.
2. In consideration thereof, on the day of 20 , the defendant agreed with the plaintiff that if E.F. should not faithfully perform his duties as a
clerk to the plaintiff, or should fail to account to the plaintiff for all monies, evidences of debt or other property received by him for the use of the
plaintiff, the defendant would pay to the plaintiff whatever loss he might sustain by reason thereof, not exceeding rupees.
[Or, 2. In consideration thereof, the defendant by his bond of the same date bound himself to pay the plaintiff the penal sum of rupees, 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 20 , and the day of 20 , E.F. received money and other property, amounting to the value of rupees, for
the use of the plaintiff for which sum he has not accounted to him, and the same still remains due and unpaid.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 19
BY TENANT AGAINST LANDLORD, WITH SPECIAL DAMAGE
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the defendant, by a registered instrument, let to the plaintiff [the house No. , Street] for the term of years,
contracting with the plaintiff, that he, the plaintiff, and his legal representative should quietly enjoy possession thereof for the said term.
2. All conditions were fulfilled and all things happened necessary to entitle the plaintiff to maintain this suit.
3. On the day of 20 , during the said term, E.F. who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom,
and still withholds the possession thereof from him.
4. The plaintiff was thereby [prevented from continuing the business of a tailor at the said place, was compelled to expend rupees in moving, and
lost the custom of G.H. and I.J. by such removal].
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 20
ON AN AGREEMENT OF I NDEMNITY
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the plaintiff and defendant being partners in trade under the style of A.B. and C.D., dissolved the partnership, and
mutually agreed that the defendant should take and keep all the partnership property, pay all debts of the firm and indemnify the plaintiff against
all claims that might be made upon him on account of any indebtedness of the firm.
2. The plaintiff duly performed all the conditions of the agreement on his part.
3. On the day of 20 , [a judgment was recovered against the plaintiff and defendant by E.F., in the High Court of Judicature
at , upon a debt due from the firm to E.F., and on the day of 20 ,] the plaintiff paid rupees [in satisfaction of the same].
4. The defendant has not paid the same to the plaintiff.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 21
PROCURING PROPERTY BY FRAUD
(Title)
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A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the defendant, for the purpose of inducing the plaintiff to sell him certain goods, represented to the plaintiff that [he,
the defendant, was solvent, and worth rupees over all his liabilities].
2. The plaintiff was thereby induced to sell [and deliver] to the defendant, (dry goods) of the value of rupees.
3. The said representations were false [or state the particular falsehoods] and were then known by the defendant to be so.
4. The defendant has not paid for the goods. [Or, if the goods were not delivered.] The plaintiff, in preparing and shipping the goods and procuring
their restoration, expended rupees.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 22
FRAUDULENTLY PROCURING CREDIT TO BE GIVEN TO ANOTHER PERSON
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the defendant represented to the plaintiff that E.F. was solvent and in good credit, and worth rupees
over all his liabilities [or that E.F. then held a responsible situation and was in good circumstances, and might safely be trusted with goods on
credit].
2. The plaintiff was thereby induced to sell to E.F. [rice] of the value of rupees [on months credit].
3. The said representations were false and were then known by the defendant to be so, and were made by him with intent to deceive and defraud the
plaintiff [or to deceive and injure the plaintiff].
4. E.F. [did not pay for the said goods at the expiration of the credit aforesaid, or] has not paid for the said rice, and the plaintiff has wholly lost the
same.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 23
POLLUTING THE WATER UNDER THE PLAINTIFF'S LAND
(Title)
A.B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain 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 20 , the defendant wrongfully fouled and polluted the well and the water therein and the springs and streams of water
which flowed into the well.
3. In consequence the water in the well became impure and unfit for domestic and other necessary purposes, and the plaintiff and his family are
deprived of the use and benefit of the well and water.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 24
CARRYING ON A NOXIOUS MANUFACTURE
(Title)
A.B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain lands called , situate in .
2. Ever since the day of 20 , the defendant has wrongfully caused to issue from certain smelting works carried on by the defendant large
quantities of offensive and unwholesome smoke and other vapours and noxious matter, which spread themselves over and upon the said lands,
and corrupted the air, and settled on the surface of the lands.
3. Thereby the trees, hedges, herbage and crops of the plaintiff growing on the lands were damaged and deteriorated in value, and the cattle and
livestock of the plaintiff on the lands became unhealthy, and many of them were poisoned and died.
4. The plaintiff was unable to graze the lands with cattle and sheep as he otherwise might have done, and was obliged to remove his cattle, sheep
and farming-stock therefrom, and has been prevented from having so beneficial and healthy a use and occupation of the lands as he otherwise
would have had.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 25
OBSTRUCTING A RIGHT OF WAY
(Title)
A.B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and at the time hereinafter mentioned was, possessed of [a house in the village of ].
2. He was entitled to a right of way from the [house] over a certain field to a public highway and back again from the highway over the field to the
house, for himself and his servants [with vehicles, or on foot] at all times of the year.
3. On the day of 20 , defendant wrongfully obstructed the said way, so that the plaintiff could not pass [with vehicles, or on foot, or in any
manner] along the way [and has ever since wrongfully obstructed the same].
4. (State special damage, if any.)
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 26
OBSTRUCTING A HIGHWAY
(Title)
1. The defendant wrongfully dug a trench and heaped up earth and stones in the public highway leading from to so as to obstruct it.
2. Thereby the plaintiff, while lawfully passing along the said highway, fell over the said earth and stones [or into the said trench] and broke his arm,
and suffered great pain, and was prevented from attending to his business for a long time, and incurred expense for medical attendance.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 27
DIVERTING A WATER-COURSE
(Title)
A.B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and at the time hereinafter mentioned was possessed of a mill situated on a [stream] known as the , in the village
of , district of .
2. By reason of such possession the plaintiff was entitled to the flow of the stream for working the mill.
3. On the day of 20 , the defendant, by cutting the bank of the stream, wrongfully diverted the water thereof, so that less water ran into the
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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 I RRIGATION
(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 20 , the defendant prevented the plaintiff from taking and using the said portion of the said water as aforesaid, by
wrongfully obstructing and diverting the said stream.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 29
I NJURIES CAUSED BY NEGLIGENCE ON A RAILROAD
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the defendants were common carriers of passengers by railway between and .
2. On that day the plaintiff was a passenger in one of the carriages of the defendants on the said railway.
3. While he was such passenger, at [or near the station of or between the stations of and ], a collision occurred on the said
railway caused by the negligence and unskilfulness of the defendants' servants, whereby the plaintiff was much injured [having his leg broken, his
head cut, etc., and state the special damage, if any, as], and incurred expense for medical attendance and is permanently disabled from carrying
on his former business as [a salesman].
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
[Or thus:—2. On that day the defendants by their servants so negligently and unskilfully drove and managed an engine and a train of carriages
attached thereto upon and along the defendants' 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
I NJURIES 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 20 , the plaintiff was walking southward along Chowringhee, in the City of Calcutta, at about 3 o'clock in the afternoon. He
was obliged to cross Middleton Street, which is a street running into Chowringhee at right angles. While he was crossing this street, and just
before he could reach the footpavement on the further side thereof, a carriage of the defendant's drawn by two horses under the charge and
control of the defendant's servants, was negligently, suddenly and without any warning turned at a rapid and dangerous pace out of Middleton
Street into Chowringhee. The pole of the carriage struck the plaintiff and knocked him down, and he was much trampled by the horses.
3. By the blow and fall and trampling the plaintiff's left arm was broken and he was bruised and injured on the side and back, as well as internally,
and in consequence thereof the plaintiff was for four months ill and in suffering, and unable to attend to his business, and incurred heavy medical
and other expenses, and sustained great loss of business and profits.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 31
FOR MALICIOUS PROSECUTION
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , the defendant obtained a warrant of arrest from [a Magistrate of the said city, or as the case may be] on
a charge of , and the plaintiff was arrested thereon, and imprisoned for [days, or hours, and gave bail in the sum of rupees to obtain
his release].
2. In so doing the defendant acted maliciously and without reasonable or probable cause.
3. On the day of 20 , the Magistrate dismissed the complaint of the defendant and acquitted the plaintiff.
4. Many persons, whose names are unknown to the plaintiff, hearing of the arrest, and supposing the plaintiff to be a criminal, have ceased to do
business with him; or in consequence of the said arrest, the plaintiff lost his situation as clerk to one E.F.; or in consequence the plaintiff suffered
pain of body and mind, and was prevented from transacting his business, and was injured in his credit, and incurred expenses in obtaining his
release from the said imprisonment and in defending himself against the said complaint.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 32
MOVABLES WRONGFULLY DETAINED
(Title)
A.B., the above-named plaintiff, states as follows:—
1. On the day of 20 , plaintiff owned [or state facts showing a right to the possession] the goods mentioned in the Schedule hereto
annexed [or describe the goods], the estimated value of which is rupees.
2. From that day until the commencement of this suit the defendant has detained the same from the plaintiff.
3. Before the commencement of the suit, to wit, on the day of 20 , the plaintiff demanded the same from the defendant, but he refused to
deliver them.
[As in paras 4 and 5 of Form No. 1.]
6. The plaintiff claims—
(1) delivery of the said goods, or rupees, in case delivery cannot be had;
(2) rupees compensation for the detention thereof.
The Schedule
No. 33
AGAINST A FRAUDULENT PURCHASER AND HIS TRANSFEREE WITH NOTICE
(Title)
A.B., the above-named plaintiff, states as follows:—
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1. On the day of 20 , the defendant C.D., for the purpose of inducing 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 20 , the defendant represented to the plaintiff that a certain piece of ground belonging to the defendant, situated at ,
contained [ten bighas].
2. The plaintiff was thereby induced to purchase the same at the price of rupees in the belief that the said representation was true, and signed an
agreement, of which the original is hereto annexed. But the land has not been transferred to him.
3. On the day of 20 , the plaintiff paid the defendant rupees as part of the purchase-money.
4. That the said piece of ground contained in fact only [five bighas].
[As in paras 4 and 5 of Form No. 1.]
7. The plaintiff claims—
(1) rupees, with interest from the day of 20 ;
(2) that the said agreement be delivered up and cancelled.
No. 35
AN I NJUNCTION 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
I NJUNCTION RESTRAINING NUISANCE
(Title)
A.B., the above-named plaintiff, states as follows:—
1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute owner of [the house No. , Street, Calcutta].
2. The defendant is, and at all the said times was, the absolute owner of [a plot of ground in the same street ].
3. On the day of 20 , the defendant erected upon his said plot a slaughter-house, and still maintains the same; and from that day until
the present time has continually caused cattle to be brought and killed there [and has caused the blood and offal to be thrown into the street
opposite the said house of the plaintiff].
[4. In consequence the plaintiff has been compelled to abandon the said house, and has been unable to rent the same.]
[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.
861
[*2. The plaintiff has obtained the leave of the Court for the institution of this suit.
*Not applicable where suit is instituted by the Advocate-General.]
[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.
No. 38
I NJUNCTION 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 I NJUNCTION
(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].
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2. On the day of 20 , he deposited the same for safe-keeping with the defendant.
3. On the day of 20 , he demanded the same from the defendant and offered to pay all reasonable charges for the storage of the same.
4. The defendant refuses to deliver the same to the plaintiff and threatens to conceal, dispose of, cut or injure the same if required to deliver it up.
5. No pecuniary compensation would be an adequate compensation to the plaintiff for the loss of the [painting].
[As in paras 4 and 5 of Form No. 1.]
8. The plaintiff claims—
(1) that the defendant be restrained by injunction from disposing of, injuring or concealing the said [painting];
(2) that he be compelled to deliver the same to the plaintiff.
No. 40
I NTERPLEADER
(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 C.D. his executor [or devised his estate in trust,
etc., or died intestate, as the case may be].
3. The will was proved by C.D. [or letters of administration were granted, etc.].
4. The defendant has possessed himself of the movable [and immovable, or the proceeds of the immovable] property of E.F., and has not paid the
plaintiff his debt.
[As in paras 4 and 5 of Form No. 1.]
7. The plaintiff claims that an account may be taken of the movable [and immovable] property of E.F., deceased, and that the same may be
administered under the decree of the Court.
No. 42
ADMINISTRATION BY SPECIFIC LEGATEE
(Title)
[Alter Form No. 41 thus]—
[Omit paragraph 1 and commence paragraph 2] E.F., late of died on or about the day of . By his last will, dated the day of he
appointed C.D. his executor, and bequeathed to the plaintiff [here state the specific legacy].
For paragraph 4 substitute—
The defendant is in possession of the movable property of E.F., and, amongst other things, of the said [here name the subject of the specific
bequest].
For the commencement of paragraph 7 substitute—
The plaintiff claims that the defendant may be ordered to deliver to him the said [here name the subject of the specific bequest], or that, etc.
No. 43
ADMINISTRATION BY PECUNIARY LEGATEE
(Title)
[After 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
testator's lifetime] his executors, and bequeathed his property, whether movable or immovable, to his executors in trust, to pay the rents and
income thereof to the plaintiff for his life; and after his decease, and in default of his having a son who should attain twenty-one, or a daughter
who should attain that age or marry, upon trust as to his immovable property for the person who would be the testator's heir-at-law, and as to his
movable property for the persons who would be the testator's next-of-kin if he had died intestate at the time of the death of the plaintiff, and such
failure of his issue as aforesaid.
2. The will was proved by the defendant on the day of . The plaintiff has not been married.
3. The testator was at his death entitled to movable and immovable property; and the defendant entered into the receipt of the rents of the
immovable property and got in the movable property; he has sold some part of the immovable property.
[As in paras 4 and 5 of Form No. 1.]
6. The plaintiff claims—
(1) to have movable and immovable property of A.B. administered in this Court, and for that purpose to have all proper directions given and
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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.D., the defendant, and the
other creditors of E.F.].
2. A.B. has taken upon himself the burden of the said trust, and is in possession of [or of the proceeds of] the movable and immovable property
transferred by the said instrument.
3. C.D. claims to be entitled to a beneficial interest under the instrument.
[As in paras 4 and 5 of Form No. 1.]
6. The plaintiff is desirous to account for all the rents and profits of the said immovable property [and the proceeds of the sale of the said, or of part
of the said, immovable property, or movable, or the proceeds of the sale of, or of part of, the said movable property, or the profits 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
862
to apply for [an order for the balance].
No. 46
REDEMPTION
(Title)
A.B., the above-named plaintiff, states as follows:—
1. The plaintiff is mortgagor of lands of which the defendant is mortgagee.
2. The following are the particulars of the mortgage:—
(a) (date)
(b) (names of mortgagor and mortgagee);
(c) (sum secured);
(d) (rate of interest);
(e) (property subject to mortgage);
(f) (if the plaintiff's title is derivative, state shortly the transfers or devolution under which he claims).
(If the defendant is mortgagee in possession, add)
3. The defendant has taken possession [or has received the rents] of the mortgaged property.
[As in paras 4 and 5 of Form No. 1.]
863
6. The plaintiff claims to redeem the said property and to have the same re-conveyed to him [and to have possession thereof] [together with
mesne profits].
No. 47
SPECIFIC PERFORMANCE (NO. 1)
(Title)
A.B., the above-named plaintiff, states as follows:—
1. By an agreement dated the day of and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property
therein described and 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:—
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1. On the day of 20 , the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed.
The defendant was absolutely entitled to the immovable property described in the agreement.
2. On the day of 20 , the plaintiff tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient
instrument.
3. On the day of 20 , the plaintiff again demanded such transfer [or the defendant refused to transfer the same to the plaintiff.]
4. The defendant has not executed any instrument of transfer.
5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant.
[As in paras 4 and 5 of Form No. 1.]
8. The plaintiff claims—
(1) that the defendant transfers the said property to the plaintiff by a sufficient instrument [following the terms of the agreement];
(2) rupees compensation for withholding the same.
No. 49
PARTNERSHIP
(Title)
A.B., the above-named plaintiff, states as follows:—
1. He and C.D., the defendant, have been for years [or months] past carrying on business together under articles of partnership in writing [or
under a deed, or under a verbal agreement].
2. Several disputes and differences have arisen between the plaintiff and defendant as such partners whereby it has become impossible to carry on
the business in partnership with advantage to the partners. [Or the defendant has committed the following breaches of the partnership articles:—
(1)
(2)
(3) .]
[As in paras 4 and 5 of Form No. 1.]
5. The plaintiff claims—
(1) dissolution of the partnership;
(2) that accounts be taken;
(3) that a receiver be appointed.
[N.B.—In suits for the winding-up of any partnership, omit the claim for dissolution; and instead insert a paragraph stating the facts of the
partnership having been dissolved.]
(4) WRITTEN STATEMENTS
General defences
Denial.—The defendant denies that (set out facts).
The defendant does not admit that (set out facts).
The defendant admits that but says that
Protest.—The defendant denies that he is a partner in the defendant firm of
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.
864
Limitation.—The suit is barred by article or article of the Second Schedule to the Indian Limitation Act, 1877 (15 of 1877).
Jurisdiction.—The Court has no jurisdiction to hear the suit on the ground that (set forth the grounds).
On the day of a diamond ring was delivered by the defendant to and accepted by the plaintiff in discharge of the alleged cause of action.
Insolvency.—The defendant has been adjudged an insolvent.
The plaintiff before the institution of the suit was adjudged an insolvent and the right to sue vested in the receiver.
Minority.—The defendant was a minor at the time of making the alleged contract.
Payment into Court.—The defendant as to the whole claim (or as to Rs. part of the money claimed, or as the case may be) has paid into Court Rs.
and says that this sum is enough to satisfy the plaintiff's claim (or the part aforesaid).
Performance remitted.—The performance of the promise alleged was remitted on the (date).
Rescission.—The contract was rescinded by agreement between the plaintiff and defendant.
Res judicata.—The plaintiff's claim is barred by the decree in suit (give the reference).
Estoppel.—The plaintiff is estopped from denying the truth of (insert statement as to which estoppel is claimed) because (here state the facts relied
on as creating the estoppel).
Ground of defence subsequent to institution of suit.—Since the institution of the suit, that is to say, on the day of (set out facts).
No. 1
DEFENCE IN SUITS FOR GOODS SOLD AND DELIVERED
1. The defendant did not order the goods.
2. The goods were not delivered to the defendant.
3. The price was not Rs.
[or]
4. 1.
5. 2.
Except as to Rs. , same as
6. 3.
7. The defendant [or A.B., the defendant's agent] satisfied the claim by payment before suit to the plaintiff [or to C.D., the plaintiff's agent] on
the day of 20 .
8. The defendant satisfied the claim by payment after suit to the plaintiff on the day of 20 .
No. 2
DEFENCE IN SUITS ON BONDS
1. The bond is not the defendant's bond.
2. The defendant made payment to the plaintiff on the day according to the condition of the bond.
3. The defendant made payment to the plaintiff after the day named and before suit of the principal and interest mentioned in the bond.
No. 3
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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
” 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 I NJURIES 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 I NFRINGEMENT OF COPYRIGHT
1. The plaintiff is not the author [assignee, etc.]
2. The book was not registered.
3. The defendant did not infringe.
No. 9
DEFENCE IN SUITS FOR I NFRINGEMENT OF TRADE MARK
1. The trade mark is not the plaintiff's.
2. The alleged trade mark is not a trade mark.
3. The defendant did not infringe.
No. 10
DEFENCE IN SUITS RELATING TO NUISANCES
1. The plaintiff's lights are not ancient [or deny his other alleged prescriptive rights].
2. The plaintiff's lights will not be materially interfered with by the defendant's buildings.
3. The defendant denies that he or his servants pollute the water [or do what is complained of].
[If the defendant claims the right by prescription or otherwise to do what is complained of, he must say so, and must state the grounds of the claim
i.e., whether by prescription, grant or what.]
4. The plaintiff has been guilty of laches of which the following are particulars:—
1870. Plaintiff's mill began to work.
1871. Plaintiff came into possession.
1833. First complaint.
5. As to the plaintiff's claim for damages the defendant will rely on the above grounds of defence, and says that the acts 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 mortgage.
2. The mortgage was not transferred to the plaintiff (if more than one transfer is alleged, say which is denied).
865
3. The suit is barred by article of the Second Schedule to the Indian Limitation Act, 1877 (15 of 1877).
4. The following payments have been made, viz.:—
Rs
(Insert date)———— 1000
(Insert date)———— 500
5. The plaintiff took possession on the of , and has received the rents ever since.
6. That plaintiff released the debt on the of .
7. The defendant transferred all his interest to A.B. by a document, dated
No. 12
DEFENCE TO SUIT FOR REDEMPTION
866
1. The plaintiff's right to redeem is barred by Article of the Second Schedule to the Indian Limitation Act, 1877 (15 of 1877).
2. The plaintiff transferred all interest in the property to A.B.
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3. The defendant, by a document dated the day of transferred all his interest in the mortgage-debt and property comprised in the mortgage to
A.B.
4. The defendant never took possession of the mortgaged property, or received the rents thereof.
(If the defendant admits possession for a time only, he should state the time, and deny possession beyond what he admits).
No. 13
DEFENCE TO SUIT FOR SPECIFIC PERFORMANCE
1. The defendant did not enter into the agreement.
2. A.B. was not the agent of the defendant (if alleged by plaintiff).
3. The plaintiff has not performed the following conditions— (Conditions).
4. The defendant did not—(alleged acts of part performance).
5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matter—(State
why).
6. The agreement is uncertain in the following respects—(State them).
7. (or) The plaintiff has been guilty of delay.
8. (or) The plaintiff has been guilty of fraud (or misrepresentation).
9. (or) The agreement is unfair.
10. (or) The agreement was entered into by mistake.
11. The following are particulars of (7), (8), (9), (10) (or as the case may be).
12. The agreement was rescinded under Conditions of Sale, No. 11 (or by mutual agreement).
(In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the agreement or the alleged breaches, or
867
show whatever other ground of defence he intends to rely on, e.g., the Indian Limitation Act, accord and satisfaction, release, fraud, etc.).
No. 14
DEFENCE IN ADMINISTRATION SUIT BY PECUNIARY LEGATEE
1. A.B.'s will contained a charge of debts; he died insolvent; he was entitled at his death to some immovable property which the defendant sold, and
which produced the net sum of Rs , and the testator had some movable property which the defendant got in, and which produced the net sum of
Rs.
2. The defendant applied the whole of the said sums and the sum of Rs which the defendant received from rents of the immovable property in the
payment of the funeral and testamentary expenses and some of the debts of the testator.
3. The defendant made up his accounts and sent a copy thereof to the plaintiff on the day of 20 , and offered 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 costs of this suit.
No. 15
PROBATE OF WILL IN SOLEMN FORM
868
1. The said will and codicil of the deceased were not duly executed according to the provisions of the Indian Succession Act, 1865 (10 of 1865) [or
of the Hindu Wills Act, 1870869 (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 of the contents thereof [or of the contents of the
residuary clause in the said will, as the case may be].
6. The deceased made his true last will, dated the 1st January, 1873, and thereby appointed the defendant sole executor thereof.
The defendant claims—
(1) that the Court will pronounce against the said will and codicil propounded by the plaintiff;
(2) that the Court will decree probate of the will of the deceased, dated the 1st January, 1873, in solemn form of law.
No. 16
PARTICULARS (OR. 6, R. 5)
(Title of suit)
Particulars.—The following are the particulars of (here state the matters in respect of which particulars have been ordered) delivered pursuant to the
order of the of .
(Here set out the particulars ordered in paragraphs if necessary.)
APPENDIX B
PROCESS
No. 1
SUMMONS FOR DISPOSAL OF SUIT (Or. 5, Rr. 1, 5)
(Title)
To
[Name, description and place of residence]
Whereas has instituted a suit against you for you are hereby summoned to appear in this Court in person or by a pleader duly instructed,
and able to answer all material questions relating to the suit, or who shall be accompanied by some person, able to answer all such questions, on
the day of 20 , at o'clock in the noon, to answer the claim; and as the day fixed for your appearance is appointed for the
final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you
intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
Notice.—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the
attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and
on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be
against your person or property, or both.
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High Court Amendment
ALLAHABAD.—After Form No. 1 the following Form shall be inserted:
“FORM NO. 1-A
SUMMONS/NOTICE FOR SERVICE BY ADVERTISEMENT IN A NEWSPAPER
(Or. 5, 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 20 , at o'clock, to answer the same, failing which the suit/application will be
disposed of ex parte.
Given under my hand and the seal of the Court, this day of 20 .
Judge (25-4-1987)
ANDHRA PRADESH.—Same as that of Madras (ii).
ASSAM.—Same as that of Calcutta.
BOMBAY.—The following notice shall be inserted in Forms Nos. 1, 2, 3, 4, 5 and 6:
“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.” (1-10-1983).
CALCUTTA.—Insert the following form and number it as 1-A:
“No. 1-A
SUMMONS TO DEFENDANT FOR ASCERTAINMENT WHETHER THE SUIT WILL BE CONTESTED
(Or. 5, Rr. 1 and 5)
(Title)
To
[Name, description and place of residence]
Whereas 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 on the day of 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 rely.
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 20
Seal
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.”
GAUHATI.—Same as in Calcutta.
KARNATAKA.—Same as in Madras (30-3-1963).
KERALA.—Same as that of Madras (ii).
MADRAS.—(i) Note to Form No. 1 as in Bombay except that the words “day before mentioned” are substituted for “date mentioned”.
(ii) After Form No. 1, insert the following as Form No. 1-A:
“No. 1-A
SUMMONS FOR ASCERTAINING WHETHER A SUIT IS CONTESTED OR NOT, AND IF NOT CONTESTED FOR ITS I MMEDIATE DISPOSAL
(Or. 5, 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 to the suit (or who shall be accompanied by some person able to answer all such
questions) on the day of 20 at o'clock in the noon 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 statement, 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 20 .
Seal
Judge.
Notice.—If you admit the claim, you should pay the money into Court together with the cost of the suit, to avoid execution of the decree, which
may be against your person or property or both.”
MYSORE—Same as that of Madras (ii) except that above “Notice” the words “Judge or the Chief Ministerial Officer” have been substituted for
“Judge” (R.O.C. No. 2526 of 1959, dt. 9-2-1967).
No. 2
SUMMONS FOR SETTLEMENT OF I SSUES (Or. 5, 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 to the suit, or who shall be accompanied by some person able to answer all
870
such questions, on the day of 20 , at o'clock in the noon, to answer the claim; [and further you are hereby
directed to file on that day a written statement of your defence and to produce on the said day all documents in your possession or power upon which
you base your defence or claim for set-off or 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
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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 of 20 .
Judge.
Notice.—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the
attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and
on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be
against your person or property, or both.
High Court Amendment
BOMBAY.—The following notice shall be inserted in Forms Nos. 1, 2, 3, 4, 5 and 6:
“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” (1-10-1983).
No. 3
SUMMONS TO APPEAR IN PERSON (Or. 5, R. 3)
(Title)
To
[Name, description and place of residence]
Whereas has instituted a suit against you for you are hereby summoned to appear in this Court in person on the day
of 20 , at o'clock in the noon, to answer the claim; and you are directed to produce on that day all the documents upon
which you intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
BOMBAY.—The following notice shall be inserted in Forms Nos. 1, 2, 3, 4, 5 and 6:
“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” (1-10-1983).
871
[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 an appearance to be entered for you, within ten days from the service hereof, in default whereof 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 the 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 20 .
Judge.]
High Court Amendment
BOMBAY.—The following notice shall be inserted in Forms Nos. 1, 2, 3, 4, 5 and 6:
“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.” (1-10-1983)
872
[No. 4-A
Summons for Judgment in a Summary suit
(Order XXXVII, Rule 3)
(Title)
In the Court, at Suit No. of 20
XYZ … Plaintiff.
Versus
ABC … Defendant.
Upon reading the affidavit of the plaintiff the Court makes the following order, namely:—
Let all parties concerned attend the Court or Judge, as the case may be, on the day of 20 , at o'clock in the
forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or
some or several, insert names) for Rs. and for interest and costs.
Dated the day of 20 ].
High Court Amendment
BOMBAY.—Delete Form IV-A (1-10-1983)
No. 5
NOTICE TO PERSON WHO, THE COURT CONSIDERS, SHOULD BE ADDED AS CO-PLAINTIFF (Or. 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 20 , signify to the Court whether you consent to be so added.
Given under my hand and the seal of the Court, this day of 20 .
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Judge.
High Court Amendment
BOMBAY.—The following notice shall be inserted in Forms Nos. 1, 2, 3, 4, 5 and 6:
“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)” (1-10-1983).
No. 6
SUMMONS TO LEGAL REPRESENTATIVE OF A DECEASED DEFENDANT
(Or. 22, R. 4)
(Title)
To
Whereas the plaintiff instituted a suit in this Court on the day of 20, against the defendant who has since deceased, and
whereas the said plaintiff has made an application to this Court alleging that you are the legal representative of the said , deceased, and desiring
that you be made the defendant in his stead;
You are hereby summoned to attend in this Court on the day of 20 , at a.m. to defend the said suit and, in default of your appearance on
the day specified, the said suit will be heard and determined in your absence.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
BOMBAY.—The following notice shall be inserted in Forms Nos. 1, 2, 3, 4, 5 and 6:
“Notice.—Alsotake 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)” (1-10-1983).
No. 7
ORDER FOR TRANSMISSION OF SUMMONS FOR SERVICE IN THE JURISDICTION OF ANOTHER COURT (Or. 5, R. 21)
(Title)
Whereas it is stated that defendantwitness in the above suit is at present residing in : It is ordered that a
summons returnable on the day of 20, be forwarded to the Court of for service on the said defendantwitness 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 20 .
Judge.
High Court Amendment
ALLAHABAD.—Form No. 7 cancelled (7-9-1918).
No. 8
ORDER FOR TRANSMISSION OF SUMMONS TO BE SERVED ON A PRISONER
(Or. 5, R. 25)
(Title)
To
The Superintendent of 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 (Or. 5, Rr. 27, 28)
(Title)
To
Under the provision 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 the statement of service endorsed thereon by you.
Judge.
High Court Amendments
ANDHRA PRADESH.—For the words “Public Servant” in the heading substitute the words “Public Officer”. (29-8-1957)
MADRAS.—Same as that of Andhra Pradesh.
No. 10
TO ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT (Or. 5, R. 23)
(Title)
Read proceeding from the forwarding for service on in Suit No. of 20 of that Court.
Read Serving Officer's endorsement stating that the and proof of the above having been duly taken by me on the oath of and it is
ordered that the be returned to the with a copy of this proceeding.
Judge.
Note.—This form will be applicable to process other than summons, the service of which may have to be effected in the same manner.
High Court Amendments
ALLAHABAD.—Form No. 10 cancelled (24-8-1918).
BOMBAY.—Form No. 10 shall be amended to read as follows:
“No. 10
TO ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT
(Or. 5, R. 23)
(Title)
Read proceeding from the forwarding for service on in Suit No. of 20 of that Court.
Read Serving Officer's endorsement stating that the and proof of the above having been duly taken by me on the oath of and it is
ordered that the be returned to the with a copy of this proceeding.
I hereby declare that the said summons on has been duly served.
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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.” (1-10-1983)
CALCUTTA.—Insert the “(or proof of the above having been duly made by the declaration of )” after the words “proof of the above having been
duly taken by me on the oath of”.
GAUHATI.—Same as that of Calcutta.
No. 11
AFFIDAVIT OF PROCESS-SERVER TO ACCOMPANY RETURN OF A SUMMONS OR NOTICE (Or. 5, R. 18)
(Title)
The Affidavit of, son of I make oathaffirm and say as follows:—
(1) I am a process-server of this Court.
(2) On the day of 20 I received a summonsnotice issued by the Court of in Suit No. of 20 , in the said Court, dated
the day of 20 , for service on.
(3) The said was at the time personally known to me, and I served the said summonsnotice on himher on
the day of 20 , at about o'clock in the noon at by tendering a copy thereof to himher and
requiring hisher signature to the original summonsnotice .
(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 and pointed out to me a person whom he
stated to be the said , and I served the said summonsnotice on himher on the day of 20, at about o'clock in
the noon at by tendering a copy thereof to himher and requiring hisher signature to the original summonsnotice
(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 20, at about o'clock in the noon, I did not find the said .
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, Rules 15 and 17.
(b) Signature of process-server.
or,
(3) One accompanied me to and there pointed out to me which he said was the house in which ordinarily resides. I did not find
the said there.
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, Rules 15 and 17.
(b) Signature of process-server.
or,
If substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of
the order for substituted service.
SwornAffirmed by the said before me this day of 20 .
Empowered under Section 139 of the
Code of Civil Procedure, 1908, to
administer the oath to deponents.
High Court Amendment
CALCUTTA.—Substitute the following for the existing Form No. 11—
“No. 11
DECLARATION OF PROCESS-SERVER TO ACCOMPANY RETURN OF A SUMMONS OF NOTICE
(Or. 5, R. 18)
(Title)
I, , a process-server of this Court, declare:
(1) On the day of 20 , I received a summonsnotice issued by the Court of in suit No. of
20 in the Court, dated day of 20 , for service on.
(2) The said was at the time personally known to me and I served the said summonsnotice on himher on the day
of 20 , at about o'clock in the noon at by tendering a copy thereof to himher and requiring hisher signature to
the original summonsnotice.
(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 summonsnotice on himher on the day of 20 , at about o'clock in the noon
at by tendering a copy thereof to himher and requiring hisher signature to the original summonsnotice.
(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.
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or,
(2) The said and the house in which he ordinarily resides being personally known to me, I went to the said house, in and there on the
day of 20 , 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,
(2) One at pointed out to me which he said was the house in which ordinarily resides, I did not find the
said there.
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, Rules 15 and 17.
(b) Signature of process-server.
or,
(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.”
(25-7-1928)
GAUHATI.—Same as that of Calcutta.
HIMACHAL PRADESH.—Same as that of Punjab.
PUNJAB.—Substitute the following form as amended:—
“No. 11
AFFIDAVIT OF PROCESS SERVER TO ACCOMPANY RETURN OF A SUMMON ON NOTICE
(Or. 5, R. 18.)
(Title)
The affidavit of , son of I make oathaffirm and say as follows:
(1) I am a process-server of this Court.
(2) On the day of 20 , I received a summonsnotice issued by the Court of in Suit No. of 20 ,
in the said Court, dated the day of 20 , for service on.
(3) The said was at the time personally known to me, and I served the said summonsnotice on himher on the day of 20 at
about o'clock in the noon at by tendering a copy thereof to himher and requiring hisher signature to the
original summonnotice
(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 to and pointed out to me a person whom he stated to be
the said , and I served the said summonnotice on himher on the day of 20 , at about o'clock in
the noon at by tendering a copy thereof to himher and requiring hisher signature to the original summonnotice,
(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 known to mepointed out to me by
I went to the said house in and there on the day of 20 , at o'clock in the foreafter noon I did not
find the said I enquired.
(a) . . neighbours
(b) . .
I was told that had gone to and would not be back till
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.
SwornAffirmed by the said before me this day of 20
Empowered under Section 139 of the Code of Civil Procedure, 1908, to administer the oath to deponents.”
(12-5-1909)
No. 12
NOTICE TO DEFENDANT (Or. 9, R. 6)
(Title)
To
[Name, description and place of residence]
Whereas this day was fixed for the hearing of the above suit and a summons was issued to you and the plaintiff has appeared in this Court and you
did not so appear, but from the return of the Nazir it has been proved to the satisfaction of the Court that the said summons was served on you but not
in sufficient time to enable you to appear and answer on the day fixed in the said summons;
Notice is hereby given to you that the hearing of the suit is adjourned this day and that the day
of 20 , is now fixed for the hearing of the same; in default of your appearance on the day last mentioned the suit will be
heard and determined in your absence.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras.
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MADRAS.—Insert the following as Form No. 12-A: (24-11-1921)
“No. 12-A
NOTICE TO THE PROPOSED GUARDIAN OF A MINOR DEFENDANT RESPONDENT
(Or. 32, Rr. 3 and 4)
(Title)
To
[Name, description and place of residence of proposed guardian]
Take notice that X plaintiffappellant In has presented a petition to the Court praying that you be appointed guardian ad litem to the
minor defendant(s)respondent(s) , and that the same will be heard on the day of 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 defendant(s)respondent(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
32, Rule 4, Code of Civil Procedure, to appoint some other suitable person or one of its officers as guardian ad litem of the minor defendant(s)
respondent(s) aforesaid.
Dated the Day of 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)defendant(s) therein
mentioned.
(Signed) Y.Z.”
Witnesses:
1.
2.
No. 13
SUMMONS TO WITNESS [Or. 6, Rr. 1, 5]
(Title)
To
Whereas your attendance is required to on behalf of the in the above suit, you are hereby required [personally] to appear
before this Court on the day of 20 at o'clock in the forenoon, and to bring with you [or to send to this Court].
A sum of Rs , being your travelling and other expenses and subsistence allowance for one day, is herewith sent. If you fail to comply with
this order without lawful excuse, you will be subject to the consequences of non-attendance laid down in Rule 12 of Order XVI of the Code of Civil
Procedure, 1908.
Given under my hand and the seal of the Court, this day of 20.
Judge.
Notice.—(1) If you are summoned only to produce a document and not to give evidence, you shall be deemed to have complied with the summons if
you cause such document to be produced in this Court on the day and hour aforesaid.
(2) If you are detained beyond the day aforesaid, a sum of Rs. will be tendered to you for each day's attendance beyond the day
specified.
High Court Amendments
ANDHRA PRADESH.—Same as that of Madras, except the following:
In Form No. 13
(a) For the word ‘Crown’ substitute ‘Government’.
(b) For the words “A Government servant from the Province of (Name)” substitute the words “a servant of Government of India or the
Government (Name of State)”, and
(c) For the words “the Government of the province of” substitute the words “Government of India/Government (Name of the State).”
(29-8-1957)
KARNATAKA.—Same as in Kerala—Mys. Gaz., 30-3-67, Pt. IV, S. 2-D, p. 60.
KERALA.—
(i) Same as that of Madras (i).
(ii) Insert the following as Form No. 13-A:
“No. 13-A
CERTIFICATE OF ATTENDANCE TO AN OFFICER OF GOVERNMENT SUMMONED AS A WITNESS IN A SUIT TO WHICH THE GOVERNMENT IS A PARTY
(Or. 16, R. 4-A)
(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 plaintiff/defendant in the above suit/matter and was in attendance in this Court from
the day of to the day of 195 (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 day of 20 .
Presiding Judge or
Chief Ministerial Officer.”
(9-6-1959)
MADRAS.—(i) Add the following to Notice (1) in the above form:
“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 document a copy of entry.”
(P.Dis. No. 669 of 1938)
(ii) Insert the following as Form No. 13-A:
“No. 13-A
CERTIFICATE OF ATTENDANCE TO AN OFFICER OF GOVERNMENT SUMMONED AS A WITNESS IN A SUIT TO WHICH THE GOVERNMENT IS A PARTY
(Or. 16, R. 4-A)
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(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 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 has been 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 Fines’.
Dated the day of 20
Presiding Judge or
Chief Ministerial Officer.”
(2-3-1942 and 28-5-1958.)
No. 14
PROCLAMATION REQUIRING ATTENDANCE OF WITNESS
(Or. 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 summons : This proclamation is, therefore, under Rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the
attendance of the witness in this Court on the day of 20 , at o'clock in the forenoon and from day to
day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 15
PROCLAMATION REQUIRING ATTENDANCE OF WITNESS
(Or. 16, R. 10)
(Title)
To
Whereas it appears from the examination on oath of the serving officer that the summons has been duly served upon the witness, and whereas it
appears that the evidence of the witness is material and he has failed to attend in compliance with such summons : This proclamation is, therefore,
under Rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued, requiring the attendance of the witness in this Court on the day
of 20 , at o'clock in the forenoon, and from day to day until he shall have leave to depart; and if the witness fails to
attend on the day and hour aforesaid he will be dealt with according to law.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 16
WARRANT OF ATTACHMENT OF PROPERTY OF WITNESS (Or. 16, R. 10)
(Title)
To
The Bailiff of the Court.
Whereas the witness cited by has not, after the expiration of the period limited in the proclamation issued for his
attendance, appeared in Court; You are hereby directed to hold under attachment property belonging to the said witness to the value
of and to submit a return, accompanied with an inventory thereof, within days.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
KERALA—For the word “Bailiff” substitute “Amin”. (9-6-1959)
No. 17
WARRANT OF ARREST OF WITNESS (Or. 16, R. 10)
(Title)
To
The Bailiff of the Court.
Whereas has been duly served with a summons but has failed to attend [absconds and keeps out of the way for the purpose of avoiding
service of a summons]; you are hereby ordered to arrest and bring the said before the Court.
You are further ordered to return this warrant on or before the day of 20 , with an endorsement certifying the
day on and the manner in which it has been executed, or the reason why it has not been executed.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
KERALA.—For the word “Bailiff” substitute “Amin”. (9-6-1959)
No. 18
WARRANT OF COMMITTAL (Or. 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 20 ; and whereas the Court has called
upon the said to furnish such security, which he has failed to do; This is to require you to receive the said into your custody in
the civil prison and to produce him before this Court at on the said day and on such other day or days as may be hereafter ordered.
Given under my hand and the seal of the Court, this day of 20 .
Judge
No. 19
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WARRANT OF COMMITTAL (Or. 16, R. 18)
(Title)
To
The Officer in charge of the Jail at
Whereas , whose attendance is required before this Court in the above-named case to give evidence (or to produce a document), has
been arrested and brought before the Court in custody; and whereas owing to the absence of the plaintiff (or defendant), the said cannot
give such evidence (or produce such document); and whereas the Court has called upon the said to give security for his appearance on
the day of 20 , at which he has failed to do; This is to require you to receive the
said into your custody in the civil prison and to produce him before this Court at on the day
of 20 .
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
ALLAHABAD.—Add the following as Form No. 20 (22-5-1915):
No. 20
APPLICATION FOR I SSUE OF SUMMONS TO A PARTY OR WITNESS
No. of Suit
Name of parties
In the Court of the
Date fixed for hearing
Number of Name and full Rank or occupation Distance of residence Cash paid for Name and address of person
witnesses to be address of each from Court to whom unexpended
summoned person to be Rail Road Trave-lling Diet expenses travelling expenses and diet
summoned expen-ses money should be returned
1 2 3 4 5 6
APPENDIX C
DISCOVERY, INSPECTION AND ADMISSION
No. 1
ORDER FOR DELIVERY OF I NTERROGATORIES (Or. 11, R. 1)
In the Court of Civil Suit No. of 20 .
A.B. . . Plaintiff;
against
C.D., E.F. and G.H. . . Defendants.
Upon hearing and upon reading the affidavit of filed the day of 20 ; It is ordered that the be at liberty to
deliver to the interrogatories in writing, and that the said do answer the interrogatories as prescribed by Order XI, Rule 8, and that
the costs of this application be .
No. 2
I NTERROGATORIES (Or. 11, R. 4)
(Title as in No. 1, supra)
Interrogatories on behalf of the above-named [Plaintiff or defendant C. D.] for the examination of the above-named [defendants E.F. and G.H. or
plaintiff].
1. Did not, etc.
2. Has not, etc.
etc., etc., etc.,
[The defendant E.F. is required to answer the interrogatories numbered .]
[The defendant G.H. is required to answer the interrogatories numbered .]
No. 3
ANSWER TO I NTERROGATORIES (Or. 11, R. 9)
(Title as in No. 1, supra)
The answer of the above-named defendant E.F. to the interrogatories for his examination by the above-named plaintiff.
In answer to the said interrogatories, I, the above-named E. F., make oath and say as follows:—
1.
Enter answers to interrogatories in paragraphs numbered consecutively.
2.
3. I object to answer the interrogatories numbered on the ground that [state grounds of objection].
No. 4
ORDER FOR AFFIDAVIT AS TO DOCUMENTS (Or. 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 (Or. 11, R. 13)
(Title as in No. 1, supra)
I, the above-named defendant C. D., make oath and say as follows:—
1. I 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. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection.]
3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second
schedule hereto.
4. The last-mentioned documents were last in my possession or power on [state when and what has become of them and in whose possession they
now are.]
5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the
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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
accounts, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other document
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 I NSPECTION (Or. 11, R. 14)
(Title as in No. 1, supra)
Upon hearing and upon reading the affidavit of filed the day of 20 ; It is ordered that the
do, at all reasonable times, on reasonable notice, produce at , situate at , the following documents, namely,
and that the be at liberty to inspect and peruse 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 (Or. 11, R. 16)
(Title as in No. 1, supra)
Take notice that the [plaintiff or defendant] requires you to produce for his inspection the following documents referred to in your [plaint or written
statement or affidavit, dated the day of 20 ].
[Describe documents required]
X.Y. Pleader for the
To Z., Pleader for the
No. 8
NOTICE TO I NSPECT DOCUMENTS (Or. 11, R. 17)
(Title as in No. 1, supra)
Take notice that you can inspect the documents mentioned in your notice of the day of 20 , [except the documents
numbered in that notice] 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 20 , on the ground that [state the ground].
No. 9
NOTICE TO ADMIT DOCUMENTS (Or. 12, R. 3)
(Title as in No. 1, supra)
Take notice that the plaintiff [or defendant] in this suit proposes to adduce in evidence the several documents hereunder specified, and that the same
may be inspected by the defendant [or plaintiff] his pleader or agent, at on between the hours of ; and the defendant [or
plaintiff] is hereby required, within fourty-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 deliver 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 (Or. 12, R. 5)
(Title as in No. 1, supra)
Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff] to admit, for the purposes of this suit only, the several
facts respectively hereunder specified; and the defendant [or plaintiff] is hereby required, within six days from the service of the 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 (Or. 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 anyone other than the plaintiff [or defendant, or party requiring the admission].
E.F., pleader [or agent] for defendant
[or plaintiff]
To G.H. pleader [or agent] for plaintiff [or defendant].
Facts admitted Qualifications or limitations, if any, subject to which they are admitted
1. That M. died on the 1st January, 1890 1.
2. That he died intestate 2.
3. That N. was his lawful son 3. But not that he was his only lawful son.
4. That O. died 4. But not that he died on the 1st April, 1896.
5. That O. was never married 5.
No. 12
NOTICE TO PRODUCE (GENERAL FORM) (Or. 12, R. 8)
(Title as No. 1, supra)
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Take notice that you are hereby required to produce and show to the Court at the first hearing of this suit all books, papers, letters, copies of letters
and other writings and documents in your custody, possession or power, containing any entry, memorandum or minute relating to the matters in
question in this suit, and particularly.
G.H., pleader [or agent] for plaintiff [or defendant].
To E.F., pleader [or agent] for defendant [or plaintiff].
APPENDIX D
DECREES
No. 1
DECREE IN ORIGINAL SUIT (Or. 20, Rr. 6, 7)
(Title)
Claim for . This suit coming on this day for final disposal before in the presence of for the plaintiff and of for the
defendant, it is ordered and decreed that and that the sum of Rs. be paid by the to the on account of the costs of this suit, with interest
thereon at the rate of per cent per annum from this date to date of realization.
Given under my hand and the seal of the Court, this day of 20 .
Judge
Costs of Suit
Plaintiff Defendant
1. Stamp for plaint . . Rs. A. P. Stamp for power . . Rs. A. P.
2. Do. for power . . Do. for petition . .
3. Do. for exhibit . . Pleader's fee . .
4. Pleader's fee on Rs . . Subsistence for witnesses . .
5. Subsistence for witnesses . . Service of process . .
6. Commissioner's fee . . Commissioner's fee . .
7. Service of process . .
Total Total
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
CALCUTTA.—Cancel the table under the head “Costs of Suit” in Form No. 1 and substitute therefor the following: 11-11-1972
Plaintiff Defendant
1. Stamp for plaint . . Rs. A. P. 1. Stamp for power . . Rs. A. P.
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
Bankers' Books Evidence
Act, 1891
4. Costs of exhibits including copies . . 4. Pleader's fee . .
made under the Bankers' Books
Evidence Act, 1891
5. Pleader's fee on Rs. . . 5. Subsistence and travelling . .
allowances of witnesses
(including those of party, if
allowed by Judge)
6. Subsistence and travelling allowances . . 6. Process-fee . .
of witnesses (including those of party,
if allowed by Judge)
7. Process-fee . . 7. Commissioner's fees . .
8. Commissioner's fees . . 8. Demi-paper . .
9. Demi-paper . . 9. Costs of transmission of . .
records
10. Costs of transmission of records . . 10. Other costs allowed under . .
the Code and General Rules
and Orders
11. Other costs allowed under the Code . . 11. Adjournment costs not paid . .
and General Rules and Orders in cash (to be deducted or
added as the case may be)
12. Adjournment costs not paid in cash . .
(to be added or deducted as the case
may be)
Total . . Total . .
GAUHATI.—Same as in Calcutta.
MADRAS.—In the table of Costs of Suit—
(i) under the heading “Plaintiff”, after Item (7) insert the new Item, viz, “(8) Fee for preparation of process”;
(ii) under the heading “Defendant”, in Item (3) after the word “fee” insert the words “on Rs.”, and after Item (6) insert the new Item, viz., “(7) Fee
for preparation of process”.
ORISSA.—Same as in Patna.
PATNA.—Substitute the following for the schedule of “Cost of Suits” in the form of decree:—
Cost of Suit
Plaintiff Defendant
1. Stamp for plaint . . Rs. A. P. 1. Stamp for power . . Rs. A. P.
2. Stamp for power . . 2. Do for petition or affidavit . .
3. Do for petition or affidavit . . 3. Costs for exhibits . .
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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 fees . . 7. Service of process . .
8. Service for process . . 8. Copying or typing charges . .
9. Copying or typing charges . .
Total . . Total . .
No. 2
SIMPLE MONEY DECREE (SECTION 34)
(Title)
Claim for
This suit coming on this day for final disposal before in the presence of for the plaintiff and of for the defendant; It is ordered
that the do pay to the the sum of Rs. with interest thereon at the rate of per cent per annum from to the
date of realization of the said sum and do also pay Rs. , the costs of the suit, with interest thereon at the rate of per cent per annum from this
date to the date of realization.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
Costs of Suit
Plaintiff Defendant
1. Stamp for plaint . . Rs. A. P. 1. Stamp for power . . Rs. A. P.
2. Do. for power . . 2. Do. for petition . .
3. Do. for exhibits . . 3. Pleader's fee . .
4. Pleader's fee on Rs. . . 4. Subsistence for witnesses . .
5. Subsistence for witnesses . . 5. Service of process . .
6. Commissioner's fee . . 6. Commissioner's fee . .
7. Service of process . . 7. . .
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 petition affidavit 3. Costs for exhibits including copies
made under the Banker's Books
Evidence Act, 1891
4. Costs of exhibits including copies 4. Pleader's fee
made under the Banker's Books
Evidence Act, 1891
5. Pleader's fee on Rs. 5. Subsistence and travelling
allowances of witnesses (including
those of party, if allowed by Judge)
6. Subsistence and travelling allowance 6. Process fee
of witnesses (including those of
party, if allowed by judge)
7. Process fee 7. Commissioner's fees
8. Commissioner's fee 8. Demi-paper
9. Demi-paper 9. Costs of transmission of records
10. Costs of transmission of records. 10. Other costs allowed under the Code
and General Rules and Orders
11. Other costs allowed under the Code 11. Adjournment costs not paid in case
and General Rules and Orders (to be deducted or added as the
case may be)
12. Ajdournment costs not paid in cash
(to be added or deducted as the case
may be)
Total Total
GAUHATI.—Same as in Calcutta.
MADRAS.—Same amendments as in Form No. 1, supra.
873
[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
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reasonable);
(ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of
the plaintiff or which without the wilful default of the plaintiff or such person might have been so received;
(iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the
suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or,
failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent per annum);
(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive
of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force
or by the terms of the mortgage-deed.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with
interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii) together with interest thereon, and the balance, if any,
shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the
principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all
just allowances on or before the day of and that upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject
to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed—
(i) that the defendant do pay into Court on or before the day of , or any later date up to which time for payment may be extended by the Court,
such sum as the Court shall find due, and the sum of Rs for the costs of the suit awarded to the plaintiff;
(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect
of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may
be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all
documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over
to the defendent, 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.—Form No. 3 deleted—Ker. Gaz. 15-1-1974, No. 3, Pt. III, G-347/S.
No. 3-A
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 incurred by the plaintiff in respect of the mortgage-security, together with
interest thereon, and the sum of Rs. for the costs of this suit awarded to the plaintiff, making in all 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
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 of payment as aforesaid, the plaintiff may apply to the Court for a final decree that the
defendant shall thenceforth shall 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.—Delete Form No. 3-A—See Ker Gaz., 15-1-1974, No. 3, Pt. m, G-347/S.
No. 4
FINAL DECREE FOR FORECLOSURE
(Order XXXIV, Rule 3)
(Title)
Upon reading the preliminary decree passed in this suit on the day of and further orders (if any) dated the day
of and the application of the plaintiff dated the day of for a final decree and after hearing the parties and it appearing that the
payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem
the said mortgage:
It is hereby ordered and decreed that defendant and all persons claiming through or under him be and they are hereby absolutely debarred and
874
foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned; [and (if the defendant be in
possession of the said mortgaged property) that the defendant shall deliver to the plaintiff quiet and peaceable possession of the said mortgaged
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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.
High Court Amendment
KERALA.—For Form 4 substitute the following, 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 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 of the
said sum of Rs. ;
(ii) that, on such payment and on payment thereafter before such date as the Court may fix, or 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 or 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 and all encumbrance created by
the plaintiff or any person claiming under him or any person claiming under him or any person under whom he claims and free from all liability
whatsoever arising from the mortgage or this suit and shall, if so required deliver up to the defendant quiet and peaceable possession of the said
property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the 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 875[(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 up to 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).”
No. 5
PRELIMINARY DECREE FOR SALE
(Order XXXIV, Rule 4—Where accounts are directed to be taken)
(Title)
The suit coming on this day, etc.; It is hereby ordered and decreed that it be referred to as the Commissioner to take the accounts
following:—
(i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be
computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems
reasonable);
(ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of
the plaintiff or which without the wilful default of the plaintiff or such person might have been so received;
(iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the
suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or,
failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent per annum);
(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive
of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force
or by the terms of the mortgage-deed.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with
interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii), together with interest thereon, and the balance, if any,
shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the
principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient dispatch 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 counter-
signed, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed—
(i) that the defendant do pay into Court on or before the day of or any later date up to which time for payment may be extended by the
Court, such sum as the Court shall find due and the sum of Rs. for the costs of the suit awarded to the plaintiff;
(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect
of such costs of the suit, and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may
be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all
documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over
to the defendant, or to such person as he appoints, and the plaintiff shall, if so repuired, re-convey or re-transfer the said property free from the
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 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 ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after
deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that
may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such
costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order
XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to
receive the same.
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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 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.—Delete Forms 5 and 5-A—Ker Gaz., 15-1-1974, No. 3, Pt. III, G 347/S
No. 5-A
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. of the costs of the suit awarded to the plaintiff, making in all the sum of Rs. .
2. And it is hereby ordered and decreed as follows:—
(i) that the defendant do pay into Court on or before the day of or any later date up to which time for payment may be extended by
the Court, the said sum of Rs. ;
(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect
of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may
be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all
documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over
to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the
said mortgage and clear of and from all 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 plaintiff may apply to the Court for a final decree for the
sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold;
and for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power
relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after
deduction 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.
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
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 order (if any) dated the day of and the
application of the plaintiff dated the day of for a final decree and after hearing the parties and it appearing that the payment directed by the
said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the mortgage:
It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and
that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power
relating to the mortgaged property.
2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into the Court and shall be duly applied (after
deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under the aforesaid preliminary decree and under
any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjusted 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 by 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 to other persons entitled to receive the same.
High Court Amendment
KERALA—For Form No. 6 substitute the following:
“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 cost
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, 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
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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 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 amd 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 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 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)”
(Ker. Gaz., 15-1-1974, Pt. III, P. 1, G-347/S (No. 3)
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 accounts
following:—
(i) an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be
computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems
reasonable);
(ii) an account of the income of the mortgaged property received up to this date by the defendant or by any other person by 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 rates, at nine per cent per annum);
(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive
of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force
or by the terms of the mortgage-deed.
2. It is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with
interest thereon, shall be adjusted against any sums paid by the defendant under clause (iii) together with interest thereon, and the balance, if any,
shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the defendant on account of interest on the
principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account of 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 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, or 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 encumbrances created by the defendant or any person claiming under him or any person under whom
he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff quiet and
peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant shall be at liberty to apply to the Court for a
final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property
described in the Schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and
that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court
may give such directions as it thinks fit.
SCHEDULE
Description of the mortgaged property
No. 7-A
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 payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems
reasonable);
(ii) an account of the income of the mortgaged property received up to this date by the defendant or by any other person by the order or for the use
of the defendant or which without the wilful default of the defendant or such person might have been so received;
(iii) an account of all sums of money 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 rates, as nine per cent per annum);
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(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive
of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force
or by the terms of the mortgage-deed.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above together with
interest thereon, shall first be adjusted against any sums paid by the defendant under clause (iii) together with interest thereon, and the balance, if
any, shall be added to the mortgage-money, or as the case may be, be debited in reduction of the amount due to the defendant on account of interest
on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all
just allowances on or before the day of , and that, upon such report of the Commissioner being received, it shall be confirmed and
countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed—
(i) that the plaintiff do pay into Court on or before the day of or any later date up to which time for payment may be extended by the Court, such
sum as the Court shall find due and the sum or 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 encumbrances created by the defendant or any person claiming under whom he claims and shall, if so
required, deliver up to the plaintiff quiet and peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for
the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be
sold; and for the purposes of such sale the defendant shall produce before the Court or such officer as it appoints, 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—Delete Forms Nos. 7-A, 7-B, 7-C and 7-F—Ker. Gaz., 15-1-1974, No. 3, Pt. III, G-347/S
No. 7-B
PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE FOR FORECLOSURE IS PASSED
(Order XXXIV, Rule 7—Where the Court declare 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 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 encumbrances created by the defendant or any person claiming under him or any person under whom he
claims, and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff quiet and
peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree that
the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the
Schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties
shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such
directions as it thinks fit.
SCHEDULE
Description of the mortgaged property
High Court Amendment
KERALA—Delete Forms Nos. 7-A, 7-B, 7-C and 7-F—Ker. Gaz., 15-1-1974, No. 3, Pt. III, G-347/S.
No. 7-C
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 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. .
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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 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 to the plaintiff
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 shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for
the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be
sold; and for the purposes of such sale the defendant shall produce before the Court or such officer as it appoints all documents in his possession or
power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that, the money realised by such sale shall be paid into Court and shall be duly applied (after
deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under this decree and under any further orders
that may be passed in this suit and in payment of any amount which the Court may adjudge due to the defendant in respect of such costs of the suit
and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of
Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons
entitled to the same.
5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for the payment in full of the amount
payable to the defendant as aforesaid, the defendant shall be at liberty (where such remedy is open to him under the terms of the mortgage and is not
barred by any law for the time being in force) to apply for a personal decree against the plaintiff for the amount of the balance; and that the parties are
at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as
it thinks fit.
SCHEDULE
Description of the mortgaged property
High Court Amendment
KERALA—Delete Forms Nos. 7-A, 7-B, 7-C and 7-F—Ker. Gaz., 15-1-1974, No. 3, Pt. III, G-347/S.
No. 7-D
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 , and the application of the defendant dated the day of for a final decree and after hearing the parties, and it
appearing that the payment as directed by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other
person entitled to redeem the mortgage;
It is hereby ordered and decreed that the plaintiff and all persons claiming through or under him be and they are hereby absolutely debarred and
876
foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned [and (if the plaintiff be in
possession of the said mortgaged property) that the plaintiff shall deliver to the defendant 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 discharged and extinguished.
High Court Amendment
KERALA—For Form D substitute the following:
“No. 7-D
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 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, 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 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 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 liability 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 up to 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)”
No. 7-E
FINAL DECREE FOR SALE IN A REDEMPTION 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 orders (if any) dated the day of , and the
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application of the defendant dated the day of for a final decree and after hearing the parties and it appearing that the payment directed
by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other person entitled to redeem the mortgage;
It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold and
that for the purposes of such sale the defendant shall produce before the Court, or such officer as it appoints, all documents in his possession or power
relating to the mortgaged property.
2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after
deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under the aforesaid preliminary decree and under
any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the defendant for
such costs of this suit including the costs of this application and such costs, charges and expenses as may be payable under Rule 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 persons entitled to receive the same.
High Court Amendment
KERALA.—For Form E substitute the following:
“No. 7-E
DECREE FOR REDEMPTION 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 and 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)”
No. 7-F
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 ,
the same being a person entitled to redeem, has paid into Court all amounts due to the mortgagee under preliminary decree dated the day
of ; It is hereby ordered and decreed that:—
877
(i) the mortgagee to execute a deed of re-conveyance of the property in the aforesaid preliminary decree mentioned in favour of the mortgagor [or,
as the case may be, who has redeemed the property] or an 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;
878
(ii) the said deeds and documents brought into the Court be delivered out of Court to the mortgagor [or the person making the payment] and the
879
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 office of the Sub-Registrar of ; and
880
(iii) [if the mortgagee, plaintiff or defendant, as the case may be, is in possession of the mortgaged property] that the mortgagee do forthwith
881
deliver possession of the mortgaged property in the aforesaid preliminary decree mentioned to the mortgagor [or such person as aforesaid who
has made the payment].
High Court Amendment
KERALA.—Delete Forms Nos. 7-A, 7-B, 7-C and 7-F—Ker. Gaz., 15-1-1974, No. 3, Pt. III, G-347/S.
No. 8
DECREE AGAINST MORTGAGOR PERSONALLY FOR BALANCE AFTER THE SALE OF THE MORTGAGED PROPERTY
(Order XXXIV, Rules 6 and 8-A)
(Title)
Upon reading the application of the mortgagee (the plaintiff or defendant, as the case may be) and reading the final decree passed in the suit on
the day of and the Court being satisfied that the net proceeds of the sale held under the aforesaid final decree amounted to Rs.
and have been paid to the applicant out of the Court on the day of and that the balance now due to him under the aforesaid
decree is Rs. ;
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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 mortagagee (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.—Delete Form No. 8—Ker. Gaz., 15-1-1974, No. 3, Pt. m, G-347/S.
No. 9
PRELIMINARY DECREE FOR FORECLOSURE OR 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.)
882
2. It is further declared that the plaintiff is entitled to payment of the amount due to him in priority to defendant No. 2 [or (if there are several
subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively:—].
3. And it is hereby ordered and decreed as follows:—
(i) (a) that defendants or one of them do pay into Court on or before the day of or any later date up to which time for payment has been
extended by the Court the said sum of Rs. due to the plaintiff; and
(b) that defendant No. 1 do pay into Court on or before the day of or any later date up to which time for payment has been extended by the Court
the said sum of Rs. due to defendant No. 2; and
(ii) that, on payment of the sum declared to be due to the plaintiff by defendants or either of them in the manner prescribed in clause (i)(a) and on
payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and
such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of
Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power
relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant No. (who has
made the payment), or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from
the said mortgage and clear of and from all 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. 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—
883
(i) [in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is
foreclosure and not sale] that the defendants jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all right
to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver to the plaintiff quiet and peaceable
possession of the said property; or
884
(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
885
(iii) [in the case where a sale is ordered under clause 4 (ii) above] that the money realised by such sale shall be paid into Court and be duly
applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any
further orders that may have been passed in this suit and in payment of the amount which the Court may adjudge due to the plaintiff in respect of
such costs of the suit and such costs, charges, and expenses as may be payable under Rule 10, together with such subsequent interest as may be
payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in
payment of the amount due to defendant No. 2; and that if any balance be left, it shall be paid to the defendant No. 1 or order persons entitled to
receive the same; and
(iv) that, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to the plaintiff and defendant No. 2, the
plaintiff or defendant No. 2 or both of them, as the case may be, shall be at liberty (when such remedy is open under the terms of their respective
mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amounts
remaining due to them respectively.
5. And it is hereby further ordered and decreed—
(a) that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in
the payment of the said amount, defendant No. 2 shall be at liberty to apply to the Court to keep the plaintiff's mortgage alive for his benefit and
to apply for a final decree (in the same manner as the plaintiff might have done under clause 4 above)
886
[(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
887
[(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale defendant No. 2 shall produce before
the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property;] and
(b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising
from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and
extinguished.
888
6. And it is hereby further ordered and decreed [in the case where a sale is ordered under clause 5 above]—
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(i) that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of expenses of the sale) first in
payment of the amount paid by defendant No. 2 in respect of the plaintiff's mortgage and the costs of the suit in connection therewith and in
payment of the amount which the Court may adjudge due in respect of subsequent interest on the said amount; and that the balance, if any, shall
then be applied in payment of the amount adjudged due to defendant No. 2 in respect of his own mortgage under this decree and any further
orders that may be passed and in payment of the amount which the Court may adjudge due in respect of such costs of this suit and such costs,
charges and expenses as may be payable to defendant No. 2 under Rule 10, together with such subsequent interest as may be payable under Rule
11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No. 1 or
other persons entitled to receive the same; and
(ii) that, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of the plaintiff's mortgage or
defendant No. 2's mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not
barred by any law for the time being in force) to apply for a personal decree against No. 1 for the amount of the balance.
7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court from time to time as they may have occasion and
on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
Description of the mortgaged property
High Court Amendment
KERALA.—For Form No. 9 substitute the following:—
“No. 9
DECREE FOR FORECLOSURE ON SALE
Plaintiff . . 1st Mortgagee
Vs.
Defendant No. 1 . . Mortgagor
Defendant No. 2 . . 2nd Mortgagee
(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 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 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.)
889
2. It is further declared that the plaintiff is entitled to payment of the amount due to him in priority to defendant No. 2 or (if there are several
subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively.
3. And it is hereby ordered and decreed as follows:—
(i) (a) that defendants or one of them do pay into Court on or before the day of or any later date up to which time for payment has
been extended by the Court the said sum of Rs. due to the plaintiff; and
(b) that defendant No. 1 do pay into Court on or before the day of or any later date up to which time for payment has been extended by the
Court the said sum of Rs. due to defendant No. 2; and
(ii) that, on payment of the sum declared to be due to the plaintiff by defendants or either of them in the manner prescribed in clause (i)(a) and on
payment thereafter before such date as the Court may fix of such amount, 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 declaration to be introduced if defendant No. 1 pays the amount found or declared to be due to defendent 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—
890
(i) (in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage deed is
foreclosure and not sale) that the defendants jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all right
to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver to the plaintiff quiet and peaceable
possession of the said property; or
(ii) 891(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) 892(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 of 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 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 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 for his benefit, and he shall be entitled to
benefits similar to those conferred upon the plaintiff as per clause 4 above—
893
(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
894
(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
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the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property; and
895
(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 or from the mortgage of defendant
No. 2 or from this suit shall be deemed to have been discharged and extinguished.
896
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.)”
No. 10
PRELIMINARY 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, 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) 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.)
897
2. It is further declared that defendant No. 2 is entitled to payment of the amount due to him in priority to the plaintiff [or (if there are several
subsequent 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 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 on 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, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, defendant No. 2 shall bring into Court all
documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over
to the plaintiff or defendant No. 1 (whoever 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 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 declaration 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—
898
(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
899
(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) 900[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, 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 the plaintiff 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 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)—
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901
[(i) that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property
described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said
property;] or
902
[(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale the plaintiff shall produce before the
Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property;] and
(b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising
from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and
extinguished.
6. And it is hereby further ordered and decreed (in the case where a sale is ordered under clause 5 above)—
(i) that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in
payment of the amount paid by the plaintiff in respect of defendant No. 2's mortgage and the 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 defendant No. 2's mortgage or
the plaintiff's mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred
by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amount of the balance.
7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court from time to time as they may have occasion, and
on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
Description of the mortgaged property
High Court Amendment
ANDHRA PRADESH AND KERALA.—For Form No. 10 substitute the following:
“No. 10
DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND FORECLOSURE OR SALE ON SUBSEQUENT MORTGAGE
Plaintiff . . 2nd Mortgagee;
vs.
Defendant No. 1 . . Mortgagor;
Defendant No. 2 . . 1st Mortgagee.
(Order XXXIV, Rules 2, 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 principles, 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 declaration 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 903[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 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 or 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 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 encumbrances 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 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—
904
(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
905
(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
906
(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
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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—
907
[(i) (that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property
described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said
property)]; or
908
[(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
909
[(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 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 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 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 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 further balance if any, shall be paid to the defendant No. 1 or other persons entitled to receive the same, and 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 mortgaged property).—Ker. Gaz., 15-1-1974, No. 3, Pt. III, G-347/S.”
ANDHRA PRADESH.—Same as in Madras.
BOMBAY—Add the following as Form No. 10-A:—
“No. 10-A
FINAL DECREE FOR SALE
(Title)
Upon reading the decree passed in the above suit on the day of 20 , and the application of the plaintiff dated the day
of 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 personal decree for the amount of the balance.”
CALCUTTA.—See HC Form No. (J) 35 (iv), CR & O, Vol. 2, 1958 Ed., pp. 237-39.
MADRAS.—Insert the following as Forms Nos. 10-A and 10-B:—
“No. 10-A
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 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 plaintiff/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. 10-B
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 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.
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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 mortgagee,
Versus
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 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. due to defendant No. 2;
(Similar declarations to be introduced with regard to the amount due to the plaintiff, defendant No. 2 being at liberty to pay such amount.)
(ii) that, on payment of the sum declared due to defendant No. 2 by defendant No. 1 in the manner prescribed in clause 2(i) and on payment
thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs,
charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order
XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff and defendant No. 2 shall bring into Court all documents in their
possession or power relating to the mortgaged property in the plaint mentioned, and all such documents (except such as relate only to the sub-
mortgage) shall be delivered over to defendant No. 1, or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-
transfer the property to defendant No. 1 free from the said mortgage 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 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 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 plaintiff may apply to the
Court for a final decree for sale, and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and
that for the purposes of such sale the plaintiff and defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in their
possession or power relating to the mortgaged property.
5. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and be duly applied (after deduction
therefrom of the expenses of the sale) first in payment of the amount due to the plaintiff as specified in clause 1 above with such costs of the suit and
other costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order
XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to
defendant No. 2; and that, if any balance be left, it shall be paid to defendant No. 1 or other persons entitled to receive the same.
6. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amounts
payable to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2, or both of them, as the case may be, shall be at liberty (if such remedy is
open under their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 2
or defendant No. 1 (as the case may be) for the amount of the balance.
7. And it is hereby further ordered and decreed that, if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the
plaintiff, but defendant No. 1 makes default in payment of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court
for a final decree for foreclosure or sale (as the case may be)—(declarations in the ordinary form to be introduced according to the nature of defendant
No. 2's mortgage and the remedies open to him thereunder).
8. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court as they may have occasion, and on such
application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
Description of the mortgaged property
High Court Amendment
KERALA.—For Form No. 11 substitute the following:—
SCHEDULE
(Description of the mortgaged property).—Ker. Gaz., 15-1-1974, No. 3, Pt. III, G-347/S.”
No. 12
DECREE FOR RECTIFICATION OF I NSTRUMENT
(Title)
It is hereby declared that the , dated the day of 20 , does not truly express the intention of
the parties to such
And it is decreed that the said be rectified by
No. 13
DECREE TO SET ASIDE A TRANSFER IN FRAUD OF CREDITORS
(Title)
It is hereby declared that the , dated the day of 20 , and made
between and , is void as against the plaintiff and all other creditors, if any, of the defendant
No. 14
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I NJUNCTION 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
I NJUNCTION AGAINST BUILDING HIGHER THAN OLD LEVEL
(Title)
Let the defendant , his contractors, agents and workmen, be perpetually restrained from continuing to erect upon his premises
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 plaintiff's windows in his said premises as are ancient lights.
No. 16
I NJUNCTION 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 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 moveable property of the deceased came 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.
910
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
911
deceased, and pay the same into the hands of the (and shall give security by bond for the due performance of his duties to the
amount of rupees).
10. And it is further ordered that if the movable property of the deceased be found insufficient for carrying out the objects of the suit, then the
following further inquiries be made, and accounts taken, that is to say—
(a) an inquiry what immovable property the deceased was seized of or entitled to at the time of his death;
(b) an inquiry what are the encumbrances (if any) affecting the immovable property of the deceased or any part thereof;
(c) an account, so far as possible, of what is due to the several encumbrancers, and to include a statement of the priorities of such of the
encumbrancers 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 encumbrances (if any) of such encumbrancers as shall consent to the sale
and subject to the incumbrances of such of them as shall not consent.
12. And it is ordered that G.H. shall have the conduct of the sale of the immovable property, and shall prepare the conditions and contracts of sale
912
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.
913
13. And it is further ordered that, for the purpose of the inquiries hereinbefore directed, the shall advertise in the newspapers
914
according to the practice of the Court, or shall make such inquiries in any other way which shall appear to the to give the most
useful publicity to such inquiries.
14. And it is ordered that the above inquiries and accounts be made and taken, and that all other acts ordered to be done be completed, before
915
the day of , and that the do certify the result of the inquiries, 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 proceeding] 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.]
► Impleadment of parties in an administrative suit.—Amendment and impleadment of parties concerning further enquiry as contemplated in Appendix D, Form 17, para 10
CPC in an administrative suit. Scope and subject-matter of enquiry may also include transactions entered into by the deceased owner. Therefore, third parties involved in any
transaction may be impleaded for determination of the extent of the deceased's property particularly when both parents of Respondent 1 had died intestate, Babulal Khandelwal v.
Balkishan D. Sanghvi, (2008) 10 SCC 485.
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.
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916
2. Let the of the said Court tax the costs of the plaintiff and defendant in the suit, and let the amount of the said costs, when so
taxed, be paid out of the said sum of Rs. ordered to be paid into Court as aforesaid, as follows:—
(a) The costs of the plaintiff to Mr. , his attorney [or pleader] or and the costs of the defendant to Mr. , his attorney [or
pleader].
(b) And (if any debts are due) with the residue of the said sum of Rs. after payment of the plaintiff's and defendant's costs as
917
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.
918
3. And it is also ordered that the defendant do within weeks after the date of the certificate of the , pay to the
919
plaintiff the amount of what the shall certify to be due for principal and interest.
4. And it is ordered that the defendant do pay the plaintiff his costs of suit, the same to be taxed in case the parties differ.
No. 20
FINAL DECREE IN AN ADMINISTRATION-SUIT BY NEXT-OF-KIN
(Title)
920
1. Let the of the said Court tax the costs of the plaintiff and defendant in this suit, and let the amount of the said plaintiff's costs,
when so taxed, be paid by the defendant to the plaintiff out of the sum of Rs. , the balance by the said certificate found to be due from
the said defendant on account of the personal estate of E.F., the intestate, within one week after the taxation of the said costs by the
921
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:—
922
(a) Let the defendant, within one week after the taxation of the said costs by the as aforesaid, pay one-third share of the said
residue to the plaintiffs A. B., and C. D., his wife, in her right as the sister and one of the next-of-kin of the said E. F., the intestate.
(b) Let the defendant retain for her own use one other third share of the said residue, as the mother and one of the next-of-kin of the said E. F., the
intestate.
923
(c) And let the defendant, within one week after the taxation of the said costs by the as aforesaid, pay the remaining one-third
share of the said residue to G. H., as the brother and the other next-of-kin of the said E. F., the intestate
No. 21
PRELIMINARY DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE TAKING OF PARTNERSHIP ACCOUNTS
(Title)
It is declared that the proportionate shares of the parties in the partnership are as follows:—
It is declared that this partnership shall stand dissolved [or shall be deemed to have been dissolved] as from the day
of , and it is ordered that the dissolution thereof as from that day be advertised in the Gazette, etc.
And it is ordered that be the receiver of the partnership-estate and effects in this suit and do get in all the outstanding book-debts and claims of
the partnership.
And it is ordered that the following accounts be taken:—
1. An account of the credits, property and effects now belonging to the said partnership;
2. An account of the debts and liabilities of the 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-
924
trade, be sold on the premises, and that the may, on the application of any of the parties, fix a reserved bidding for all or any of the
lots at such sale, and that either of the parties is to be at liberty to bid at the sale.
And it is ordered that the above accounts be taken, and all the other acts required to be done be completed, before the day
925
of , and that the do certify the result of the accounts, and that all other acts are completed, and have his certificate in
that behalf ready for the inspection of the parties on the day of
And, lastly, it is ordered that this suit stand adjourned for making a final decree to the day of .
No. 22
FINAL DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE TAKING OF PARTNERSHIP ACCOUNTS
(Title)
It is ordered that the fund now in Court, amounting to the sum of Rs. , be applied as follows:—
926
1. In payment of the debts due by the partnership set forth in the certificate of the amounting 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 of
Rs. being the balance of the said sum of Rs. due to him, which will then remain due.
No. 23
DECREE FOR RECOVERY OF LAND AND MESNE PROFITS
(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
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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 amount 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 institution of the suit until [the delivery of possession to the decreeholder] [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].
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
CALCUTTA.—See HC Form No. (J) 29, CR & O, Vol. 2, 1958 Ed., p. 206.
KERALA.—(Noti. No. B1-3312/58; 4-7-1959).—Insert Form 24 as in Madras.
MADRAS.—Add the following as Form No. 24:—
“No. 24
DECREE SANCTIONING A COMPROMISE OF A SUIT ON BEHALF OF A MINOR OR 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 AB, the plaintiff,
of the one part, and the said CD, 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 hereto; It is ordered as follows:—
(Set out the terms of the compromise).”
APPENDIX D-I
MADRAS AND PONDICHERRY.—See above under Order LII.
APPENDIX E
EXECUTION
No. 1
NOTICE TO SHOW CAUSE WHY A PAYMENT OR ADJUSTMENT SHOULD NOT BE RECORDED AS CERTIFIED
(Or. 21, R. 2)
(Title)
To
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 paidadjusted and should be recorded as certified, this is to give
you notice that you are to appear before this Court on the day of 20 , to show cause why
the paymentadjustment aforesaid should not be recorded as certified.
Given under my hand and the seal of the Court, this day of 20 .
Judge
No. 2
PRECEPT (SECTION 46)
(Title)
Upon hearing the decree-holder it is ordered that this precept be sent to the Court of at under Section 46 of the
Code of Civil Procedure, 1908, with directions to attach the property specified in the annexed schedule and to hold the same pending any application
which may be made by the decree-holder for execution of the decree.
Schedule
Dated the day of 20
Judge.
No. 3
ORDER SENDING DECREE FOR EXECUTION TO ANOTHER COURT
(Or. 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 20 .
Judge.
No. 4
CERTIFICATE OF NON-SATISFACTION OF DECREE
(Or. 21, R. 6)
(Title)
Certified that no (1) satisfaction of the decree of this Court in suit No. of 20 , a copy which is hereunto attached, has been
obtained by execution within the jurisdiction of this Court.
Dated the day of 20 .
Judge.
(1) If partial, strike out “no” and state to what extent.
No. 5
CERTIFICATE OF EXECUTION OF DECREE TRANSFERRED TO ANOTHER COURT
(Or. 21, R. 6)
(Title)
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Number of
Process
suit and the How the
Date of issued and
Court by Name of Number of the case is
application for dates of Costs of execution Amount realised Remarks
which the Parties execution case disposed
execution service
decree was of
thereof
passed
1 2 3 4 5 6 7 8 9
Rs. a. p. Rs. a. p.
Signature of Muharrir in charge. Signature of Judge
No. 6
APPLICATION FOR EXECUTION OF DECREE
(Or. 21, R. 11)
In the Court of
I , decree-holder, hereby apply for execution of the decree hereinbelow set forth:—
Amount with
interest due upon
Whether any Payment or Previous the decree or other
No. of suit Names of parties Date of decree appeal preferred adjustment made, application, if any, relief granted
from decree if any with date and result thereby together
with particulars of
any cross decree
1 2 3 4 5 6 7
789 of 1897 A.B.-Plaintiff … October 11, No. None. Rs. 72-4-0 Rs. 314-8-2
…. 1897 recorded on principle [interest at
C.D.-Defendant application, dated 6 per cent, per
…. . the 4th March, 1899. annum, from date of
decree till payment].
Amount of costs, if any, awarded Mode in which the
Against whom to
assistance of the Court
be executed
required
8 9 10
Rs. a. p. [When attachment and
sale of movable property is
sought.] I pray that the
total amount of Rs …..
[together with interest on
As awarded in the 47 10 4
the principal sum up to date
decree .. .. ..
of payment]and the costs of
taking out this execution be
realised by attachment and
sale of defendant's movable
property as per annexed list
and paid to me. [When
attachment and sale of
Subsequently 8 2 0
immovable property is
incurred .. .. ..
sought.] I pray that the
total amount of Rs … …
[together with interest on
the principal sum up to date
of payment] and the costs of
taking out this execution, be
realised by the attachment
Total 55 12 4 and sale of defendant's
immovable property
specified at the foot of this
application and paid to me.
I declare that what is stated herein is true to the best of my knowledge and belief.
Signed decree-holder.
Dated the day of 20 .
[When attachment and sale of immovable property is sought.]
Description and Specification of Property
The undivided one-third share of the judgment-debtor in a house situated in the village of , value Rs. 40, and bounded as follows:—
East by G's house; west by H's house; south by public road; north by private lane and J's house.
I declare that what is stated in the above description is true to the best of my knowledge and belief, and so far as I have been able to
ascertain the interest of the defendant in the property therein specified.
Signed , decree-holder.
High Court Amendment
PATNA.—Insert a comma after the word “date” and insert the words “date of final order passed on it” after the comma so inserted and before the
words “and result” in Column 6.
No. 7
NOTICE TO SHOW CAUSE WHY EXECUTION SHOULD NOT I SSUE
927
[(Or. 21, R. 16)]
(Title)
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To
Whereas has made application to this Court for execution of decree in Suit No. of 20 , on the allegation that the said decree
928
has been transferred to him by assignment [or without assignment], this is to give you notice that you are to appear before this Court on the day
of 20, to show cause why execution should not be granted.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 8
WARRANT OF ATTACHMENT OF MOVABLE PROPERTY IN EXECUTION OF A DECREE, FOR MONEY
(Or. 21, R. 30)
(Title)
To
The Bailiff of the Court.
Whereas was ordered by decree of this Court passed on the day of 20 , in Suit No. of 20 , to pay to the
plaintiff the sum of Rs. as noted in the margin; and whereas the said sum of Rs. has not been paid; These are to command you to
attach the moveable property of the said as set forth in the schedule hereunto annexed, or which shall be pointed out to you by the
Decree 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.
Principal . . You are further commanded to return this warrant on or before the day
Interest . . of 20 , with an endorsement certifying the day on which and manner in
Costs . . which it has been executed, or why it has not been executed.
Costs of . .
execution . .
Further interest
Total . . Given under my hand and the seal of the Court,
this day of 20 .
Judge.
SCHEDULE
High Court Amendments
ALLAHABAD.—Between “command you to attach” and the “movable property of the said” add “on or before the day of 20.” (3-10-1942)
ANDHRA PRADESH.— Same as that of Allahabad.
KERALA.—For ‘Bailiff’ substitute ‘Amin’ (9-6-1959).
MADRAS.—Same as that of Allahabad.
No. 9
WARRANT FOR SEIZURE OF SPECIFIC MOVABLE PROPERTY ADJUDGED BY DECREE (Or. 21, R. 31)
(Title)
To
The Bailiff of the Court.
Whereas was ordered by decree of this Court passed on the day of 20 , in Suit No. of 20 , to deliver
to the plaintiff the movable property (or a share in the movable property) specified in the schedule hereunto annexed, and whereas the said
property (or share) has not been delivered;
These are to command you to seize the said movable property (or a share of the said movable property) and to deliver it to the plaintiff or to
such person as he may appoint in his behalf.
Given under my hand and the seal of the Court, this day of 20
Judge.
SCHEDULE
High Court Amendment
KERALA.—(9-6-1959)—For “Bailiff” substitute “Amin”.
No. 10
NOTICE TO STATE OBJECTIONS TO DRAFT OF DOCUMENT (Or. 21, R. 34)
(Title)
To
Take notice that on the day of 20 , the decree-holder in the above suit presented an application to this Court that the
Court may execute on your behalf a deed of , whereof a draft is hereunto annexed, of the immovable property specified hereunder, and that
the day of 20 , is appointed for the hearing of the said application, and that you are at liberty to appear on the said day
and to state in writing any objections to the said draft.
Description of property
Given under my hand and the seal of the Court, this day of 20
Judge.
No. 11
WARRANT TO THE BAILIFF TO GIVE POSSESSION OF LAND, ETC.
(Or. 21, R. 35)
(Title)
To,
The Bailiff of the Court.
Whereas the undermentioned property in the occupancy of has been decreed to , the plaintiff in this suit; You are hereby directed to
put the said in possession of the same, and you are hereby authorised to remove any person bound by the decree who may refuse to vacate
the same.
Given under my hand and the seal of the Court, this day of 20
Judge.
SCHEDULE
High Court Amendment
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KERALA.—For the word “Bailiff” substitute “Amin”. (9-6-1959).
No. 12
NOTICE TO SHOW CAUSE WHY WARRANT OF ARREST SHOULD NOT I SSUE
(Or. 21, R. 37)
(Title)
To
Whereas has made application to this Court for execution of decree in suit No. of 20 by arrest and imprisonment of
your person, you are hereby required to appear before this Court on the day of 20 , to show cause why you should not be
committed to the civil prison in execution of the said decree.
Given under my hand and the seal of the Court, this day of 20
Judge.
No. 13
WARRANT OF ARREST IN EXECUTION (Or. 21, R. 38)
(Title)
To
The Bailiff of the Court.
Whereas was adjudged by a decree of the Court in Suit No. of 20 , dated the day
of 20 , to pay to the decree-holder the sum of Rs. as noted in the margin, and whereas the said sum of Rs. has not
been paid to the said decree-holder in satisfaction of the said decree, these are to command you to arrest the said 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.
Principal . . You are further commanded to return this warrant on or before the day
Interest . . of 20 , with an endorsement certifying the day on which and manner in
Costs . . which it has been executed, or the reason why it has not been executed.
Execution . .
Total . .
Given under my hand and the seal of the Court, this day of 20 .
Judge
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
CALCUTTA.—See HC Form No. (P) 26, CR & O, Vol. 2, 1958 Ed., p. 303.
KARNATAKA.—Same as in Madras substituting “Order XXI Rule 25(2)” by “sub-rule (3) of Rule 25 of Order 21” [30-3-1967].
KERALA.—9-6-1959—.(i) For “Bailiff” substitute “Amin”,
(ii) Add words as in Madras.
MADRAS.—Between “the costs of executing this process” and “to bring the said defendant” add “or unless satisfaction of the decree be endorsed by
the decree-holder on the warrant in the manner provided in Order XXI, Rule 25(2)”.
No. 14
WARRANT OF COMMITTAL OF JUDGMENT-DEBTOR TO JAIL
(Or. 21, R. 40)
(Title)
To
The Officer in charge of the Jail at
Whereas who has been brought before this Court this day of 20 , under a warrant in execution of a decree which
was made and pronounced by the said Court on the day of 20 , and by which decree it was ordered that the said should
pay ; And whereas the said has not obeyed the decree nor satisfied the Court that he is entitled to be discharged from custody; You
929
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
930
the terms and provisions of Section 58 of the Code of Civil Procedure, 1908; and the Court does hereby fix [* * *] per diem as
the rate of the monthly allowance for the subsistence of the said during his confinement under this warrant of committal.
Given under my signature and the seal of the Court, this day of 20 .
Judge
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
CALCUTTA.—See HC Form No. (P) 27, CR & O, Vol. 2, 1958 Ed., p. 304,
KERALA.—(9-6-1959)—Insert Form No. 14-A as in Madras only substituting the word “Bailiff” by “Amin” and “Central Nazir” by “Nazir”
MADRAS.—Insert the following as Form No. 14-A:—
“No. 14-A
ORDER OF ENTRUSTMENT OF JUDGMENT-DEBTOR TO THE CUSTODY OF AN OFFICER OF COURT
[Or. 21, R. 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 20 , under warrant in execution of a decree
which was made and pronounced by the said Court on the day of 20 , and by which decree it was ordered that the said
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 inquiry under Order 21, Rule 40,
sub-rule (2).
And whereas the 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 the Court.
931
You are hereby [* * *] commanded and required to take and receive the said judgment-debtor into your custody and keep him in that custody for
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a period of days or until further order of this Court. You are hereby further informed that he is not to be allowed to go any where 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 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.—See HC Form No. (P) 28, CR & O, Vol. 2, 1958 Ed., p. 305, and HC Form No. (M) 29, CR & O, ibid., p. 405.
DELHI & HIMACHAL PRADESH.— Same as in Punjab.
GAUHATI.—Same as in Calcutta.
KERALA.—(9-6-1959).—Same as in Madras.
MADRAS.—(i) For “Dated” substitute “Given under my hand and the seal of the Court, this day of .”;
(ii) Add the following as Form No. 15-A:—
“No. 15-A
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF PERSON I NTERESTED AND SURETIES
(Or. 21, R. 43)
In the Court of at Civil Suit No. of AB of
Against
CD of .
Know all men by these presents that we IJ of etc. and KL of etc. and MN 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 20 .
And whereas the moveable property specified in the Schedule hereunto annexed has been attached under a warrant from the said Court, dated
the day of 20 , in execution of a decree in favour of in Suit No. of 20 , on the file of and the
said property has been left in the charge of the said IJ.
Now the condition of this obligation is that, if the above bounded IJ shall duly account for and produce when required before the said Court all and
every the 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.
IJ.
KL.
MN.,
Signed and delivered by the above bounden in the presence of .”
MYSORE.—Same as in Madras.
PUNJAB AND HARYANA.—(Noti. No. 606-G; 13-12-1928).—Add the following as Forms Nos. 15-A and 15-B:—
“No. 15-A”—Same as in Madras, ante.
“No. 15-B”—Same as Form No. 15-A with the following modifications—
(i) in the heading for “person interested” substitute “any person”;
(ii) for “(Or. 21, R. 43)” substitute “[Or. 21, R. 43(1)(c)]”;
(iii) in the last para at the end, after “remain in full force” insert “and be enforceable against the above bounden IJ in accordance with the procedure
laid down in Section 145, Civil Procedure Code, as if the aforesaid IJ were a surety for the restoration of property taken in execution of a decree”.
RAJASTHAN.—(i) Insert Form No. 15-A (Bond for safe custody of moveable property attached and left in charge of person interested and sureties,
which is same as Madras Form No. 15-A).
(ii) Insert Form No. 15-B (Bond for safe custody of moveable property attached and left in charge of any person and sureties) which is same as Form
No. 15-A with addition after the words “remain in full force” of the words “and be enforceable against the above bounden IJ in accordance with the
procedure laid down in Section 145, Civil Procedure Code, as if the aforesaid IJ were a surety for the restoration of property taken in execution of a
decree.”
No. 16
ATTACHMENT IN EXECUTION
PROHIBITORY ORDERS 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 I MMEDIATE POSSESSION THEREOF
(Or. 21, R. 46)
(Title)
To
Whereas has failed to satisfy a decree passed against on the day of 20 , in Suit
No. of 20 , in favour of for Rs. ; It is ordered that the defendant be, and is hereby, prohibited and restrained until
the further order of this Court, from receiving from the following property in the possession of the said , that is to say, ,
to which the defendant is entitled, subject to any claim of the said , and the said is hereby prohibited and restrained, until the
further order of this Court, from delivering the said property to any person whomsoever.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
932
[No. 16-A
AFFIDAVIT OF ASSETS TO BE MADE BY A JUDGMENT-DEBTOR
[Order XXI, Rule 41(2)]
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In the Court of
A.B. . . . . . . . . . . . . . . . . . . . . . . Decree-holder,
Vs.
C. . . . . . . . . . . . . . . . . . . . . . . . Judgment-debtor.
I of state on oathsolemn affirmation as follows:—
1. My full name is
(Block Capitals)
2. I live at
933
3. I am married
single
widower (widow)
divorced
4. The following persons are dependent upon me:—
5. My employment, trade or profession is that of carried on by me at
I am a director of the following companies:—
6. My present annual/monthly/weekly income, after paying income-tax, is as follows:—
(a) From my employment, trade or profession Rs.
(b) From other sources Rs.
934
7.(a) I own the house in which I live; its value is Rs.
I pay as outgoings by way of rates, mortgage, interest etc., the annual sum of Rs.
(b) I pay as rent the annual sum of Rs.
8. I possess the following:—
(a) Banking accounts;
(b) Stocks and shares;
(c) Life and endowment policies;
(d) House property;
(e) Other property;
(f) Other securities;
9. The following debts are due to me:—
(give particulars)
(a) From of Rs. .
(b) From of Rs. (etc.) Sworn before me, etc.]
No. 17
ATTACHMENT IN EXECUTION
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OR DEBTS NOT SECURED BY NEGOTIABLE I NSTRUMENTS (Or. 21, R. 46)
(Title)
To
Whereas has failed to satisfy a decree passed against on the day of 20 , in Suit No.
of 20 , in favour of for Rs. ; It is ordered that the defendant be, and is hereby prohibited and restrained, until
the further order of this Court, from receiving from you a certain debt alleged now to be due from you to the said defendant, namely, and
that you, the said , be, and you are hereby, prohibited and restrained, until the further order of this Court, from making payment of the
said debt, or any part thereof, to any person whomsoever or otherwise than into this Court.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 18
ATTACHMENT IN EXECUTION
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF SHARES THE CAPITAL OF A CORPORATION (Or. 21, R. 46)
(Title)
To
Defendant and to , Secretary of Corporation.
Whereas has failed to satisfy a decree passed against on the day of 20 , in Suit No.
of 20 , in favour of , for Rs. ; It is ordered that you, the defendant, be, and you are hereby, prohibited and
restrained, until the further order of this Court, from making 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 20 .
Judge.
No. 19
ORDER TO ATTACH SALARY OF PUBLIC OFFICER OR SERVANT OF RAILWAY COMPANY OR LOCAL AUTHORITY (Or. 21, R. 48)
(Title)
To
Whereas , judgment-debtor in the above-named case, is a (describe office of judgment-debtor) receiving the salary (or allowances) at
your hands; and whereas , decree holder in the said case, has applied in this Court for the attachment of the salary (or allowances) of the
said to the extent of due to him under the decree; You are hereby required to withhold the said sum of from
the salary of the said in monthly instalments of and to remit the said sum (or monthly instalments) to this Court.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 20
ORDER OF ATTACHMENT OF NEGOTIABLE I NSTRUMENT (Or. 21, R. 51)
(Title)
To
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The Bailiff of the Court.
Whereas an order has been passed by this Court on the day of 20 , for the attachment of ; you are
hereby directed to seize the said and bring the same into Court.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
KERALA.—(9-6-1959).—For “Bailiff substitute “Amin”.
No. 21
ATTACHMENT
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF MONEY OR OF ANY SECURITY IN THE CUSTODY OF A COURT OF JUSTICE OR
935
[public officer] (Or. 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 that you will hold the said money
subject to the further order of this Court.
I have the honour to be,
Sir,
Your most obedient servant,
Judge.
Dated the day of 20 .
No. 22
NOTICE OF ATTACHMENT OF A DECREE TO THE COURT WHICH PASSED IT
(Or. 21, R. 53)
(Title)
To
The Judge of the Court of
Sir,
I have the honour to inform you that the decree obtained in your Court on the day of 20 , by in Suit No.
of 20 , in which he was and was has been attached by this Court on the application of , the in
the suit specified above. You are therefore requested to stay the execution of the decree of your Court until you receive an intimation from this Court
that the present notice has been cancelled or until execution of the said decree is applied for by the holder of the decree now sought to be executed or
by his judgment-debtor.
I have the honour, etc.
Judge.
Dated the day of 20 .
No. 23
NOTICE OF ATTACHMENT OF A DECREE TO THE HOLDER OF THE DECREE
(Or. 21, R. 53)
(Title)
To
Whereas an application has been made in this Court by the decree-holder in the above suit for the attachment of a decree obtained by you on
the day of 20 , in the Court of in Suit No. of 20 , in
which was and was ; It is ordered that you, the said , be, and you are hereby, prohibited and
restrained, until the further order of this Court, from transferring or charging the same in any way.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 24
ATTACHMENT IN EXECUTION
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF I MMOVABLE PROPERTY
(Or. 21, R. 54)
(Title)
To
Whereas you have failed to satisfy a decree passed against you on the day of 20 , in Suit No. of 20 , in favour
of for Rs. ; It is ordered that you, the said , be, and you are hereby, prohibited and restrained, until the further order
of this Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift or otherwise, and that all persons be,
and that they are hereby, prohibited from receiving the same by purchase, gift or otherwise.
936
[It is also ordered that you should attend Court on the day of 20, to take notice of the date fixed for settling the terms of the proclamation of
sale.]
Given under my hand and the seal of the Court, this day of 20 .
Judge.
SCHEDULE
No. 25
ORDER FOR PAYMENT TO THE PLAINTIFF, ETC., OF MONEY, ETC.,
IN THE HANDS OF A THIRD PARTY
(Or. 21, R. 56)
(Title)
To
Whereas the following property has been attached in execution of a decree in Suit No. of 20 , passed on
the , day of 20 , in favour of for Rs. . It is ordered that the property so attached, consisting of Rs.
in money and Rs. in currency-notes, or a sufficient part thereof to satisfy the said decree, shall be paid over by you, the
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said to .
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 26
NOTICE TO ATTACHING CREDITOR
(Or. 21, R. 58)
(Title)
Whereas has made application to this Court for the removal of attachment on placed at your instance in execution of the decree in
Suit No. of 20 , this is to give you notice to appear before this Court on , the day of 20 , either
in person or by a pleader of the Court duly instructed to support your claim, as attaching creditor.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 27
WARRANT OF SALE OF PROPERTY IN EXECUTION OF A DECREE FOR MONEY
(Or. 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 20 , in execution of a decree in
favour of in Suit No. of 20 , or so much of the said property as shall realize the sum of Rs. , being
the of the said decree and costs still remaining unsatisfied.
You are further commanded to return this warrant on or before the day of 20 , with an endorsement certifying the manner in
which it has been executed, or the reason why it has not been executed.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendments
KERALA.—(9-6-1959).—For “Bailiff” substitute “Amin”.
MADRAS.—Renumber Form 27 as Form 28 and insert the following as Form No. 27:—
No. 27
NOTICES OF SALE (Or. 21, R. 64)
(Title)
To
Judgment-debtor
Whereas in the above mentioned suit the decree-holder has applied for the sale of you are hereby informed that
the day of 20 , has been fixed for setting the terms of proclamation of sale.
Given under my hand and the seal of the Court this day of 20 .
Judge.
(ii) In the renumbered Form No. 28, after the first para ending with the word “still remaining unsatisfied” insert the following para:—
“You are further commanded to stop the sale if before the lot is knocked down the aforesaid sum of Rs. and the cost of the sale be paid to
you or proof is given to your satisfaction that the aforesaid sum of Rs. and the costs of sale have been paid into the Court which ordered the
sale.”(30-12-1959)
No. 28
NOTICE OF THE DAY FIXED FOR SETTING A SALE PROCLAMATION
(Or. 21, R. 66)
(Title)
To
Judgment-debtor
Whereas in the above-named suit , the decree-holder, has applied for the sale of ; You are hereby informed that
the day of 20 , has been fixed for settling the terms of the proclamation of sale.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
MADRAS.—Renumber Form No. 28 as Form No. 28-A.
No. 29
PROCLAMATION OF SALE (Or. 21, R. 66)
(Title)
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 the sale to the sum of .
(1) Suit No. of 20 , dated by the of in which was plaintiff and and was defendant.
The sale will be by public auction, and the property will be put up for sale in the lots specified in the schedule. This 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 such lot.
In the absence of any order of postponement, the sale will be held by at the monthly sale commencing at o'clock on
the at . In the event, however, of the debt above specified and of the costs of the sale being tendered or paid before the knocking
down of any lot, the sale will be stopped.
At the sale the public generally are invited to bid, either personally or by duly authorized agent. No bid by, or on behalf of, the judgment-creditors
above-mentioned, however, will be accepted, nor will any sale to them be valid without the express permission of the Court previously given. The
following are the further.
Conditions of sale
1. The particulars specified in the schedule below have been stated to the best of the information of the Court, but the Court will not be answerable
for any error, mis-statement or omission of this proclamation.
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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 of bid, or as to the bidder, the lot shall at once be again put up to auction.
3. The highest bidder shall be declared to be the purchaser of any lot, provided always that he is legally qualified to bid, and provided that it shall be
in the discretion of the Court or officer holding the sale to decline acceptance of the highest bid when the price offered appears so clearly inadequate as
to make it advisable to do so.
4. For reasons recorded, it shall be in the discretion of the officer conducting the sale to adjourn it subject always to the provisions of Rule 69 of Order
XXI.
5. In the case of movable property, the price of each lot shall be paid at the time of sale or as soon after as the officer holding the sale directs, and in
default of payment the property shall forthwith be again put up and re-sold.
6. In the case of immovable property, the person declared to be the purchaser shall pay immediately after such declaration a deposit of 25 per cent
on the amount of his purchase-money to the officer conducting the sale, and in default of such deposit the property shall forthwith be put up again and
re-sold.
7. The full amount of the purchase-money shall be paid by the purchaser before the Court closes on the fifteenth day after the sale of the property,
exclusive of such day, or if the fifteenth day be a Sunday or other holiday, then on the first office day after the fifteenth day.
8. In default of payment of the balance of purchase-money within the period allowed, the property shall be re-sold after the issue of a fresh
notification of sale. The deposit, after defraying the expenses of the sale, may, if the Court thinks fit, be forfeited to Government and the defaulting
purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
Schedule of Property
The revenue assessed upon the Claims, if any, which
Description of property to Detail of any 937
[The value The value of
estate or part of the estate, if have been put forward
be sold, with the name of encumbrances of the the property
Number of the property to be sold is an to the property and any
each owner where there are to which the property as as stated by
lot interest in an estate or a part of other known particulars
more judgment-debtors property is stated by the the judgment
an estate paying revenue to bearing on its nature
than one liable decree-holder -debtor]
Government. and value
High Court Amendments
ALLAHABAD.—Delete the sentence “No bid by . . . . . . . . . previously given” in the paragraph above “condition of sale”. (29-1-1927)
ANDHRA PRADESH.—Same as in Madras (i).
KERALA.—(a) (9-6-1959).—After condition No. 8 add the following:—
“9(a) If the sale in Court cannot be proceeded with owing to the absence of the presiding officer, it shall stand adjourned to the corresponding day of
the following week.
(b) If the sale as proclaimed or as adjourned under clause (a) cannot be proceeded with owing to that day being a holiday, the sale stand adjourned
to the next Court day”.
(c) (9-6-1959).—Same as in Madras.
MADRAS.—(i) Add the following as a “Note” to Form No. 29:—
“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.”
(ii) In the Tabular Statement, after Column 5 insert the following column (6) value of property as stated by the decree-holder and (7) value of
property as stated by the judgment debtor.
No. 30
ORDER ON THE NAZIR FOR CAUSING SERVICE OF PROCLAMATION OF SALE (Or. 21, R. 66)
(Title)
To
The Nazir of the Court.
Whereas an order has been made for the sale of the property of the judgment-debtor specified in the schedule hereunder annexed, and whereas
the day of 20 , has been fixed for the sale of the said property copies of the proclamation of sale are by this
warrant made over to you, and you are hereby ordered to have the proclamation published by beat of drum within each of the properties specified in the
said schedule, to affix 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 the which and the manner in which the proclamations have been published.
Dated the day of 20 .
Judge.
SCHEDULE
No. 31
CERTIFICATE BY OFFICER HOLDING A SALE OF DEFICIENCY OF PRICE ON A RESALE OF PROPERTY BY REASON OF THE PURCHASER'S DEFAULT
(Or. 21, R. 71)
(Title)
Certified that at the re-sale of the property in execution of the decree in the above-named suit, in consequence of default on the part
of purchaser, there was a deficiency in the price of the said property amounting to Rs. , and that the expenses attending such re
-sale amounted to Rs. , making a total of Rs. , which sum is recoverable from the defaulter.
Dated the day of 20 .
Officer holding the sale
No. 32
NOTICE TO PERSON IN POSSESSION OF MOVABLE PROPERTY SOLD IN EXECUTION (Or. 21, R. 79)
(Title)
To
Whereas has become the purchaser at a public sale in execution of the decree in the above suit of now in your possession,
you are hereby prohibited from delivering possession of the said to any person except the said.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 33
PROHIBITORY ORDER AGAINST PAYMENT OF DEBTS SOLD IN EXECUTION TO ANY OTHER THAN THE PURCHASER
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(Or. 21, R. 79)
(Title)
To
and to
Whereas has become the purchaser at a public sale in execution of the decree in the above suit of being debts due
from you to you ; It is ordered that you be, and you are hereby, prohibited from receiving, and you from making
payment of, the said debt to any person or persons except the said .
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 34
PROHIBITORY ORDER AGAINST THE TRANSFER OF SHARES SOLD IN EXECUTION
(Or. 21, R. 79)
(Title)
To
and , Secretary of
Corporation.
Whereas has become the purchaser at a public sale in execution of the decree, in the above suit, of certain shares in the above
Corporation, that is to say, of standing in the name of you ; It is ordered that you be, and you are hereby, prohibited from
making any transfer of the said shares to any person except the said , the purchaser aforesaid, or from receiving any dividends thereon; and
you , Secretary of the said Corporation, from permitting any such transfer or making any such payment to any person except the
said , the purchaser aforesaid.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 35
CERTIFICATE TO JUDGMENT-DEBTOR AUTHORISING HIM TO MORTGAGE,
LEASE OR SELL PROPERTY
(Or. 21, R. 83)
(Title)
Whereas in execution of the decree passed in the above suit an order was made on the day of 20 , for the sale of the
under-mentioned property of the judgment-debtor and whereas the Court has, on the application of the said judgment-debtor,
postponed the said sale to enable him to raise the amount of the decree by mortgage, lease or private sale of the said property or of some part thereof:
This is to certify that the Court doth hereby authorise the said judgment-debtor to make the proposed mortgage, lease or sale within a period
of from the date of this certificate; provided that all monies payable under such mortgage, lease or sale shall be paid into this Court and not to
the said judgment-debtor.
Description of property.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 36
NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE
(Or. 21, Rr. 90, 92)
(Title)
To
Whereas the under-mentioned property was sold on the day of 20 , in execution of the decree passed in the above-
named suit, and whereas , the decree-holder [or judgment-debtor], has applied to this Court to set aside the sale of the said property on the
ground of a material irregularity [or fraud] in publishing [or conducting] the sale, namely, that .
Take notice that if you have any cause to show why the said application should not be granted, you should appear with your proofs in this Court on
the day of 20 , when the said application will be heard and determined.
Given under my hand and the seal of the Court, this day of 20 .
Description of property
Judge.
No. 37
NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE
(Or. 21, Rr. 91, 92)
(Title)
To
Whereas , the purchaser of the under-mentioned property sold on the day of 20 , in execution of the decree passed in the
abovenamed suit, has applied to this Court to set aside the sale of the said property on the ground that , the judgment-debtor, had no saleable
interest therein:
Take notice that if you have any cause to show why the said application should not be granted, you should appear with your proofs in this Court on
the day of 20 , when the said application will be heard and determined.
Given under my hand and the seal of the Court, this day of 20 .
Description of property.
Judge.
No. 38
CERTIFICATE OF SALE OF LAND
(Or. 21, R. 94)
(Title)
This is to certify that has been declared the purchaser at a sale by public auction on the day of 20 ,
of in execution of decree in this 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 20 .
Judge.
High Court Amendments
ALLAHABAD.—(Noti. No. 43/VII-d-29; 1-6-1957).—In the heading for “Land” substitute “I MMOVABLE PROPERTY.”
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BOMBAY.—Substitute the following for Form No. 38:—
No. 38
CERTIFICATE FOR SALE OF LAND (Or. 21, 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 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 20 .
Judge.
(1-10-1983)
KERALA.—(9-6-1959).—Add the following at the end of the Form:—
SCHEDULE
No. District Taluk Village Muri Lekkom Survey Acre Cent Description East South West North Right, title Amount Sale of
of Number of the and interest specified in amount
Deson property of the the
judgement- proclamation
debtor in the of sale
property
MADHYA PRADESH.—Insert the words “for Rs. ” between the words “the purchaser” and “at a sale”.
ORISSA.—Same as in Patna.
PATNA.—Substitute the following for Form No. 38:—
“No. 38
CERTIFICATE OF SALE OF LAND (Or. 21, R. 94)
District
In the Court at Execution Case No. of 20
Decree-holder:
versus
Judgment-holder.
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 20 , of the property
specified in execution of the decree in Suit No. of this Court and that the said sale has been duly confirmed by this Court.
Given under my hand and the seal of the Court, this day of 20 Specification and price of properties.
Judge.”
No. 39
ORDER FOR DELIVERY TO CERTIFIED PURCHASER OF LAND AT A SALE IN EXECUTION (Or. 21, R. 65)
(Title)
To
The Bailiff of the Court.
Whereas has become the certified purchaser of at a sale in execution of decree in Suit No. of 20 ; You
are hereby ordered to put the said , the certified purchaser, as aforesaid, in possession of the same.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
KERALA.—(9-6-1959).—For “Bailiff” substitute “Amin”.
MADRAS.—For the full stop occurring at the end of the expression “in possession of the same” substitute a comma, and insert thereafter the following
in continuation of the existing sentence:—“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”.
No. 40
SUMMONS TO APPEAR AND ANSWER CHARGE OF OBSTRUCTING EXECUTION OF DECREE (Or. 21, R. 97)
(Title)
To
Whereas , the decree-holder in the above suit, has complained to this Court that you have resisted (or obstructed) the officer charged with
the execution of the warrant for possession:—
You are hereby summoned to appear in this Court on the day of 20 , at A.M., to answer the said
complaint.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 41
WARRANT OF COMMITTAL (Or. 21, R. 98)
(Title)
To
The Officer in Charge of the Jail at .
Whereas the under-mentioned property has been decreed to , the plaintiff in this suit, and whereas the Court is satisfied
that without any just cause resisted [or obstructed] and is still resisting [or obstructing] the said in obtaining possession of the
property, and whereas the said has made application to this Court that the said be committed to the civil prison;
You are hereby commanded and required to take and receive the said into the civil prison and to keep him imprisoned therein for the period
of days.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 42
AUTHORITY OF THE COLLECTOR TO STAY PUBLIC SALE OF LAND
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(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 authorized 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 Amendment
ALLAHABAD.—Add the following as Form No. 43:—
“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 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. 3 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. furnish 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 No. 3 of 1907, to be declared an insolvent;
Therefore I, E.F., inhabitant of have voluntarily become security and 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 hereinbefore set forth, and in default of such appearance or of such application, I bind myself, my heirs and executors to pay to the
said Court on its order the sum of Rs. .
Witness my hand at this
day of 20 .
(Signed) E.F.,
Witnesses.
Surety.”
APPENDIX F
SUPPLEMENTAL PROCEEDINGS
No. 1
WARRANT OF ARREST BEFORE JUDGMENT (Or. 38, R. 1)
(Title)
To
The Bailiff of the Court.
Whereas , the plaintiff in the above suit, claims the sum of Rs. as noted in the margin, and has proved to the satisfaction of the
Court that there is probable cause for believing that the defendant
is about to ; These are to command you to demand and receive from the said the
Principal . . sum of Rs. as sufficient to satisfy the plaintiff's claim, and unless the said sum
Interest . . of Rs. is forthwith delivered to you by or on behalf of the said , to take
Costs . . the said into custody, and to bring him before this Court, in order that he
may show cause why he should not furnish security to the amount of Rs. for
Total . . his personal appearance before the Court, until such time as the said suit shall be fully
and finally disposed of, and
until satisfaction of any decree that may be passed against him in the suit.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
KERALA.—(Noti. No. B1-3312/58; 7-4-1959).—For “Bailiff” substitute “Amin”.
No. 2
SECURITY FOR APPEARANCE OF A DEFENDANT ARRESTED BEFORE JUDGMENT
(Or. 38, R. 2)
(Title)
Whereas at the instance of , the plaintiff in the above suit, the defendant, has been arrested and brought before the Court;
And whereas on the failure of the said defendant to show cause why he should not furnish security for his appearance, the Court has ordered him to
furnish such security:
Therefore I have voluntarily become surety and do hereby bind myself, my heirs and executors, to the said Court, that the said
defendant shall appear at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in
the said suit; and in default of such appearance I bind myself, my heirs and executors, to pay to the said Court, at its order, any sum of money that
may be adjudged against the said defendant in the said suit.
Witness my hand at this day of 20 .
(Signed)
Witnesses
1.
2.
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No. 3
SUMMONS TO DEFENDANT TO APPEAR ON SURETY'S APPLICATION
FOR DISCHARGE (Or. 38, R. 3)
(Title)
To
Whereas , who became surety on the day of 20 , for your appearance in the above suit, has supplied to this Court
to be discharged from his obligation:
You are hereby summoned to appear in this Court in person on the day of 20 , at A.M., when the said application will be heard and
determined.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 4
ORDER FOR COMMITTAL (Or. 38, R. 4)
(Title)
To
Whereas , plaintiff in this suit, has made application to the Court that security be taken for the appearance of , the defendant, to
answer any judgment that may be passed against him in the suit; and whereas the Court has called upon the defendant to furnish such security, or to
offer a sufficient deposit in lieu of security, which he had failed to do; it is ordered that the said defendant be committed to the civil prison
until the decision of the suit; or, if judgment be pronounced against him, until satisfaction of the decree.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 5
ATTACHMENT BEFORE JUDGMENT, WITH ORDER TO CALL FOR SECURITY FOR FULFILMENT OF DECREE (Or. 38, R. 5)
(Title)
To
The Bailiff of the Court.
Whereas has proved to the satisfaction of the Court that the defendant in the above suit ;
These are to command you to call upon the said defendant on or before the day of , either to furnish security for the sum
of rupees to produce and place at the disposal of this Court when required or the value thereof, or such portion of the value as may be
sufficient to satisfy and decree that may be passed against him; or to appear and show cause why he should not furnish security; and you are further
ordered to attach the said and keep the same under safe and secure custody until the further order of the Court; and you are further
commanded to return this warrant on or before the day of 20 , with an endorsement certifying the date on which and the
manner in which it has been executed, or the reason why it has not been executed.
Given under my hand the seal of the Court, this day of 20 .
Judge.
High Court Amendment
KERALA.—(9-6-1959).—For “Bailiff” substitute “Amin”.
No. 6
SECURITY FOR THE PRODUCTION OF PROPERTY (Or. 38, R. 5)
(Title)
Whereas at the instance of , the plaintiff in the above suit, the defendant has been directed by the Court to furnish security in
the sum of Rs. to produce and place at the disposal of the Court the property specified in the schedule hereunto annexed;
Therefore I have voluntarily become surety and do hereby bind myself, my heirs and executors, to the said Court, that the said defendant
shall produce and place at the disposal of the Court, when required, the property specified in the said schedule, or the value of the same or such portion
thereof as may be sufficient to satisfy the decree; and in default of his so doing I bind myself, my heirs and executors, to pay to the said Court, at its
order, the said sum of Rs. or such sum not exceeding the said sum as the said Court may adjudge.
SCHEDULE
Witness my hand at this day of 20 .
(Signed).
Witnesses.
1.
2.
High Court Amendments
MADRAS.—(9-6-1959).—Insert the following as Form No. 6-A:—.
“No. 6-A
NOTICE
(Or. 38, R. 5)
(Title)
To
(Defendant's name and address)
Whereas . . . . . . . . . the plaintiff has made the above application praying for an attachment before judgment of the property mentioned in the
schedule hereunder to answer any judgment that may be passed in his favour.
Take notice that you . . . . . . . . . . the defendant, are hereby directed on or before . . . . . .
1. To furnish security of sum of Rs . . . . . . . . . (Rupees only).
2. To produce and place at the disposal of the Court when required the entire property . . . . . . . . . ./items of the property . . . . . . . . ./the value of
the entire property . . . . . . . . . . . ./the value of the items of the property . . . . . . . . . . . mentioned in the Schedule hereunder sufficient to satisfy the
decree that may be passed in favour of the plaintiff.
3. To appear and show cause whey you should not furnish security.
Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 20 . . . ./20 . . . . . .
Judge
No. 7
ATTACHMENT BEFORE JUDGMENT, ON PROOF OF FAILURE TO
FURNISH SECURITY (Or. 38, R. 6)
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(Title)
To
The Bailiff of the Court.
Whereas , the plaintiff in this suit has applied to the Court to call upon , the defendant, to furnish security to fulfil any
decree that may be passed against him in the suit, and whereas the Court has called upon the said to furnish such security, which he has
failed to do; These are to command you to attach , the property of the said and keep the same under safe and secure custody until the
further order of the Court, and you are further commanded to return this warrant on or before the day of 20 , with an
endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
KERALA.—(9-6-1959).—
(i) In Form No. 7 for “Bailiff” substitute “Amin”.
(ii) Insert Form No. 7-A as in Madras.
MADRAS.—Insert the following as Form No. 7-A:—
“No. 7-A
ATTACHMENT OF I MMOVABLE PROPERTY BEFORE JUDGMENT
(Title)
To
(Defendant)
Whereas on the application of the plaintiff in this suit, the Court called upon you, the defendant to furnish security to
fulfil any decree that may be passed against you in the suit or to show cause why should not furnish such security and you have failed to show cause
why you should not furnish such security/you have failed to furnish security required within the time fixed by the Court it is ordered that you, the
said be, and you are, hereby prohibited and restrained until further order of this Court, from, transferring or charging the properties described
in the schedule hereto annexed, by sale, gift or otherwise, and that all persons be, and that they are hereby, prohibited and restrained from receiving
the same by purchase, gift or otherwise.
Given under my hand and the seal of this Court, this day of 20 .
Judge.
SCHEDULE
No. 8
TEMPORARY I NJUNCTIONS (Or. 39, R. 1)
(Title)
Upon motion made into this Court by , Pleader of [or Counsel for] the plaintiff A.B. and upon reading the petition of the said plaintiff in this
matter filed [this day] or the plaint filed in this suit on the day of , or the written statement of the said plaintiff filed on
the day of land upon hearing the evidence of and in support thereof [if after notice and defendant not appearing : add,
and also, the evidence of as to service of notice of this motion upon the defendant C.D.] : This Court doth order that an injunction be awarded to
restrain the defendant C.D., his servants, agents and workmen, from pulling down, or suffering to be pulled down, the house in the plaint in the said
suit of the plaintiff mentioned [or in the written statement, or petition, of the plaintiff and evidence at the hearing of this motion mentioned], being No.
9, Oilmongers Street, Hindupur, in the Taluk of , and from selling the materials whereof the said house is composed, until the hearing of
this suit or until the further order of this Court.
Dated this day of 20 .
Judge.
[Where the injunction is sought to restrain the negotiation of a note or bill, the ordering part of the order may run thus:—]
to restrains the defendants and from parting without the custody of them or any of them or endorsing, assigning or negotiating the
promissory note [or bill of exchange] in question, dated on or about the , etc. mentioned in the plaintiff's plaint [or petition] and the
evidence heard at this motion until the hearing of this suit, or until the further order of this Court.
[In Copyright cases] to restrain the defendant C.D., his servants, agents or workmen, from printing, publishing or vending a book,
called or any part thereof, until the, etc.
[Where part only of a book is to be restrained]
to restrain the defendant C.D., his servants, agents or workmen, from printing, publishing, selling or otherwise disposing of such parts of the book in
the plaint [or petition and evidence, etc.] mentioned to have been published by the defendant as hereinafter specified, namely, that part of the said
book which is entitled and also that part which is entitled [or which is contained in page to page both
inclusive] until, etc.
[In Patent cases] to restrain the defendant C.D., his agents, servants and workmen, from making or vending any perforated bricks
[or as the case may be] upon the principle of the inventions in the plaintiff's plaint [or petition, etc., or written statement, etc.,] mentioned, belonging
to the plaintiffs, or either of them, during the remainder of the respective terms of the patents in the plaintiff's plaint [or as the case may be]
mentioned, and from counterfeiting, imitating or resembling the same inventions, or either of them, or making any addition thereto, or subtraction
therefrom, until the hearing, etc.
[In cases of Trade marks] to restrain the defendant C.D., his servants, agents or workmen, from selling, or exposing for sale, or
procuring to be sold, any composition or blacking [or as the case may be] described as or purporting to be blacking manufactured by the plaintiff A.B.,
in bottles having affixed thereto such labels as in the plaintiff's plaint [or petition, etc.] mentioned or any other labels so contrived or expressed as, by
colourable imitation or otherwise, to represent the composition or blacking sold by the defendant to be the same as the composition or blacking
manufactured and sold by the plaintiff A.B. and from using trade-cards so contrived or expressed as to represent that any composition or blacking sold
or proposed to be sold by the defendant is the same as the composition or blacking manufactured or sold by the plaintiff A.B., until the, etc.
[To restrain a partner from in any way interfering in the business]
to restrain the defendant C.D., his agents and servants, from entering into any contract, and from accepting, drawing, endorsing or negotiating any
bill of exchange, note or written security in the name of the partnership firm of B. and D., and from contracting any debt, buying and selling any goods,
and from making or entering into any verbal or written promise, agreement or undertaking, and from doing, or causing to be done, any act, in the name
or on the credit of the said partnership-firm of B. and D., or whereby the said partnership firm can or may in any manner become or be made liable to or
for the payment of any sum of money, or for the performance of any contract, promise or undertaking until the, etc.
938
No. [9]
APPOINTMENT OF A RECEIVER (Or. 40, R. 1)
(Title)
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To
Whereas has been attached in execution of a decree passed in the above suit on the day of 20 , in
favour of ; You are hereby (subject to your giving security to the satisfaction of the Court) appointed receiver of the said property under Order
XL of the Code of Civil Procedure, 1908, with full powers under the provisions of that Order.
You are required to render a due and proper account of your receipts and disbursements in respect of the said property on . You will be
entitled to remuneration at the rate of per cent upon your receipts under the authority of this appointment.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
KERALA.—(9-6-1959).—Same as in Madras.
MADRAS.—For Form No. 9 substitute the following:—
“No. 9
APPOINTMENT OF A RECEIVER (Or. 40, R. 1)
(Title)
Whereas it appears to the Court that in the above suit it is just and convenient to appoint a receiver of the properties specified below (or whereas the
properties specified below have been attached in execution of a decree passed in the above suit on the day of 20 , in favour
of ).
It is hereby ordered that AB be appointed (subject to his giving security to the satisfaction of the Court) the receiver of the said property and of the
rents, issues and profits thereof under Order 40 of the Code of Civil Procedure, 1908, with all powers under the provisions of that Order, except that he
shall not without the leave of the Court, (1) grant leases for a term exceeding three years, or (2) institute suits in any Court (except suits for rent), or
(3) institute appeals in any Court (except from a decree in a rent suit) where the value of the appeal is over Rs. 1,000 or (4) expend on the repairs of
any property in any period of two years more than half of the net annual rental of the property to be repaired, such rental being calculated at the
amount at which the property to be repaired would be let when in a fair state of repair, provided that such amount shall not exceed Rs. 1,000.
And it is further ordered that the parties/defendants to the above suit and all persons claiming under them do deliver up quiet possession of the
properties movable and immovable, specified below together with all leases, agreements for lease, Kabuleats, account books, papers, memoranda and
writings relating thereto to the said receiver. And it is further ordered that the said receiver do take possession of the said property, movable and
immovable and collect the rents, issues and profits of the said immovable property, and that the tenants and occupiers do attorn and pay their rents in
arrear and growing rents to the said receiver. And it is further ordered that the said receiver shall have power to bring and defend suits in his own name
and shall also have power to use the names of the plaintiffs and defendants where necessary. And it is further ordered that the receipt or receipts of the
said receiver shall be a sufficient discharge for all such sum or sums of money or property as shall be paid or delivered to him as such receiver.
And it is further ordered that the said receiver do, out of the first money to be received by him, pay the debts due from the said and shall be
entitled to retain in his hands the sum of Rs. for current expenses, but subject thereto shall pay his net receipts, as soon as the same come to
his hands, into Court to credit of the suit. He shall once in every month, file his accounts and vouchers in Court, the first account to be filed on
the day of and to be passed on the day of .
He shall be entitled to the commission at the rate of Rs. per cent on the net amounts collected by him or to the sum of Rs. per
month (or as the case may be) as his remuneration (or he shall act without any remuneration).
And it is further ordered (where an additional office establishment is required) that the said receiver shall be allowed to charge to the estate in
addition to his own office establishment the following further establishment:—
(Here enter specification of property)
Given under my hand and the seal of the Court, this day of 20 ”.
Judge.
No.939[10]
BOND TO BE GIVEN BY RECEIVER (Or. 40, R. 3)
(Title)
Know all men by these presents, that we, and and , are jointly and severally bound to of the Court of in Rs.
to be paid to the said or his successor in office for the time being. For which payment to be made we bind ourselves, and each of us, in
the whole, our and each of our heirs, executors and administrators, jointly and severally, by these presents.
Dated this 20 .
Whereas a plaint has been filed in this Court by against for the purpose of [here insert the object of suit]:
And whereas the said has been appointed by order of the above-mentioned Court, to receive the rents and profits of the immovable property
and to get in the outstanding movable property of in the said plaint named:
Now the condition of this obligation is such, that if the above-bounden shall duly account for all and every the sum and sums of
money which he shall so receive on account of the rents and profits of the immovable property, and in respect of the moveable property, of the
said at such periods as the said Court shall appoint, and shall duly pay the balances which shall from time to time be certified to be
due from him as the said Court hath directed or shall hereafter direct, then this obligation shall be void, otherwise it shall remain in full force.
Signed and delivered by the above-bounden in the presence of
Note.—If deposit of money is made, the memorandum thereof should follow the terms of the condition of the bond.
High Court Amendments
ALLAHABAD.—Add the following as Form No. 11.
“No. 11
The security to be furnished under Order XXXVIII, Rule 9, shall be, as nearly as may be, by a bond in the following form:
In the Court of at Suit No. of 20 .
Plaintiff;
Defendant.
Amount of suit, Rupees
Whereas in the suit above specified the plaintiff aforesaid, has applied to the said Court that the said defendant, , may be
called on to furnish sufficient security to fulfil any decree that may be passed against him in the said suit or that on his failure so to do, certain property
of the said defendant, , may be attached;
And whereas, on the failure of the said defendant to furnish such security, or, show cause why it should not be furnished, the property
aforesaid of the said defendant, has been attached by order of the said Court:
Therefore, I, inhabitant of , have voluntarily become security and hereby bind myself, my heirs and executors, to as Judges
of the said Court, and his successors in office, that the said defendant , shall produce and place at the disposal of the said Court, when required
the property hereinbelow specified namely (here give description of the property or refer to an annexed Schedule), or the value of the same, or such
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portion thereof as may be sufficient to fulfil such decree and shall when required pay the costs of the attachment, and in default of his so doing, I bind
myself, my heirs and executors, to pay as Judge of the said Court and his successors in office on its order, such sum to the extent of rupees
(here enter a sufficient sum to cover the amount of suit with costs and the costs of attachment) as the said Court may adjudge against the said
defendant.
Witness my hand at this day of 20 .
(Signed).
Surety.
ANDHRA PRADESH.—Same as in Madras.
KERALA.—(9-6-1959).—Insert Form No. 11 as in Madras.
MADRAS.—(i) For the space and the words “or his successor in office for the time being” substitute “Court”.
(ii) Add the following as Form No. 11:—
“No. 11
BOND TO BE GIVEN BY RECEIVER WHERE I MMOVABLE PROPERTY IS OFFERED AS SECURITY
Know all men by these presents, that we and are jointly and severally bound to the Court of in Rs. to be paid to the
said Court, 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 and we do as security for the said payment, mortgage to the Judge of the said Court, his successors in office and
assigns the undermentioned immovable properties which belong to us and of which we are possessed and which are free from mortgage, charge or any
other encumbrance and the title deeds of which have been lodged in the District Court.
Dated this day of 20 .
(Rest of the clauses will be continued as in Form No. 10)”.
ALLAHABAD.—Add the following as Form No. 12:—
“No. 12
The security to be furnished under Order XXXIX, Rule 2(2) shall be, as far as may be, by a bond in the following form:
In the Court of at Suit No. of 20 .
Plaintiff;
Defendant.
Whereas, in the suit above specified by the said plaintiff, to restrain the said defendant , from (here state the breach of
contract or other injury) the said Court has, on the application of the said plaintiff , granted an injunction to restrain the said defendant from
the repetition (or the continuance) of the said breach of contract for wrongful act complained of and required security from the said defendant against
such repetition (or continuance):
Therefore, I, , 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 defendant, shall abstain from the repetition (or
continuance) of the breach of contract aforesaid (or wrongful act, or from the committal of any breach of contract or injury of a like kind, arising out of
the same contract, or relating to the same property or right), and in default of his so abstaining, I bind myself, my heirs and executors to pay into
Court, on the order of the Court, such sum to the extent of rupees, as the Court shall adjudge against the said defendant.
Witness my hand at this day of 20 .
(Signed)
Surety.
APPENDIX G
APPEAL, REFERENCE AND REVIEW
No. 1
MEMORANDUM OF APPEAL (Or. 41, R. 1)
(Title)
The
above-named appeals to the Court at from the decree of in Suit No. of 20 , dated
the day of 20 , and sets forth the following grounds of objection to the decree appealed from, namely:—
No. 2
SECURITY BOND TO BE GIVEN ON ORDER BEING MADE TO STAY EXECUTION OF DECREE (Or. 41, R. 5)
(Title)
To
This security bond on stay of execution of decree executed by witnesseth:—
That , the plaintiff in Suit No. of 20 , having sued , the defendant, in this Court and a decree
having been passed on the day of 20 , in favour of the plaintiff, and the defendant having preferred an appeal from the said decree
in the Court, the said appeal is still pending.
Now the plaintiff decree-holder having applied to execute the decree, the defendant has made an application praying for stay of execution and has
been called upon to furnish security. Accordingly I, of my own free will, stand security to the extent of Rs. , mortgaging the properties
specified in the schedule hereunto annexed, and covenant that if the decree of the first Court be confirmed or varied by the Appellate Court the said
defendant shall duly act in accordance with the decree of the Appellate Court and shall pay whatever may be payable by him thereunder, and if he
should fail therein then any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the sale of the said
properties are insufficient to pay the amount due, I and my legal representatives will be personally liable to pay the balance. To this effect I execute this
security bond this day of 20 .
SCHEDULE
(Signed)
Witnessed by
1.
2.
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
BOMBAY.—Below the form add the following Note:—
“Note.—Unless appropriately altered, the printed form binds the surety only to an immediate appeal from the decree mentioned in the bond and
does not cover any obligation in respect of any further appeal”.
GUJARAT.—Same as in Bombay.
KERALA.—(9-6-1959).—Same as in Madras, ante.
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MADRAS.—In the second para after “be confirmed or varied by the Appellate Court” insert “or in further appeal or appeals from the decree of the said
Court”.
No. 3
SECURITY BOND TO BE GIVEN DURING THE PENDENCE OF APPEAL
(Or. 41, R. 6)
(Title)
To
This security bond on stay of execution of decree executed by witnesseth:—
That , the plaintiff in Suit No. of 20 , having sued , the defendant, in this Court and a decree having been
passed on the day of 20 , in favour of the plaintiff, and the defendant having preferred an appeal from the said decree in
the Court, the said appeal is still pending.
Now the plaintiff decree-holder has applied for execution of the said decree and has been called upon to furnish security. Accordingly I, of my own
free will, stand security to the extent of Rs. , mortgaging the properties specified in the schedule hereunto annexed, and covenant that if the
decree of the first Court be reversed or varied by the Appellate Court the plaintiff shall restore any property which may be or has been taken in
execution of the said decree and shall duly act in accordance with the decree of the Appellate Court and shall pay whatever may be payable by him
thereunder, and if he should fail therein then any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the
sale of the said properties are insufficient to pay the amount due, I and my legal representatives will be personally liable to pay the balance. To this
effect I execute this security bond this day of 20 .
SCHEDULE
(Signed)
Witnessed by
1.
2.
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
BOMBAY.—(i) For the words “stay of” occurring in the expression “on stay of execution” substitute “order being made for”.
(ii) Below the form add the following Note:—
“Note.—Unless appropriately altered, the printed form binds the surety only to an immediate appeal from the decree mentioned in the bond, and
does not cover any obligation in respect of any further appeal”.
GUJARAT.—Same as in Bombay.
KERALA.—(9-6-1959).—Same as in Madras.
MADRAS.—In the second para after “be confirmed or varied by the Appellate Court” insert “or in further appeals from the decree of the said Court”.
No. 4
SECURITY FOR COSTS OF APPEAL (Or. 41, R. 10)
(Title)
To
This security bond for costs of appeal executed by witnesseth:—
This appellant has preferred an appeal from the decree in Suit No. of 20 , against the respondent, and has been called
upon to furnish security. Accordingly I, of my own free will, stand security for the costs of the appeal, mortgaging the properties specified in the
schedule hereunto annexed. I shall not transfer the said properties or any part thereof, and in the event of any default on the part of the appellant, I
shall duly carry out any order that may be made against me with regard to payment of the costs of appeal. Any amount so payable shall be realized
from the properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient to pay the amount due I and my legal
representatives will be personally liable to pay the balance. To this effect I execute this security bond this day of 20 .
SCHEDULE
(Signed)
Witnessed by
1.
2.
No. 5
I NTIMATION TO LOWER COURT OF ADMISSION OF APPEAL (Or. 41, R. 13)
(Title)
To
You are hereby directed to take notice that , the in the above suit, has preferred an appeal to this Court from the decree passed
by you therein on the day of 20 .
You are requested to send with all practicable despatch all material papers in the suit.
Dated the day of 20 .
Judge.
No. 6
NOTICE TO RESPONDENT OF THE DAY FIXED FOR THE HEARING OF THE APPEAL (Or. 41, R. 14)
(Title)
Appeal from the of the Court of dated the day of 20 .
To
Respondent.
Take notice that an appeal from the decree of in this case has been presented by and registered in this Court, and that
the day of 20 , has been fixed by this Court for the hearing of this appeal.
If no appearance is made on your behalf by yourself, your pleader, or by some one by law authorized to act for you in this appeal, it will be heard and
decided in your absence.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
Note.—If a stay of execution has been ordered, intimation should be given of the fact on this notice.
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
KERALA.—(9-6-1959).—Insert Forms Nos. 6-A and 6-B as in Madras substituting “Kerala” for “Madras”.
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MADRAS.—(i) Below the Note add the following further Note:—
“Note.—Also take notice that if an address for service is not filed before the aforesaid date, this appeal is liable to be heard and decided as if you
had not made an appearance.”
(ii) Insert the following as Forms Nos. 6-A and 6-B:—
“No. 6-A
NOTICE TO RESPONDENT (Or. 41-A, R. 2)
(Cause Title)
Appeal from the of the Court of dated the day of 20 .
To
Respondent.
Take notice that an appeal from the above decree (order) has been presented by the above-named appellant and registered in this Court, and that if
you intend to defend the same you must enter an appearance in this Court and give notice thereof to the appellant or his pleader within 30 days after
the service of this notice on you.
If no appearance is entered on your behalf by yourself, your pleader or some one by law authorised to act for you in this appeal, it will be heard and
decided in your absence.
The address for service of the appellant is that of his pleader Mr. A.B. of (insert address), Madras.
(If the appellant appears in person, insert his address for service.)
Given under my hand and the seal of the Court, this day of 20 .
Registrar.
Interlocutory application No. of 20 , has been made by appellant, and execution has been stayed (or—other order made) by
order dated the day of 20 .
No. 6-B
MEMORANDUM OF APPEARANCE (Or. 41-A, R. 3)
(Cause Title)
Take notice that the respondent intends to appear and defend the above appeal, and that his address for service of all notices and
process is (insert address).
The said respondent requires a list of the papers which the appellant proposes to translate and print.
Dated the day of 20 .
(Signed.) CD.
Vakil for Respondent.
To
The Registrar, High Court of Judicature, Madras.”
No. 7
NOTICE TO A PARTY TO A SUIT NOT MADE A PARTY TO THE APPEAL BUT JOINED BY THE COURT AS A RESPONDENT (Or. 41, R. 20)
(Title)
To
Whereas you were a party in Suit No. of 20 , in the Court of , and whereas the has preferred an appeal to
this Court from the decree passed against him in the said suit and it appears to this Court that you are interested in result of the said appeal:
This is to give you notice that this Court has directed you to be made a respondent in the said appeal and has adjourned the hearing thereof till
the day of 20 , at A.M. If no appearance is made on your behalf on the said day and at the said hour the appeal will be
heard and decided in your absence.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 8
MEMORANDUM OF CROSS-OBJECTION (Or. 41, R. 22)
(Title)
Whereas the has preferred an appeal to the Court at from the decree of in Suit No. of
20 , dated the day of 20 , and whereas notice of the day fixed for hearing the appeal was served on the on
the day of 20 , the files this memorandum of cross objection under Rule 22 of Order XLI of the Code of Civil Procedure,
1908, and sets forth the following grounds of objection to the decree appealed from, namely:—
No. 9
DECREE IN APPEAL (Or. 41, R. 35)
(Title)
Appeal No. of 20 , from the decree of the Court of dated the day
of 20 .
Memorandum of Appeal
Plaintiff;
Versus
Defendant.
The abovenamed appeals to the Court at from the decree of in the above suit, dated
the day of 20 , for the following reasons, namely:
This appeal coming on for hearing on the day of 20 , before in the presence of for the
appellant and of for the respondent, it is ordered—
The costs of this appeal, as detailed below, amounting to Rs. , are to be paid by . The costs of the original suit are to be
paid by
Given under my hand and the seal of the Court, this day of 20 .
Judge.
Costs of Appeal
Appellant Amount Respondent Amount
Rs. A. P. Rs. A. P.
1. Stamp of memoran- Stamp for power . .
dum of appeal . .
2. Do. for power . . Do. for petition . .
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3. Service of processes . . Service of processes . .
4. Pleader's fee on Rs. . . Pleader's fee on Rs. . .
Total . . Total . .
High Court Amendments
ANDHRA PRADESH.—Same as in Madras.
CALCUTTA.—In Appendix G, in Form No. 9, omit the words beginning from the sub-heading Memorandum of Appeal and ending “for the following
reasons, namely—”
GAUHATI.—Same as in Madras.
KERALA.—(9-6-1959).—Same as in Madras only inserting in Particulars of costs, under the heading Respondents “5. Fee for preparation of process”.
MADRAS.—For Form No. 9 substitute the following:—
“No. 9
DECREE/ORDER
I N THE COURT OF THE
Present:
Judge.
day, the day of 20 .
Appeal Suit . . . .
Civil Miscellaneous Appeal Suit . . . . No. of 20 .
Between:
Appellant
and
Respondent
On appeal from the Decree/Order of the Court of dated the day of 20 , and made in
Original Suit . . . .
Execution Petition . . . . No. of 20 .
Interlocutory Application . . . .
Between:
[Plaintiff-petitioner
and
[Defendant-Respondent.
Particulars of Valuation
Rs. P.
1. Valuation in appeal . . . . . .
2. Do. suit . . . . . .
DECREE/ORDER.—This appeal coming on this day for hearing having been heard on the day of 20 , upon perusing the grounds of
appeal, the Decree/Order and judgment of the Lower Court and the material papers in the case and upon hearing the arguments of Mr. for the
Appellant and of Mr. for the Respondent, and the appeal having stood over to this day for consideration, this Court doth order and decree that
the Decree/Order of the Lower Court be and hereby is confirmed and this appeal is dismissed.
This Court doth further order and decree that the Appellant ( ) do pay to the Respondent ( ) Rs. for costs in this
appeal and do bear own costs Rs. .
Particulars of costs.
Appellants Amount Respondents Amount
1. Stamp on Appeal Memo 1. Stamp for power
2. Stamp on vakalat 2. Stamp for petition
3. Stamp on copies of lower Court Decree/Order and 3. Service of processes
judgment including copying fee
4. Stamp on petitions 4. Pleader's fee on Rs.
5. Process fees
6. Fee for preparation of process
7. Pleader's fee on Rs.
Total Total
Given under my hand and the seal of the Court this day of 20 .
Court
Judge
Appeal Suit . . . .
Civil Miscellaneous Appeal Suit . . . . No. of 20 .
DECREE/ORDER”
ORISSA.—Same as in Patna.
PATNA.—In the table of Costs of Appeal add “Copying or typing charges” below the Item “Pleader's fees on Rs.” in the columns for Appellant and
Respondent, and number the new entry in the first column as “5”.
No. 10
APPLICATION TO APPEAL IN FORMA PAUPERIS (Or. 44, R. 1)
(Title)
I, , the abovenamed, present the accompanying memorandum of appeal from the decree in the above suit and apply to be allowed
to appeal as a pauper.
Annexed is a full and true schedule of all the moveable and immovable property belonging to me with the estimated value thereof.
Dated the day of 20 .
(Signed)
Note.—Where the application is by the plaintiff he should state whether he applied and was allowed to sue in the Court of first instance as a pauper.
No. 11
NOTICE OF APPEAL IN FORMA PAUPERIS (Or. 44, R. 1)
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(Title)
Whereas the abovenamed has applied to be allowed to appeal as a pauper from the decree in the above suit dated the day
of 20 , and whereas the day of 20 , has been fixed for hearing the application, notice is hereby given to you that if you
desire to show cause why the applicant should not be allowed to appeal as a pauper an opportunity will be given to you of doing so on the
aforementioned date.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 12
NOTICE TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO THE
940
[SUPREME COURT] SHOULD NOT BE GRANTED (Or. 45, R. 3)
(Title)
To
941
[Take notice that has applied to this Court for a certificate—
(i) that the case involves a substantial question of law of general importance, and
(ii) that in the opinion of this Court the said question needs to be decided by the Supreme Court.]
The day of 20 is fixed for you to show cause why the Court should not grant the certificate asked for.
Given under my hand and the seal of the Court, this day of 20 .
Registrar.
High Court Amendments
ALLAHABAD.—For Form No. 12, substitute the following:—
“No. 12
NOTICE TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO THE SUPREME COURT
SHOULD NOT BE GRANTED (Or. 45, R. 3)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Supreme Court Petition No. . . . . . . of 20 . . . . . . . .
Petitioner.
Respondent.
Respondents.
To
Take notice that the above petitioner No. . . . . . . . . . of . . . . . . . . on the file of this Court having presented the above petition praying for a
certificate under Article 132(1)/133(1) of the Constitution of India to enable to appeal to the Supreme Court of India from the decree passed in the said
appeal the . . . . . . . . . day of . . . . . . . . . next has been fixed for hearing the said petition and that you are hereby summoned to appear either in
person or by advocate on the said day to show cause why the certificate applied for should not be granted.
(By order of the Court)
Madras . . . . . . . . . . . . . . . . 195 . . . . . .
Sub-Assistance Reg.
App. Side”
(10-10-1958)
ANDHRA PRADESH.—(i) Insert Forms Nos. 12-A, 12-B and 12-C as in Madras.
(ii) (Noti ROC No. 6842/51-BI; 9-8-1957).—After Form No. 12-C insert Form No. 12-D.
“No. 12-D
CERTIFICATE OF LEAVE TO APPEAL TO THE SUPREME COURT, UNDER ORDER XLV, R. 7
In cases where leave is granted under Article 132(1) of the Constitution:
Read petition presented under Order XLV, Rule 3 of the Code of Civil Procedure, praying for the grant of a certificate to enable the petitioner to appeal
to the Supreme Court against for decree/final order of this Court is Suit No. of 20 .
The petition coming on for hearing upon perusing the petition and the grounds of appeal to the Supreme Court and other papers material to the
application and upon hearing the arguments of for the petitioner and of for the respondent (if he appears) this Court doth certify
the decree/final order appealed from involves a substantial question of law as to the interpretation of the Constitution of India.
1.
2.
KERALA.— (9-6-1959).—Same as in Madras.
MADRAS.—(i) For Form No. 12 substitute the following:—
“No. 12
NOTICE TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO THE SUPREME COURT SHOULD NOT BE GRANTED (OR. 45, R. 3)
In the High Court of Judicature at Madras
Petitioner
Respondent
Respondents
To
Take notice that the above petitioner No. of on the file of this Court having presented the above petition praying for a certificate
under Articles 132(1)/133(1) of the Constitution of India to enable to appeal to the Supreme Court of India from the decree passed in the said appeal
the day of next has been fixed for hearing the said petition and that you are hereby summoned to appear either in person or
by advocate on the said day to show cause why the certificate applied for should not be granted.
(By order of the Court)
Madras 20 . Sub-Assistant Regr. App. side.
(ii) After Form No. 12 add the following as Forms Nos. 12-A, 12-B and 12-C:—
“No. 12-A
CERTIFICATE OF LEAVE TO APPEAL TO942[SUPREME COURT] (Or. 45, R. 7)
(In cases where the subject-matter of the appeal is of sufficient value and the findings of the Courts are not concurrent.)
Read petition presented under Order 45, Rule 3 of the Code of Civil Procedure, praying for the grant of a certificate to enable the petitioner to appeal
943
to [the Supreme Court] against the decree/final order of this Court in Suit No. of 20 .
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The petition coming on for hearing upon perusing the petition and the grounds of appeal to 944[the Supreme Court] and the other papers material to
the application and upon hearing the arguments of for the petitioner and of for the respondent (if he appears) this Court doth
certify that the amount/value of the subject-matter of the suit in the Court of first instance is Rs. [20,000]/upwards of Rs. [20,000] and the
945
amount/value of the subject-matter in dispute on appeal to [the Supreme Court] is also of the value of Rs. [20,000]/upwards of Rs. [20,000] or that
the decree/final order appealed from involves directly/indirectly some claim or question to/respecting property of the value of Rs. [20,000]/upwards of
Rs. [20,000] and that the decree/final order appealed from does not affirm the decision of the lower Court.
No. 12-B
CERTIFICATE OF LEAVE TO APPEAL TO946[THE SUPREME COURT] (Or. 45, R. 7)
(In cases where the subject-matter is of sufficient value and the findings of the Court are concurrent.)
Read petition presented under Order 45, Rule 3 of the Code of Civil Procedure, praying for a grant of a certificate to enable the petitioner to appeal to
947
[the Supreme Court] against the decree/final order of this Court in Suit No. of 20 .
The petition coming on for hearing upon perusing the petition and the grounds of appeal to 948[the Supreme Court] and other papers material to the
application and upon hearing the arguments of for the petitioner and of for the respondent (if he appears) this Court doth
certify that the amount/value of the subject-matter of the suit in the Court of first instance is Rs. [20,000]/upwards of Rs. [20,000] and the
949
amount/value of the subject-matter in dispute on appeal to [the Supreme Court] is also of the value of Rs. [20,000]/upwards of Rs. [20,000] or that
the decree/final order appealed against involves directly/indirectly some claim or question to/respecting property of the value of Rs. [20,000]/upwards
of Rs. [20,000] and that the affirming decree/final order appealed from involves the following substantial question(s) of law, viz.:—
(1)
(2)
No. 12-C
950
CERTIFICATE OF LEAVE TO APPEAL TO [THE SUPREME COURT] (Or. 45, R. 7)
(In cases where the subject-matter in dispute is either not of sufficient value or is incapable of money valuation.)
Read petition presented under Order 45, Rule 3 of the Code of Civil Procedure, praying for the grant of a certificate to enable the petitioner to appeal
951
to [the Supreme Court] against decree/final order of this Court in Suit No. of 20 .
952
The petition coming on for hearing upon perusing the petition and the grounds of appeal to [the Supreme Court] and other papers material to the
application and upon hearing the arguments of for the petitioner and of for the respondent [if he appears] this Court doth certify
that the amount/value of the subject-matter of the suit both in the Court of the first instance and in this Court is below Rs. [20,000] in value/incapable
953
of money valuation this Court in the exercise of the discretion vested in it is satisfied that the case is a fit one for appeal to [the Supreme Court] for
the reasons set for the below, viz.:—
(1)
(2)
No. 13
954
NOTICE TO RESPONDENT OF ADMISSION OF APPEAL TO THE [SUPREME COURT] (Or. 45, R. 8)
(Title)
To
Whereas , the in the above case, has furnished the security and made the deposit required by Order XLV, Rule 7, of the
Code of Civil Procedure, 1908:
955
Take notice that the appeal of the said to [the Supreme Court] has been admitted on the day
of 20 .
Given under my hand and the seal of the Court, this day of 20 .
Registrar.
No. 14
NOTICE TO SHOW CAUSE WHY A REVIEW SHOULD NOT BE GRANTED
(Or. 47, R. 4)
(Title)
To
Take notice that has applied to this Court for a review of its decree passed on the day of 20 , in
the above case. The day of 20 , is fixed for you to show cause why the Court should not grant a review of its decree in this case.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
APPENDIX H
MISCELLANEOUS
No. 1
AGREEMENT OF PARTIES AS TO I SSUES TO BE TRIED (Or. 14, R. 6)
(Title)
Whereas we, the parties in the above suit, are agreed as to the question of fact [or of law] to be decided between us and the point at issue between
us is whether a claim founded on a bond, dated the day of 20 and filed as Exhibit in the said suit, is or is
not beyond the statute of limitation (or state the point at issue whatever it may be):
We therefore severally bind ourselves that, upon the finding of the Court in the negative [or affirmative] of such issue, will pay to the
said the sum of Rupees (or such sum as the Court shall hold to be due thereon), and I, the said , will accept the said
sum of Rupees (or such sum as the Court shall hold to be due) in full satisfaction of my claim on the bond aforesaid [or that upon such
finding I, the said , will do or abstain from doing, etc. etc.]
Plaintiff;
Defendant.
Witnesses:—
1.
2.
Dated the day of 20 .
No. 2
NOTICE OF APPLICATION FOR THE TRANSFER OF A SUIT TO ANOTHER COURT FOR TRIAL
(Section 24)
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In the Court of the District Judge of No. of 20 .
To
Whereas an application, dated the day of 20 , has been made to this Court by the in Suit
No. of 20 , now pending in the Court of the at , in which is plaintiff
and is defendant, for the transfer of the suit for trial to the Court of the at :—
You are hereby informed that the day of 20 has been fixed for the hearing of the application, when you will be heard if you
desire to offer any objection to it.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
956
[No. 2-A
LIST OF WITNESSES PROPOSED TO BE CALLED BY PLAINTIFF/DEFENDANT
(Or. XVI, R. 1)
Name of the party which proposes to call the witness Name and address of the witness Remarks]
No. 3
NOTICE OF PAYMENT INTO COURT (Or. 24, R. 2)
(Title)
Take notice that the defendant has paid into Court Rs. and says that sum is sufficient to satisfy the plaintiff's claim in full.
X.Y., Pleader for the defendant.
To Z., Pleader for the plaintiff.
No. 4
NOTICE TO SHOW CAUSE (GENERAL FORM)
(Title)
To
Whereas the above-named has made application to this Court that ;
You are hereby warned to appear in this Court in person or by a pleader duly instructed on the day of 20 ,
at o'clock in the forenoon, to show cause against the application, failing wherein, the said application will be heard and determined ex parte.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
ALLAHABAD.—(Noti. No. 1953/35-(a) : 22-5-1915).—Below the heading, for “(Title)” substitute the following:—
“In the Court of at district.
Civil Suit No. of 20 .
Miscellaneous No. of 20 .
resident of
Versus
resident of”,
and for the full stop occurring after “ex parte” substitute a comma, and after that insert “and it will be presumed that you consent to be appointed
guardian for the suit.”
No. 5
LIST OF DOCUMENTS PRODUCED BY PlaintiffDefendent
(Or. 13, R. 1)
(Title)
No. Description of document Date, if any, which the document Signature of party or pleader
bears
1 2 3 4
High Court Amendment
ALLAHABAD.—Substitute the following for Form No. 5:
“[No. 5
LIST OF DOCUMENTS PRODUCED BY PlaintiffDefendent
(Or. XIII, R. 1)
In the Court of at District.
Suit No. of 20 .
Plaintiff.
Versus
Defendant;
List of documents produced with the plaint (or at first hearing) or on behalf of plaintiff (or defendant).
This list was filed by this day of 20 .
1 2 3 4
Serial No. Description and date, if any, What become of that document Remarks
of the document
If brought on the record If rejected, date of return If it remains on the record
the exhibit mark put on to party and signature of after decision of the case
the document party or pleader to whom and is enclosed in an
the document was envelope, under Rule 24,
returned Chap. III, the date of
enclosure in the envelope
Signature of party or pleader producing the list.”
No. 6
NOTICE TO PARTIES OF THE DAY FIXED FOR EXAMINATION OF A WITNESS ABOUT TO LEAVE THE JURISDICTION (Or. 18, R. 16)
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(Title)
To
Plaintiff (or defendant).
Whereas in the above suit application has been made to the Court by that the examination of , a witness required by the
said , in the said suit may be taken immediately; and it has been shown to the Court's satisfaction that the said witness is about to leave the
Court's jurisdiction (or any other good and sufficient cause to be stated):
Take notice that the examination of the said witness will be taken by the Court on the day of 20 .
Dated the day of 20 .
Judge.
No. 7
COMMISSION TO EXAMINE ABSENT WITNESS (Or. 26, Rr. 4, 18)
(Title)
To
Whereas the evidence of is required by the in the above suit; and whereas ; you are requested to take the
evidence on interrogatories [or viva voce] of such witness , and you are hereby appointed Commissioner for that purpose. The evidence will be
taken in the presence of the parties or their agents if in attendance, who will be at liberty to question the witness on the points specified, and you are
further requested to make return of such evidence as soon as it may be taken.
Process to compel the attendance of the witness will be issued by any Court having jurisdiction on your application.
A sum of Rs. , being your fee in the above, is herewith forwarded.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendments
ORISSA.—Same as in Patna.
PATNA.—Below the Form insert the following Note:—
“Note.—The Commissioner has power under Chapter X of the Indian Evidence Act to control the examination of witnesses.”
No. 8
LETTER OF REQUEST (Or. 29, R. 5)
(Title)
(Heading:—To the President and Judges of, etc., etc., or as the case may be.)
Whereas a suit is now, pending in the in which A.B. is plaintiff and C.D. is defendant; And in the said suit the plaintiff claims
(Abstract of claim)
And whereas it has been represented to the said Court that it is necessary for the purposes of justice and for the due determination of the matters in
dispute between the parties, that the following persons should be examined as witnesses upon oath touching such matters, that is to say:
E.F., of
G.H, of and
I. J., of
And it appearing that such witnesses are resident within the jurisdiction of your honourable Court;
Now I , as the of the said Court, have the honour to request, and do hereby request, that for the reasons aforesaid and for the
assistance of the said Court, you, as the President and Judges of the said , or some one or more of you, will be pleased to summon the said
witness (and such other witnesses as the agents of the said plaintiff and defendant shall humbly request you in writing so to summon) to attend at such
time and place as you shall appoint before some one or more of you or such other person as according to the procedure of your Court is competent to
take the examination of witnesses, and that you will cause such witnesses to be examined upon the interrogatories which accompany this letter of
request (or viva voce) touching the said matters in question in the presence of the agents of the plaintiff and defendant, or such of them as shall, on
due notice given, attend such examination.
And I further have the honour to request that you will be pleased to cause the answers of the said witnesses to be reduced into writing, and all
books, letters, papers and documents produced upon such examination to be duly marked for identification, and that you will be further pleased to
authenticate such examination by the seal of your tribunal, or in such other way as is in accordance with your procedure, and to return the same,
together with such request in writing, if any, for the examination of other witnesses to the said Court.
(Note.—If the request is directed to a Foreign Court, the words “through 957[the Ministry of External Affairs of the Government of India] for
transmission” should be inserted after the words “other witnesses” in the last line of this form.)
No. 9
COMMISSION FOR A LOCAL I NVESTIGATION, OR TO EXAMINE ACCOUNTS
(Or. 26, Rr. 9, 11)
(Title)
To
Whereas it is deemed requisite, for the purposes of this suit, that a commission for should be issued; You are hereby appointed
Commissioner for the purpose of
Process to compel the attendance before you of any witnesses, or for the production of any documents whom or which you may desire to examine or
inspect, will be issued by any Court having jurisdiction on your application.
A sum of Rs. , being your fee in the above, is herewith forwarded.
Given under my hand and the seal of the Court, this day of 20 .
Judge
No. 10
COMMISSION TO MAKE A PARTITION
(Or. 26, R. 13)
(Title)
To
Whereas it is deemed requisite for the purposes of this suit that a commission should be issued to make the partition or separation of the property
specified in, and according to the rights as declared in, the decree of this Court, dated the day of 20; You are hereby appointed
Commissioner for the said purpose and are directed to make such inquiry as may be necessary, to divide the said property according to the best of your
skill and judgment in the shares set out in the said decree, and to allot such shares to the several parties. You are hereby authorized to award sums to
be paid to any party by any other party for the purpose of equalizing the value of the shares.
Process to compel attendance before you of any witness or for the production of any documents, whom or which you may desire to examine or
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inspect, will be issued by any Court having jurisdiction on your application.
A sum of Rs. , being your fee in the above, is herewith forwarded.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
958
[No. 11
NOTICE TO CERTIFICATED, NATURAL, OR DE FACTO GUARDIAN
(Or. XXXII, R. 3)
(Title)
To
(Certificated/Natural/de facto Guardian)
959 960
Whereas an application has been presented on the part of the plaintiff /on behalf of the minor defendant in the above suit for the appointment of
a guardian for the suit for the minor defendant you (insert the name of the guardian appointed or declared by Court, or natural
guardian, or the person in whose care the minor is) are hereby required to take notice that unless you appear before this Court on or before the day
appointed for the hearing of the case and stated in the appended summons, and express your consent to act as guardian for the suit for the minor, the
Court will proceed to appoint some other person to act as a guardian for the minor, for the purposes of the said suit.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendments
ALLAHABAD.—(Noti. No. 1543-20-1(2); 27-3-1926).—For Form No. 11 substitute the following:—
“No. 11
NOTICE TO MINOR DEFENDANT AND GUARDIAN
(New Form)
In the Court of at District Suit No. of 20 .
Plaintiff.
resident of
versus
resident of
Defendant.
To
(1)
(2)
minor defendant;
and
961
natural/certificated guardian
Or
the person in whose care the minor is alleged to be.
Whereas an application has been presented on the part of the plaintiff in the above suit for the appointment of a guardian for the suit to the minor
defendant, you said minor, and you (2) the 962natural/certificated guardian or the person in whose care the minor is alleged to be, are hereby
required to take notice that unless within days from the service upon you of this notice, an application is made to this Court to show cause why
the person named below should not be appointed or for the appointment of any other person willing to act as guardian for the suit, the Court will
proceed to appoint the person named below or some other person to act as the guardian of the minor for the purposes of the said suit. Proposed
guardian son of resident of .
Given under my hand and the seal of the Court, this day of 20 .
Judge.
ANDHRA PRADESH.—Same as in Madras.
BOMBAY.—In Appendix H, for the existing Form No. 11, substitute the following as Form No. 11:—
“No. 11
NOTICE TO MINOR DEFENDANT AND GUARDIAN
(Or. 32, R. 3)
(Title)
To
(1) (Natural Guardian/Legally appointed Guardian/Person taking care of the minor).
Whereas an application (as per the annexed copy) has been presented on behalf of the plaintiff in the above suit for the appointment of a guardian
for the suit to the minor defendant (here enter the name of the minor defendant) and whereas the plaintiff has proposed in his application
that you (here enter the name of the proposed guardian) should be appointed as such guardian you the said proposed guardian are hereby
required to take notice that, unless, you appear before this Court within days from the service of this notice upon you and express your consent
to such appointment or an application is made to this Court to appoint some other person as guardian of the minor for the suit, the Court will proceed to
appoint such person as it deems proper as the guardian of the minor for the purposes of the said suit.
Given under my hand and the seal of this Court, this day of 20 .
Judge.”
(1-10-1983)
KARNATAKA.—Same as in Madras. (dt. 30-3-1967).
KERALA.—(9-6-1959).—Insert Form No. 11-A as in Madras with the substitution of (YZ) by “Name, description and place of residence of minor
defendant/respondent).”
MADHYA PRADESH.—For Form No. 11 substitute the following:—
“No. 11
NOTICE TO MINOR DEFENDANT AND GUARDIAN
(Or. 32, R. 4-A)
(Title)
To
Minor defendant,
Legally appointed/Actual Guardian
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Proposed Guardian.
Whereas an application has been presented on the part of the plaintiff/on behalf of the minor defendant for the appointment of
you as the guardian for the suit of the minor defendant (you the said minor) you his legally appointed/actual
guardian and you the proposed guardian for the suit are hereby required to take notice that unless you, the proposed guardian, appear before
this Court on or before the day appointed for the hearing of the case and stated in the appended summons, and express your consent to your
appointment, or unless an application is made to this Court for the appointment of some other person to act as guardian of the minor for the suit, the
Court will proceed to appoint an officer of the Court or a pleader or some other person to act as a guardian to the minor for the purposes of the said suit
of which summons in the ordinary form is herewith appended.
Given under my hand and the seal of this Court, this day of 20 .
Judge.”
MADRAS.—(i) For Form No. 11 substitute the following:—
“No. 11
NOTICE TO GUARDIAN APPOINTED OR DECLARED, OR TO FATHER OR OTHER NATURAL GUARDIAN, OR TO THE PERSON IN CHARGE OF THE MINOR
[Or. 32, R. 3(5)]
(Title)
To
Guardian appointed or declared, or father or other natural guardian, or person in charge of the minor.
Whereas an application has been presented on the part of the in the above suit for the appointment of a guardian for the suit of the said
minor, you are hereby required to take notice that, unless within days from the service upon you of this notice an application is made to
this Court for the appointment of you or of some friend of the said minor to act as his/her guardian for the purposes of the said suit, the Court will
proceed to appoint some other person to act as guardian of the said minor for the purposes of the said.
Given under my hand and the seal of the Court, this day of 20 .
Judge.”
(ii) Insert the following as Form No. 11-A:—
“No. 11-A
NOTICE TO PROPOSED GUARDIAN OF A MINOR DEPENDANT/RESPONDENT
[Or. 32, R. 3]
To
(Y Z)
(Name, description and place of residence of proposed guardian).
Take notice that X plaintiff/appellant in has presented a petition to the Court praying that you be appointed guardian ad litem to the
minor defendant(s)/respondent(s) and that the same will be heard on the day of 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 defendant(s)/respondent(s) you are requested 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 the manner indicated above, take further notice that the Court may proceed under
Order 32, Rule 3, Code of Civil Procedure, to appoint some other suitable person or one of its officers as guardian ad litem of the minor defendant
(s)/respondent(s) aforesaid.
Dated this day of 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 defendant(s)/respondent(s) therein mentioned.
Signature
YZ
Witnesses
1.
2.
MYSORE.—Substitute Form No. 11 and insert Form No. 11-A as in Madras.
ORISSA.—Same as in Patna.
PATNA.—For Form No. 11 substitute the following Forms Nos. 11, 11-A and 11-B:—
“No. 11
NOTICE TO MINOR DEFENDANT AND GUARDIAN OF APPLICATION FOR APPOINTMENT OF THE GUARDIAN TO BE GUARDIAN FOR THE SUIT
(Or. 32, R. 3)
(Title)
To
Minor defendant Guardian
(appointed by authority,
or natural, or the person in whose
care the minor is, as the case may be).
963
Whereas an application has been presented on the part of plaintiff in the above suit for the appointment of you as guardian for the
suit to the minor defendant, you the said minor and you964 are hereby required to take notice that unless within 21 days from the service upon
965
you of this notice you give your consent to be appointed to act as guardian the Court will proceed, subject to the decision of any
objection that may be raised, to appoint an officer of the Court to act as guardian to you the minor for the said suit.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
“No. 11-A
NOTICE TO MINOR DEFENDANT AND GUARDIAN OF APPLICATION FOR APPOINTMENT OF ANOTHER PERSON TO BE GUARDIAN FOR THE SUIT (Or. 32, R.
3)
(Title)
To
Minor defendant Guardian
(appointed by authority,
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or natural, or the person in whose
care the minor is) .
Whereas an application has been presented on the part of the plaintiff in the above suit for the appointment of (1) as guardian for the
suit to the minor defendant, you the said minor and you (2) are hereby required to take notice that unless within 21 days from the service
upon you of this notice, you (2) make an application for the appointment of yourself or of some friend of you the minor to act as guardian, the
Court will proceed, subject to the decision of any objection that may be raised to appoint (1) or an officer of the Court to act as guardian
to you the minor for the said suit.
Given under my hand and the seal of this Court, this day of 20 .
Judge.”
(1) Here insert name of guardian upon whom the notice is to be served.
(2) Here insert the name and description of proposed guardian.
“No. 11-B
NOTICE TO THE PROPOSED GUARDIAN FOR THE MINOR DEFENDANT, WHEN THE PERSON PROPOSED IS NOT THE GUARDIAN APPOINTED BY
AUTHORITY OR THE NATURAL GUARDIAN OR THE PERSON IN WHOSE CARE THE MINOR IS (Or. 32, R. 4)
(Title)
District
In the Court of at Suit No. of 20 .
Plaintiff
versus
Defendant
To
, Proposed Guardian
Whereas an application has been presented by the plaintiff in the above case for the appointment of you as guardian for the suit to
the minor defendant, you are hereby required to take notice that unless within days from the service upon you of this notice you make an
application to the Court intimating your consent to act as guardian for the suit, the Court will proceed to appoint some other person to act as a guardian
to the minor for the purposes of the said suit.
Given under my hand and the seal of this Court, this day of 20 .
Judge.”
No. 11-A
NOTICE TO MINOR DEFENDANT
(Order XXXII, Rule 3)
(Title)
To
Minor Defendant
Whereas an application has been presented on the part of the plaintiff in the above suit for the appointment of *as guardian for the suit
for you, the minor defendant, you are hereby required to take notice to appear in this Court in person on the day of 20 ,
at o'clock in the forenoon to show cause against the application, failing which the said application will be heard and determined ex parte.
Given under my hand and the seal of the Court, this day of 20 .
Judge
No. 12
NOTICE TO OPPOSITE PARTY OF DAY FIXED FOR HEARING EVIDENCE OF PAUPERISM (Or. 33, R. 6)
(Title)
To
Whereas has applied to this Court for permission to institute a suit against in forma pauperis under Order XXXIII
of the Code of Civil Procedure, 1908; and whereas the Court sees no reason to reject the application; and whereas the day
of 20 , has been fixed for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence
which may be adduced in disproof thereof:
Notice is hereby given to you under Rule 6 of Order XXXIII that in case you may wish to offer any evidence to disprove the pauperism of the
applicant, you may do so on appearing in this Court on the said day of 20 .
Given under my hand and the seal of the Court, this day of 20 .
Judge.
High Court Amendment
MYSORE.—Insert the following Form No. 12-A:—
“No. 12-A
COMMON FORM OF NOTICE IN I NTERLOCUTORY APPLICATIONS UNDER ORDER XXXVII-A OF THE CODE OF CIVIL PROCEDURE, 1908
(Title)
Take notice that the plaintiff/appellant/defendant/respondent abovenamed has made an application to the Court under (Provision of
law) praying that (set out the prayer in full) and that the pleader on behalf of the applicant will move the Court for an urgent/interim
order on (date) at (time) or that the Court on being moved for an interim order has
on (date) made such order directing (here enter the exact terms of the interim order) and has further directed that
the application be posted for further orders on (date) after notice to you.
You are required to appear either in person or through pleader on the said date to show cause against the application being granted as prayed for.
Please note that in default of your appearing and showing cause as aforesaid the application will be proceeded with in your absence.
The affidavit/memorandum of facts by has been filed in support of the application, and a true copy thereof together with a true copy of the
application is annexed hereto.
Dated this day of 20 .
(Officer of Court)
Pleader for applicant.
No. 13
NOTICE TO SURETY OF HIS LIABILITY UNDER A DECREE (SECTION 145)
(Title)
To
Whereas you did on become liable as surety for the performance of any decree which might be passed against the
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said defendant in the above suit; and whereas a decree was passed on the day of 20 , against the said defendant for the
payment of , and whereas application has been made for execution of the said decree against you:
Take notice that you are hereby required on or before the day of 20 , to show cause why the said decree should not be
executed against you, and if no sufficient cause shall be, within the time specified, shown to the satisfaction of the Court, an order for its execution will
be forthwith issued in the terms of the said application.
Given under my hand and the seal of the Court, this day of 20 .
Judge.
No. 14
REGISTER OF CIVIL SUITS (Or. 4, R. 2)
COURT OF THE OF AT
REGISTER OF CIVIL SUITS IN THE YEAR 20 .
Plaintiff Defendant
Date of presentation Number of Name Description Place of Name Description Place of
of plaint suit residence residence
Claim Appearance
Particulars Amount or value When the cause of Day for parties to appear Plaintiff Defendant
action accrued
Judgment Appeal
Date For whom For what, or amount Date of decision of appeal Judgment in appeal
Execution Return of Execution
Date of application Date of Against whom For what and Amount of costs Amount paid into Arrested Minute of other
order amount, if Court Return than
money Payment or
Arrest, and date
of every Return
NOTE.—Where there are numerous plaintiffs or numerous defendants, the name of the first plaintiff only, or the first defendant only, as the case may
be, need be entered in the register.
High Court Amendments
ALLAHABAD.—In Appendix H, in Form No. 14, at the end, for the Note, substitute the following Note, namely:—
“Note.—Where there are numerous plaintiffs of numerous dependants, the names of all the plaintiffs of all the defendants as the case may be, should
be entered in the register.”
ANDHRA PRADESH.—Same as in Madras
BOMBAY.—(i) In Appendix H, in Form No. 14,—
(a) Each of the columns of Register of Civil Suits shall be numbered as columns (1) to (10);
(b) In column 5 as so renumbered, under the heading “Claim” in the sub-column for the word “Particulars” the words “Nature of suit and particulars
of relief” shall be substituted;
(c) In column 6 as so renumbered, under the heading “Appearance” for sub-columns “Day for parties to appear”, “Plaintiff” and “Defendant” the
following shall be substituted, namely:—
“The first returnable date when the defendant is called upon to appear.” (31.12.1987)
(ii) For the existing Note substitute the following:—
“Note.—Where there are numerous plaintiffs or numerous defendants, the names of all the plaintiffs or all the defendants, as the case may be,
should be entered in the register.” (1-10-1983)
CALCUTTA.—In Appendix H, in Form No. 14—
(i) for Column Nos. 20 to 27, substitute the following columns, namely:—
Order Whether
No. of
and judgment-
execution Minute
date debtor Amount Appeal, if
application Relief of other
thereof, For Adjustment committed of relief any,
as per sought, Against Amount return, If petition
if what, and to jail, if still due against
execution if whom Amount paid Person other infructuous,
portion amount satisfaction not, why and why order in
application money, order of costs into arrested than why and to
of relief to be reported, if not, if execution execution
register amount made court arrest what extent
not stated any committed petition and if so
and the claimed and
granted, to jail, the is closed the result
date of payment
what period of
application
portion stay in it
20 21 22 23 24 25 26 27 28 29 30 31 32 33
(ii) For the existing note, substitute the following notes, namely:—
“Note 1.—When there are numerous plaintiffs or numerous defendants, the name of the first plaintiff only, on the first defendant only, as the case
may be, need be entered in Register with a note of the total number of parties impleaded, e.g., A.B. and seven others.
Note 2.—In column 9 enter facts constituting the cause of action and particulars required by Order 7 Rule 1, clauses (g) and (h) and also the value
of the suit for the purpose of jurisdiction as required by clause (i) of that rule.
Note 3.—In column 12 shall be entered the first date of hearing of the suit and in columns 13 and 14 the names of the pleaders or vakils or
advocates of the parties.
Note 4.—In column 16 should be indicated whether the decision was ex parte, on compromise or on contest against all or any of the defendants.
Note 5.—In column 18 and 19 should also be the number and year of the appeal, the name of the Appellate Court and not only the particulars of the
order on first appeal but the particulars of the order on second appeal or revision, if any.
Note 6.—Cases remanded under Order 41 Rule 23 or restored to file under Order 9 Rule 4 or Rule 13 will be re-admitted and entered in the Register
in their Original Numbers. In each case the letter ‘R’ will be affixed to the number to be entered in column 2 and the date of restoration to file will be
noted in column 1.
Note 7.—Cases under the Religious Endowments Act, 1863, under Sections 88 and 92, Order 21 Rule 99, Order 36 Rule 3 and Schedule II,
Paragraphs 17 and 20, Civil Procedure (now the reference to Schedule II will be constructed as references to the appropriate provisions of the Indian
Arbitration Act (X of 1940) which has repealed Schedule II) and references made under Section 5 of the Bengal Alluvial Lands Act, 1920, must be
registered as suits.
Note 8.—A note should be made of all parties brought on or struck off the record under Order 1, or Order 22, Civil Procedure Code, or of any
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alteration in the appointment of guardian ad litem and also of any withdrawal of the claim or a portion of the claim against any of the defendants.
Note 9.—Any amendment or alteration made during the progress of the suit in the value or particulars of the claim or as to the date or place or
clause of action should appear in column 9.
Note 10.—Courts to which suits are transferred should not be old members and the dates of institution in the suit registered within brackets.
Note 11.—When the Court of execution is other than the Court which passed the decree, the name of the executing court should be entered in
column 20.
Note 12.—In column 22 the date of the final order is to be entered.
Note 13.—In column 26 the particulars and the date of adjustment, or satisfaction otherwise than by execution should be entered.
Note 14.—In column 33 should be entered the order in appeals, revisions or under Section 144, Civil Procedure Code, with date and name of Court.
Note 15.—The entries in this register shall be made contemporaneously with the passing the orders during the progress of the suits or subsequent
proceeding, if any, and not after their final disposal.
Separate Registers in this form have been prescribed for Title Suits and Money and Moveable Suits “[(R) 1(i) and ® 1(ii)”.
Note.—Where there are numerous plaintiffs or numerous defendants the first plaintiff only or the first defendant only, as the case may be,
GAUHATI.—Same as in Calcutta.
MADRAS.—Form 14 omitted.
ORISSA.—Same as in Patna.
PATNA.—Substitute for Form No. 14.
“No. 14
REGISTER OF CIVIL SUITS (Or. 4, R. 2)
COURT OF THE OF AT
REGISTER OF CIVIL SUITS IN THE YEAR 20
Number of suit Plaintiff
Date of presentation of Serial number of Serial number of Name Description Place of residence
plaint suit suit dealt with
under the SCC
powers
1 2 3 4 5 6
Defendant Claim
Name Description Place of residence Particulars Amount or value When the cause of
action accrued
7 8 9 10 11 12
Judgment Appeal
Date For whom For what, or amount Number and year of Order on appeal with Particulars
appeal date and name of
Appellate Court
13 14 15 16 17 18
Adjustment or satisfaction of decree otherwise than by execution
Date Number and date of Date of final order Against whom For what, and amount, Amount of costs
application if money
19 20 21 22 23 24
Execution Result of Execution
Amount paid into Court Name of person, if Minute of other result Orders in appeals, Relief or amount still Remarks
any, detained in Civil with date revisions or under S. due
prison 144 CP Code, with
date ad name of Court
25 26 27 28 29 30
Note 1.—When there are numerous plaintiffs or numerous defendants, the name of the first plaintiff only, or the first defendant only, as the case
may be, need be entered in the register.
Note 2.—Cases remanded by Appellate Courts to Lower Courts under Order 41, Rule 23, Civil Procedure Code, will be re-admitted and entered in the
general register of suits under their original numbers. In each case the letter R will be affixed to the number to be entered in column 2.
Note 3.—In column 14 should be indicated whether the decision was ex-parte, on compromise or on contest against all or any of the defendants.
Note 4.—When the Court of execution is other than the Court which passed the decree, the name of the executing Court should be given in column
20.”
No. 15
REGISTER OF APPEALS (Or. 41, R. 9)
COURT (Or HIGH COURT) AT
REGISTER OF APPEALS FROM DECREES IN THE YEAR 20
Appellant
Date of memorandum Number of appeal Name Description Place of residence
Respondent Decree appealed from
Name Description Place of residence Of what Court Number of Particulars Amount of value
Original suit
Appearance Judgment
Day for parties to appear Appellant Respondent Date Confirmed, reversed of For what or amount
varied
High Court Amendments
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BOMBAY.—In Schedule H in Form No. 15, in the Registry of Appeals,—
(i) each of the columns shall be numbered as (1) to (7).
(ii) In column 3 so renumbered, under the heading “Decree appealed from ” for sub-column “Particulars” the words “Nature of the original suit and
particulars of relief therein”, shall be substituted.
(iii) In column 4 so renumbered, under the heading “Appearance” for all the sub-columns, the sub-column “The first returnable date when the
respondent is called upon to appear”, shall be substituted.
High Court Amendment
Forms Nos. 16 to 19
ALLAHABAD.—Add the following as Forms Nos. 16 to 19:—
“Form No. 16
The security to be furnished under O. XXV, R. 1, shall be as nearly as may be, by bond in the following form:—
In the Court of at Suit No. of 20 .
Plaintiff;
Versus
Defendant.
Whereas a suit has been instituted in the said Court by the said plaintiff to recover from the said defendant the sum of
rupees and the said plaintiff is residing out of British India or is a woman and does not possess any sufficient immovable property within
British India independent of the property in the suit:
Therefore, I, inhabitant of , have voluntarily become security, and do hereby bind myself, my heirs and executors, to , as Judge of the
said Court and to his successors in office, that the said plaintiff his heirs and executors, shall, whenever called on by the said Court, pay all costs
that may have been or may be incurred by the said defendant, , in the said suit, and in default of such payment I bind myself, my heirs and
executors, to pay all such costs to the said Court on its order.
Witness my hand at this day of 20 .
(Signed)
Witnesses:
Surety.
Form No. 17
Address for service
Under O. VII, Rr. 19-26; O. VIII, Rr. 11 and 12; O. XLI, R. 38; O. XLVI, R. 8; O. XLVII, R. 10; O. LII, R. 1.
In the Court of of Original suitor case No. of 20 .
Plaintiff;
Versus
Defendant.
This address shall be within the local limits of the District Court within which the suit is filed, or of the District Court within which the party ordinarily
resides, if within the limits of the United Provinces of Agra and Oudh, but not within the limits of any other Province:
Name, parentage and caste Residence Pargana or Tahsil Post Office District
Dated
Any summons, notice or process in the case may, henceforward be issued to me at the above address until I file notice of change. If this address is
changed I shall forthwith file a notice of change containing all the new particulars.
Plaintiff.
Defendant.
Appellant.
Signature of party
Respondent.
Or
I file the above address according to the instructions given by my client (name)
(and capacity)
Signature of pleader.
N.B.—This form when received by the Court must be stamped with the date of its receipt and filed with the record of the pending suit or matter.
Form No. 18
Notice of change of address for service
Under O. VII, Rr. 19-26; O. VIII, Rr. 11 and 12; O. XLI, R. 38; O. XLVI, R. 8; O. XLVII, R. 10; O. LII, R. 1
In the Court of of Original suitor case No. of 20 .
Plaintiff;
Versus
Defendant.
This address shall be within the local limits of the District Court within which the suit is filed, or of the District Court within which the party ordinarily
resides, if within the limits of the United Provinces of Agra and Oudh, but not within the limits of any other Province:
Name, parentage and caste Residence Pargana or Tahsil Post Office District
Dated
Any summons, notice or process in the case may, henceforward be issued to me at the above address until I file notice of change. If this address is
again changed I shall forthwith file a notice of change containing all the new particulars.
Plaintiff.
Defendant.
Appellant.
Signature of party
Respondent.
Or
I file the above address according to the instructions given by my client (name)
(and capacity)
Signature of pleader
N.B.—This form when received by the Court must be stamped with the date of its receipt and filed with the record of the pending suit or matter.”
*Strike off the words which are not applicable.
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Form No. 19966
Vakalatnama
“In the Court of . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suit/Miscellaneous Case/Civil Appeal/Execution Case No. . . . . . . . . . . . . . . . . . . . . . . . . . . .
of 20—-fixed for . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiff/Appellant/Applicant/DH.
Versus
. . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant/Respondent/Opposite Party/JD Vakalatnama of
Plaintiff/Appellant/Applicant/DH/Defendant/Respondent/Opposite-Party/JD.
In the case noted above Sri . . . . . . . . . . . . . . . . . . . . . . . . . . . . each of Sarvsri . . . . . . . . . . . . . . . . . . . Advocate is hereby appointed as
Counsel, to appear, plead and act on behalf of the undersigned, in any manner, he thinks it proper, either himself or through any other Advocate, and in
particular to do the following, namely,—to receive any process of Court (including any notice from any appellate or revisional Court), to file any
applications, petitions or pleadings, to file, produce or receive back any documents, to withdraw or compromise the proceedings, to refer any matter to
arbitration, to deposit or withdraw any moneys, to execute any decree or order, to certify payment, and receive any moneys due under such decree or
order.
The undersigned shall be bound by all whatsoever may be done in the aforesaid case (including any appeal or revision therefrom) for and on behalf of
the undersigned by any of the said counsel.
Signature . . . . . . . . . . . . . . . . . . . . . . . . . .
Name in full . . . . . . . . . . . . . . . . . . . . . . . .
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attesting witness . . . . . . . . . . . . . . . . . . . .
Name in full . . . . . . . . . . . . . . . . . . . . . . . .
Address . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Accepted/Accepted on the strength of the signatures of the attesting witness”.
For Section 1 to 78 click here
For Section 79 to 95 click here
For Section 96 to 131 click here
For Section 132 to 158 click here
For Schedule 1 (Order 1 to 10) click here
For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 2 to 5 click here
———
764.
Subs. by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002).
765.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
766.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
767.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
768.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
769.
Subs. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
770.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
771.
See Order XXVII, R. 8-A, supra.
772.
Omitted by the A.O. 1937. Prior to omission it read as:
“7. No security to be required from the Government or a public officer in certain cases.—No such security as is mentioned in Rules 5 and 6 shall be required from the Secretary of State for
India in Council 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.”
773.
Subs. by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002).
774.
Subs. for “the State” by Act 2 of 1951, S. 3.
775.
Subs. for “the State” by Act 2 of 1951, S. 3.
776.
Subs. by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002).
777.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
778.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
779.
Subs. by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002).
780.
Omitted by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002). Prior to omission it read as:
“13. Appellate Court to give notice to Court whose decree appealed from.—(1) Where the appeal is not dismissed under Rule 11, the Appellate Court shall send notice of the appeal to the Court
from whose decree the appeal is preferred.
(2) Transmission of papers to Appellate Court.—Where the appeal is from the decree of a Court, the records of which are not deposited in the Appellate Court, the Court receiving such notice
shall send with all practicable despatch all material papers in the suit, or such papers as may be specially called for by the Appellate Court.
(3) Copies of exhibits in Court whose decree appealed from.—Either party may apply in writing to the Court from Whose decree the appeal is preferred, specifying any of the papers in such
Court of which he requires copies to be made; and copies of such papers shall be made at the expense of, and given to, the applicant.”
781.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
782.
Omitted by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002). Prior to omission it read as:
“15. Contents of notice.—The notice to the respondent shall declare that, if he does not appear in the Appellate Court on the day so fixed, the appeal will be heard ex parte.”
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783.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
784.
Omitted by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002). Prior to omission it read as:
“18. Dismissal of appeal where notice not served in consequence of appellant's failure to deposit costs.—Where on the day fixed, or on any other day to which the hearing may be adjourned, it
is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving
the notice or, if the notice is returned unserved, and it is found that the notice to the respondent has not been issued in consequence of the failure of the appellant to deposit, within any
subsequent period fixed, the sum required to defray the cost of any further attempt to serve the notice, the Court may make an order that the appeal be dismissed:
Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing.”
785.
The words “or Rule 18” omitted by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002).
786.
Renumbered by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
787.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
788.
Subs. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
789.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
790.
Omitted by Act 46 of 1999, S. 31 (w.e.f. 1-7-2002). Prior to omission it read as:
“(3) Unless the respondent files with the objection a written acknowledgment from the party who maybe affected by such objection or his pleader of having received a copy thereof, the
Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.”
791.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
792.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
793.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
794.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
795.
Renumbered by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
796.
Ins. by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).
797.
Ins. by Act 9 of 1922, S. 4, which under S. 1(2) thereof, may be brought into force in any State by the State Government on any specified date. The Act has been brought into force in Bombay,
Bengal, U.P., Punjab, Bihar, C.P., Assam, Orissa and Tamil Nadu.
798.
Ins. by Act 9 of 1922, S. 4, which under S. 1(2) thereof, may be brought into force in any State by the State Government on any specified date. The Act has been brought into force in Bombay,
Bengal, U.P., Punjab, Bihar, C.P., Assam, Orissa and Tamil Nadu.
799.
Ins. by Act 104 of 1976, S. 88 (w.e.f. 1-2-1977).
800.
Ins. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
801.
Omitted by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977). Prior to omission it read as:
“(b) an Order under Rule 10 of Order VIII pronouncing judgment against a party;”
802.
Omitted by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977). Prior to omission it read as:
“(e) an Order under Rule 4 of Order X pronouncing judgment against a party;”
803.
Omitted by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977). Prior to omission it read as:
“(g) an Order under Rule 10 of Order XVI for the attachment of property;”
804.
Omitted by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977). Prior to omission it read as:
“(h) an Order under Rule 20 of Order XVI pronouncing judgment against a party;”
805.
Ins. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
806.
Omitted by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977). Prior to omission it read as:
“(m) an Order under Rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction;”
807.
Ins. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
808.
Omitted by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977). Prior to omission it read as:
“(o) an Order under Rule 2, Rule 4 or Rule 7 of Order XXXIV refusing to extend the time for the payment of mortgage-money;”
809.
Ins. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
810.
Ins. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
811.
Omitted by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977). Prior to omission it read as:
“(v) an order made by any Court other than a High Court refusing the grant of a certificate under Rule 6 of Order XLV;”
812.
Ins. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
813.
Subs. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
814.
Subs. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
815.
Rule 3 renumbered as sub-rule (1) of that Rule by Act 66 of 1956, S. 14.
816.
Subs. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
817.
Subs. by Act 104 of 1976, S. 89 (w.e.f. 1-2-1977).
818.
Proviso omitted by Act 66 of 1956, S. 14. Prior to omission it read as:
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“Provided that the Court shall reject the application unless, upon a persual thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or
to some usage having the force of law, or is otherwise erroneous or unjust.”
819.
Ins. by Act 66 of 1956, S. 14 and omitted by Act 104 of 1976, S. 90 (w.e.f. 1-2-1977). Prior to omission it read as:
“(2) Procedure on application or admission of appeal.—The Appellate Court, after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, and
upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage
having the force of law, or is otherwise erroneous or unjust.”
820.
Rules 2 and 3 subs. by Act 104 of 1976, S. 90 (w.e.f. 1-2-1977).
821.
Subs. for “King-in-Council” by the A.O. 1950 (w.e.f. 26-1-1950).
822.
Renumbered by Act 104 of 1976, S. 91 (w.e.f. 1-2-1977).
823.
Subs. for “His Majesty in Council” by the A.O. 1950 (w.e.f. 26-1-1950).
824.
Ins. by Act 104 of 1976, S. 91 (w.e.f. 1-2-1977).
825.
Subs. by Act 49 of 1973, S. 4(1)(a).
826.
Omitted by Act 49 of 1973, S. 4(1)(b). Prior to omission it read as:
“4. Consolidation of suits.—For the purposes 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.”
827.
Omitted by Act 49 of 1973, S. 4(1)(b). Prior to omission it read as:
“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 of 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.”
828.
Subs. for “six months” by Act 26 of 1920, S. 3.
829.
Ins. by Act 26 of 1920, S. 3.
830.
Ins. by the A.O. 1950 (w.e.f. 26-1-1950).
831.
Subs. for “His Majesty-in-Council” by the A.O. 1950 (w.e.f. 26-1-1950).
832.
Subs. for order of “His Majesty-in-Council” by the A.O. 1950 (w.e.f. 26-1-1950).
833.
Ins. by Act 26 of 1920, S. 3.
834.
Omitted by the A.O. 1950. Prior to omission it read as:
“(2) Where the applicant prefers to print in India the copy of the record, except as aforesaid, he shall also within the time mentioned in sub-rule (1) deposit the amount required to defray the
expense of printing such copy.”
835.
Subs. for “His Majesty-in-Council” by the A.O. 1950 (w.e.f. 26-1-1950).
836.
Ins. by Act 26 of 1920, S. 4.
837.
Subs. for “any order” by the A.O. 1950 (w.e.f. 26-1-1950).
838.
Subs. for “order” by the A.O. 1950 (w.e.f. 26-1-1950).
839.
Subs. for “His Majesty in Council” by the A.O. 1950 (w.e.f. 26-1-1950).
840.
Subs. for “His Majesty in Council” by the A.O. 1950 (w.e.f. 26-1-1950).
841.
Subs. for “order” by the A.O. 1950 (w.e.f. 26-1-1950).
842.
Subs. for “order” by the A.O. 1950 (w.e.f. 26-1-1950).
843.
Omitted by the A.O. 1950 (w.e.f. 26-1-1950). Prior to omission it read as:
“(3) When any monies expressed to be payable in British currency are payable in India under such order, the amount so payable shall be estimated according to the rate of exchange for the
time being fixed at the date or the making of the order for the adjustment of financial transactions between the Imperial and the Indian Governments.”
844.
Ins. by Act 26 of 1920, S. 5.
845.
Subs. for “order” by the A.O. 1950 (w.e.f. 26-1-1950).
846.
Subs. for “His Majesty in Council” by the A.O. 1950 (w.e.f. 26-1-1950).
847.
Omitted by the Federal Court Act, 1941 (Act 21 of 1941), S. 2. Prior to omission it read as:
‘17. Appeals to Federal Court.—Where a certificate has been given under Section 205(1) of the Government of India Act, 1935, the provisions of this Order shall apply in relation to appeals to
the Federal Court as they apply in relation to appeals to His Majesty in Council and references in this Order to His Majesty in Council and to any Order of His Majesty in Council shall be construed
as references to the Federal Court and the rules of the Federal Court—
Provided that—
(a) Rule 3 of this Order shall have effect as if at the end of sub-rule (1) thereof there were inserted the words “apart from any question of law as to the interpretation of the Government of India
Act, 1935, or any Order in Council made thereunder”;
(b) where the only ground of appeal stated in the petition is that any question of law as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder has
been wrongly decided, the petition need not pray for such a certificate as is mentioned in Rule 3, and the like proceedings shall be had thereon as if such a certificate had been given except
the no security shall be required for the costs of the respondent.’
848.
Substituted—See T.N. Govt. Gaz., 16-11-1988, Pt. III, S. 2, p. 136.
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849.
Substituted—See T.N. Govt. Gaz., 16-11-1988, Pt. III, S. 2, p. 136.
850.
Substituted—See T.N. Govt. Gaz., 16-11-1988, Pt. III, S. 2, p. 136.
851.
Ins. by Act 24 of 1951, S. 2.
852.
Ins. by Act 24 of 1951, S. 2.
853.
Ins. by Act 104 of 1976, S. 92 (w.e.f. 1-2-1977).
854.
Omitted by Act 66 of 1956, S. 14. Prior to omission it read as:
“2. To whom applications for review may be made.—An application for review of a decree or order of a Court, not being a High Court, upon some ground other than the discovery of such new
and important matter or evidence as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the Judge who
passed the decree or made the order sought to be reviewed; but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under Rule 4, sub-
rule (2), proviso (a), be disposed of by his successor.”
855.
Subs. by Act 104 of 1976, S. 92 (w.e.f. 1-2-1977).
856.
Ins. by Act 4 of 1941, S. 2 and Sch. III.
857.
Subs. for “under that Act” by Act 4 of 1941, S. 2 and Sch. III.
858.
Ins. by Act 2 of 1951, S. 18.
859.
Subs. for “Part B States” by the A.O. (No. 2) Order, 1956.
860.
Subs. by the A.O. 1950, for “The Secretary of State of the Federation of India or the Province of……………..as the case may be”.
861.
Subs. by Act 104 of 1976, S. 93 (w.e.f. 1-2-1977).
862.
Subs. by Act 104 of 1976, S. 93 (w.e.f. 1-2-1977).
863.
Added by Act 104 of 1976, S. 93 (w.e.f. 1-2-1977).
864.
See now the Limitation Act, 1963 (36 of 1963).
865.
See now the Limitation Act, 1963 (36 of 1963).
866.
See now the Limitation Act, 1963 (36 of 1963).
867.
See now the Limitation Act, 1963 (36 of 1963).
868.
See now the Indian Succession Act, 1925 (39 of 1925).
869.
See now the Indian Succession Act, 1925 (39 of 1925).
870.
Subs. by Act 104 of 1976, S. 94 (w.e.f. 1-2-1977).
871.
Subs. by Act 104 of 1976, S. 94, for Form 4 (w.e.f. 1-2-1977).
872.
Ins. by Act 104 of 1976, S. 94 (w.e.f. 1-2-1977).
873.
Subs. by Act 21 of 1929, S. 8 and Sch.
874.
Words not required to be deleted.
875.
Words not required to be deleted.
876.
Words not required to be deleted.
877.
Words not required to be deleted.
878.
Words not required to be deleted.
879.
Words not required to be deleted.
880.
Words not required to be deleted.
881.
Words not required to be deleted.
882.
Words not required to be deleted.
883.
Words not required to be deleted.
884.
Words not required to be deleted.
885.
Words not required to be deleted.
886.
Words not required to be deleted.
887.
Words not required to be deleted.
888.
Words not required to be deleted.
889.
Words not required to be deleted.
890.
Words not required to be deleted.
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891.
Words not required to be deleted.
892.
Words not required to be deleted.
893.
Words not required to be deleted.
894.
Words not required to be deleted.
895.
Words not required to be deleted.
896.
Words not required to be deleted.
897.
Words not required to be deleted.
898.
Words not required to be deleted.
899.
Words not required to be deleted.
900.
Words not required to be deleted.
901.
Words not required to be deleted.
902.
Words not required to be deleted.
903.
Words not required to be deleted.
904.
Words not required to be deleted.
905.
Words not required to be deleted.
906.
Words not required to be deleted.
907.
Words not required to be deleted.
908.
Words not required to be deleted.
909.
Words not required to be deleted.
910.
Here insert name of proper officer.
911.
Here insert name of proper officer.
912.
Here insert name of proper officer.
913.
Here insert name of proper officer.
914.
Here insert name of proper officer.
915.
Here insert name of proper officer.
916.
Here insert name of proper officer.
917.
Here insert name of proper officer.
918.
Here insert name of proper officer.
919.
Here insert name of proper officer.
920.
Here insert name of proper officer.
921.
Here insert name of proper officer.
922.
Here insert name of proper officer.
923.
Here insert name of proper officer.
924.
Here insert name of proper officer.
925.
Here insert name of proper officer.
926.
Here insert name of proper officer.
927.
Subs. by Act, 10 of 1914, S. 5 and Sch. I, for (O. 21, R. 22).
928.
Subs. by Act 104 of 1976, S. 95 (w.e.f. 1-2-1977).
929.
The words “in the name of the King-Emperor of India” omitted by the A.O. 1950.
930.
The word “annas” omitted by Act 104 of 1976, S. 95 (w.e.f. 1-2-1977).
931.
The word “in the name of the King-Emperor of India” omitted by the A.O. 1950.
932.
Ins. by Act 104 of 1976, S. 95 (w.e.f. 1-2-1977).
933.
Strike off the words which are not applicable.
934.
Strike off the words which are not applicable.
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935.
Subs. by the A.O. 1973, for “officer of Government”.
936.
Ins. by Act 104 of 1976, S. 96 (w.e.f. 1-2-1977).
937.
Added by Act 104 of 1976, S. 95 (w.e.f. 1-2-1977).
938.
The number of the form, originally misprinted as 6. was corrected by Act 10 of 1914, S. 2 and Sch. I.
939.
The number of the form originally misprinted as 7 was corrected by Act 10 of 1914 S. 2 and Sch. I.
940.
Subs. by the A.O. 1950 for “King-in-Council”.
941.
Subs. by C.P.C. (Amendment) Act, 1973 (49 of 1973), S. 4, for the former paragraph.
942.
Subs. for “His Majesty in Council” by IAO 1950.
943.
Subs. for “His Majesty in Council” by IAO 1950.
944.
Subs. for “His Majesty in Council” by IAO 1950.
945.
Subs. for “His Majesty in Council” by IAO 1950.
946.
Subs. by the A.O. 1950 for “King-in-Council”.
947.
Subs. for “His Majesty in Council” by the A.O. 1950.
948.
Subs. for “His Majesty in Council” by the A.O. 1950.
949.
Subs. for “His Majesty in Council” by the A.O. 1950.
950.
Subs. by the A.O. 1950 for “King-in-Council”.
951.
Subs. for “His Majesty in Council” by the A.O. 1950.
952.
Subs. for “His Majesty in Council” by the A.O. 1950.
953.
Subs. for “His Majesty in Council” by the A.O. 1950.
954.
Subs. by the A.O. 1950 for “King-in-Council”.
955.
Subs. for “His Majesty in Council” by I.A.O. 1950.
956.
Ins. by Act 104 of 1976, S. 96 (w.e.f. 1-2-1977).
957.
Subs. by the A.O. 1950 for “His Majesty's Secretary of State for Foreign Affairs”.
958.
Forms 11 and 11-A subs. by Act 104 of 1976, S. 96, for Form 11 (w.e.f. 1-2-1977).
959.
Strike off the words which are not applicable.
960.
Strike off the words which are not applicable.
961.
Note.—Cut out the word “natural” if the certificated guardian is named; cut out the word “certificated” if the natural guardian by intended; cut out both “natural” and “certificated”, and the
word “or” if the guardian be of neither class but one with whom the minor lives.
962.
Note.—Cut out the word “natural” if the certificated guardian is named; cut out the word “certificated” if the natural guardian by intended; cut out both “natural” and “certificated”, and the
word “or” if the guardian be of neither class but one with whom the minor lives.
963.
Strike off the words which are not applicable.
964.
Strike off the words which are not applicable.
965.
Strike off the words which are not applicable.
966.
Added subsequently by correction slip No. 12, No. 714/IVH-36-A dated 9-12-1980.
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The Civil Procedure Code, 1908 (Contd.)
(Civil Procedure Code, 1908 - Schedule 2 to 5)
CONTENTS
Section 1 to 78
Section 79 to 95
Section 96 to 131
Section 132 to 158
Schedule 1 (Order 1 to 10)
Schedule 1 (Order 11 to 20)
Schedule 1 (Order 21 to 30)
Schedule 1 (Order 31 to 40)
Schedule 1 (Order 41 to 51)
THE SECOND SCHEDULE
THE THIRD SCHEDULE
THE FOURTH SCHEDULE
THE FIFTH SCHEDULE
———
THE SECOND SCHEDULE
ARBITRATION
967
[* * *]
THE THIRD SCHEDULE
EXECUTION OF DECREES BY COLLECTORS
968
[* * *]
THE FOURTH SCHEDULE
(See Section 155)
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ENACTMENTS AMENDED
969
[* * *]
THE FIFTH SCHEDULE
(See Section 156)
ENACTMENTS REPEALED
970
[* * *]
For Section 1 to 78 click here
For Section 79 to 95 click here
For Section 96 to 131 click here
For Section 132 to 158 click here
For Schedule 1 (Order 1 to 10) click here
For Schedule 1 (Order 11 to 20) click here
For Schedule 1 (Order 21 to 30) click here
For Schedule 1 (Order 31 to 40) click here
For Schedule 1 (Order 41 to 51) click here
———
967.
Repealed by the Arbitration Act, 1940 (10 of 1940), S. 49 and Sch. III. Prior to repeal it
read as:
THE SECOND SCHEDULE
ARBITRATION
Arbitration in Suits
1. Parties to suit may apply for order of reference.— (1) Where in any suit all the parties
interested agree that any matter in difference between them shall be referred to arbitration,
they may, at anytime before judgment is pronounced, apply to the Court for an order of
reference.
(2) Every such application shall be in writing and shall state the matter sought to be referred.
2. Appointment of arbitrator.— The arbitrator shall be appointed in such manner as may be
agreed upon between the parties.
3. Order of reference.— (1) The Court shall, by order, refer to the arbitrator the matter in
difference which he is required to determine, and shall fix such time as it thinks reasonable
for the making of the award, and shall specify such time in the order.
(2) Where a matter is referred to arbitration, the Court shall not, save in the manner and to
the extent provided in this schedule, deal with such matter in the same suit.
4. Where reference is to two or more, order to provide for difference of opinion.— (1)
Where the reference is to two or more arbitrators, provision shall be made in the order for a
difference of opinion among the arbitrators—
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(a) by the appointment of an umpire; or
(b) by declaring that, if the majority of the arbitrators agree, the decision of the majority
shall prevail; or
(c ) by empowering the arbitrators to appoint an umpire; or
(d) otherwise as may be agreed between the parties or, if they cannot agree, as the
Court may determine.
(2) Where an umpire is appointed, the Court shall fix such time as it thinks reasonable for the
making of his award in case he is required to act.
5. Power of Court to appoint arbitrator in certain cases.— (1) In any of the following
cases, namely—
(a) where the parties cannot agree within a reasonable time with respect to the
appointment of an arbitrator, or the person appointed refuses to accept the office of
arbitrator, or
(b) where an arbitrator or umpire—
(i) dies, or
(ii) refuses or neglects to act or becomes incapable of acting, or
(iii) leaves British India in circumstances showing that he will probably not return at an
early date, or
(c ) where the arbitrators are empowers by the order of reference to appoint an umpire
and fail to do so,
any party may serve the other party or the arbitrators, as the case may be, with a written
notice to appoint an arbitrator or umpire.
(2) If, within seven clear days after such notice has been served or such further time as the
Court may in each case allow, no arbitrator or no umpire is appointed, as the case may be,
the Court may, on application by the party who gave the notice, and after giving the other
party an opportunity of being heard, appoint an arbitrator or umpire or make an order
superseding the arbitration, and in such case shall proceed with the suit.
6. Power of arbitrator or umpire appointed under Paragraph 4 or 5.— Every arbitrator or
umpire appointed under Paragraph 4 or Paragraph 5 shall have the like powers as if his name
had been inserted in the order of reference.
7. Summoning witnesses and default.— (1) The Court shall issue the same processes to
the parties and witness whom the arbitrator or umpire desires to examine, as the Court may
issue in suits tried before it.
(2) Persons not attending in accordance with such process, or making any other default, or
refusing to give their evidence, or guilty of any contempt to the arbitrator or umpire during
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the investigation of the matters referred, shall be subject to the like disadvantages, penalties
and punishments, by order of the Court on the representation of the arbitrator or umpire, as
they would incur for the like offences in suits tried before the Court.
8. Extension of time for making award.— Where the arbitrators or the umpire cannot
complete the award within the period specified in the order, the Court may, if it thinks fit,
either allow further time, and from time to time, either before or after the expiration of the
period fixed for the making of the award, enlarge such period; or may make an order
superseding the arbitration, and in such case shall proceed with the suit.
9. Where umpire may arbitrate in lieu of arbitrators.— Where an umpire has been
appointed, he may enter on the reference in the place of the arbitrators,—
(a) if they have allowed the appointed time to expire without making an award, or
(b) if they have delivered to the Court or to the umpire a notice in writing stating that
they cannot agree.
10. Award to be signed and filed.— Where an award in a suit has been made, the persons
who made It shall sign it and cause it to be filed in Court, together with any depositions and
documents which have been taken and proved before them; and notice of the filing shall be
given to the parties.
11. Statement of special case by arbitrators or umpire.— Upon any reference by an
order of the Court, the arbitrator or umpire may, with the leave of the Court, state the award
as to the whole or any part thereof in the form of a special case for the opinion of the Court,
and the Court shall deliver its opinion thereon, and shall order such opinion to be added to
and to form part of the award.
12. Power to modify or correct award.— The Court may, by order, modify or correct an
award,—
(a) where it appears that a part of the award is upon a matter not referred to arbitration
and such part can be separated from the other part and does not affect the decision
on the matter referred; or
(b) where the award is imperfect in form, or contains any obvious error which can be
amended without affecting such decision; or
(c ) where the award contains a clerical mistake or an error arising from an accidental slip
or omission.
13. Order as to costs of arbitration.— The Court may also make such order as it thinks fit
respecting the costs of the arbitration where any question arises respecting such costs and
the award contains no sufficient provision concerning them.
14. Where award or matter referred to arbitration may be remitted.— The Court may
remit the award or any matter referred to arbitration to the reconsideration of the same
arbitrator or umpire, upon such terms as it thinks—
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(a) where the award has left undetermined any of the matters referred to arbitration, or
where it determines any matter not referred to arbitration, unless such matter can be
separated without affecting the determination of the matters referred;
(b) where the award is so indefinite as to be incapable of execution;
(c ) where an objection to the legality of the award is apparent upon the face of it.
15. Grounds for setting aside award.— (1) An award remitted under Paragraph 14 becomes
void on failure of the arbitrator or umpire to reconsider it. But no award shall be set aside
except on one of the following grounds, namely—
(a) corruption or misconduct of the arbitrator or umpire;
(b) either Party having been guilty of fraudulent concealment of any matter which he
ought to have disclosed, or of wilfully misleading or deceiving the arbitrator or umpire;
(c ) the award having been made after the issue of an order by the Court superseding the
arbitration and proceeding with the suit or after the expiration of the period allowed
by the Court, or being otherwise invalid.
(2) Where an award becomes void or is set aside under clause (1), the Court shall make an
order superseding the arbitration and in such case shall proceed with the suit.
16. Judgment to be according to award.— (1) Where the Court sees no cause to remit the
award or any of the matters referred to arbitration for re-consideration in manner aforesaid,
and no application has been made to set aside the award, or the Court has refused such
application, the Court shall, after the time for making such application has expired, proceed
to pronounce judgment according to the award.
(2) Upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such
decree except insofar as the decree is in excess of, or not in accordance with, the award.
Order of reference on agreement to refer
17. Application to file in Court agreement to refer to arbitration.— (1) Where any
persons agree in writing that any difference between them shall be referred to arbitration,
the parties to the agreement, or any of them, may apply to any Court having jurisdiction in
the matter to which the agreement relates, that the agreement be filed in Court.
(2) The application shall be in writing and shall be numbered and registered as a suit between
one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs, and
the others or other of them as defendants or defendant, if the application has been
presented by all the parties, or, if otherwise, between the applicant as plaintiff and the other
parties as defendants.
(3) On such application being made, the Court shall direct notice thereof to be given to all
the parties to the agreement, other than the applicants, requiring such parties to show
cause, within the time specified in the notice, why the agreement should not be filed.
(4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and
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shall make an order of reference to the arbitrator appointed in accordance with the provisions
of the agreement or, if there is no such provision and the parties cannot agree, the Court
may appoint an arbitrator.
18. Stay of suit where there is an agreement to refer to arbitration.— Where any party
to any agreement to refer to arbitration, or any person claiming under him, institutes any suit
against any other party to the agreement, or any person claiming under him, in respect of
any matter agreed to be referred, any party to such suit may, at the earliest possible
opportunity and in all cases where issues are settled at or before such settlement, apply to
the Court to stay the suit; and the Court, if satisfied that there is no sufficient reason why
the matter should not be referred in accordance with the agreement to refer to arbitration,
and that the applicant was, at the time when the suit was instituted and still remains, ready
and willing to do all things necessary to the proper conduct of the arbitration, may make an
order staying the suit.
19. Provisions applicable to proceedings under Paragraph 17.— The foregoing
provisions; so far as they are consistent with any agreement filed under Paragraph 17, shall
be applicable to all proceedings under the order of reference made by the Court under that
paragraph, and to the award and to the decree following thereon.
Arbitration without the intervention of a Court
20. Filing award in matter referred to arbitration without intervention of Court.— (1)
Where any matter has been referred to arbitration in matter without the intervention of a
Court, and an award has been made thereon, any person interested in the award may apply
to any Court having jurisdiction over the subject-matter of the award that the award be filed
in Court.
(2) The application shall be in writing and shall be numbered and registered as a suit between
the applicant as plaintiff and the other parties as defendants.
(3) The Court shall direct notice to be given to the parties to the arbitration, other than the
applicant, requiring them to show cause, within a time specified, why the award should not
be filed.
21. Filing and enforcement of such award.— Where the Court is satisfied that the matter
has been referred to arbitration and that an award has been made thereon, and where no
ground such as is mentioned or referred to in Paragraph 14 or Paragraph 15 is proved, the
Court shall order the award to be filed and shall proceed to pronounce judgment according to
the award.
(2) Upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such
decree except insofar as the decree is in excess of or not in accordance with the award.
22. Exclusion of certain words in the Specific Relief Act, 1877.— The last thirty-seven
words of Section 21 of the Specific Relief Act, 1877 (I of 1877), shall not apply to any
agreement to refer to arbitration, or to any award, to which the provisions of this schedule
apply.
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23. Forms.— The forms set forth in the Appendix, with such variations as the circumstances
of each case require, shall be issued for the respective purposes therein mentioned.
968.
Repealed by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), S. 15.
Prior to repeal it read as:
THE THIRD SCHEDULE
EXECUTION OF DECREES BY COLLECTORS
1. Powers of Collector.— Where the execution of a decree has been transferred to the
Collector under Section 68, he may—
(a) proceed as the Court would proceed when the sale of immovable property is
postponed in order to enable the judgment-debtor to raise the amount of the decree;
or
(b) raise the amount of the decree by letting in perpetuity, or for a term, on payment of
a premium, or by mortgaging, the whole or any party of the property ordered to be
sold; or
(c ) sell the property ordered to be sold or so much thereof as may be necessary.
2. Procedure of Collector in special cases.— Where the execution of a decree, not being a
decree ordering the sale of immovable property in pursuance of a contract specifically
affecting the same, but being a decree for the payment of money in satisfaction of which the
Court has ordered the sale of immovable property, has been so transferred, the Chancellor, if
after such inquiry as he thinks necessary, he has reason to believe that all the liabilities of
the judgment-debtor can be discharged without a sale of the whole of his available
immovable property, may proceed as hereinafter provided.
3. Notice to be given to decree-holders and to persons having claims on property.—
(1) In any such case as is referred to in Paragraph 2, the Collector shall publish a notice,
allowing a period of sixty days from the date of its publication for compliance and calling
upon—
(a) every person holding a decree for the payment of money against the judgment-debtor
capable of execution by sale of his immovable property and which such decree-holder
desires to have so executed, and every holder of a decree for the payment of money
in execution of which proceedings for the sale of such property are pending to
produce before the Collector a copy of the decree and a certificate from the Court
which passed or is executing the same, declaring the amount recoverable thereunder;
(b) every person having any claim on the said property to submit to the Collector a
statement of such claim, and to produce the documents (if any) by which it is
evidenced.
4. Amount of decrees for payment of money to be ascertained, and immovable
property available for their satisfaction.— (1) Upon the expiration of the said period, the
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Collector shall appoint a day for hearing any representations which the judgment-debtor and
the decree-holders or claimants (if any) may desire to make, and for holding such inquiry as
he may deem necessary for information himself as to the nature and extent of such decrees
and claims and of the judgment-debtor's immovable property, and may, from time to time,
adjourn such hearing and inquiry.
(2) Where there is no dispute as to the fact or extent of the liability of the judgment-debtor
to any of the decrees or claims of which the Collector is informed, or as to the relative
priorities of such decrees or claims, or as to the liability of any such property for the
satisfaction of such decrees or claims, the Collector shall draw up a statement, specifying
the amount to be recovered for the discharge of such decrees, the order in which such
decrees and claims are to be satisfied and the immovable property available for that purpose.
(3) Where any such dispute arises, the Collector shall refer the same, with a statement
thereof and his own opinion thereon, to the Court which made the original order for sale, and
shall, pending the reference, stay proceedings relating to the subject thereof. The Court shall
dispose of the dispute if the matter thereof is within its jurisdiction, or transmit the case to a
competent Court for disposal, and the final decision shall be communicated to the Collector,
who shall then draw up a statement as above provided in accordance with such decision.
5. Where District Court may issue notices and hold inquiry.— The Collector may, instead
of himself issuing the notice and holding the inquiry required by Paragraphs 3 and 4, draw up
a statement specifying the circumstances of the judgment-debtor and of his immovable
property so far as they are known to the Collector or appear in the records of his office, and
forward such statement to the District Court; and such Court shall thereupon issue the
notices, hold the inquiry an draw up the statement required by Paragraphs 3 and 4 and
transmit such statement to the Collector.
6. Effect of decision of Court as to dispute.— The decision by the Court of any dispute
arising under Paragraph 4 or Paragraph 5 shall, as between the parties thereto, have the
force of and be appealable as a decree.
7. Scheme for liquidation of decrees for payment of money.— Where the amount to be
recovered and the property available have been determined as provided in Paragraph 4 or
Paragraph 5, the Collector may,—
(a) if it appears that the amount cannot be recovered without the sale of the whole of
the property available, proceed to sell such property; or
(b) if it appears that the amount with interest (if any) in accordance with the decree,
and, when not decreed, with interest (if any) at such rate as he thinks reasonable,
may be recovered without such sale, raise such amount and interest (notwithstanding
the original order for sale)—
(i) by letting in perpetuity or for a term, on payment of a premium, the whole or any
part of the said property; or
(ii) by mortgaging the whole or any part of such property; or
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(iii) by selling part of such property; or
(iv) by letting on farm, or managing by himself or another, the whole or any part of
such property for any term not exceeding twenty years from the date of the order
of sale; or
(v) partly by one of such modes, and partly by another or others of such modes.
(2) For the purpose of managing the whole or any part of such property, the Collector may
exercise all the powers of its owner.
(3) For the purpose of improving the saleable value of the property available or any part
thereof, or rendering it more suitable for letting or managing, or for preserving the property
from sale in satisfaction of an incumbrance, the Collector may discharge the claim of any
incumbrancer which has become payable or compound the claim of any incumbrancer whether
it has become payable or not, and, for the purpose of providing funds to effect such
discharge or composition, may mortgage, let or sell any portion of the property which he
deems sufficient. If any dispute arises as to the amount due on any incumbrance with which
the Collector purposes to deal under this clause, he may institute a suit in the proper Court,
either in his own name or the name of the judgment-debtor, to have an account taken, or he
may agree to refer such dispute to the decision of two arbitrators, one to be chosen by each
party, or of an umpire to be named by such arbitrators.
(4) In proceeding under this paragraph the Collector shall be subject to such rules consistent
with this Act as may, from time to time, be made in this behalf by the State Government.
8. Recovery of balance (if any) after letting or management.— Where, on the expiration
of the letting or management under Paragraph 7, the amount to be recovered has not been
realised, the Collector shall notify the fact in writing to the judgement-debtor or his
representative in interest, stating at the same time that, if the balance necessary to make
up the said amount is not paid to the Collector within six weeks from the date of such notice,
he will proceed to sell the whole or a sufficient part of the said property; and, if on the
expiration of the said six weeks the said balance is not so paid, the Collector shall sell such
property or part accordingly.
9. Collector to render accounts to Court.— (1) The Collector shall, from time to time,
render to the Court which made the original order for sale an account of all monies which
come to his hands and of all charges incurred by him in the exercise and performance of the
powers and duties conferred and imposed on him under the provisions of his schedule, and
shall hold the balance at the disposal of the Court.
(2) Such charges shall include all debts and liabilities from time to time due to the
Government in respect of the property or any part thereof, the rent (if any) from time to time
due to a superior holder in respect of such property or part, and, if the Collector so directs,
the expenses of any witnesses summoned by him.
(3) The balance shall be applied by the Court—
(a) in providing for the maintenance of such members of the judgment-debtor's family (if
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any) as are entitled to be maintained out of the income of the property, to such
amount in the case of each member as the Court thinks fit; and
(b) where the Collector has proceeded under Paragraph 1, in satisfaction of the original
decree in execution of which the Court ordered the sale of immovable property, or
otherwise as the Court may under Section 73 direct; or
(c ) where the Collector has proceeded under Paragraph 2,—
(i) in keeping down the interest on incumbrances on the property;
(ii) where the judgment-debtor has no other sufficient means of subsistence, in
providing for his subsistence to such amount as the Court thinks fit; and
(iii) in discharging rateably the claims of the original decree-holder and any other
decree-holder who have complied with the said notice, and whose claims were
included in the amount ordered to be recovered.
(4) No other holder of a decree for the payment of money shall be entitled to be paid out of
such property or balance until the decree-holders who have obtained such order have been
satisfied, and the residue (if any) shall be paid to the judgment-debtor or such other person
as the Court directs.
10. Sales how to be conducted.— Where the Collector sells any property under this
schedule he shall put it up to public auction in one or more lots, as he thinks fit, and may—
(a) fix a reasonable reserved price for each lot;
(b) adjourn the sale for a reasonable time whenever, for reasons to be recorded, he
deems the adjournment necessary for the purpose of obtaining a fair price for the
property;
(c ) buy in the property offered for sale, and re-sell the same by public auction or private
contract, as he thinks fit.
11. Restrictions as to alienation by judgment-debtor or his representative, and
prosecution of remedies by decree-holders.— (1) So long as the Collector can exercise
or perform in respect of the judgment-debtor's immovable property, or any part thereof, any
of the powers or duties conferred or imposed on him by Paragraphs 1 to 10, the judgment-
debtor or his representative in interest shall be incompetent to mortgage, charge, lease or
alienate such property or part except with the written permission of the Collector, nor shall
any Civil Court issue any process against such property or part in execution of a decree for
the payment of money.
(2) During the same period no Civil Court shall issue any process of execution either against
the judgment-debtor or his property in respect of any decree for the satisfaction whereof
provision has been made by the Collector under Paragraph 7.
(3) The same period shall be excluded in calculating the period of limitation applicable to the
execution of any decree affected by the provisions of this paragraph in respect of any
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remedy of which the decree-holder has been temporarily deprived.
12. Provision where property is in several districts.— Where the property of which the
sale has been ordered is situate in more districts than one, the powers and duties conferred
and imposed on the Collector by Paragraphs 1 to 10 shall be exercised and performed by such
one of the Collectors of the said districts as the State Government may by general rule or
special order district.
13. Powers of Collector to compel attendance and production.— In exercising the
powers conferred on him by Paragraphs 1 to 10 the Collector shall have the powers of a Civil
Court to compel the attendance of parties and witnesses and the production of documents.
969.
Repealed by the Repealing and Amending Act, 1952 (48 of 1952), S. 2 and Sch. 1. Prior
to repeal it read as:
THE FOURTH SCHEDULE
(See Section 155)
Enactments Amended
1 2 3 4
Year No. Short title Amendment
1870 VII The Court-fees Act, In Article 1 of Schedule 1, after the word
1870 “plaint” the words “written statement pleading
a set-off or counter-claim” and after the word
“Act” the words “or of cross-objection” shall be
inserted.
From Article 11 of Schedule II the words “from
an order rejecting a plaint or” shall be omitted.
For the entry in the first column of Schedule II
relating to Article 19 the following entry shall be
substituted, namely—
“Agreement in writing stating a question for the
opinion of the Court under the Code of Civil
Procedure, 1908.”
970.
Repealed by the Second Repealing and Amending Act, 1914 (17 of 1914), S. 3 and Sch.
II. Prior to repeal it read as:
THE FIFTH SCHEDULE
(See Section 156)
Enactments Repealed
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1 2 3 4
Year No. Subject or short title Extent of repeal
Acts of the Governor-General in Council
1870 VII The Court-fees Act, 1870 Section 16 and Article 15 of Schedule II
1882 IV The Transfer of Property Sections 85 to 90 inclusive, 92 to 94
Act, 1882 inclusive, 96, 97, 99 and in Section 100
the words “and all the provisions
hereinbefore contained as to a
mortgagee instituting a suit for the sale
of the mortgaged property.”
1882 XIV The Code of Civil Procedure The whole Act.
1882 XV The Presidency Small Cause The last paragraph of Section 3.
Courts Act, 1882
1888 VI The Debtors Act, 1888 Sections 2 to 8.
1888 VII The Civil Procedure Code So much as is unrepealed, except
Amendment Act, 1888 Section 1, Section 65 and Section 66,
sub-sections (1), (3) and (4).
1888 X The Presidency Small Cause So much as is unrepealed
Courts Law Amendment Act,
1888
1890 VIII The Guardian and Wards Section 53
Act, 1890
1891 XII The Repealing and Amending So much as relates to Act XIV of 1882
Act, 1891 and Act VII of 1888
1892 VI The Indian Limitation Act In the title and preamble the words
and Civil Procedure Code “and the Code of Civil Procedure” and
Amendment Act, 1892 Sections 2, 3 and 4
1894 V The Civil Procedure Code The whole Act
Amendment Act, 1894
1895 VII The Punjab Laws Act Sections 1 and 2
Amendment Act, 1895
1895 XIII The Civil Procedure Code The whole Act
SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 13 Thursday, March 28, 2024
Printed For: Vedant Sharma, National Law University Orissa
SCC Online Web Edition: http://www.scconline.com
© 2024 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Amendment Act, 1895
1900 VI The Lower Burma Courts So much of the schedules as relate to
Act, 1900 Act XIV of 1882
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be
liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice
rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
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