CIVIL PROCEDURE CODE, 1908

 

 

  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.

1[(3) It extends to the whole of India except.-

(a) the State of Jammu and Kashmir;

(b) the State of Nagaland and the tribal areas.

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification.

Explanation.- In this clause, “tribal areas” means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution.]

(4) In relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code.

  1. Subs. by Act 104 of 1976, sec. 2, for sub-section (3) (w.e.f. 1-2-1977).
  2. Definitions.

In this Act, unless there is anything repugnant in the subject or context,-

(1) “Code” includes rules;

(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1 [* * *] section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;

(3) “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;

(4) “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

3[(5) “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;]

(6) “foreign judgment” means the judgment of a foreign Court;

(7) “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader;

4[(7A) “High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;

(7B) “India”, except in sections 1, 29, 43, 44, 5[44A], 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir];

(8) “Judge” means the presiding officer of a Civil Court;

(9) “judgment” means the statement given by the judge on the grounds of a decree or order;

(10) “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

(11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

(12) “means 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 but the person in wrongful possession;

(13) “movable property” includes growing crops;

(14) “order” means the formal expression of any decision of a Civil Court which is not a decree;

(15) “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court;

(16) “prescribed” means prescribed by rules :

(17) “public officer” means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of 2[an All-India Service];

(c) every commissioned or gazetted officer in the military, 6[naval or air forces] of 7[the Union] 8[***] 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 authorized by a Court of Justice to perform any of such duties:

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;

(18) “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125;

(19) “share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds; and

(20) “signed”, save in the case of a judgment or decree, includes stamped.

9[***]

  1. The words and figures “Section 47 or” omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977)..
    2.Subs, by Act No. 104 of 1976 for “Indian Civil Service” (w.e.f. 1-2-1977).
    3. Subs. by Act 2 of 1951, sec. 4, for clause (5) (w.e.f. 1-4-1951).
    4. Ins. by Act 2 of 1951, sec. 4 (w.e.f. 1-4-1951).
    5. Ins. by Act 42 of 1953, sec. 4 and Sch. III (w.e.f. 23-12-1953).
    6. Subs. by Act 35 of 1934, sec. 2 sch., for “or naval”.
    7. Subs. by the A.O. 1950, for “His Majesty”.
    8. The words “including His Majesty’s Indian Marine Service”, omitted by Act 35 of 1934, sec. 2.
    9. Clause (21) ins. by the A.O. 1950 and omitted by Act 2 of 1951, sec. 4 (w.e.f. 1-4-1951).
  2. 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.

  1. 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 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.

  1. 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 1[***] may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government 2[***] 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.

  1. The words “with the previous sanction of the G.G. in C”, omitted by Act 38 of 1920, sec. 2 and Sch. I.
    2. The words “with sanction aforesaid” omitted by Act 38 of 1920, sec. 2 and Sch. I.
  2. Pecuniary jurisdiction.

Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

  1. Provincial Small Cause Courts.

The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), 1[or under the Berar Small Cause Courts Laws, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes 2[under the said Act or Law], 3[or to Courts in] 4[any part of India to which the said Act does not extend exercising a corresponding jurisdiction] that is to say,-

(a) so much of the body of the Code as relates to-

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property ; and

(b) the following sections, that is to say,-

section 9, sections 91 and 92, sections 94 and 95 5[so far as they authorize or relate to-

(i) orders for the attachment of immovable property;

(ii) injunctions,

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders referred to in clause (e) of section 94],

and sections 96 to 112 and 115.

  1. by Act 4 of 1941, sec. 2 and Sch. III.
    2. Subs. by Act 4 of 1941, sec. 2 and Sch. III for “under that Act”.
    3. Ins. by Act 2 of 1951, sec. 5 (w.e.f. 1-4-1951)
    4. Subs. by the Adaptation of Laws (no. 2) Order, 1956, for “Part B States”.
    5. Subs. by Act 1 of 1926, sec. 3, for “so far as they relate to injunctions and interlocutory orders”.

 

  1. Presidency Small Cause Courts.

Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76 1[77,157 and 158], and by the Presidency Small Cause Courts Act, 1882, (15 of 1882) the provisions in the body of this Code shall not extend to any suit or proceedings in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay:
2[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 notifications 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 adaptation as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court:
(2) all rules heretofore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 (15 of 1882) shall be deemed to have been validly made.]

STATE AMENDMENTS

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 No. 32 of 1961, sec. 21 and Sch. (1-11-1961)].

  1. Subs, by Act No. 104 of 1976 for “77 and 155 to 158″ (w.e.f. 1-2-1977).
    Added by Act 1 of 1914, sec. 2

 

  1. Courts to try all civil suits unless barred.

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

1[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.

2[Explanation ll].- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.].

 

STATE AMENDMENTS

Maharashtra– After section 9 insert the following section 9A.

“9A. 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, on objection to 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 for 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 the 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”.

[Vide Maharashtra Act No. 65 of 1977, sec. 3 (w.e.f. 19-12-1977)].

COMMENTS

(i) The appropriate form for resolution of an industrial dispute is the forum constituted under Industrial Disputes Act, 1947. Jurisdiction of Civil Court is impliedly barred in such cases. C.T. Nikam v. Municipal Corporation of Ahmedabad, AIR 2002 SC 997.

(ii) Telephone bill—Jurisdiction of Civil Court—The Civil Court has jurisdiction to enforce the right of a subscriber under section 7B of the Telegraph Act; Union of India v. Sasi S., AIR 1999 Ker 336.

(iii) The application for grant of interim relief would not be disposed of till decision on question of jurisdiction although ad-interim relief can be granted in view of provisions under section 9A(2); ICICI Ltd. v. Sri Durga Bansal Fertilizers Ltd., AIR 1999 Bom 402.

(iv) Under section 9 of the Code of Civil Procedure, the jurisdiction of Civil Court with regard to a particular matter can be said to be excluded if there is an express provision or by implication it can be inferred that the jurisdiction is taken away; Union of India v. Sasi S., AIR 1999 Ker 336.

  1. Explanation renumbered as Explanation I thereof by Act No. 104 of 1976, Sec. 5 (w.e.f. 1-2-1977).
    Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

  1. 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 1[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government] 3[***] and having like jurisdiction, or before 4[the Supreme Court].

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action.

COMMENTS

(i) 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 other nature instituted under any other statute; National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242.

(ii) Two suits—Between same parties—Involving same subject‑matter and same questions—Held, subsequent suit should be stayed; Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad 90: (1993) LW 159: (1993) 1 Mad LJ 163.

  1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)
    2. Subs. by A.O. 1937, for “the G.G. in C.”
    3. The words “or the Crown Representative” omitted by the A.O. 1948.
    4. Subs. by the A.O. 1950, for “His Majesty in Council”.

 

  1. 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 public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as 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.]

COMMENTS

(i) The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principles of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking procedural principle; Management of Sonepat Co-op. Sugar Mills Ltd. v. Ajit Singh, AIR 2005 SC 1050.

(ii) 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 whereas the doctrine of issue estoppel is invoked against the party. If such issue is decided against him, he would be estopped from raising the same in the latter proceedings. The doctrine of res judicata creats a different kind of estoppel viz. estoppel by Accord; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.

(iii) First writ petition filed on the ground of apprehended bias and subsequent second petition was filed on allegations of actual bias, is not barred by res judicata; G.N. Nayak v. Goa University, AIR 2002 SC 790.

(iv) Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical but the basis of which the said rule rests is founded on the consideration of public policy; Sumer Mal v. State of Rajasthan, AIR 2000 Raj 1.

(v) The technical principle of res judicata would not be operative more so, if substantial change in circumstances is averred and found prima facie justified; Smt. Rehana Parveen v. Naimuddin, AIR 2000 MP 1.

(vi) Assuming, the cause of action in both the suits was based upon title in the suit land and was akin in all the cases, yet, as referred to above, in as much the earlier two suits were dismissed as withdrawn with permission to file fresh on the same cause of action, third suit will not be barred by any principle of law; Harbhagwan v. Smt. Punni Devi, AIR 1999 P&H 223.

(vii) Where the Sangh has been duly represented in the previous court proceedings and were litigating bona fidely which resulted in failure cannot be allowed to lay any objection in execution or to plead nullity of decree hence doctrine of res judicata applies. The decree of ejectment will bind every member of Sangh; Singhai Lal Chand Jain v. Rashtriya Swayam Sewak Sangh, Panna, JT 1996(3) SC 64.

  1. Ins. by Act No. 104 of 1976, sec. 6 (w.e.f. 1-2-1977).

 

  1. 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.

  1. When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of

1[India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

  1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)

 

  1. 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.

  1. Court in which suits to be instituted.

Every suit shall be instituted in the Court of the lowest grade competent to try it.

  1. Suits to be instituted where subject-matter situate.

Subject to the pecuniary or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) 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.

Explanation.– In this section “property” means property situate in 1[India].

COMMENTS

Where the property mortgaged as collateral security for loan advanced to defandant by a bank situated at place ‘J’ then the suit for foreclosure by the bank can only be instituted before Civil Court at place ‘J’; Central Bank of India v. Eleena Fasteners (P) Ltd., AIR 1999 HP 104.

  1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951).
  2. 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 Court, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate :

Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.

  1. 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 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.

  1. 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.

  1. Other suits to be instituted where defendants reside or cause of action arises.

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

1[* * *]

2[Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in3[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 object, the suit cannot proceed without the leave of the Court.

COMMENTS

(i) Facts pleaded which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. For that fact pleaded must have relevance to the lis/dispute; Union of India v. Adani Exports Ltd., AIR 2002 SC 126.

(ii) Where the agreement stated that jurisdiction regarding all disputes is at Delhi where the agreement has been signed and executed while the agreement by parties was not signed at Delhi but at some other place, then the agreement cannot be said to be conferring exclusive jurisdiction to Civil Court at Delhi. Party can file a suit under section 20(c) at place where cause of action wholly or partly arose; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.

(iii) Where the agreement was an agreement for sale of movable property then sections 16 and 19 would not govern the cause of action in such case but section 20 of the Code would be attracted for determining jurisdiction of Court; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.

  1. Explanation I omitted by Act No. 104 of 1976, sec. 7 (w.e.f. 1-2-1977).
    2. Subs, by Act No. 104 of 1976, sec. 7, for “Explanation II” (w.e.f. 1-2-1977).
    3. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)

 

  1. Objections to jurisdiction.

1[(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 or settled at or before such settlement, and unless there has been a consequent failure of justice.

2[(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.]

COMMENTS

There is no intermediary stage for raising an objection to jurisdiction except filing of written statement and taking that plea unless the matter is covered by section 9A of the Code; B.S.I. Ltd. v. M.V. “CRISTIAN-C”, AIR 1999 Bom 320.

  1. Section 21 renumbered as sub-section (1) thereof by Act No. 104 of 1976, sec. 8 (w.e.f 1-2-1977).
    2. Ins. by Act No. 104 of 1976, sec. 8 (w.e.f. 1-2-1977).

 

21A. Bar on suit to set aside decree on objection as to place of suing.

1[21A. Bar on suit to set aside decree on objection as to place of suing.

No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.

Explanation.-The expression “former suit” means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned ].

  1. Ins. by Act No. 104 of 1976, sec. 9 (w.e.f. 1-2-1977).

 

 

 

  1. 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.

COMMENTS

(i) Transfer application with allegations against the P.O. Report from P.O. may be called only with regard to the allegations contained in the transfer application; Pushpa Devi Saraf v. Jai Narain Parasrampuria, AIR 1992 SC 1133.

(ii) Both husband and wife initiating separate proceeding at different places. Both the proceedings triable by the same court. Husband’s case to be transferred to the place where wife’s case is pending; Ms. Shakuntala Modi v. Om Prakash Bharoka, AIR 1991 SC 1104.

  1. To what Court application lies.

(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts are subordinate to different High Courts, the application shall be made the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

  1. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

2[(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.

3[(5) A suit or proceeding may be transferred under this section from a

Court which has no jurisdiction to try it.]

  1. Subs, by Act No. 104 of 1976, sec. 10 for “thereafter tries such suit” (w.e.f. 1-2-1977).
    2. Subs, by Act No. 104 of 1976, sec. 10 for sub-section (3) (w.e.f. 1-2-1977).
    3. Ins. by Act No. 104 of 1976, sec. 10 (w.e.f. 1-2-1977).

 

  1. Power of Supreme Court to transfer suits, etc.

1[25. Power of Supreme Court to transfer suits, etc.

(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.]

COMMENTS

(i) In transfer of suits, appeals or other proceedings paramount consideration is that justice according to law is done; Dr. Subramaniam Swamy v. Ramakrishna Hegde, AIR 1990 SC 113.

(ii) No case can be transferred to another court unless first Court is biased or some reasonable grounds exist; Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989) SCJ 180.

  1. Subs. by Act No. 104 of 1976, sec. 11 for s. 25 (w.e.f. 1-2-1977).
  2. Institution of suits.

1[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

2[(2) In every plaint, facts shall be proved by affidavit.]

  1. Section 26 renumberd as sub-section 26(1) thereof by Act No. 46 of 1999, section 2 (w.e.f. 1-7-2002).
    2. Ins. by Act No. 46 of 1999, section 2 (w.e.f. 1-7-2002).
  2. 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 1[on such day not beyond thirty days from date of the institution of the suit].

  1. Added by Act No. 46 of 1999, section 3 (w.e.f. 1-7-2002).

 

  1. 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.

1[(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].

  1. Ins. by Act No. 104 of 1976, sec. 12 (w.e.f. 1-5-1977).

 

  1. Service of foreign summonses.

1[Service of foreign summonses.

Summons 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 extent, 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.]

  1. Subs. by Act 2 of 1951, sec. 6, for section 29 (w.e.f. 1-4-1951).

* The Central Government has declared that the provisions of this section shall apply to all Civil Courts in Mongolia, vide G.S.R. 622(E), dated 1st October, 2005.

† The Central Government has declared that the provisions of this Act shall apply to all Civil Courts in the Kingdom of Bahrain, vide G.S.R. 644(E), dated 22nd October, 2005.

 

  1. 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.

  1. 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.

  1. Penalty for default

The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;

(b) attach and sell his property;

(c) impose a fine upon him 1[not exceeding five thousand rupees];

(d) order him to furnish security for his appearance and in default commit him to the civil prison.

  1. Substituted by Act No. 46 of 1999, section 4 (w.e.f. 1 -7-2002) for “not exceeding five hundred rupees”.

 

  1. Judgment and decree.

The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow

  1. 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, 2[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:

1[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 3[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 therefore shall not lie.

COMMENTS

(i) General provision of section 34 would authorise the Redressal Fora and Commissions to also grant interest appropriately under the circumstances of each case; Sovintorg (India) Ltd. v. State Bank of India, AIR 1999 SC 2963.

(ii) The claimants have been allowed interest on the decretal amount from the date of the decree though the amount of compensation was quantified only from the date of the passing of the decree. In such circumstances the direction of the Division Bench in the matter of award of interest is also not liable to be interfered; Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929.

  1. Added by Act No. 104 of 1976, sec. 13 (w.e.f. 1-7-1977).
    2. Subs. by Act 66 of 1956, sec. 2, for certain words (w.e.f. 1-1-1957)
    3. Subs. by Act 66 of 1956, sec. 2, for “on such aggregate sum as aforesaid” (w.e.f. 1-1-1957)

 

  1. Costs.

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the 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.

1[***]

COMMENTS

(i) Employer committed default in not remitting premium from salary of an employee to LIC, Employer was directed to pay cost of proceedings to heirs of employee; Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43.

(ii) It is necessary to discourage people from bringing petitions which are motivated by mere personal interests in the name of public interest, for which they have no locus standi. To prevent and penalise such abuse of the process of the Court in the garb of public interest, the Court invoked this section and imposed a cost of Rs. 10,000 on the petitioners; Prayag Vyapar Mandal v. State of Uttar Pradesh, AIR 1997 All 1.

  1. Sub-section (3) omitted by Act 66 of 1956, sec. 3 (w.e.f. 1-1-1957)

 

35A. Compensatory costs in respect of false or vexatious claims or defenses.

1[Compensatory costs in respect of false or vexatious claims or defenses.

(1) If any suit or other proceedings 2[including an execution proceedings but 3[excluding an appeal or a revision]] any party objects to the claim of 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, 4[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 the object or by the party by whom such claim or defence has been put forward, of cost by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding 5[three thousand rupees] or exceeding the limits of it pecuniary jurisdiction, whichever amount is less:

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887) 6[or under a corresponding law in force in 7[any part of India to which the said Act does not extend]] and not being a Court constituted 8[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 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

Uttar Pradesh-(i) For sub-section (1) of section 35 A substitute the following.

“(1) If 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 or costs by way of compensation irrespective of the decisions on other issues in the case”.

[Vide U.P. Act No. 24 of 1954, sec. 2 Sch., Item 5, Entry 1 (w.e.f. 30-11-1954)].

(ii) After sub-section (1) insert the following sub-section, 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 insufficient, compensatory cost under that sub-section.

[Vide U.P. Act No. 57 of 1976, sec. 2 (w.e.f. 1-1-1977)].

  1. Section 35A was ins. by Act 9 of 1922, sec. 2, which, under section 1(2) thereof may be brought into force in any State by the State Government on any specified date. It has been so brought into force in Bombay, Bengal, U.P., Punjab, Bihar, C.P., Assam, Orissa and Tamil Nadu.
    2. Subs. by Act 66 of 1956, sec. 4, for “not being an appeal” (w.e.f. 1-1-1957).
    3. Subs, by Act No. 104 of 1976, sec. 14, for “excluding an appeal” (w.e.f. 1-2-1977).
    4. Subs. by Act 66 of 1956, sec. 4 for certain words (w.e.f. 1-1-1957).
    5. Subs. by Act No. 104 of 1976, sec. 14 for “one thousand rupees” (w.e.f. 1-2-1977).
    6. Ins. by Act 2 of 1951, sec. 7 (w.e.f. 1-4-1951).
    7. Subs. by the Adoptation of Laws (No. 2) Order, 1956, for “a Part B State”.
    8. Ins. by Act 2 of 1951, sec. 7, for “under that Act” (w.e.f. 1-4-1951).

 

35B. Costs for causing delay.

1[35B. Costs for causing delay.

(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,

the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of-

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs.

(b) the defence by the defendant, where the 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.]

  1. Ins. by Act No. 104 of 1976, sec. 15 (w.e.f. 1-2-1977).
  2. Application to orders

 

1[36. Application to orders

The provisions of this Code relating to the execution of decree (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 an order).]

  1. Subs, by Act No. 104 of 1976, sec. 16 for s. 36 (w.e.f. 1-2-1977).

 

  1. 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.

1[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.]

  1. Sub-section (3) omitted by Act 66 of 1956, sec. 3 (w.e.f. 1-1-1957)

 

  1. 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.

COMMENTS

(i) Retransfer of execution proceedings at the instance of the judgment debtors do not preclude the decree holders from initiating fresh execution proceedings against other judgement debtors at original court; Om Prakash v. M/s. Hargovind Raj Kumar, AIR 1993 Raj 68.

(ii) Injunction decree is not enforceable. However, it can be enforced by seeking police aid on necessary directions from the Court; Matha Gavarayya v. District Collector, E.G. Distt., AIR 1993 AP 103.

  1. Transfer of decree.

(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court 1[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 the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

1[(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.]

2[(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-Sub-section (3) of section 39 shall be substituted.

“(3) For the purpose 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 No. 31 of 1978, sec. 2 (w.e.f. 1-8-1978)].

  1. Ins. by Act No. 104 of 1976, S. 18 (w.e.f. 1-2-1977).
    2. Ins. by CPC Act No. of 2002 section 2 (w.e.f. 1 -7-2002).

 

  1. 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.

  1. 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.

  1. Powers of Court in executing transferred decree.

1[(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

2[(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 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 Courts to which a decree is sent for execution any of the following powers, namely-

(a) power to order execution at the instance of the transferee of the decree;

(b) in the case of a decree passed against a firm, power to grant leave to execute such decree against any person other than such a person as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI.]

STATE AMENDMENT

Uttar Pradesh-Section 42 shall be substituted by following.

“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 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 transfer of a decree.”

[Vide U.P. Act No. 14 of 1970, sec. 2 (w.e.f. 8-4-1970)].

  1. Section 42 renumbered as sub-section (1) thereof by Act No. 104 of 1976, sec. 19 (w.e.f. 1-2-1977)
    2. Ins. by Act No. 104 of 1976, sec. 19 (w.e.f. 1-2-1977).

 

  1. Execution of decrees passed by Civil Courts in places to which this Code does not extend.

1[Execution of decrees passed by Civil Courts in places to which this Code does not extend.

Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends].

  1. Subs. by Act 2 of 1951, sec. 8, for section 43 (w.e.f. 1-4-1951)

 

  1. Execution of decrees passed by Revenue Court in places to which this Code does not extend.

1[Execution of decrees passed by Revenue Court 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].

  1. Subs. by Act 2 of 1951, sec. 9, for section 44 (w.e.f. 1-4-1951)

 

44A. Execution of decrees passed by Courts in reciprocating territory.

1[44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior Courts of 2[***] any reciprocating territory has been filed in a District Court, the decree may be executed in 3[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.

4[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 to 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.]]

  1. Ins. by Act 8 of 1937, sec. 2
    2. The words “United Kingdom or: omitted by Act 71 of 1952, sec. 2
    3. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)
    4. Subs. by Act 71 of 1952, sec. 2, for Explanation 1 to 3.

 

  1. Execution of decrees outside India.

1[45. Execution of decrees outside India.

So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established 2[***] by the authority of the Central Government3[outside India] to which the State Government has by notification in the Official Gazette declared this section to apply].

STATE AMENDMENTS

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 No. 26 of 1968, sec. 3(i) and Sch., Pt II (w.e.f. 5-9-1968)].

  1. Subs. by the A.O. 1937, for section 45.
    2. The words “or continued” omitted by the A.O. 1948.
    3. Subs. by the A.O. 1950, for “in any Indian State.”

 

  1. Precepts.

(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property. Questions to be determined by Court executing decree

  1. 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.

1[* * * *]

(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.

2[Explanation I.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]

COMMENTS

(i) Executing court has to first decide whether preliminary decree in question is severable from final degree and can be executed independently. If not, then only after passing of the final decree it can be executed; Md. Serajuddin v. Md. Abdul Khalique, AIR 2005 Gauhati 40.

(ii) Once decree reached finality, it is not open to judgement-debtor to plead new facts in execution proceedings; Pothuri Thulasidas v. Potru Nageswara, AIR 2005 AP 171.

(iii) Suit was not ‘in reality’ one in the nature of execution of the earlier order of eviction in favour of plaintiff and is not barred. Suit based upon fresh cause of action. The High Court was wrong in treating present suit as one ‘virtually’ for execution of the order of eviction passed in the earlier rent control case. Hence the ban under section 47 cannot apply; Ajit Chopra v. Sadhu Ram, AIR 2000 SC 212.

(iv) An executing court granted decree for interest which was not part of the decree for execution on ground of delay and unreasonable stand taken in execution. Since the executing court cannot travel beyond decree under execution, the said decree was held to be without jurisdiction; Kameshwar Das Gupta v. State of Uttar Pradesh, AIR 1997 SC 410.

(v) New plea cannot be allowed to be raised for the first time in execution proceedings; Jalada Daland Uchha Bidyapith v. State of Orissa, AIR 1993 Ori 257: 1993 (1) Ori LR 77.

(vi) Execution of the decree ought not to be refused, unless the decree itself is a nullity; Jalada Daland Uchha Bidyapith v. State of Orissa, AIR 1993 Ori 257: 1993 (1) Ori LR 77.

(vii) Injunction decree can be enforced by the legal heir of the decree holder against the J.O. after the death of the decree holder; D’souza, J. v. A. Joseph, AIR 1993 Kant 68: ILR (Kant) (1992) 2972.

(viii) Death of the decree holder during pendency of the execution proceedings. His legal representative can continue the proceedings after obtaining the succession certificate; Kariyamma v. Assistant Commissioner and Land Acquisition Officer, AIR 1993 Karn 321: 1993 (1) Civ LJ 297: 1992 (3) Cur CC 664.

(ix) In absence of any challenge to decree no objection can be raised in execution; State of Punjab v. Mohinder Singh Randhawa, AIR 1992 SC 473.

(x) Auction sale held in execution of final decree can be set aside under section 47 on displacement by Appellate Court of preliminary decree on which final decree was based; Kumar Sudhendu Narain Deb v. Renuka Biswas, AIR 1992 SC 385.

  1. Sub-section (2) omitted by Act No. 104 of 1976, sec. 20 (w.e.f. 1-2-1977).
    2. Subs, by Act No. 104 of 1976, sec. 20 for Explanation (w.e.f. 1-2-1977). Earlier Explanation was ins. by Act 66 of 1956, sec. 5 (w.e.f. 1-1-1957).

 

  1. Execution barred in certain cases.

Rep. by the limitation Act, 1963(36 of 1963), s. 28 (with effect from the 1st January, 1964)

  1. 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.

  1. 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.

  1. Powers of Court to enforce execution.

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by the sale without attachment of any property;

(c) by arrest and detention in prison 1[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:

2[Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Explanation.-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.]

STATE AMENDMENTS

Uttar Pradesh-In section 51 of the Code Clause (bb) shall be inserted after clause (b).

“(bb) by transfer other than sale by attachment or without attachment of any property”

[Vide U.P. Act No. 24 of 1954, sec. 2 and Sch I, Item 5, Entry 4 (w.e.f. 30-11-1954)].

COMMENTS

Money decree passed against the company and its managing director. Held, the decree is not passed against Managing Director in his individual capacity. He cannot be sent to jail in enforcement of the decree; M/s. March Ltd. (In Liqn.), Chandigarh v. M/s. Pan India Plastic Pvt. Ltd., New Delhi, AIR 1993 P&H 215: 1993 (1) Bank LT 127: 1993 (1) Land LR 431.

—————

  1. Ins. by Act 104 of 1976, sec. 21 (w.e.f. 1‑2‑1977).
  2. Ins. by Act 21 of 1936, sec. 2.

 

  1. 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.

  1. 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.

  1. 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 shares, of such estates.

STATE AMENDMENT

Karnataka:– For section 54, substitute the following section, namely:-

“54. Partition of Estate or sepration 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 share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition , or the separate possession of shares and if neccessary on the report of a revenue officer, not below the rank of tehsildar or such other person as the Court may appoint as Commissioner in that behalf.”

[Vide Karnataka Act 36 of 1998, sec. 2.]

  1. 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 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 he1[may be discharged], if he has not committed any act of bad faith regarding the subject of the application and if he complies with 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 2[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.

  1. Subs. by Act 3 of 1921, sec. 2, for “will be dicharged”.
    2. Subs. by Act 3 of 1921, sec. 2, for “shall release”.

 

  1. 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.

  1. 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.

  1. 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 12 [five thousand rupees], for a period not exceeding three months, and]

3[(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 expiration of the 4[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.

5[(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed 6[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.

  1. Subs, by Act No. 104 of 1976, sec. 22, for “fifty rupees, for a period of six months, and” (w.e.f. 1-2-1977).
    2. Subs, by Act No. 46 of 1999, section 5 for “one thousand rupees”, (w.e.f. 1-7-2002).
    3. Clause (b) subs. by Act 104 of 1976, sec. 22 (w.e.f. 1-2-1977) and again subs. by Act 46 of 1999, sec. 5 (w.e.f. 1-7-2002)
    4. Subs. by Act 104 of 1976, sec. 22 for certain words (w.e.f. 1-2-1977)
    5. Ins. by Act No. 104 of 1976, s. 22, (w.e.f. 1-2-1977).
    6. Subs. by Act No. 46 of 1999 section 5 for “five hundred rupees” (w.e.f. 1-7-2002).
  2. 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 ground of his serious illness.

(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.

(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom,-

(a) by the State Government, on the ground of the existence of any infectious or contagious disease, or

(b) by the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness.

(4) A judgment-debtor released under this section may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that prescribed by section 58.

  1. Property liable to attachment and sale in execution of decree
  2. 1 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 properties shall not be liable to such attachment or sale, namely:—

(a) the necessary wearing‑apparel, cooking vessels, beds and bedding of the judgment‑debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;

(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed‑grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to 2[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 Government 3[or of a local authority or of any other employer], or payable out of any service family pension fund 4notified in the Official Gazette by5[the Central Government or the State Government] in this behalf, and political pension;

6[(h) the wages of labourers and domestic servants, whether payable in money or in kind 7[***];]

8[(i) salary to the extent of 9[the first 10[11[one thousand rupees]] and two‑thirds of the remainder] 12[in execution of any decree other than a decree for maintenance]:

13[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;]]

14(ia) one‑third of the salary in execution of any decree for maintenance;]

15[(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;]

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 16[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;

17[(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so far as they are declared by the said Act as not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;

(kc) the interest of 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;]

18[(l) any allowance forming part of the emoluments of any 19[servant of the Government] or of any servant of a railway company or local authority which the 20[appropriate Government] may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant for allowance made to 21[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 22[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.

23[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.]

24[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.

25[Explanation 26[III].—In clause (l) “appropriate Government” means—

(i) as respect any 27[person] in the service of the Central Government, or any servant of 28[a Railway Administration] or of a cantonment authority or of the port authority of a major port, the Central Government;

29[***]

(iii) as respects any other servant of the Government or a servant of any other 30[***] local authority, the State Government.]

31[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.]

32[(1A) 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 33[***] to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land, 34[***].

35[***]

STATE AMENDMENTS

Andhra Pradesh.—In section 60, in sub-section (1), in the proviso, in clause (g), in its application to the Andhra Area of the State of Andhra Pradesh, after the words “stipends and gratuities, allowed to pensioners of the Government”, insert the words “or of a local authority”.

[Vide Code of Civil Procedure (Andhra Pradesh) (Andhra Area) Amendment Act, 1950 (34 of 1950) as amended by the Andhra Pradesh Act 9 of 1961.]

In its application to the whole of the State of Andhra Pradesh,—

  1. (i) In section 60, in sub-section (i), in the proviso, after clause (k), insert the following clause, namely:—

“(kk) amount payable: under policies issued in pursuance of the rules for the Andhra Pradesh Government Life Insurance and Provident Fund and the Hyderabad State Life Insurance and Provident Fund;”

(ii) In section 60, in sub-section (1), after Explanation 2, insert the following Explanation, namely:—

“Explanation 2A.—Where any sum payable to a Government servant is exempt from attachment under the provisions of clause (kk), such sum shall remain exempt from attachment notwithstanding the fact that owing to the death of the Government servant it is payable to some other person.”

[Vide Code of Civil Procedure (Andhra Pradesh) (Telangana Area) Amendment Act 11 of 1953, as amended by the Andhra Pradesh Act 10 of 1962.]

  1. (i) In section 60, in sub-section (1), in the proviso, after clause (kk), insert the following clause, namely:—

“(kkk) amounts payable under the Andhra Pradesh State Employees’ Family Benefit Fund Rules;”;

(ii) in Explanation 2 A, for the expression “clause (kk)”, substitute the expression “clauses (kk) and (kkk)”.

[Vide Andhra Pradesh Act 24 of 1979, sec. 2 (w.e.f. 5-9-1979).]

In its application to the Telangana area of the State of Andhra Pradesh in section 60, in sub-section (1):—

(i) in the proviso, after clause (g), insert the following clause, namely:—

“(gg) pension granted or continued by the Central Government, the Government of the pre reorganisation Hyderabad State or any other State Government on account of past services or present infirmities or as a compassionate allowance; and”

(ii) after Explanation 2, insert Explanation 2A which is same as given above with the addition of the words, brackets and letters “clause (gg) or” after the words “under the provisions of”.

[Vide Andhra Pradesh Act 18 of 1953 (w.e.f. 2-12-1953).]

Chandigarh.—Same as in Punjab.

Delhi.—Same as in Punjab.

Gujarat.—In section 60, in sub-section (1),—

(a) in the proviso, after clause (g), insert the following clause, namely:—

“(gg) stipends and gratuities allowed to pensioners of a local authority, and”

(b) in Explanation I, after the brackets and letter “(g)”, insert the brackets and letters “(gg)”.

[Vide Code of Civil Procedure (Bombay Amendment) Act, 1948 (Bombay Act 60 of 1948), sec. 2 (w.e.f. 30-11-1948).]

Haryana.—Same as in Punjab.

Himachal Pradesh.—In section 60, in sub section (1), in the proviso,—

(i) in clause (c), at the end, insert the following:—

“or compensation paid for such houses and buildings (including compensation for the materials and the sites and the land referred to above) acquired for a public purpose”;

(ii) after clause (c), insert the following, clause, namely:—

“(cc) compensation paid for agricultural lands belonging to agriculturists and acquired for a public purposes;”

[Vide Civil Procedure Code (Himachal Pradesh Amendment) Act 6 of 1956.]

Karnataka.—In section 60, in sub-section (1), in the proviso, after clause (p), insert the following clause, 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 Karnataka 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, or in the event of his death to his nominee or other person or persons entitled to such bonus under the said rules.”

[Vide Civil Procedure Code (Mysore Amendment) Act 14 of 1952.]

Kerala.—In section 60, in sub-section (1), in the proviso—

(i) in clause (g), after the words “stipends and gratuities allowed to pensioners”, insert the words “or of a local authority”.

[Vide Kerala Act 13 of 1957, sec. 3 (w.e.f. 1-10-1958).]

[Ed.—This amendment in clause (g) was made prior to the amendment made by the Central act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).]

(ii) after clause (g), insert the following clause, namely:—

“(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme for the employees of the Government of Kerala;”

[Vide Kerala Act 1 of 1988, sec. 2 (w.e.f. 5-1-1988).]

Maharashtra.—In Section 60, 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), insert the following clause, 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 Maharashtra Act 65 of 1977, sec. 6 (w.e.f. 19-12-1977).]

Pondicherry.— Same as in Tamil Nadu.

[Vide Pondicherry Act 26 of 1968.]

Punjab.—In its application to the State of Punjab including the Pepsu area thereof as it was immediately before the 1st November, 1956,—

(a) in section 60, 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, namely:—

“not proved by the decree holder to have been let out on rent or lent to persons other than his father, mother, wife, daughter‑in‑law, brother, sister or other dependants or left vacant for a period of a year or more”.

(ii) after clause (c), insert the following clauses, namely:—

“(cc) milch animals, whether in milk or in calf, kids, animals used for the purposes of transport of 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 recovered.”

(b) In Section 60, after sub‑section (2), insert the following sub‑sections, namely:—

“(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 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 7 of 1934, sec. 35 as amended by Punjab Acts 12 of 1940, 6 of 1942 and 14 of 1960 (w.e.f. 30-12-1960).]

Rajasthan.—In Section 60, in sub section (1), in the proviso,—

(i) in clause (b) after the word “agriculturist,” insert the words “his milch cattle and those likely to calve within two years,”;

[Vide Rajasthan Act 19 of 1958 (w.e.f. 18-4-1958).]

(ii) after clause (k), insert the following clause, namely:—

“(kk) moneys payable under Life Insurance Certificates issued in pursuance of the Rajasthan Government Servants Insurance Rules, 1953;”

(iii) In Section 60, in sub-section (1), after Explanation 3, insert the following Explanation, namely:—

“Explanation 4.—Where any money payable to a Government servant of the State is exempt from attachment under the provision contained in clause (kk), such money shall remain exempt from attachment notwithstanding the fact that owing to the death of a Government servant it is payable to some other person”.

[Vide Rajasthan Act 16 of 1957, sec. 2 (w.e.f. 6-6-1957).]

Tamil Nadu.—In section 60, in sub-section (1), in the proviso, after the words “stipends and gratuities allowed to the pensioners of the Government”, insert the words “or of a local authority”.

[Vide Code of Civil Procedure (Madras Amendment) Act (34 of 1950).]

This Act has been extended to Kanya Kumari district and Shen Cottah taluk of the Tirunelveli District by the Madras by the Andhra Pradesh and Madras (Alteration Boundaries) (Act 66 of 1959) by the Madras (Added Territories) Adaptation of Laws Order, 1961.

Uttar Pradesh.—In section 60, in sub-section (1), after Explanation 1, insert the following Explanation, namely:—

“Explanation 1A.— Particulars mentioned in clause (c) are exempt from sale in execution of a decree whether passed before or after the commencement of the Civil Procedure Code (United Provinces Amendment) Act, 1948, for enforcement of a mortgage of charge thereon.”

[Vide the Code of Civil Procedure (Uttar Pradesh Amendment) Act 35 of 1948, sec. 2 (w.e.f. 28-8-1948).]

COMMENTS

Immunity from attachment with regard to residential house is not available to debtor unless he establishes connection between the agricultural operations carried on by him and the house sought to be attached; Paruchuru Narasimha Rao v. Nune Pandu Ranga Rao, AIR 1994 AP 197.

—————

  1. For amendments to section 60, in its application to East Punjab, see the Punjab Relief of Indebtedness Act, 1934 (Punjab Act 7 of 1934), sec. 35, as amended by Punjab Acts 12 of 1940 and 6 of 1942.
  2. Subs. by Act 104 of 1976, sec. 23, for “an agriculturist” (w.e.f. 1-2-1977).
  3. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).
  4. For such a notification, see Gazette of India, 1909, Pt. I, p. 5.
  5. Subs. by the A.O. 1937, for “the G.G. in C.”
  6. Subs. by Act 9 of 1937, sec. 2, for clauses (h) and (i). 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, sec. 3.
  7. The words “and salary, to the extent of the first hundred rupees and one-half the remainder of such salary” omitted by Act 5 of 1943, sec. 2.
  8. Subs. by Act 5 of 1943, sec. 2, for clause (i) and proviso.
  9. Subs. by Act 26 of 1963, sec. 2, for “the first hundred rupees”.
  10. Subs. by Act 104 of 1976, sec. 23, for “two hundred rupees and one-half the remainder” (w.e.f. 1-2-1977).
  11. Subs. by Act 46 of 1999, sec. 6, for “four hundred rupees” (w.e.f. 1-7-2002).
  12. Ins. by Act 66 of 1956, sec. 6 (w.e.f. 1-1-1957).
  13. Subs. by Act 104 of 1976, sec. 23, for the proviso (w.e.f. 1-2-1977).
  14. Ins. by Act 66 of 1956, sec. 6 (w.e.f. 1-1-1957).
  15. Subs. by Act 104 of 1976, sec. 23, for clause (j) (w.e.f. 1‑2‑1977).
  16. Subs. by Act 9 of 1937, sec. 2, for “1897”.
  17. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1‑2‑1977).
  18. Subs. by Act 9 of 1937, sec. 2, for clause (l).
  19. Subs. by Act 5 of 1943, sec. 2, for “public officer”.
  20. Subs. by the A.O. 1937, for “G.G. in C.”
  21. Subs. by Act 5 of 1943, sec. 2, for “any such officer or servant”.
  22. Subs. by A.O. 1937, for “any law passed under the Indian Councils Acts, 1861 and 1892”.
  23. Subs. by Act 104 of 1976, sec. 23, for Explanation 1 (w.e.f. 1‑2‑1977).
  24. Subs. by Act 104 of 1976, sec. 23, for “Explanation 2.—In clauses (h) and (i)” (w.e.f. 1‑2‑1977).
  25. Ins. by the A.O. 1937.
  26. Subs. by Act 104 of 1976, sec. 23, for “3” (w.e.f. 1‑2‑1977).
  27. Subs. by Act 5 of 1943, sec. 2, for “public officer”.
  28. Subs. by the A.O. 1950, for “a Federal Railway”.
  29. Clause (ii) omitted by the A.O. 1948.
  30. The word “railway or” omitted by the A.O. 1950.
  31. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).
  32. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).
  33. The letter and brackets “(a)” rep. by Act 10 of 1914, sec. 3 and Sch. II. 34. The word “or” rep. by Act 10 of 1914, sec. 3 and Sch. II.
  34. Clause (b) rep. by Act 10 of 1914, sec. 3 and Sch. II.

 

  1. Partial exemption of agricultural produce.

The State Government 1[***] 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 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 exaction of a decree.

  1. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, sec. 2 and Sch. I
  2. Seizure of property in dwelling-house.

(1) No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling-house

after sunset and before sunrise.

(2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

  1. Property attached in execution of decrees of several Courts.

(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto 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.

1[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.]

  1. Ins. by Act No. 104 of 1976, sec. 24 (w.e.f. 1-2-1977).
  2. Private alienation of property after attachment to be void.

1[(1)] Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

2[(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.

Comments

Sale of attached property before dismissal of execution application is void; Nancy John Lyndon v. Prabhati Lal Chodhury, AIR 1987 SC 2061.

  1. Section 64 renumbered as sub-section (1) of that section by Act 22 of 2002, sec. 3 (w.e.f. 1-7-2002).
  2. Ins. by Act 22 of 2002, sec. 3 (w.e.f. 1-7-2002).

 

  1. 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.

  1. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff

[Rep. by Benami Transactions (Prohibition) Act, 1988 (45 of 1988), sec. 7 (w.e.f. 19-5-1988).]

  1. Power for State Government to make rules as to sales of land in execution of decrees for payment of money.

1[(1)] The State Government 2[***] 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 undermined as, in the opinion of the State Government to make it impossible to fix their value.

3[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of and in execution of decrees were in force therein, the State Government may, by notification in the Official Gazette, declare such rules to be in force, or may 4[***] by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this sub-section shall set out the rules so continued or modified.]

4[(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

  1. Section 67 renumbered as sub-section (1) of that section by Act 1 of 1914, sec. 3.
    2. The words “with the previous sanction of the G.G. in C.,” omitted by Act 38 of 1920, sec. 2 and Sch. I.
    3. Added by Act 1 of 1914, sec. 3.
    4. Ins. by Act No. 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984).

68-72. Repealed

68.-72. Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 7. (w.e.f. 1-1-1957).

  1. Proceeds of execution-sale to be rateably distributed among decree-holders.

(1) Where assests are held by a Court and more persons than one have, before the receipt of such assests, 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 assests, after deducting the costs of realization, shall be rateably distributed among all such persons :

Provided as follows :-

(a) where any property is sold subject to a mortgage or charge, the mortgage or incumbrancer shall not be entitled to share in any surplus arising from such sale;

(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charges 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 moneys due on subsequent incumbrances (if any); and

fourthly, rateably among the holders of decrees for the payment of money against the judgment debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have 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.

COMMENTS

The debts due to the State are entitled to priority over all other debts; Union of India v. Somasundaram Mills (P) Ltd., AIR 1985 SC 407.

  1. 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.

  1. 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;

1[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.]

  1. Ins. by Act No. 104 of 1976, sec. 26 (w.e.f. 1-2-1977).
  2. 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.

  1. Letter of request.

In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within 1[India].

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

 

  1. Commissions issued by foreign Courts.

1[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 issue by or as 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.]

  1. Subs. by Act 2 of 1951, sec. 11, for section 78 (w.e.f. 1-4-1951).

 

  1. Suits by or against Government

1[Suits by or against Government

In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Central Government,2[the Union

of India], and

(b) in the case of a suit by or against a State Government, the State.

  1. Subs. A.O. 1948, for section 79.
    2. Subs. by the A.O. 1950, for “the Dominion of India”.

 

  1. Notice.

1[(1)] 2[Save as otherwise provided in sub-section (2), no suits 3[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been 4[delivered to, or left at the office of]-

(a) in the case of a suit against the Central Government, 5[except where it relates to a railway], a Secretary to that Government;

6[7[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway];

8[(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 9[any other State Government], a Secretary to that Government or the Collector of the district; 10[***]

11[***]

and, in the case of a public officer, delivered to him or left at this 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.

12[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]

STATE AMENDMENTS

Madhya Pradesh –(i) After sub-section (3) of Section 80 the following inserted:

“(4) where in a suit or proceeding referred to in Rule 3B 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 Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)”.

(ii) In sub-section (1) of section 80 for the words “sub-section (2)” substitute “sub-section (2) or (4)”. [M.P. Act No. 29 of 1984].

  1. Sec. 80 renumbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
    2. Subs, by Act No. 104 of 1976, sec. 27 for “No suit shall be instituted’ (w.e.f. 1-2-1977).
    3. Subs. by Act 26 of 1963, sec. 3 for “shall be instituted against the Government” (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948 for “instituted against the Crown”.
    4. Subs. by the A.O. 1937, “in case of the Secretary of State in Council, deliver to , or left at the office of a Secretary to the L.G. or the COntroller ofn the district”.
    5. Ins. by Act 6 of 1948, sec. 2.
    6. Clause (aa) ins. by Act 6 of 1948, sec. 2.
    7. Clause (aa) relettered as clause (b) and the former clause (b) omitted by the A.O. 1948.
    8. Ins. by the Act 26 of 1963, sec. 3 (w.e.f. 5-6-1964).
    9. Subs. by the Act 26 of 1963, sec. 3 for “a State Government” (w.e.f. 5-6-1964).
    10. The word “and” omitted by the A.O. 1948.
    11. Clause (d) omitted by the A.O. 1948.
    12. Ins. by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).

 

  1. 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.

  1. Execution of decree.

1[(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 him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section (2)].

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of

2[such decree].

3[(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 4[the Union of India] or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; and

(b) is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree.]

  1. Subs, by Act No. 104 of 1976 for sub-section (1) (w.e.f. 1-2-1977).
    2. Subs, by Act No. 104 of 1976 for “such report” (w.e.f. 1-2-1977).
    3. Ins. by Act 32 of 1949, sec. 2.
    4. Subs. by the A.O. 1950, for “the Dominion of India”.

 

  1. 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 i 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.

  1. When foreign State 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.

  1. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers.

(1) The Central Government may, at the request of the Ruler of a foreign State or at the request of any person competent in the opinion of the Central Government to act on behalf of such Ruler, by order, appoint any persons to prosecute or defend any suit on behalf of such Ruler, and any persons so appointed shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Ruler.

(2) An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of such Ruler.

(3) A person appointed under this section may authorise or appoint any other persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.

  1. Suits against foreign Rulers, Ambassadors and Envoys.

(1) No [* * * *]1 foreign State may be sued in any Court otherwise competent to try the suit except with 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 aforesaid2[a foreign State] from whom he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which 3[the foreign State] may be sued, but it shall to be given, unless it appears to the Central Government that 3[the foreign State].

(a) has instituted a suit in the Court against the person desiring to sue 4[it], or

(b) 5[itself] or another, trades within the local limits of the jurisdiction of the Court, or

(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or

(d) Has expressly or impliedly waived the privilege accorded to 4[it] by this section.

6[(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 proceeding provisions of this section shall apply in relation to –

7[(a) any Ruler of a foreign State;]

8[(aa)] any ambassador or Envoy of a foreign State ;

(b) any High Commissioner of a Commonwealth country; and

(c) any such member of the staff 9[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.

10[as they apply in relation to a foreign State].

7[(5) the following persons shall not be arrested under this Code, namely : –

(a) any ruler of a foreign State;

(b) any Ambassador or Envoy of a foreign State;

(c) any High Commissioner of a Commonwealth country;

(d) any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf.

(6) Where a request is made to the Central Government for the grant of any consent referred to in 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.]

  1. The words “Ruler of a” omitted by Act No. 104 of 1976, sec. 29 (w.e.f. 1-2-1977).
    2. Subs, by Act No. 104 of 1976, sec. 29, for “a Ruler” (w.e.f. 1-2-1977).
    3. S ubs. by Act No. 104 of 1976, sec. 29, for “the Ruler” (w.e.f. 1 -2-1977).
    4. Subs, by Act No. 104 of 1976, sec. 29, for “him” (w.e.f. 1-2-1977).
    5. Subs, by Act No. 104 of 1976, sec. 29, for “himself (w.e.f. 1- 2-1977).
    6. Subs, by Act No. 104 of 1976, sec. 29, for sub-section (3) (w.e.f. 1-2-1977).
    7. Ins. by Act No. 104 of 1976, sec. 29 (w.e.f. 1-2-1977).
    8. Cl. (a) re-lettered as cl. (aa) by Act No. 104 of 1976, sec. 29, (w.e.f. 1-2-1977).
    9. Subs, by Act No. 104 of 1976, sec. 29, for “or retinue of the Ruler, Ambassador” (w.e.f. 1-2-1977).
    10. Subs, by Act No. 104 of 1976, sec. 29, for “as they apply in relation to the Ruler of a foreign State” (w.e.f. 1-2-1977).

 

  1. 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.

87A. 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 recognized by the Central Government to be the head of that State.

(2) Every Court shall take judicial notice of the fact –

(a) that a state has or has not been recognized by the Central Government;

(b) that a person has or has not been recognized by the Central Government to be the head of a State.

87B. Applications of sections 85 and 86 to Rulers of former Indian States.

1[(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 proceedings arising out of such suit, the provisions of section 85 and sub-sections (1) and (3) of section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign State].]

(2) In this section-

(a) “former Indian State” means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this;2[***]

3[(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.]

  1. Subs. by Act 54 of 1972, sec. 3, for sub-section (1) (w.e.f. 9-9-1972).
    2. The word “and” omitted by Act 54 of 1972, sec. 3 (w.e.f. 9-9-1972).
    3. Subs. by Act 54 of 1972, sec. 3, for clause (b) (w.e.f. 9-9-1972).

 

  1. Where interpleader suit may be reinstituted.

Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

  1. Settlement of disputes outside the Court

1[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 observation 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 had been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 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 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 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.]

  1. Sec. 89 was repealed by Act 10 of 1940, sec. 49 and Sch. II and again added by Act No. 46 of 1999, section 7 (w.e.f. 1-7-2002).

 

  1. Power to state case for opinion of Court.

Where any person agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

  1. Public nuisances and other wrongful acts affecting the public.

1[Public nuisances and other wrongful acts affecting the public]

[(1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-

(a) by the Advocate General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

  1. Subs. by Act No. 104 of 1976, sec. 30 for the former heading (w.e.f. 1-2-1977).
  2. Public charities.

1[Public charities.

(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 2[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 Aectee,-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

3[(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 inquires;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing 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 1863) 4[or by any corresponding law in force in 5[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 provisions of that sub-section.

6[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more 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;

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of

using the property available by virtue of the trust, regard being had to the spirit of the trust.]]

STATE AMENDMENT

Uttar Pradesh-After clause (b) of sub-section (1) of section 92 insert the following: “

(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 No. 24 of 1954, sec. 2 and Sch., Item 5, Entry 5 (w.e.f. 30-11-1954).]

COMMENTS

(i) Suit against the appointment of trustees—Held, court cannot enquire whether the trustees were validly appointed under provisions of section 92; Duttgir Mahant v. Rishi Ram, AIR 1993 P&H 231: 1993(1) Cur LJ 209: (1993) 1 Pun LR 95.

(ii) Sale of property of religious and charitable endowments by private negotiation should not be permitted by court unless justified by special reasons; R. Venugopala Naidu v. Venkatarayulu Naidu Charities, AIR 1990 SC 444.

  1. Section 92 shall not apply to any religious trust in Bihar.
    2. Subs. by Act No. 104 of 1976 for “consent in writing of the Advocate-General” (w.e.f. 1-2-1977).
    3. Ins. by Act 66 of 1956, sec. 9 (w.e.f. 1-1-1957).
    4. Ins. by Act 2 of 1951, sec. 13 (1-4-1951).
    5. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “a Part B State”.
    6. Ins. by Act No. 104 of 1976, sec. 31 (w.e.f. 1-2-1977).

 

  1. 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.

  1. 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 so 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.

 

 

COMMENTS

(i) Provisional admission in post‑graduate medical course should not be normally granted in absence of special reason; U.P. Junior Doctors’ Action Committee v. Dr. B. Sheetal Nandwani, AIR 1992 SC 671.

(ii) Supreme Court will abstain from passing interlocutory order if it has effect or tend to be susceptible of an inference of pre-judging some important and delicate issue in main matter; Sub‑Committee of Judicial Accountability v. Union of India, AIR 1992 SC 63.

  1. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.

Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,-

(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same,

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount,1[not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the 2[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 peculiar jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.

  1. Subs, by Act No. 46 of 1999, section 8 for “not exceeding one thousand rupees” (w.e.f. 1 -7-2002).
    2. Subs. by Act No. 104 of 1976, sec. 32 for “expense or injury caused to him” (w.e.f. 1-2- 1977).

 

  1. Appeal from original decree.

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex pane.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

1[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed 2[ten thousand rupees].]

COMMENTS

(i) When an ex parte decree is passed the defendant has two clear options. One to file an appeal and another to file an application under O. 9, R. 13 to set aside the order. Once application under O. 9, R. 13 is dismissed, he cannot by filing first appeal dispute the correctness of order posting suit for ex parte hearing or show cause for his non-appearance; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.

(ii) The subsequent events in first and second appeals cannot be taken indiscriminately into account. It may be permitted to be taken into account by appellate court by means of amendment of pleadings, in order to avoid multiplicity of proceedings but not where such amendment could cause prejudice to vested right of plaintiff and render him remedied; Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24.

(iii) New plea relating to question of fact cannot be allowed to be raised for the first time before the Ist appellate court; K. Shivalingaiah v. B.V. Chandra Shekara Gowda, AIR 1993 Kant 29: 1992 (2) Kant LJ 536: ILR (Kar) (1992) 1996.

  1. Ins. by Act No. 104 of 1976, sec. 33 (w.e.f. 1-2-1977).
    2. Subs. by Act No. 46 of 1999, section 9 for “three thousand rupees” (w.e.f. 1-7-2002).

 

  1. 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.

  1. 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 1[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.

2[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.]

COMMENTS

Reference for opinion is permissible only if the judges who have heard the case have not pronounced their final judgments; Nirmal Swaran Singh v. Rozu‑ud‑din, AIR 1993 All 121.

  1. Subs, by Act No. 104 of 1976, sec. 34 for certain words (w.e.f. 1-2-1977).
    2. Ins. by Act 18 of 1928, sec. 2 and Sch. I.

 

  1. 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 mis joinder 1[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.

1[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

  1. Ins. by Act. No. 104 of 1976, sec. 35 (w.e.f. 1-2-1977).

 

 

 

99A. No order under section 47 to be refused or modified unless decision of the case is prejudicially affected.

1[99A. No order under section 47 to be refused or modified unless decision of the case is prejudicially affected.

Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.]

  1. Ins. by Act. No. 104 of 1976, sec. 36 (w.e.f. 1-2-1977).
  2. Second appeal.

1[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 exparte.

(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.]

COMMENTS

(i) The scope of exercise of the jurisdiction by the High Court in second appeal under section 100 is limited to the substantial question of law. To be a substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of parties before the Court; Govindaraja v. Mariamman, AIR 2005 SC 1008.

(ii) The High Court was not justified in setting aside the concurrent finding of fact on sub-letting and nuisance without formulating any substantial question of law; Hari Singh v. Kanhaiya Lal, AIR 1999 SC 3325.

(iii) The High Court, in second appeal is not justified in setting aside a mixed question of law and fact; Ram Kumar Agarwal v. Thawar Dass (dead) by LR, AIR 1999 SC 3248.

(iv) The High Court, should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower courts; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-un-Niswan, AIR 1999 SC 3067.

(v) Where the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in second appeal, treating as substantial question of law; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 2213.

(vi) The findings of fact arrived by the courts below are binding in second appeal; Smt. Bismillah Begum (dead) by LRs v. Rahmatullah Khan (dead) by LRs, AIR 1998 SC 970.

(vii) Conclusion about limitation is a finding of fact and is not open for interference in the second appeal; Smt. Saraswatidevi v. Krishnaram Baldeo Bank Limited, AIR 1998 MP 73.

(viii) Once the evidence on which the courts of fact have acted was admissible and relevant, party cannot be allowed to raise that said evidence is insufficient to justify the finding of facts in second appeal; Ramanuja Naidu v. Kanniah Naidu, JT 1996(3) SC 164.

(ix) Second Appeal—Interference with the factual finding is permissible only if the said finding is unreasonable; Sadhu Mehar v. Rajkumar Patel, AIR 1994 Ori 26.

(x) Second Appeal—Interference with factual findings recorded by the court below is permissible in cases of non‑consideration of relevant evidence; Nalini v. Padmanabhan Krishnan, AIR 1994 Ker 14.

(xi) Question of fact can not be allowed to be raised in second appeal; Prabhu Dayal v. Suwa Lal, AIR 1994 Raj 149.

(xii) Interference with finding of fact is permissible if the court below ignored weight of evidence on record altogether; Ajab Singh v. Shital Puri, AIR 1993 All 138: 1993 All LJ 548.

(xiii) Erroneous application of law—Second appeal is maintainable If it raises a substantial question; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993(1) Cal HN 307: 1993 (1) Cal LJ 193.

(xiv) Interpretation of the contract involves a substantial question of law. It can be examined in second appeal; Smt. Vidya Wati through her LRs. v. Hans Raj through his L.Rs., AIR 1993 Del 187: 1993 Rajdhani LR 274.

(xv) Perverse finding recorded by the court below—Second appeal is maintainable; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993 (1) Cal HN 307: 1993 (1) Cal LJ 193.

(xvi) Factual finding based on no evidence—Second appeal is maintainable; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993 (1) Cal HN 307: 1993(1) Cal LJ 193.

(xvii) Finding of fact recorded by the first appellate court cannot be interfered with in second appeal unless perverse; Padmashree S.N. Swamy v. Smt. Gowramma, AIR 1993 Kant 208: 1992 (3) Kant LJ 244: 1993 (2) APLJ 18.

(xviii) Finding of fact cannot be questioned in second appeal; Ramaswamy Kalingaryar v. Mathayan Padayachi, AIR 1992 SC 115.

(xix) In absence of substantial question of law on current finding of facts it cannot be interfered with in second appeal; Kehar Singh v. Yash Pal, AIR 1990 SC 2212.

  1. Subs, by Act No. 104 of 1976, sec. 37 for Section 100 (w.e.f. 1-2-1977).

 

100A. No further appeal in certain cases.

1[100A. No further appeal in certain cases.

Notwithstanding anything contained in any Letters Patent for any High Court or in any other 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.]

  1. Section 100A ins. by Act 104 of 1976, sec. 38 (w.e.f. 1-2-1977) and substituted by Act No. 46 of 1999, section 10 and now further has been substituted by Act No. 22 of 2002, section 4 (w.e.f. 1-7-2002).

 

  1. Second appeal on no other grounds.

No second appeal shall lie except on the ground mentioned in section 100.

  1. No second appeal in certain cases.

1[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”.]

  1. Section 102 was substituted by Act No. 46 of 1999, section 11 and now further substituted by Act No. 22 of 2002, section 5 (w.e.f. 1-7-2002).

 

  1. Power of High Court to determine issues of fact.

1[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 reason of a decision on such question of law as is referred to in section 100.]

  1. Subs, by Act No. 104 of 1976, sec. 40 for section 103 (w.e.f. 1-2- 1977).

 

  1. 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:-

1[***]

2[(ff) an order under section 35A;]

3[(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;

2[Provided that not 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.

  1. Clauses (a) to (f) omitted by Act 10 of 1940, sec. 49 and Sch. III.
    2. Ins. by Act 9 of 1922, sec. 3.
    3. Ins. by Act No. 104 of 1976, sec. 41 (w.e.f. 1-2-1977).

 

  1. 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 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 1[*****] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

  1. The words “made after the commencment of this Code” omitted by Act No. 104 of 1976, sec. 42 (w.e.f. 1-2-1977).

 

  1. 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.

 

 

  1. 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.

COMMENTS

Neither the issue framed nor evidence led in trial court in respect of mixed question of fact and law. New plea raised before the Supreme Court not permissible on the ground that the establishment of fact by evidence for decision is necessary; Vasantha Viswanathan v. V.K. Elayalwar, (2001) 8 SCC 133.

  1. Procedure in appeals from appellate decrees and orders.

The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals-

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.

  1. When appeals lie to the Supreme Court.

1[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.]

  1. Subs. by Act 46 of 1973, sec. 2, for section 109 (w.e.f. 29-11-1973).

 

  1. Value of subject matters.

Rep. by the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973), sec. 3.

  1. Bar of certain appeals.

Rep. by the A.O. 1950.

111A. Appeals to Federal Court.

1[111A. Appeals to Federal Court.

Rep. by the Federal Court Act, 1941 (21 of 1941), sec. 2.]

  1. Ins. by the A.O. 1937

 

  1. Savings.

1[(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.

  1. Subs. by the A.O. 1950, for sub-section (1).

 

  1. 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:

1[Provided that where the Court is satisfied that a case pending before it involve; 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 ii 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 b; the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, 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 the Explanation to section 113 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 State of Andhra as it existed immediately before the 1st Nov. 1956″.

[Vide Andhra Pradesh Adoption of Laws (Second Amendment) Orders, 1954 (w.e.f. 1-10-1953) and Andhra Pradesh A.L. (Amendment) Order 1957 (w.e.f. 1-11-1956).]

Tamil Nadu-In the Explanation to section 113 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 Second Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959.”

[Vide Madras (Added Territories) Adaptation of Laws Order, 1961 (w.e.f. 1-4-1960).]

  1. Added by Act 24 of 1951, sec. 2 (w.e.f. 1-4-1951).

 

  1. 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 Court, 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.

Comments

(i) Subsequent event may be taken into consideration by the Court, while exercising review jurisdiction; Board of Control of Cricket in India v. Netaji Cricket Club, AIR 2005 SC 592.

(ii) The review petition was filed well within the time and since to review petition was not being decided by the High Court, the appellant filed the special leave petition against main judgment of High Court. Hence the Supreme Court overruled the contention that earlier special leave petition filed by appellant having been dismissed by the Supreme Court the second SLP was not maintainable being barred by the principle of res judicata; K. Rajamouli v. A.V.K.N. Swamy, AIR 2001 SC 2316.

  1. Revision.

1[(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:

2[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.]

3[(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.]

4[(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.]

3[Explanation.-In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]

STATE AMENDMENTS

Madhya Pradesh-For Section 115 of the principal Act, the following Section substituted.

“115. Revision.-

The High Court may call for the record of any cases 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 proceedings 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, sec. 2 (w.e.f. 15-3-1994).]

Orissa.-In its application to the State of Orissa, for section 115, substitute the following:-

“115. Revision.-

The High Court, in eases 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 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.”

Saving:-

The amendment made this Act shall not effect the validity, invalidity, effect or consequence of anything already done of 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, 5 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, sec. 2 (w.e.f. 7-11-1991).]

Uttar Pradesh.-In its application to the State of Uttar Pradesh, for section 115, substitute the following:-

“115 Revision.-

The High Court, in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the U.P. Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit:

Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where,-

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made:

Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this Section was pending immediately before the relevant date of commencement referred to above, in the High Court, such Court shall proceed to dispose of the same.

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.”

Transitory Provisions:-

Where a proceeding of the nature in which District Court may call for the record and pass orders under section 115 of the said Code as substituted by this Act was pending immediately before August 1, 1978.- (a) In the District Court, such Court shall proceed to dispose of the same as if the provisions of the same as if the provisions of this Act were in force at all material times;

(b) in the High Court, such Court shall proceed to dispose of the same as if this Act has not come into force.”

[Vide U.P. Acts 31 of 1978, Sections 3 and 5 (w.e.f. 1-8-1978) as amended by Uttar Pradesh Act 17 of 1991, sec. 7 (w.e.f. 15-1-1991).]

West Bengal-After Section 115 of the Code the following section 115A inserted:

“115A. District Court’s powers of revision-

(1) A District Court may exercise all or any of the power which may be exercised by the High Court under section 115.

(2) Where any proceedings by way of revision is commenced before a District Court in pursuance of the provision of sub-section (1), the provisions of section 115 shall, so for as may be, apply to such proceeding and references to the said section 60 the High Court shall be construed as reference to the District Court.

(3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.

(4) If any application for revision has been made by any party either to the High Court under section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.

(5) A Court of an Additional Judge shall have and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court”

[Vide West Bengal Act No. 15 of 1988, sec. 3 (w.e.f. 1-2-1989).]

COMMENTS

(i) Order allowing proposed amendment would not also come under clause (b) of section 115(1). Under revisional powers of High Court this cannot be interfered with by High Court. Prem Bakshi v. Dharam Dev, AIR 2002 SC 559.

(ii) The objections filed by the petitioners were under Order 21, rule 36 C.P.C. and the only remedy against it is revision under section 115 C.P.C. The Appellate Authority has rightly dismissed the appeal in limine as not maintainble; Naresh Sharma v. Ramesh Chand, AIR 2000 HP 6.

(iii) Revisional court ought to consider and discuss evidence on which finding was based by lower authorities. Mere statement by Revisional court that there was evidence to show that the bona fides of the landlord was proved is not sufficient; K. Urmila v. Ram Kumar Verma, AIR 1998 SC 1188.

(iv) Revision against erroneous finding with regard to admissibility of evidence was held to be competent; Kundan Mal v. Nand Kishore, AIR 1994 Raj 1.

(v) Revisional jurisdiction of the High Court—Validity of an order can be examined even if no reason has been specified for order except exercise of power under a rule; Charles Mantosh v. Dalhousie Institute, AIR 1993 Cal 232.

(vi) Revision against an order admitting documents after arguments were over is not maintainable; Hemendra Chaudhary v. M/s. Punjab National Bank, AIR 1993 All 49: 1993(21) All LR 218: 1993 All LJ 76.

(vii) Ex parte decree of ejectment—Revision against—Death of one of the co-landlords during pendency of the revision—No substitution—Held, revision would not abate; Ram Gopal Sharma v. Ist Additional District Judge, Meerut, AIR 1993 All 124: 1992 All CJ 1026.

(viii) Revisional court is not competent to reappreciate evidence; Padartha Amat v. Siba Sahu, AIR 1993 Ori 92.

(ix) Under section 115 of the Code, the High Court connot reappreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfare with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction; Masjid Kacha Tank, Nahan v. Tuffail Mohammed, AIR 1991 SC 455.

  1. Sec. 115 re-numbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 43 (w.e.f. 1-2-1977).
    2. Ins. by Act 104 of 1976, sec. 43 (w.e.f. 1-2-1977) and subs. by Act 46 of 1999, sec. 12 (w.e.f. 1-7-2002).
    3. Ins. by Act No. 104 of 1976, sec. 43 (w.e.f. 1-2-1977).
    4. Ins. by Act No. 46 of 1999, section 12 (w.e.f. 1-7-2002).
  2. Part to apply only to certain High Courts.

This Part applies only to High Courts 1[not being the Court of a Judicial Commissioner].

  1. Subs. by Act 2 of 1951, sec. 14, for “CHARTERED HIGH COURTS” (w.e.f. 1-4-1951).

 

  1. Application of Code to High Court.

Save as provided in this Part or in Part X or in rules, the provisions of this Court shall apply to such High Courts.

  1. 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.

 

 

 

  1. 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 I so to do, or to interfere with the power of the High Court to make rules concerning I advocates, vakils and attorneys.

  1. 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 I original civil jurisdiction, namely, sections 16,17 and 20.

1[***]

  1. Sub-section (2) rep. by Act 3 of 1909, sec. 127 and Sch. III.

 

  1. 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.

  1. Power of certain High Courts to make rules.

1[High Courts 2[not being the Court of a Judicial Commissioner]] 3[***] may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may be such rules annul, alter or add to all or any of the rules in the First Schedule.

  1. Subs. A.O. 1950, for “Courts which are High Courts for the purposes of the Government of India Act, 1935″.
    2. Subs. by the Adaptation of Laws (No. 2) Order, 1956, “for Part A States and Part B States”. Earlier the words “for Part A States and Part B States” were inserted by Act 2 of 1951, sec. 15 (w.e.f. 1-4-1951).
    3. The words “and the Chief Court of Lower Burma”, rep. by Act 11 of 1923, sec. 3 and sch. II.

 

  1. Constitution of Rule Committees in certain States.

(1) A committee to be called the Rule Committee, shall be constituted at

1[the town which is the usual place of sitting of each of the High Courts

2[***] referred to in section 122].

(2) Each such Committee shall consist of the following persons, namely-

(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or 3[***] a Divisional Judge for three years,

4[(b) two legal practitioners enrolled in that Court]

5[(c)] a Judge of a Civil Court subordinate to the High Court 6[***]

5[7[* * *]]

(3) The members of each such Committee shall be appointed by the

8[High Court], which shall also nominate one of their number to be

President:

9[* * *]

(4) Each member of any such Committee shall hold office for such period as may be prescribed by the8[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 acting as a member of the Committee, the said 8[High Court] may appoint another person to be a member in his stead.

(5) There shall be a secretary to each such Committee who shall be appointed by the 9[High Court] and shall receive such remuneration as may be provided in this behalf 10[by the State Government].

STATE AMENDMENTS

Assam and Nagaland-Substitute the following for clause (a) sub-section (2) of section 123.

“(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”

[C.P.C. (Assam Amendment) Act No. 8 of 1953, sec. 2, (w.e.f. 18-4-1953) and Nagaland Act 27 of 1962 (w.e.f. 1-12-1963).]

Tamil Nadu-In section 123 sub-section (2).

(a) “In clause (b) for the words ‘two legal practitioners’ substitute the words ‘three legal practitioners’.”

(b) “Omit the words ‘Madras’ in clause (d)”.

[Vide Tamil Nadu Act No. 15 of 1970, sec. 2 (w.e.f. 10-6-1970).]

  1. Subs. by Act 13 of 1916, sec. 2 and Sch. for “each of towns of Calcutta, Madras, Bombay, Allahabad, Lahore and Rangoon”.
    2. The words “and of the Chief Court”, Omitted by Act 11 of 1923, sec. 3 and Sch. II. These words were again ins. By Act 32 of 1925, and subsequently omitted by A.O. 1948.
    3. The brackets and words “(in Burma)” rep. by Act 11 of 1923, sec. 3 and Sch. II.
    4. Subs. by Act 2 of 1951 sec. 16, for clauses (b) and (c).
    5. Clauses (d) and (e) re-lettered as clauses (c) and (d) respectively by Act 2 of 1951, sec. 16 (w.e.f. 1-4-1961).
    6. The word “and” omitted by Act No. 38 of 1978, sec. 3 and Sch. II. (w.e.f. 26-11-1978).
    7. Cl. (d) omitted by Act No. 38 of 1978, sec. 3 and Sch. II. (w.e.f. 26-11-1978).
    8. Subs, by Act No. 104 of 1976, sec. 44, for “Chief Justice or Chief Judge” (w.e.f. 1-2-1977).
    9. Proviso omitted by Act No. 104 of 1976, sec. 44 (w.e.f. 1-2-1977).
    10. Subs. by A.O. 1937, for “by the G.G. in C. or by the L.G. as the case may be”.

 

  1. Committee to report to High Court.

Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.

  1. Power of other High Courts to make rules.

High Courts, other than the Courts specified in section 122, may exercise the powers conferred by that section in such manner and subject to such conditions 1[as 2[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.

  1. Subs. by Act 38 of 1920, sec. 2 and Sch. 1, Pt. I, for “as the G.G. in C. may determine”.
    2. Subs. by the A.O. 1937, for “in the case of the Court of the Judicial Commissioner of Coorg, the G.G. in C., and in other cases the L.G.”.

 

 

  1. Rules to be subject to approval.

1[126. Rules to be subject to approval.

Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any State, to the previous approval of 2[Central Government].]

—————

  1. Subs. by the A.O. 1937, for section 126.
  2. Subs. by the A.O. 1950, for “Governor General”.
  3. Publication of rules.

Rules so made and 1[approved] shall be published in the 2[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.

  1. Subs. by Act 24 of 1917, sec. 2 and Sch. 1, for “sanctioned”.
    2. Subs. by the A.O. 1937, for “Gazette of India or in the local Official Gazette, as the case may be”. Strictly the substitution would read “Official Gazette or in the Official Gazette, as the case may be”, but the latter words have been omitted as being redundant.
  2. 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 summons, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

(b) the maintenance and custody, while under attachment, of live-stock and other movable property, the fees payable for such maintenance and custody, the sale of such live-stock and property and the proceeds of such sale;

(c) procedure in suits by way of counterclaim and the valuation of such suits for the purposes of jurisdiction;

(d) procedure in garnishee and charging order either in addition to, or in substitution for, the attachment and sale of debts;

(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;

(f) summary procedure-

(i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising-

on a contract express or implied; or

on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only; or

on trust; or

(ii) in suits for the recovery of immovable property, with or without 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 nonpayment 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.

  1. Power of High Court to make rules as to their original Civil Procedure.

Notwithstanding anything in this Code, any High Court 1[not being the Court of a Judicial Commissioner] may make such rules not inconsistent with the Letters Patent 2[or order] 3[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.

Comments

Rules regulating procedure of High Court on its original side need not be consistent with provisions of the Code of Civil Procedure, 1908; Tridium India Telecom Ltd. v. Motorola Inc., AIR 2005 SC 514.

  1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “for a Part a State or a Part B State”.
    2. Ins. By the A.O. 1950.
    3. Ins. By Act 2 of 1951, sec. 17 (w.e.f. 1-4-1951).

 

  1. Powers of other High Court to make rules as to matters other than procedure.

1[130. Powers of other High Court to make rules as to matters other than procedure.

A High Court 2[not being a High Court to which section 129 applies] may, with the previous approval of the State Government make with respect to any matter other than procedure any rule which a High Court 3[for a 4[***] State] might under 5[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.]

  1. Subs. by the A.O. 1937, for section 130.
    2. Subs. by the A.O. 1950, for “not constituted by His Majesty by Letters Patent”.
    3. Subs. by the A.O. 1950, for “so constituted”.
    4. The word and letter “Part A” omitted by the Adaptation of Laws (No. 2) Order, 1956.
    5. Subs. by the A.O. 1950, for “section 224 of the Government of India Act, 1935″.

 

  1. Publication of rules.

Rules made in accordance with section 129 or section 130 shall be published in the 1[Official Gazette] and shall from the date of publication or from such other date as may be specified have the force of law.

  1. Subs. by the A.O. 1937, for “Gazette of India or in the local Official Gazette, as the case may be”. Strictly the substitution would read “Official Gazette or in the Official Gazette, as the case may be”, but the latter words have been omitted as being redundant..
  2. 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.

  1. Exemption of other persons.

1[(1) The following persons shall be entitled to exemption from personal appearance in Court, namely-

(i) the President of India;

(ii) the Vice-President of India;

(iii) the Speaker of the House of the People;

(iv) the Ministers of the Union;

(v) the Judges of the Supreme Court;

(vi) the Governors of States and the administrators of Union Territories;

(vii) the Speakers of the State Legislative Assemblies/

(viii) the Chairman of the State Legislative Councils;

(ix) the Ministers of States;

(x) the Judges of the High Courts; and

(xi) the persons to whom section 87B applies.]

2[***]

(3) Where any person 3[***] 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.

  1. Subs. by Act No. 66 of 1956, sec. 12, for sub-section (1) (w.e.f. 1-1-1957).
    2. Sub-section (2) omitted by Act No. 66 of 1956, sec. 12 (w.e.f. 1-1-1957).
    3. The words “so exempted” omitted by Act 66 of 1956, sec. 12 (w.e.f. 1-1-1957).

 

  1. 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.

  1. Exemption from arrest under civil process.

(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from his Court.

(2) Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleader, mukhtars, revenue-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to person in execution of a decree.

135A. Exemption of members of legislative bodies from arrest and detention under civil process.

1[135A. Exemption of members of legislative bodies from arrest and detention under civil process.

2[(1) No person shall be liable to arrest or detention in prison under civil process-

(a) if he is a member of-

(i) either House of Parliament, or

(ii) the legislative Assembly or Legislative Council of a State, or

(iii) a Legislative Assembly of a Union territory,

during the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;

(b) if he is a member of any committee of-

(i) either House of Parliament, or

(ii) the Legislative Assembly of a State or Union territory, or

(iii) the Legislative Council of a State,

during the continuance of any meeting of such committee;

(c) if he is a member of-

(i) either House of Parliament, or

(ii) a Legislative Assembly or Legislative Council of a State having both such Houses,

during the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be, and during the forty days before and after such meeting, sitting or conference.]

(2) A person released from detention under sub-section (1), shall, subject the provisions, of the said sub-section, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1).]

  1. Ins. by Act 23 of 1925, sec. 3.
    2. Subs. by Act No. 104 of 1976, sec. 45 for sub-section (1) (w.e.f. 1-2-1977).

 

  1. 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 reside or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment.

(2) The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself, and shall inform the Court which issued or made such warrant or order of the arrest or attachment.

(3) The Court making an arrest under this section shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the later Court, or unless he furnishes sufficient security for his appearance before the later Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.

(4) Where a person to be arrested or movable property to be attached under this section is within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Fort William in Bengal or at Madras or at Bombay, 1[***] the copy of the warrant of arrest or of the order of attachment, and the probable amount of the costs of the arrest or attachment, shall be sent to the Court of Small Causes of Calcutta, Madras 2[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.

  1. The words “or the Chief Court of Lower Burma”, omitted by A.O. 1937.
    2. Subs. by A.O. 1937, for “Bombay or Rangoon”.

 

  1. 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 Court shall be written.

(3) Where this Court 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-For sub-section (3) of section 137 substitute the following:

“(3) Wherever the 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 England 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 copy of such writing in Hindi.”

[vide Rajasthan Act No. 7 of 1983, sec. 2 (w.e.f. 16-5-1983).]

Uttar Pradesh-To section 137 (3) insert the following proviso:

“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 No. 17 of 1970, sec. 2 (w.e.f. 8-4-1970).]

  1. Power of High Court to require evidence to be recorded in English.
  2. 1 Power of High Court to require evidence to be recorded in English.

(1) The 2[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, Nagaland, Meghalaya, Tripura and Manipur-For section 138, substitute the following section:-

“138. Power of High Court to require evidence to be record 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 Assam Act 2 of 1941, sec. 2 (w.e.f. 12-2-1941); State of Nagaland Act 27 of 1962, sec. 26 (w.e.f. 1-12-1963).]

  1. For section 138, as applicable to Assam, see the Civil Procedure (Assam Amendment) Act, 1941 (Assam Act 2 of 1941), sec. 2.
    2. Subs. by 4 of 1914, sec. 2 and Sch., Pt. I, for “L.G.”.

 

  1. Oath on affidavit by whom to be administered.

In the case of any affidavit under this Code-

(a) any Court or Magistrate, or

1[(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or]

(b) any officer or other person whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent.

STATE AMENDMENT

Uttar Pradesh-(i) for clause (b) of section 139 substitute:

“(b) any person appointed in this behalf by a High Court or by a district court; or”

(ii) for clause (c) of section 139 substitute:

“(c) any person appointed in this behalf by such other court as the State Govt. may, by general or special order, empower in this behalf.”

[Vide U.P. Act No. 11 of 1981, sec. 2 ].

  1. Ins. by Act No. 104 of 1976, sec. 46 (w.e.f. 1-2-1977).

 

  1. 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.

  1. Miscellaneous proceedings.

The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

1[Explanation.-In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.]

  1. Ins. by Act No. 104 of 1976, sec. 47 (w.e.f. 1-2-1977).

 

  1. 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.

  1. 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 communications made :

Provided that the State Government 1[***] may remit such postage, or fee, or both, or may prescribe a scale of court-fees to be levied in lieu thereof.

  1. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, sed. 2 and Sch. I..

 

  1. Application for restitution..

(1) Where and in so far as a decree 1[or an order] is 2[varied or reversed in any appeal, revision or other proceedings 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 1[or order] or 3[such part thereof as has been varied, reversed, set aside or modified], and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly 4[consequential on such variation, reversal, setting aside or modification of the decree or order.]

5[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 pr-pose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

STATE AMENDMENT

Uttar Pradesh-Substitute the following for sub-section (1) of section 144 of the Code:

“(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 for as may be, place the parties in the position which they would have occupied but for such decree or order or such part there of as has been varied or reversed; and for this purpose, the Court may make any orders, including orders for the refused 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 No. 24 of 1954 sec. 2 and Sch., Item 5, entry 7 (w.e.f. 30-11-1954).]

COMMENTS

(i) The Court which is competent to entertain the application for restitution is the Court of first instance; Neelathupara Kummi Seethi Koya Phangal (dead) by LRs. v. Montharapalla Padippua Attakoya, AIR 1994 SC 1591.

(ii) Provisions of section 144 can be invoked only in pending cases; Chhota Singh v. Union of India, AIR 1993 P&H 79: 1993(2) Land LR 77.

(iii) Whenever an ex parte order/decree for possession/eviction is set aside, the party who was dispossessed/evicted in pursuance of such an ex parte decree or order, is entitled to restitution forthwith inspite of the fact that ultimately on merits, he may lose the cause and may have to yield back possession; Chanda Sab v. Jamshed Khan, AIR 1993 Kant 338: 1993(2) Kant LJ 638: ILR (Kant) (1993) 2197.

(iv) Where the possession has been taken forcibly by a landlord/defendant during the pendency of the proceedings, i.e., when the application of temporary injunction restraining landlord/defendant from interfering with possession is dismissed by the trial Court and before filing the appeal, section 144 may not strictly apply; Cheni Chenchaiah v. Shaikh Ali Saheb, AIR 1993 AP 292: 1993(2) Andh LT 517: 1993(2) Cur CC 364.

(v) Settlement in Bhopal Gas Disaster case—Settlement set aside—Union Carbide Corporation entitled to restitution of entire amount deposited with interest; Union Carbide Corporation v. Union of India, AIR 1992 SC 248.

(vi) Where property was sold in auction in execution of decree which was subsequently set aside in appeal, auction-purchaser being already aware of pending appeal against decree cannot resist restitution; Chinnamal v. P. Arumugham, AIR 1990 SC 1828.

  1. Ins. By Act 66 of 1956, sec. 13 (w.e.f. 1-1-1957).
    2. Subs. by Act No. 104 of 1976, sec. 48, for “varied or reversed, the Court of first Instance” (w.e.f. 1-2-1977).
    3. Subs. by Act No. 104 of 1976, sec. 48, for “such part thereof as has been varied or reversed” (w.e.f. 1-2-1977).
    4. Subs. by Act No. 104 of 1976, sec. 48, for “consequential on such variation or reversal” (w.e.f. 1-2-1997).
    5. Ins. by Act No. 104 of 1976, sec. 48 (w.e.f. 1-2-1977).

 

  1. Enforcement of liability of surety.

Where any person 1[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,

2[the decree or order may be executed in the manner therein provided for the execution of decree, namely :-

(i) if he has rendered himself personally liable, against him to that extent;

(ii) if he has furnished any property as security, by sale of such property to the extent of the security;

(iii) if the case falls both under clauses (i) and (ii) then to the extent specified in those clauses,

and such person shall, be deemed to be a party within the meaning of section 47 :]

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

STATE AMENDMENT

Uttar Pradesh-Substitute the following for section 145;

“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 the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent there on, 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).”

[Vide U.P. Act No. 24 of 1954, sec. 2 (w.e.f. 30-11-1954)].

  1. Subs. by Act 104 of 1976, sec. 49 for “has become liable as surety” (w.e.f. 1-2-1977).
    2. Subs. by Act 104 of 1976, sec. 49 for certain words (w.e.f. 1-2-1977).

 

  1. Proceedings by or against representatives

Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.

  1. 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.

  1. 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 1[not exceeding thirty days in total], even though the period originally fixed or granted may have expired.

HIGH COURT AMENDMENT

Calcutta:-

In section 148, after the words “allowed by this Code”, insert the words “or by the Presidency Small Cause Courts Act, 1882″.

[Vide Calcutta Gazette, Pt. I, dated 20 April 1967.]

  1. Ins. by Act No. 46 of 1999, section 13 (w.e.f. 1-7-2002).

148A. Right to lodge a caveat.

1[148A. Right to lodge a caveat.

(1) Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be, made, under sub-section (1).

(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.]

  1. Ins. by Act No. 104 of 1976, sec. 50 (w.e.f. 1-2-1977)..

 

  1. 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 if such fee had been paid in the first instance.

  1. Transfer of business.

Save as otherwise provide, 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.

  1. 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.

Comments

(i) Inherent powers cannot be exercised so as to nullify provisions of the Code. When Court deals expressly with a particular matter, the provisions should normally be regarded as exhaustive; National Institute of Mental Health and Neuro-Science v. C. Parameshwara, AIR 2005 SC 242.

(ii) Recourse to inherent powers in face of or in conflict with specific provision of statute is not permissible. Inherent power cannot be exercised to nullify effect of any statutory provisions; Abdul Rahim Attar v. Atul Ambalal Barot; AIR 2005 Bom 120.

  1. 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.

  1. 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 of the purpose of determining the real question or issue raised by or depending on such proceeding.]

153A. Power to amend decree or order where appeal is summarily dismissed.

1[153A. Power to amend decree or order where appeal is summarily dismissed.

Where an Appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to amend, under section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.]

  1. Ins. by Act No. 104 of 1976, sec. 51 (w.e.f. 1-2-1977).

 

 

153B. Place of trial to be deemed to be open Court.

1[153B. Place of trial to be deemed to be open Court

The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them:

Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally or any particular person, shall not have access to, or be or remain in, the room or building used by Court.]

  1. Ins. by Act No. 104 of 1976, sec. 51 (w.e.f. 1-2-1977).

 

  1. Saving of present right of appeal.

Rep. by the Repealing and Amending Act, 1952 (48 of 1952), s. 2 and Sch. I.

  1. Amendment of certain Acts..

Rep. by the Repealing and Amending Act, 1952 (48 of 1952), s. 2 and Sch. I.

  1. Repeals.

Rep. by the Second Repealing and Amending Act, 1914 (17 of 1914), s. 3 and Sch. II.

  1. 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 is 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.

  1. 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 Charter 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.

ORDER I. ORDER I- PARTIES OF SUITS (THE FIRST SCHEDULE)

THE FIRST SCHEDULE
ORDER I
PARTIES OF SUITS

1[1. Who may be joined as plaintiffs.

All persons may be joined in one suit as plaintiffs where-

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would arise.]

  1. Subs, by Act No. 104 of 1976, sec. 52 for the former rule (w.e.f. 1-2-1977).
  2. Power of Court to order separate trial.

Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

1[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.]

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

STATE AMENDMENT

Bihar.-In its application to the Scheduled Areas in the State of Bihar, in Order I, Rule 3, following proviso added:-

“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 HI to the Schedule to the Constitution (Scheduled Tribes) Order, 1950, the Deputy Commissioner concerned shall also be joined as a defendant.”

[Vide Bihar Scheduled Areas Regulation, 1969 (1 of 1969), sec. 3 and Sch. (w.e.f. 8-2-1969).]

1[3A. Power to order separate trials where joinder of defendants may embarrass or delay trial.

Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.]

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

STATE AMENDMENT

Madhya Pradesh.-In Order I of First Schedule to the Principal Act, after Rule 3-A, the following rule inserted:-

“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 (No. 20 of 1960) in relation to land aforesaid has been or is required to be filed by him or by any other person before competent authority appointed under that Act, has 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”.

[Vide M.P. Act 29 of 1984, sec. 5 (w.e.f. 14-8-1984).]

  1. 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.

  1. 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.

  1. 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 severely, liable on any one contract, including parties to bills of exchange, hundis and promissory notes.

  1. 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 extent, may be determined as between all parties.

1[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 plaintiffs 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 plaintiffs 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 person on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]

  1. Subs, by Act No. 104 of 1976, sec. 52, for rule 8 (w.e.f. 1-2-1977).

1[8A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.

While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take part in the proceedings of the suit as the Court may specify.]

  1. Ins. by Act No. 104 of 1976, sec. 52 (w.e.f. 1-2-1977).
  2. Misjoinder and nonjoinder

No suit shall be defeated by reason of the misjoinder or nonjoinder 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:

1[Provided that nothing in this rule shall apply to nonjoinder of a necessary party.]

  1. Ins. by Act No. 104 of 1976, sec. 52 (w.e.f. 1-2-1977).
  2. 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 thought a bona fide mistake, and that it is

necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.-

The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended-

Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (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

Karnataka:-

In Order I, in rule 10, after sub-rule (5), insert the following sub-rule, namely:-

“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 provisions of the sub-rule (3), a defendant to the position of a plaintiff.” (w.e.f. 30-3-1967)

1[10A. Power of Court to request any pleader to address it.

The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader.]

  1. Ins. by Act No. 104 of 1976, sec. 52 (w.e.f. 1-2-1977).
  2. Conduct of suit The Court may give the conduct of 1[a suit] to such persons as it deems proper.
  3. Subs, by Act No. 104 of 1976, sec. 52 for “the suit” (w.e.f. 1-2-1977).
  4. Appearance of one of several plaintiffs or defendants for others

(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.

  1. 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 (THE FIRST SCHEDULE)

  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.

  1. 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. 1200. 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 AMENDMENT

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 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. Civil Laws (Reforms and Amendment) Act, 1956 (Act 57 of 1976), sec. 4 (w.e.f. 1-1-1977) ].

  1. 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.

  1. 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.

  1. Claims by or against executor, administrator or heir

No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.

1[6. Power of Court to 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.]

  1. Subs, by Act No. 104 of 1976, sec. 53 for rule 6 (w.e.f. 1-2-1977).
  2. 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 to so taken shall be deemed to have been waived.

HIGH COURT AMENDMENTS

Delhi:-

“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 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 shall pass an order giving him time within which to submit (amended plaints 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.” (w.e.f. 9-6-1959).

Himachal Pradesh:-

“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 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 shall pass an order giving him time within which to submit (amended plaints 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.” (w.e.f. 9-6-1959).

Kerala:-

In Order II, after rule 7, insert the following sub-rule, namely:-

“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 a time to be fixed by the Court, amend the plaint suitably.

(2) When the plaintiff has selected the cause of action with which he will proceed, the Court shall pass an order giving him time within which to submit (the amended plaints 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.” (w.e.f. 9-6-1959).

Punjab:-

“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 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 shall pass an order giving him time within which to submit (amended plaints 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.” (w.e.f. 9-6-1959).

[Vide Notification No. 33/SRO, dated 12th May, 1909.]

Rajasthan:-

“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 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.” (w.e.f. 14-8-1954).

ORDER III -RECOGNIZED AGENTS AND PLEADERS (THE FIRST SCHEDULE)

  1. Appearances, etc., may be in person, by recognized agent or by pleader-

Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provide that any such appearance shall, if the Court so directs, be made by the party in person.

  1. Recognized agent

The recognized agent of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorizing 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 authorized to make and do such appearances, applications and acts.

HIGH COURT AMENDMENTS

Bombay:-

In Order III, 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 that district has been issued, holding the requisite special power of attorney from parties not resident within the local limit of the jurisdiction of the Court within which limits the appearance, application or Act 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 27-11-1936.]

Gujarat:-

In Order III, 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 Gujarat an Advocate, and in the case of proceedings in any district, an Advocate or a Pleader to whom a sanad for that district has been issued, holding the requisite special power of attorney from parties not resident within the local limit of the jurisdiction of the Court within which limits the appearance, application or Act made or done, authorising them or him to make and do such appearances, applications and Acts on behalf of such parties.” (w.e.f. 17-3-1961)

Madhya Pradesh:-

In Order III, 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 Madhya Pradesh an Advocate of that High Court, and in the case of proceedings in any district, any Advocate or a Pleader to whom a sanad for that district has been issued, holding the requisite special power of attorney from parties not resident within the local limit of the jurisdiction of the Court within which limits the appearance, application or Act made or done, authorising them or him to make and do such appearances, applications and Acts on behalf of such parties.”(w.e.f. 16-9-1960)

  1. Service of process on recognized agent

(1) Process served on the recognized 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 recognized agent.

HIGH COURT AMENDMENTS

Punjab, Haryana and Chandigarh:-

In Order III, in rule 3, for sub-rule (1), substitute the following sub-rule, namely:-

“(1) 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 G.S.R. 539/CA5/1908/74, dated 11-4-1975.]

4[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 recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be 1[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 singed 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.

2[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 relatior to any decree or order made in the suit,

(c) an appeal from any decree or order in the suit, and

(d) any application or act for the purpose of obtaining copies of documents 01 return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.]

3[(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 authorized 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.-

In Order III, in rule 4, in sub-rule (2), in Explanation,-

(i) after clause (a), insert the following clause, namely:-

“(aa) a proceeding for revision of an order in the suit,”

[Vide Notification No. 714-IV H-36-A, dated 9th December, 1980 (w.e.f. 21-3-1981).]

(ii) after clause (d), insert the following clauses, namely:-

“(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 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 to 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 has already filed a memorandum signed by him that he has instructions from his client to appear, act or plead in that Court.”

[Vide Notification No. 439/vii-b-123, dated 8th August, 1994 (w.e.f. 22-10-1994).]

Andhra Pradesh.-

Same as in Madras.

Bombay.-

(1) In order III, in rule 4, for sub-rule (3), substitute the following sub-rule, namely:-

“(3) For the purposes of sub-rule (2) above, (i) an application or a proceeding of ; transfer under section 23, 24 or 25 of this Code, (ii) an application under rule 9 or rule 13 of Order IX of this Code, (iii) an application under rule 4 of Order 38 of this Code, (iv) an application for review of Judgment, (v) an application under section 152 of this Code, (vi) a reference arising from or out of the suit, (vii) an application for amendment of the decree or order or the record in the suit, (viii) an application for the execution of any decree or order in the suit, (ix) an application under section 144 of this Code, (x) any appeal (including an appeal under Letters Patent of the High Court) or revision or a reference arising from or out of the suit, (xi) any application relating to or incidental to or arising in 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 Letters Patent of the High Court or for leave to appeal to the Supreme Court), (xii) any application or proceeding for sanctioning prosecution under Chapter XXXV of the Code of Criminal Procedure, 1898, relating to the suit or any of the proceedings mentioned hereinbefore, or any appeal or revision arising from and out of any order passed in such application or proceedings, (xiii) 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, (xiv) any application for the withdrawal or for obtaining the refund or payment of or out of moneys paid or deposit 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 moneys deposited as security for costs or for covering the costs of the preparation, printing and transmission of the Transcript Record of the appeal to the Supreme Court), (xv) any application for expunging any remarks or observations on the record of or made in the judgment in the suit or any appeal, revision, reference or review from or out of the suit, (xvi) any application for certificate in regard to the substitution of heirs in appeal to the Supreme Court arising from the suit and (xvii) any application under rule 15 of Order XLV of this Code, shall be deemed to be proceedings in the suit:

Provided that where the venue of the suit or the proceeding shifts from one Court (subordinate or otherwise) to another 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.”

[Vide Maharastra Gazette, Pt. IVC, p. 1278, dated 24th August, 1972.]

Chandigarh.-

Same as in Punjab.

Delhi.

Same as in Punjab.

Haryana.

Same as in Punjab.

Himachal Pradesh.-

Same as in Punjab.

Gujarat.-

In Order III, in 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”.

[Ed.-This amendment relates to sub-rule (3) prior to its substitution by the Central Act 104 of 1976, sec. 54 (w.e.f. 1-2-1977).]

Karnataka.-

In Order III, for rule 4, substitute the following rule, namely:-

“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 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 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 for 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 decree or order passed in the suit, and applications or acts for the purpose of 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 refund 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 proposed 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 as provided 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 attached 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 or 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.

(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).” (w.e.f. 30-3-1967)

Kerala.-

In Order III, in rule 4-

(i) in sub-rule (2), after the words “Every such appointment”, insert the words “when accepted by the pleader in writing”.

(ii) in old sub-rule (3), after the words “section 152″, insert the words “or applications under Order IX rule 9 or 13″.

[Ed.-This amendment relates to sub-rule (3) prior to its substitution by the Central Act ‘104 of 1976, sec. 54 (w.e.f. 1-24977).]

(iii) omit sub-rule (5).

(iv) after sub-rule (5), insert the following sub-rule, namely:-

“(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 name 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.” (w.e.f. 9-6-1959)

Madhya Pradesh.-

In Order III, in rule 4, for sub-rule (3), substitute the following sub-rule, namely:-

“(3) For the purposes of sub-rule (2) above, (i) an application or a proceeding for transfer under sections 23,24 or 25 of this Code, (ii) an application under rule 9 or rule 13 of Order 9, of this Code, (iii) an application under rule 4 of Order 38 of this Code, (iv) an application for review of judgment, (v) an application under section 152 of this Code, (vi) a reference arising from or out of the suit, (vii) 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, (viii) an application for the execution of any decree or order in the suit, (ix) an application under section 144 of this Code, (x) any 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, (xi) any application relating to or incidental to or arising in 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), (xii) any application or proceeding for sanctioning prosecution under Chapter 35 of the Code of Criminal Procedure, 1898, relating to the suit of any of the proceedings mentioned hereinbefore, or any appeal or revision arising from and out or any order passed in such application or proceeding, (xiii) 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 proceeding mentioned hereinbefore, (xiv) any application for the withdrawal or for obtaining the refund or payment of or out of the moneys 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 moneys 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), (xv) any application for expunging any remarks or 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, (xvi) any application for certificate in regard to the substitution of heirs in appeal to the Supreme Court arising from the suit, and (xvii) any application under rule 15 of Order 45 of this Code, shall be deemed to be proceedings in the suit: Provided that where the venue of the suit or the proceedings shifts from one Court (Subordinate or otherwise) to another 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.”

[Vide Madhya Pradesh Rajpatra, dated 18th October, 1968.]

Madras.-

In Order III, in rule 4,-

(a) in sub-rule (1), for the words “in writing signed”, substitute the words “subscribed with his signature in his own hand”.

(b) in sub-rule (2), for the words “a writing signed”, substitute the words “a document subscribed with his signature in his own hand”;

(c) after sub-rule (5), insert the following sub-rule, namely:-

“(6) No Government or other 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).”

Orissa.-

In Order III, in rule 4-

(i) omit sub-rule (4); (ii) after sub-rule (5), insert the following sub-rule, namely:-

“(6) 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.”

[Vide Notification No. 5596-RX-2188 (w.e.f 14-5-1984}.]

Patna.-

In Order III, in rule 4, for sub-rule (4), substitute the following sub-rule, namely:-

“(4) Notwithstanding anything contained in Or. 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 authorised to act on behalf of such person.”

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

“(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 rule 4 or rule 9 or rule 13 of Order IX of this Code,

(iii) an application under rule 4 of Order XXXVII 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 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 leave to appeal to the Supreme Court),

(xiii) any application for directing or proceeding for prosecution under Chapter XXXV of the Code of Criminal Procedure, 1898, relating to the suit or any of the proceedings mentioned hereinbefore or an appeal or revision arising or revision arising from and out of any order passed in such application or proceeding,

(xiv) any application or act for the purpose 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 or payment 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 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 or 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 rule 15 of Order XLV of the Code, shall be deemed to be proceedings in the suit:

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 and plead in that Court.” (w.e.f. 10-9-1968)

Rajasthan.-

In Order III, in rule 4,-

(a) in sub-rule (3) same as in Gujarat;

(b) after sub-rule (5), insert the following sub-rule, namely:-

“(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).”

N.B.-It may be noted that provisions of old sub-rule (3) have been drafted into Explanation to sub-rule (2) (w.e.f. 14-8-1954).

  1. Subs, by Act No. 104 of 1976, sec. 54 for “filed in Court and shall be” (w.e.f. 1-2-1977).
  2. Ins. by Act No. 104 of 1976, sec. 54 (w.e.f. 1-2-1977).
  3. Subs, by Act No. 104 of 1976, sec. 54, for sub-rule (3) (w.e.f. 1-2-1977).
  4. Subs. by Act 22 of 1926, sec. 2, for rule 4.
  5. Service of process on pleader.

1[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 in Madras.

Bombay.-

In Order III, for rule 5, substitute the following rule, namely:-

“5. Service of Process on pleader.-

Any process served on a pleader who has been appointed to act 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.” (w.e.f 11-6-1966)

Gujarat.-

In Order III, in rule 5, for the words “on the pleader of any party”, substitute the words “on a pleader who has been appointed to act for any party”. (17-8-1961)

[Ed.-The amendment relates to rule 5 prior to its amendment by the Central Act 104 of 1976, sec. 54 (w.e.f, 1-2-1977).]

Karnataka.-

In Order III, for rule 5, substitute the following rule, namely:-

“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 duty 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.” (w.e.f. 30-3-1967)

Madhya Pradesh.-

Same as in Gujarat. (w.e.f. 16-9-1960)

Madras.-In Order III, in rule 5, insert the following Explanation, namely:-

“Explanation.- Service on a pleader who does not act for his client, shall not raise the presumption under this rule.”

[Vide R.CO.NO. 1810 of 1926, dated 20th December, 1927.]

Orissa.-

Same as in Patna.

Patna.-

In Order III, after rule 5, insert the following rule, namely:-

“5B. Notwithstanding anything contained in Order III, sub-rules (2) and (3) of rule 4 of the First Schedule of the Code of Civil Procedure, 1908 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.” (w.e.f. 26-7-1948)

Rajasthan.-

Same as in Gujarat.

  1. Subs, by Act No. 104 of 1976, sec. 54, for “Any process served on the pleader of any party” (w.e.f. 1 -2-1977).
  2. Agent to accept service.

(1) Besides the recognized 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 m 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.

1[(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.-

In Order III, in rule 6, after sub-rule (2), insert the following sub-rule with marginal note, namely:-

“(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 behalf.”

Note.-In Order III, in rule 6, the marginal note and sub-rule (3), have been superseded vide Maharashtra Government Gazette, Pt. IV, p. 397, dated 15th September, 1983.

Gujarat.-

Same as in Bombay, except marginal note, (w.e.f. 17-8-1961)

  1. Ins. by Act No. 104 of 1976, sec. 54 (w.e.f. 1-2-1977).

ORDER IV. ORDER IV – INSTITUTION OF SUITS (THE FIRST SCHEDULE)

ORDER IV
INSTITUTION OF SUITS

  1. Suit to be commenced by plaint

(1) Every suit shall be instituted by presenting a 1[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.

2[(3) The plaint shall not be deemed to by duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).]

HIGH COURT AMENDMENTS

Allahabad.-

In Order IV, in rule 1,-

(a) for sub-rule (1), substitute the following sub-rules, namely:-

“(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 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) re-number sub-rule (2) as sub-rule (3).

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

Bombay.-

In Order IV, for rule 1, substitute the following rule, namely:-

“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 annexes 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.

(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.”(w.e.f. 1-10-1983)

Madhya Pradesh.-

In Order IV, in rule 1,-

(a) for sub-rule (1), substitute the following sub-rule, namely:-

“(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) after sub-rule (1), insert the following sub-rule, namely:-

“(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.”

(c) renumber sub-rule (2) as sub-rule (3). (w.e.f. 29-6-1943)

Rajasthan.-

Substitute sub-rule (1) as in Madhya Pradesh.

[Vide Notification No. 33/SRO, dated 21st July, 1954.]

  1. Subs, by Act No. 46 of 1999 section 14 (w.e.f. 1-7-2002) for “plaint to the court”.
  2. Added by Act No. 46 of 1999 section 14 (w.e.f. 1-7-2002).
  3. Register of suits

The Court shall cause the particulars of every suit to be entered in a book to be kept for the purposes and called the resister of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.

HIGH COURT AMENDMENTS

Calcutta:-

In order IV, in rule 2, after the words “particulars of every suit”, insert the words “except suits triable by a Court invested with the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887″. (w.e.f. 1-1-1939)

Gauhati.-

Same as in Calcutta.

STATE AMENDMENTS

Uttar Pradesh-

In its application to the State of Uttar Pradesh after Order IV, the following Order shall be inserted:-

ORDER IVA
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, where upon all such suits and proceedings may be decided upon the evidence in all or any of such suits or proceedings.” [U.P. Act 57 of 1976].

ORDER V
ISSUE AND SERVICE OF SUMMONS

ORDER V
ISSUE AND SERVICE OF SUMMONS

Issue of Summons

1 Summons

1[(1) When a suit has been duly instituted, a summons may issued to the defendant to appear and answer the claim and to file the writ statement of his defence, if any, within thirty days from the date of service summons on that defendant;

Provided that no such summons shall be issued when a defendant has appeal at the presentation of the plaint and admitted the plaintiff’s claim :

Provided further that where the defendant fails to file the written statement wit! the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court for reasons to be recorded in writing, but whi 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) m appear—

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relati to the suit, or

(c) by a pleader accompanied by some person able to answer all such questiot

(3) Every such summons shall be signed by the Judge or such officer as appoints, and shall be sealed with the seal of the Court.

  1. Sub-rule (1) was substituted by Act No. 46 of 1999, section 15 and now further substituted Act No. 22 of 2002, section 6 (w.e.f. 1-7-2002).

1[2. Copy of plaint annexted to summons

Every summons shall be accompanied by a copy of the plaint].

HIGH COURT AMENDMENTS

Bombay:

In order V, for rule 2, substitute the following rule, namely:- “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.” (w.e.f. 1-10-1983)

  1. Subs, by Act No. 46 of 1999, section 15 for rule 2 (w.e.f. 1-7-2002).
  2. Court may order defendant or plaintiff to appear in person

(1) Where 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 specific

(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.

  1. No party to be ordered to appear in person unless resident within certain limits

No party shall be ordered to appear in person unless he resides—

(a) within the local limits of the Court’s ordinary original jurisdiction, or

(b) without such limits but at place less than fifty or (where there is railway steamer communication or other established public conveyance for five-sixths ( the distance between the place where he resides and the place where the Court situate) less than two hundred miles distance from the Court-house.

HIGH COURT AMENDMENTS

Allahabad.-

In Order V, after rule 4, insert the following rule, namely:-

“4A. 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 service upon any defendant who has not appeared or upon any defendant who has not filed a written statement.” (w.e.f. 24-7-1926.)

Bombay:-

In Order V, for rule 4, substitute the following rule, namely:-

“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.” (w.e.f. 1-10-1983)

  1. 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 in Madras.

Bombay:-

In Order V, in rule 5 , after the words “whether it shall be for”, insert the words “filing of written statement and the “. (w.e.f. 1-10-1983).

Calcutta:-

In Order V, in rule 5, after the words “issues only”, insert the words “for the ascertainment whether the suit will be contested”.

[Vide Notification No. 1242-G, dated 25th August, 1927.]

Gauhati.-

Same as in Calcutta.

Karnataka.-

In Order V, for rule 5, substitute the following rule, namely:-

“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,” (w.e.f. 30-3-1967)

Kerala.-

In Order V, for rule 5, substitute the following rule, namely:-

“5. Summons to be either (1) to ascertain owhether 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.” (w.e.f. 9-6-1959)

Madras.-

In Order V for rule 5, substitute the following rule, namely:-

“5. Summons to be either (1} to settle issues, or (2) to ascertain whether the suit is contested or not or (3) for final disposal.-The Court shall determine, at the time of issuing the summons, whether it shall be-(1) for the settlement of issues only, or (2) 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 (3) for the final disposal of the suit; and the summons shall contain a direction accordingly:

Provided that in every suit heard by the Court of Small Causes, the summons shall be for the final disposal of the suit.”

  1. Fixing day for appearance of defendant

The day for the appearance of the defendant 1[under sub-rule (1) of the 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.

  1. Subs. by Act 46 of 1999, sec. 15, for “for the appearance of the defendant” (w.e.f. 1-7-2002).
  2. Summons to order defendant to produce documents relied on by him—

The summons to appeal and answer shall order the defendant to produce 1[all documents or copies thereof specified in rule 1A of Order VIII] in his possession or power upon which he intends to rely in support of his case.

HIGH COURT AMENDMENTS

Bombay.-

In Order V, for rule 7, substitute the following rule, namely:-

“7. Summons to order defendant to produce documents relied on by him.-

The summons to appear and answer and/or filing a written statement within a time specified therein shall order the defendant to produce all documents in his possession or power upon which he bases his defence, claim or set-off or counter claim, and shall further order mat where he relies on any other documents {whether in his possession or power or not) as evidence in support of his defence, claim for set-off or counter claim, he shall file a list of such documents.” (w.e.f. 1-11-1966)

Delhi.-

Same as in Punjab.

Haryana.-

Same as in Punjab.

Himachal Pradesh.-

Same as in Punjab.

Punjab.-

In Order V, for rule 7, substitute the following ride, namely;-

“7. Summons to order defendant to produce documents relied on by him.-

The summons to appear and answer shall order the defendant to produce all documents 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.”

[Vide Notification No. 233-R/XI-Y-17, dated 24th July, 1936.]

  1. Subs, by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002) for certain words.
  2. 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 relay in support of his case.

Service of Summons

1[9. Delivery of summons by Court

(1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.

(2) The proper officer may by 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 acknowledgement 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 articles 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).

  1. Rule 9 was substituted by Act No. 46 of 1999 section 15 and now further substituted by Act No.22 of 2002, section 6 (w.e.f. 1-7-2002).

9A. Summons given to the plaintiff for service

(1) The Court may, in addition to the service of summons under rule 9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service.

(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court or by such mode of service as is referred to in sub-rule (3) of rule 9.

(3) The provisions of rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.

(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgment of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.]

  1. 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

Karnataka.-

In Order V, in rule 10, insert the following proviso, namely:-

“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.” (w.e.f. 30-3-1967)

Patna.-

In Order V, in rule 10, insert the following proviso, namely:-

“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.”

Rajasthan.-

In Order V, in rule 10, insert the following proviso, namely:-

“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.” (w.e.f. 14-8-1954)

STATE AMENDMENTS

Delhi.-

Same as in Punjab.

Haryana.-

Same as in Punjab.

Himachal Pradesh.-

Same as in Punjab.

Punjab.-

In Order V, in rule 10, insert the following proviso, namely:-

“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.”

[Vide Act 31 of 1966; secs. 29 and 32 (w.e.f. 1-11-1966).]

  1. 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.

  1. Service to be on defendant on 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.

  1. 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 chartered.

  1. 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.

1[15. Where service may be on an adult member of defendant’s family

Where in a suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on his at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation.—A servant is not a member of the family within the meaning of this rule.]

HIGH COURT AMENDMENT

Bombay.-

In Order V, for rule 15, substitute the following rule, namely:-

“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.” (w.e.f. 1-10-1983)

  1. Subs. by Act No. 104 of 1976, sec. 55, for rule 15 (w.e.f. 1-2-1977).
  2. 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.

  1. 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 acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant,1[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 do, 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.-

In Order V, for rule 17, substitute the following rule, namely:-

“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 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 ordered 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.” (w.e.f. 25-7-1928)

Gauhati.-

Same as in Calcutta.

Karnataka.-

In Order V, for rule 17, substitute the following rule, namely:-

“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 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 there 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 of 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 staring 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 to affixed.” (w.e.f. 30-3-1967)

Madhya Pradesh.-

In Order V, in rule 17, insert the following proviso, namely:-

“Provided that where a special service has been issued and the defendant refuses to sign the acknowledgment it shall not be necessary to affix a copy as directed hereinafter.” (w.e.f. 16-9-1960)

  1. Ins. by Act No. 104 of 1976, sec. 55 (w.e.f. 1-2-1977).
  2. 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

Andhra Pradesh.-

In Order V, after rule 18, insert the following rule, namely:-

“18A. Chief Ministerial Officer, District Courts, 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.-

In Order V, after rule 18, insert the following rule, namely:-

“18A.-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 summons is to the effect that the defendant was not served and the plaintiff does not object to the 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.” (w.e.f. 30-3-1967)

Madras.-

In Order V, for rule 18A which was inserted in 1929, substitute the following rule, namely:-

“18A.-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, 1892 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 7 days after the return has been notified on the Notice Board.”

[Vide Fort St Geo Gaz, dated 9th November, 1955.]

  1. 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

Calcutta.-

In Order V,-

(a) for rule 19, substitute the following rule, namely:-

“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.” (w.e.f. 25-7-1928)

(b) after rule 19, insert the following rule, namely:-

“19A. 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.”

[Vide Notification No.l0428-G, dated 25th July, 1928.]

Gauhati.-

Same as in Calcutta.

1[19A. Simultaneous issue of summons for service by post in addition to personal service]

  1. Rule 19A was inserted by Act No. 104 of 1976, sec. 55 (w.e.f. 1-2-1977) now omitted by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002)..
  2. 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.

1(lA) 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 AMENDMENT

Punjab, Haryana and Chandigarh.-

In Order V, in rule 20, insert the following proviso, namely:-

“Provided that if service in the ordinary manner or by registered post is not effected for the first date of hearing the Court may direct substituted service, in such manner as the Court deem fit even if no application is made by or on behalf of the plaintiff for the purpose.”

[Vide Punjab Gazette, Pt. III (L.S.), p. 303, dated 11th April, 1975; Haryana Government Gazette, Pt. III (L.S.) p. 189, dated 25th March, 1975, Chandigarh Administration Gazette, Pt. II, p. 95, dated 1st May, 1975.]

  1. Ins. by Act No. 104 of 1976, sec. 55 (w.e.f. 1-2-1977).

1[20A. Service of summons by post.

Rep. by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), s. 55 (w.e.f. 1-2-1977).]

  1. Ins. by Act 66 of 1956, sec. 14 (w.e.f. 1-1-1957).
  2. Service of summons where defendant resides within jurisdiction of another Court

A summons may sent by the Court by which it is issued, whether within or without the State, either by one of its officers 1[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.-

In order V, re-number rule 21 as sub-rule (1) thereof and insert the following sub-rule, namely:-

“(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.”

[Vide Notification No. 43vii-d-29, dated 1st June, 1967.]

Andhra Pradesh.-

In Order V, in rule 21, insert the following proviso, namely:-

“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.” (w.e.f. 23-3-1967)

Bombay.-

In Order V, after rule 21, insert the following rule, namely:-

“21A. Service of summons by prepaid post wherever defendant may be residing if plaintiff so desires.-

Notwithstanding anything in the foregoing rules and whether the defendant resides within the jurisdiction of the Court or not, {the Court may in addition to or in substitution for, any other mode of service), cause the summons to be addressed to the defendant at the place where he is residing, (or where he ordinarily carries on business) and sent to him by registered post pre-paid for acknowledgement, provided that at such place there is a regular daily postal service. An acknowledgement purporting to be signed by the defendant shall be deemed by the Court issuing the summons to be prima facie proof of service. In all other case the Court shall hold such enquiry as it thinks fit and declare the summons to have been duly served or order such further service as may in its opinion be necessary.” (w.e.f. 1-11-1966)

Gujarat.-

Same as in Bombay with the following modifications:-

(i) insert the words “The Court may” at the beginning.

(ii) omit the words within brackets.

Madhya Pradesh.-

In Order V, after rule 21, insert the following rule, namely:-

“21A. 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 prepaid for acknowledgement provided that such place is a town or village in the Akola revenue taluq. An acknowledgement 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.”

[Vide Notification Nos. 6634 & 6635, dated 23rd September, 1932.]

  1. Subs, by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002) for “or by post”
  2. 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, Madras1[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.-

In Order V, in rule 22, insert the following proviso, namely:-

“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 ordinarily carries on business) and may be sent to him by the Court by post registered for acknowledgement. An acknowledgement 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 alt 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.” (w.e.f. 1-11-1966)

Gujarat.-

Same as in Bombay with the following modifications.-

(i) omit the words within bracket; and

(ii) insert the words “purporting to be” between the words “endorsement” and “by a postal servant”.

Rajasthan.-

Same as in Bombay with the following modifications:-

For the words “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 ordinarily carries on business)”, substitute the words “Provided that any such summons may instead be addressed to the defendant at the place within such limits where he is residing”, (w.e.f. 25-7-1957)

  1. Subs. by the A.O. 1937, for “Bombay and Rangoon”.
  2. 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.

  1. Service on defendant in prison

Where the defendant is confined in a prison, the summons shall be delivered or sent 1[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.

  1. Subs, by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002) for certain words.
  2. Service where defendant resides out of India and has no agent

Where the defendant resides out of 4[India] and has no agent in 4[India] empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him 1[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 :

5[Provided that where any such defendant 2[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 3[in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be, Pakistan military naval or air forces)] or is servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification in the Official Gazette, specify in this behalf.]

HIGH COURT AMENDMENTS

Allahabad.-

In Order V,-

(i) for rule 25, substitute the following rule, namely:-

“25. Where the defendant resides out of India but has an agent empowered to accept service of summons on his behalf residing in 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 postal 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 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.” (w.e.f. 29-3-1958)

(ii) after rule 25, insert the following rule, namely:-

“25A. Where the defendant resides out of India but has an agent empowered to accept service of summons on his behalf residing in 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.” {w.e.f. 14-4-1962)

Andhra Pradesh.-

Same as in Madras, except-

Delete first proviso.

[Vide Notification No. ROC No 6842/51-B-l, dated 29th August, 1957.]

Bombay.-

In Order V, for rule 25, substitute the following rule, namely:-

“25 Service where defendant resides out of India and has no agent.-

Where the defendant resides out of India and has no agent in India empowered to accept service, the summons may be addressed to the defendant at the place where the Court is situated: Provided that where any such defendant resides in 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 the Pakistan military, naval or air force) or is a servant of 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.” (w.e.f. 30-3-1967)

Karnataka.-

In Order V, for rule 25, substitute the following rule, namely:-

“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 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.” (w.e.f. 30-3-1967)

Kerala.-

In Order V, in rule 25,-

(i) before the existing provisos, insert proviso as in Madras.

(ii) in the last proviso for the word “company”, substitute the words “Administration”.

[Vide Notification No. B 1-331-2/58, dated 9th June, 1959.]

Madhya Pradesh.-

In Order V, in rule 25.-

(a) in para 1, for the word “shall” substitute the word “may”.

(b) after rule 25, insert the following rule, namely:-

“25A. Service where defendant resides in India.-

Where the defendant resides in India, 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.”

Madras.-

In Order V, in rule 25,-

(i) in para 1, for the words “summons shall”, substitute the words “summons may”,

(ii) after para 1, insert 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.”

(iii) omit existing first proviso, (w.e.f. 23-12-1964)

  1. Subs, by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002) for “by post”.
  2. Subs, by Act No. 104 of 1976, sec. 53, for “resides in Pakistan” (w.e.f. 1-2-1977).
  3. Subs, by Act No. 104 of 1976, sec. 55, for “resides in Pakistan” (w.e.f. 1-2-1977).
  4. Subs. by Act 2 of 1951, sec. 3 for “the States”.
  5. Ins. by Act 19 of 1951, sec. 2.

1[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.

  1. Subs. by Act No. 104 of 1976, sec. 55, for rule 26 (w.e.f. 1-2-1977).

26A. Summonses to be sent to officer to foreign countries

Where the Central Government has, by notification in the Official Gazette, declared in respect of any foreign territory that summonses to be served on defendants actually and voluntarily residing or carrying on business or personally working for gain in that foreign territory may be sent to an officer of the Government of the foreign territory specified by the Central Government, the summonses may be sent to such officer, through the Ministry of the Government of India dealing with foreign affairs or in such other manner as may be specified by the Central Government; and if such officer returns any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant, such endorsement shall be deemed to be evidence of service.]

  1. Service on civil public officer or on servant of railway company or local authority.

Where the defendant is a public officer (not belonging to 1[the Indian] military, 2[naval or air] forces3[***]) 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.-

In Order V, in rule 27, insert the following notes, namely:-

“Note 1.-A list of heads of offices to whom summons shall be sent for service on the servants of Railway Companies working in whole or in part in these States is given in Appendix 2 of the General Rules (Civil).

Note 2.-In every case where a Court sees fit to issue summons direct to any public servant other than a soldier under order 16, simultaneously with the issue of the summons, notice shall be sent to the head of office in which the person concerned is employed in order that arrangements may be made for the performance of the duties of such persons.

If the Court sees fit to issue a summons to a Kunungo 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 in Madras.

Bombay.-

In Order V, in rule 27, after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”, (w.e.f. 1-11-1966)

Karnataka.-

In Order V, in rule 27, after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”, (w.e.f. 30-3-1967) “

Kerala.-

In Order V, in rule 27,-

(i) for the words “railway company”, substitute the words “railway administration”,

(ii) after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”.

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

Madras.-

In Order V, in rule 27, after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”.

[Vide Dis No. 209 of 1912.]

  1. Subs. by the A.O. 1950, for “His Majesty’s”.
  2. Subs. by Act 10 of 1927, sec. 2 and Sch. 1, for “or naval”.
  3. The words “or His Majesty’s Indian Marine Service” omitted by Act 35 of 1934, sec. 2 and Sch.
  4. Service on soldiers, sailors or airmen

Where the defendant is a soldier, 1[sailor] 2[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.-

In Order V, in rule 28,-

(a) renumber rule 28 as sub-rule (1) thereof;

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

“(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, wherever it is practicable service shall be made on the defendant in person.

(4) Where the defendant resides outside the jurisdiction of the Court in which the suit is instituted, or outside India, 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 it is in his power to give, as may lead to the discovery of his address.

(5) Where personal service is not practical, the Court shall issue the summons to the defendant at the address so supplied by registered post.”

[Vide Notification No. 1442/59, dated 5th March, 1927.]

Andhra Pradesh.-

Same as in Madras.

Bombay.-

In Order V, in rule 28, after the words “shall send”, insert “by registered post pre-paid for acknowledgement”, (w.e.f. 1-10-1983)

Karnataka.-

Same as in Madras.

Kerala.-

Same as in Madras.

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

Madras.-

In Order V, in rule 28, after the words “shall send”, insert the words “by registered post pre-paid for acknowledgement”.

[Vide Notification No. 209 of 1912.]

  1. Ins. by Act 35 of 1934, sec. 2 and Sch.
  2. Ins. by Act 10 of 1927, sec. 2 and Sch. I.
  3. 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 Order V, in rule 28, in sub-rule (1), for the word and figures “rule 28″, substitute the word, bracket and figures “rule 29 (1)”. (w.e.f. 5-3-1927)

Andhra Pradesh.-

Same as in Madras.

Karnataka.-

Same as in Madras omitting the words “of India” after the words “Military, Naval or Air Force”, (w.e.f. 30-3-1967)

Kerala.-

Same as in Madras.

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

Madras.-

In Order V, after rule 29, insert the following rule, namely:-

“29A. Notwithstanding anything contained in the foregoing rules, where the defendant is a public officer (not belonging to the Military, Naval or Air Force [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 acknowledgement together with the original summons, which the defendant shall sign and return to the Court which issued the summons.”

[Vide Dis No. 209 of 1912 as amended on 28th May, 1958.]

  1. 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 spot 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

Allahabad.-

In Order V, after rule 30, insert the following rules, namely:-

“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.

  1. 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 the Court of 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 execution.

In case where the returns of service is in a language different from that of the district from which it is issued, it shall be accompanied by a English translation.”

[Vide Notification No. 1953/35 (a), dated 22nd May, 1915 and Notification No. 1903/35 (a)-1(6), dated 19th March, 1921.]

Andhra Pradesh.-

Same as in Madras.

Karnataka.-

In Order V, after rule 30, insert the following rules, namely:-

“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 service of summons on a defendant who is 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 provision of section 5 of the Limitation Act, 1963 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 petition who is resident in such territory as is referred to in sub-rule (1).

  1. 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 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 of 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.
  2. 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 declared ex parte by the Court:

Provided that the Court shall direct such notice to be issued and served on any such party in applications 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.

  1. The provisions of rules 32 and 33 shall also apply mutatis mutandis to appeals and revision petitions.”

Kerala.-

Same as in Madras with the exception that in sub-rule (1) for the word “India”, substitute the words “the Government”, (w.e.f. 9-6-1959)

Madras.-

In Order V, after rule 30, insert the following rule, namely:-

“31. (1) The Court may, on the application of the plaintiff and on such terms as to security or otherwise as the Court trunks 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 or 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 filled within one year from the date of cessation of hostilities with the said State.

(6) The provisions of section 5 of the Limitation Act, 1908 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).”

[Vide R.O.C. No. 2108/44, dated 29th March, 1945 as amended on 28th May, 1958.]

ORDER VI. PLEADINGS GENERALLY

ORDER VI
PLEADINGS GENERALLY

  1. Pleading

“Pleading”, shall mean plaint or written statement.

1[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.]

  1. Subs, by Act No. 104 of 1976, sec. 56, for rule 2 (w.e.f. 1-2-1977).
  2. Forms of pleading

The forms in Appendix A when applicable, and where they are not applicable forms of the like character, nearly as may be, shall be used for all pleadings.

  1. Particulars to be given where necessary

In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

HIGH COURT AMENDMENT

Karnataka:-

In Order VI, renumber rule 4 as sub-rule (1) thereof and insert the following sub-rule, namely:-

“(2) In a suit of infringement of a patent, the plaintiff shall state I his plaint or annexed thereto the particulars of the breaches relied upon, and 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.” (w.e.f. 30-3-1967)

STATE AMENDMENTS

Andhra Pradesh.- Same as in Madras.

Kerala.- Same as in Madras.

Madras.- In ORder VI, after rule 4, insert the following rule, namely.-

“4A. (1) In a suit for infringment of a patent, the plaintiff shall state in his plaint or annex thereto the particulats 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 which he relies in support of such invalidity.

(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), he admitted in proof of any alleged infringement or objections not raised in the particulars of breaches or objections respectively.”

Madhya Pradesh.-

After rule 4, the following rule shall be inserted, namely:-

“4-A. Particulars of pleading for agricultural land.-In any suit or proceeding contemplated under rule 3-B of Order 1, 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.” [M.P. Act 29 of 1984]

1[5.Further and better statement, or particulars]

  1. Omitted by Act No. 46 of 1999, section 16 (w.e.f. 1-7-2002).
  2. 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 my 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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 sufficient to allege such contract or relation as a fact, and to refer generally to such letter, 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.

  1. 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.)

  1. Pleading to be signed

Every pleading shall be signed by the party and his pleader (if any):

Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

HIGH COURT AMENDMENT

Karnataka:-

In Order VI, renumber rule 14 as sub-rule (2) and insert the following sub-rule, namely:-

“(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 ti 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.” (w.e.f. 30-3-1967)

1[14A. Address for service of notice

(1) Every pleading, when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in rule 14, regarding the address of the party.

(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition.

(3) The address furnished in the statement made 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 of 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 term 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 AMENDMENT

Bombay:-

In Order VI, for rule 14A, substitute the following rule, namely:-

“14A. Address for service of notice:-

(1) Every pleading when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in Rule 14, regarding the address of the party. 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 pleader 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 acknowledgement (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 the party engages a pleader, notice or process issued against the party shall be served in the manner prescribed by Order 11, rule 5, unless the Court directs service at the registered address of the party.

(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 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 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 order 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 pre-paid for acknowledgement (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 the defendant or opposite party only, it may be set aside as against all or any of the defendant 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 11, rule 5 unless the Court directs service at the registered address of the party.” (w.e.f. 1-10-1983)

  1. Ins. by Act No. 104 of 1976, sec. 56 (w.e.f. 1-2-1977).
  2. Verification of pleadings

(1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied 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.

1[(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.]

HIGH COURT AMENDMENTS

Bombay.-

In Order VI, in rule 15, in sub-rule (1), at the end, substitute colon for the full-stop and insert the following proviso, namely:-

“Provided that in respect of pleading 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 other mentioned in section 139 of the Code of Civil Procedure, 1908.” {w.e.f. 1-10-1983)

Orissa.-

Same as in Patna.

Patna.-

In Order 6, in rule 15, for sub-rule (1), substitute the following sub-rule, namely:-

“(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.” (w.e.f. 27-9-1961)

  1. Sub-rule (4) added by Act No. 46 of 1999, section 16 (w.e.f. 1-7-2002).

1[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 trail of the suit, or

(c) which is otherwise an abuse of the process of the Court.]

  1. Subs, by Act No. 104 of 1976, sec. 56, for rule 16 (w.e.f. 1-2-1977).

1[2[17. Amendment of pleadings.-

The Court may at any stage of the proceedings allow either party o 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.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

  1. Rules 17and 18 which were omitted by Act No. 46 of 1999, section 16.
  2. Subs. by Act 22 of 2002, sec. 7 for rules 17 and 18 [as they stood immediately before their omission by clause (iii) of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2000).
  3. 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 such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.]]

ORDER VII. PLAINT

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 in Madras

Bombay:-

In Order VII, in rule 1, in clause (i), at the end, substitute comma for the full stop and thereafter insert the words “showing the provisions of law under which the valuation of the court-fees and jurisdiction is separately made.” (w.e.f. 1-10-1983).

Karnataka:-

In Order VII, in rule 1.-

(i) for clause (b) and (c), substitute the following clauses, namely:-

“(b) the name, age, description, place of residence and the place of business, if any of the plaintiff;

(c) the name, age, description, place of residence and place of business, if any, of the defendant, so far can be ascertained by the plaintiff;”

(ii) for clause (d), substitute the following clause, namely:-

“(d) Where plaintiff or the defendant is a minor, a statement to that effect, and in the case of 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 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.”

Kerala-

Same as in Madras omitting the proviso.

[Vide Notification No. B1-3312/50, dated 7-4-1959.]

Madras:-

In Order VII, in rule 1, for clause (d), substitute the following clause, namely:-

“(d) Where plaintiff or the defendant is a minor or a person of unsound mind, a statement of that effect, and in the case of minor, a statement regarding his age to the best of 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;”

Punjab:-

In Order VII, in rule 1, after clause (i), insert the following clause, namely:-

“(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.” (w.e.f. 15-3-1991)

  1. In money suits

Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:

But where the plaintiff sue for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, 1[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].

HIGH COURT AMENDMENT

Karnataka:-

In Order VII, in rule 2, in para 1, at the end, insert the words “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”. (w.e.f. 30-3-1967)

  1. Subs, by Act No. 104 of 1976, sec. 57 for “the plaint shall state approximately the amount sued for” (w.e.f. 1-2-1977).
  2. 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

Bombay:-

In Order VII, in rule 3, at the end, insert the words “In case of encroachment, sketch showing as approximately as possible the location and the extent of the encroachment shall also be filed along with the plaint.”. (w.e.f. 1-10-1983)

Calcutta:-

In Order VII, in rule 3, at the end, insert the words “and where the area is mentioned, such description shall further 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 in Calcutta.

  1. 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:-

In Order VII, renumber rule 4 as sub-rule (1) thereof and insert the following sub-rule, namely:-

“(2) When the permission of the Court under rule 8 of Order 1 of this Code is sought, before or at the time of 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 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.” (w.e.f. 30-3-1967)

  1. Defendant’s interest and liability to be shown

The plaint shall show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiffs demand.

  1. 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 :

1[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.]

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

  1. Relief founded on separate ground.

Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and district grounds, they shall be stated as far as may be separately and distinctly.

1[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 alongwith requisite fee for service of summons on the defendants]

  1. Rule 9 was substituted by Act No. 46 of 1999, section 19. Now again substituted by Act No 22 of 2002, Section 8 (w.e.f. 1-7-2002).
  2. Return of plaint

(1) 1[Subject to the provisions of rule 10A, the plaint shall] at any state of the suit be returned to be presented to the Court in which the suit should have been instituted.

2[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, in rule 10, in sub-rule (1), at the end, insert the words “The plaintiff or his pleader shall be informed of the date fixed for the return of the plaint.” (w.e.f. 1-10-1983)

  1. This rule has been applied to suits for the recovery of rent under the Chota Nagpur Tenancy Act, 1908 (Ben. 6 of 1908) s. 265.
  2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

1[10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return

(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing, so, intimate its decision to the plaintiff.

(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to 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.

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

10B. Power of appellate Court to transfer suit to the proper Court

(1) Where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so desires, while returning the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should have been instituted, (whether such Court is within or without the State in which the Court hearing the appeal is situated), and fit a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be necessary for the Court in which the plaint is filed to serve the defendant with the summons for appearance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, otherwise directs.

(2) The direction made by the Court under sub-rule (1), shall be without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit.]

  1. Rejection of plaint

The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

1[(e) where it is not filed in duplicate;

3[(f) where the plaintiff fails to comply with the provisions of rule 9];

2[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

HIGH COURT AMENDMENT

Andhra Pradesh:-

Same as in Madras.

Karnataka:-

In Order VII, in rule 11, for clause (c), substitute the following clause, namely:-

“(c) where the relief claimed is properly valued, but the court-fee actually paid is insufficient, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court;” (w.e.f. 30-6-1967)

Madras:-

In Order VII, in rule 11, for clause (c), substitute the following clause, namely:-

“(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;”

  1. Ins. by Act No. 46 of 1999, section 17 (w.e.f. 1-7-2002).
  2. Added by Act No. 104 of 1976, sec. 57 (w.e.f. 1-2-1977).
  3. Clauses (f) and (g) were inserted by Act No. 46 of 1999, section 17 and substituted by Act No 22 of 2002, Section 8 (w.e.f. 1-7-2002).
  4. Procedure on rejecting plaint.

Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.

  1. Where rejection of plaint does not preclude presentation of fresh plaint

The rejection of the plaint on any of the grounds herein before 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.- In Order VII, in rule 13, after the words “hereinbefore mentioned”, insert the words “or on the gounds mentioned in rule 14A(5(a) Order VI”. (w.e.f. 1-10-1983).

Documents relied on in plaint

1[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 document 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.

2[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.];

(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.]

  1. Subs, by Act No. 46 of 1999, section 17 (w.e.f. 1-7-2002).
  2. Sub rule (3) substituted by Act No. 22 of 2002, section 8 (w.e.f. 1-7-2002).

1[15. Statement in case of documents not in plaintiff’s possession or power].

  1. Rule 15 omitted by Act No. 46 of 1999, section 17 (w.e.f. 1-7-2002).
  2. Suits on lost negotiable instruments.

Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.

  1. Production of shop-book

(1) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891 (18of 1891), where the document on which the plaintiff sues is an entry in 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.-

In Order VII, in rule 17, in sub-rule (2), insert the following proviso, namely:-

“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.-

In Order VII, in rule 17, in sub-rule (2), insert the following proviso, namely:-

“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.” (w.e.f. 1-11-1966)

Delhi.-

Same as in Punjab.

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 the words “In such a case”, (w.e.f. 17-8-1961)

Himachal Pradesh.-

Same as in Punjab.

Karnataka.-

In Order VII, in rule 17, after sub-rule (2), insert the following sub-rule, namely:-

“(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.” (w.e.f. 30-3-1967)

Punjab.-

In Order VII, in rule 17, after sub-rule (2), insert the following Explanation, namely:-

“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 examination or comparison by the ministerial officer shall be required except by a special order of the Court.”

1[18. Inadmissibility of document not produced when plaint filed.].

HIGH COURT AMENDMENTS

Allahabad.-

In Order VII, after rule 18, insert the following rules, namely:-

“19. Every plaint or original petition shall be accompanied by a proceeding giving an address written in Hindi written 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.

  1. 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 State of Uttar Pradesh.
  2. 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.
  3. 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.
  4. Where a party engages a pleader, notices 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.
  5. 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.
  6. Nothing in these rules shall prevent the Court from directing the service of a notice or process in any other manner, if, for any reasons, it thinks fit to do so.”

Bombay.-

In Order VII, after rule 18, insert the following rules, namely:-

  1. Address to be filed with plaint or original petition.-

(1) Every 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.

  1. 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.

  1. Consequences of failure to file address.-

(1) 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, it 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.

  1. 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 acknowledgement (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.

  1. 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 service at the registered address of the party.

  1. 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.

  1. Rule 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 reasons, it thinks fit to do so.

  1. 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.”

Delhi and Himachal Pradesh.-

Same as in Punjab except, that for Himachal Pradesh in rule 20 for the words “High Court of Judicature at Lahore”, substitute the words “Judicial Commissioner Court, Himachal Pradesh”.

Gujarat.-

In Order VII, after rule 18, insert the following rules, namely:-

“19. Address to be filed with plaint or original petition.-

Every 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. 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 the final decision and for all purposes including those of execution.

  1. 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 the place where a party ordinarily resides.

  1. Consequences of failure to file address.-

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.

  1. Procedure when party is 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 acknowledgment (hich 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.

  1. 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 3, rule 5 unless the Court directs service at the address for service given by the party.

  1. 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 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

  1. Service of notice or process in any other manner.-

Nothing in these rules shall prevent the Court from directing the service of a notice or process in any other manner, if for any reasons, it thinks fit to do so.

  1. Applicability of notice under Order XXI, rule 22.-

Nothing in these rules shall apply to the notice prescribed by Order XXI, rule 22.” (w.e.f. 17-8-1961)

Madhya Pradesh.-

In Order VII, after rule 18, insert the following rules, namely:-

“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 ‘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.

  1. 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.

  1. 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.

And order under this rule may be passed by the Court suo motu or on the application of any party.

  1. 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.

  1. 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.”

Patna.-

In Order VII, after rule 18, insert the following rules, namely:-

“19. Every plaint or original petition shall be accompanied by a statement giving an address at which service of notice, summons or other process 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.

  1. An address for service filed under the preceding rule shall state the following particulars:-

(1) the name of the street and number of the house (if in a town);

(2) the name of the town or village;

(3) the post office;

(4) the district; and

(5) the munsiff (if in Bihar) or the District Court (if outside Bihar).

  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. 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.”

Punjab.-

In Order VII, after rule 18, insert the following rules, namely:-

“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.

  1. 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, of within the limits of the territorial jurisdiction of the High Court of Judicature at Lahore (now Punjab and Haryana High Court).
  2. 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.
  3. 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 deemed to be as effectual as if the notice, summons or other process had been personally served.
  4. Where a party engages a pleader, notices, summons or other process for service on him shall be served in the manner prescribed by Order Til, rule 5 unless the Court directs service at the address for service given by the party.
  5. A party who desires to change the address for service given by him as aforeraid 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.
  6. 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.”

Rajasthan.-

In Order VII, after rule 18, insert the following rules, namely:-

“19. (A) 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 petitioner. Plaintiffs or petitioners subsequently added shall, immediately on being so added, file a memorandum of this nature.

(B) 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.

  1. 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.
  2. (1) Where a plaintiff or petitioners 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) 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 think is fit and shall appoint a day for proceeding with the suit or petition.

  1. 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 process can be served, is present, a copy of the process shall be affixed to the outer door of the house. If on the date fixed, such party is not present and the process is not declared by the Court under rule 19 of Order 5, 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.
  2. Where a party engages a pleader, process for service on him shall be served in the manner prescribed by Order 3, rule 5, unless the Court directs service at the address for service given by the party.
  3. 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
  4. 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.” (w.e.f. 24-7-1954)
  5. Rule 18 was amended by Act No. 46 of 1999, section 17 and now has been omitted by Act No. 22 of 2002, Section 8 (w.e.f. 1-7-2002).

ORDER VIII. WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM

ORDER VIII
WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM

1[WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM]

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

1[1. Written statement.

The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]

  1. Subs, by Act No. 46 of 1999, section 18. Now again substituted by Act No. 22 of 2002 section 9 (w.e.f. 1-7-2002).

1[1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him

(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

2(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.]

  1. Added by Act No. 46 of 1999, section 18 (w.e.f. 1-7-2002).
  2. Rule 1A was inserted by Act No. 46 of 1999,section 18 and now sub-rule (3) has been substituted by Act No. 22 of 2002, section 9 (w.e.f. 1-7-2002)..
  3. New facts must be specially pleaded.

The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.

  1. Denial to be specific

It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

  1. Evasive denial.

Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

  1. Specific denial.

1[(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 it discretion require any fact so admitted to be proved otherwise than by such admission.

2[(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.]

  1. Rule 5 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976, (w.e.f. 1-2-1977).
  2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  3. Particulars of set-off to be given in written statement.

(1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff’s suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, presents a written statement containing the particulars of the debt sought to be set-off.

(2) Effect of set-off—The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.

Illustrations

(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B’s effect, C pays Rs. 1,000 as surety for D: then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of Rs. 1,000.

(b) A dies intestate and in debt to B, C takes out administration to A’s effects and B buys part of the effects from C. In a suit for the purchase-money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A.

(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B’s goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.

(d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The two claims being both definite, pecuniary demands may be set-off.

(e) A sues B for compensation on account of trespass. B holds a promissory note for Rs. 1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so, for as soon as A recovers, both sums are definite pecuniary demands.

(f) A and B sue C for Rs. 1,000 C cannot set-off a debt due to him by A alone.

(g) A sues B and C for Rs. 1000. B cannot set-off a debt due to him alone by A.

(h) A owes the partnership firm of B and C Rs. 1,000 B dies, leaving C surviving. A sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000.

HIGH COURT AMENDMENTS

Karnataka.-

In Order VIII, in rule 6, in sub-rule (1), at the end, insert the words “and the provisions of rules 14 to 16 of Order VII of this Code, shall mutatis mutandis, apply to a defendant claiming set-off as if he were a plaintiff”, (w.e.f. 30-3-1967)

Orissa.-

Same as in Patna.

Patna.-

In Order VIII, in rule 6, in sub-rule (1), at the end, insert the words “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”.

1[6A. Counter-claim by defendant

(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to 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.

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

6B. Counter-claim to be stated

Where any defendant seeks to rely 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.

6C. 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.

6D. 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, the counter-claim may nevertheless be proceeded with.

6E. Default of plaintiff to reply to counter-claim.

If the plaintiff makes default in putting in 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.

6F. Relief to defendant where counter-claim succeeds

Where in any suit a set-off or counter-claim is established as 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 ent’tled to such balance.

6G. Rules relating to written statement to apply

The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.]

  1. Defence or set-off founder upon separate grounds

Where the defendant relies upon several distinct grounds of defence or set-off 1[or counter-claim] founded separate and distinct facts, they shall be stated, as far as may be, separately and distinctly.

HIGH COURT AMENDMENT

Karnataka-

In Order VIII, after rule 7, insert the following rule, namely:-

“7A. 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 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 leave of the Court sued as the representative of all persons interested in subject-matter of the suit.” (w.e.f. 30-3-1967)

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

Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off 1[or counter-claim] may be raised by the defendant or plaintiff as the case may be, in his written statement.

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

1[8A. Omitted].

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

1[9. Subsequent pleadings.

No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.

  1. Rule 9 were omitted by Act No. 46 of 1999, section 18 but now again substituted by Act No. 22 of 2002 (w.e.f. 1-7-2002).

1[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 relating to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”].

  1. Rule 10 were omitted by Act No. 46 of 1999, section 18 but now again substituted by Act No. 22 of 2002 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENTS

Allahabad.-

In Order VIII, after rule 10, insert the following rules, namely:-

“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 proceeding stating his address for service, written in Hindi written 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

  1. Rules 20, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, addressed for service, filed under the preceding rule.”

[Vide Amended by Uttar Pradesh Gazette, Ft. II, dated 17th December, 1970.]

Bombay.-

In Order VIII, after rule 10, insert the following rules, namely:-

“11. (1) (a) Parties to fix addresses.-

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 on 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) Consequences 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 defence, if any, struck out and to be placed in the same position as if he had not defended. If this respect, the Court may add 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 the unregistered address, he may, upon 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 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.

  1. 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 address filed under the last preceding rule.

Counter-Claim

  1. 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 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.

  1. 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.

  1. Where the counter-claim involves in addition to the plaintiff other persons also, the defendant to add further 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, in 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 the period within which he is required to deliver it to the plaintiff.

  1. 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.

  1. Appearance of persons other than defendants to the suit, when served with counterclaim.-

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 appears in the suit.

  1. Reply to counter-claim.-

A person named in a written statement as a party to a counter-claim whereby made, may deliver a reply within the time, within which he might deliver a written statement if it were a plaint.

  1. 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 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 or a Judge for an order that such counter-claim may be excluded and the Court or Judge may, on the hearing of such application, make such order as shall be just.

  1. 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.

  1. On default of replay to counter-claim, the counter-claim may be set down for judgment.-

If the defendant to the counter-claim makes default in putting in 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.

  1. 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 plaintiffs 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, (w.e.f. 1-11-1966)

Third Party Procedure

1 [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 to or connected with the subject-matter of the suit and substantailly the same as some relief or remedy claimed by the plaintiff, or

(c) that any question or issue relating to or connected with the 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 made ex parte. The application shall be made within four weeks from the service of the summons upon defendant.

  1. From 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 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.

  1. Effect of Service of Notice.-

The Third Party shall, as from the time of the service upon him 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.

  1. Third Party to enter Appearance or Vakalatnama.-

If the Third Party desires to dispute the plaintiffs 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.

  1. 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.

  1. 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,-

(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.

  1. 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.

  1. Appearance or Vakalatnama of Third Party directions to be given.-

(1) Where the Third Party enters an appearance in person or 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 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.

  1. 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 by 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 the last preceding rule.

  1. 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.

  1. Setting aside Third Party proceedings.-

Proceedings on a Third Party Notice may, at any stage of the proceedings, be set aside by the Court.

  1. 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 Notice have been issued, where at the instance of the Third Party or any successive Third Party.

  1. 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.

  1. 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 the suit, and as if the person making the counter-claim were the plaintiff and the person against whom it is made a defendant.”]

  1. Rules 23 to 36 subs, for rules 23 to 30 by Notification No. P. 0102/77, published in the Maharashtra Government Gazette, Pt. IV-ka, dated 31st December, 1987.

Delhi.-

Same as in Punjab.

Gujarat.-

In Order VIII, after rule 10, insert the following rules, namely:- ;

“11. Parties to addresses.-

Every party, whether original, added or substituted, who appears in any suit or other proceedings 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 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.

  1. Applicability of Rules 20, 22, 24 and 25, Order VII, to addresses for service.- Rules 20, 22, 24 and 25 of Order VII shall apply, so far as may be, addresses for service filed under the last preceding rule.” (w.e.f. 1-11-1966)

Himachal Pradesh.-

Same as in Punjab.

Madhya Pradesh.-

In Order VIII, after rule 10, insert the following rules, namely:-

“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 such Civil District in which the suit or petition is filed, or if an address within the local limits of such Civil District cannot conveniently be given, within the local limits of such 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 appeal and also for a further period of two years from the date of final decision and for all purposes including those of execution.

  1. Consequence of non-filing of registered address.-

(1) If the 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 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 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 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 against such defendant or opposite party only it may be set aside as against all or any of the other defendants or opposite parties.

  1. Rules 20, 22 and 23 of Order VII shall apply, so far as may be, to addresses for service filed under Rule 11.” (w.e.f. 16-9-1960)

In Order VIII, omit rules 11 and 12. (w.e.f. 14-5-1984)

Patna.-

In Order VIII, after rule 10, insert the following rules, namely:-

“11. Every party whether original, added or substituted, who appears in any suit or other proceedings shall, at the rime 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.

  1. Rules 20 and 22 of Order VII shall apply, so as far as may be to address for service filed under the preceding rule.”

Punjab and Haryana.-

In Order VIII, after rule 10, insert the following rules, namely:-

“11. Every party, whether original, added or substituted, who appears in any suit or other proceedings 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 staring his address for service and if he fails to do so, he shall be 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.

  1. 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.” (w.e.f. 24-11-1927)

Note.-Rule 11 (Punjab). 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.-

In Order VIII, after rule 10, insert the following rules, namely:-

“11. (1) 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 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.

(2) Where the Court has struck out the defence 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 good 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 proceeding as if the defence has 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 or order is of such a nature that it cannot be set aside as against such defendant or opposite party only it may set aside as against all or any of the other defendants or opposite parties.

  1. Rules 19(2), 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.” (w.e.f. 24-7-1954)

ORDER VIIIA

Andhra Pradesh.-

Same as in Madras.

Karnataka.-

After Order VIII, insert the following Order, namely:-

“ORDER VIIIA

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 a 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 affect 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.

  1. (1) 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 context 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 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 third party without the leave of the Court until after satisfaction by such defendant of the decree against him.

  1. 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 or before the date fixed therefor in the notice.
  2. 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 as to the plaintiff, fixing as early date for its hearing.
  3. (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 is not so intimately connected with the plaintiffs 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 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 just.

(2) When the Court proceeds under clause (b) of sub-rule (!) it shall also give such directions as may be necessary for the delivery of pleadings, production of documents or the taking of further appropriate proceedings in the suit.

(3) If upon trial a decree comes to be passed either on contest or otherwise against the defendant on whose behalf notice was given, the Court shall in such decree makes 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 may order any one or more to pay the costs of any other or others and give such directions as the costs as the justice of the case may require.

  1. (1) Where the Court dismisses the proceedings on a third party notice under clause (a) of sub-rule (1) of 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 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 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 defendants served on’.” (w.e.f. 30-3-1967).

Kerala.-

Same as in Madras. (9-6-1959)

Madras.-

After Order VIII, insert the following Order, namely:-

“ORDER VIIIA

THIRD PARTY PROCEDURE

  1. Third party notice.-

Where a defendant claims to be entitled to contribution from indemnity against any person not already a party to the suit (hereinafter called a Third Party) he may, by leave of the Court, issue a notice (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.

  1. 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.

  1. Default by third party.-

If the Third Party desires to dispute the plaintiffs 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 appeal, and leave may be given upon such terms, if any, as the Court shall think fit.

  1. Procedure on default.-

Where 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.

  1. 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; if not so satisfied may pass such decree or order as the case may require.

  1. 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 taken 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 proper for the most convenient determination of the question or questions in issue, and as to the mode and extent is or to which the Third Party shall be bound or made liable by the decree in the suit.

  1. 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.

  1. Questions between co-defendants.-

Where a defendant claims 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 rights of the plaintiffs against any defendant in the suit.

  1. Further parties.-

Where any person served with a Third Party Notice by a defendant under these rules 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.” (w.e.f. 5-9-1968)

ORDER IX -APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE (THE FIRST SCHEDULE)

1[2. Dismissal of suit where summons not served in consequence of the plaintiffs failure to pay cost

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.]

  1. Rule 2 was substituted by Act No. 46 of 1999. section 19 and now again substituted by Act No. 22 of 2002. Section 10(w.e.f. 1-7-2002).
  2. 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.

  1. 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 1[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

Delhi.

Same as in Gujarat.

Gujarat.-

In Order IX, renumber rule 4 as sub-rule (1) thereof and insert the following sub-rule, namely:-

“(2) The provisions of section 5 of Indian Limitation Act, 1908 (9 of 1908), shall apply to applications under this rule.”

Himachal Pradesh.-

Same as in Gujarat.

Madhya Pradesh.-

Same as in Gujarat.

Orissa.-

In Order IX, in rule 4, insert the following proviso, namely:-

“Provided that in cases where the defendant had entered into contract by filing his defence, no suit shall be restored without notice to him.” (w.e.f 14-5-1984)

Punjab.-

Same as in Gujarat.

  1. Ins. by Art No. 104 of 1976 (w.e.f. 1-2-1977).
  2. Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons

2[(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 periods of 1[seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that-

(a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

HIGH COURT AMENDMENTS

Bombay.-

In Order IX, in rule 5, for sub-rule (1), substitute the following sub-rule, namely:-

“(1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of 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 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 think fit.”

[Vide Maharashtra Notification No. P.O. 102/77, dated 31-12-1987.]

Gujarat-

Same as in Bombay.

Kerala.-

In Order IX, in rule 5,-

(i) for the marginal heading, substitute the following marginal heading-

“Dismissal of suit where plaintiff fails to apply for steps”.

(ii) in sub-rule (i), for the words “from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers”, substitute the words “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”.

Orissa.-

In Order IX, for rule 5, substitute the following rule, namely:-

“5. Dismissal of suit where plaintiff, after summons returned unserved, fails to file necessary requisites for fresh summons.-

(1) Where after summons has been issued to the defendant, or to one of several defendants and returned unserved, the plaintiff fails to file necessary requisites for 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.” (w.e.f. 3-5-1968)

  1. Subs. by Act 104 of 1976, sec. 59, for “three months” (w.e.f. 1-2-1977) and again subs. by Act No. 46 of 1999, section 19 (w.e.f. 1-7-2002) for one months”.
  2. Subs. by Act 24 of 1920, sec. 2, sub-rule (1)
  3. 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-

1[(a)] When summons duly served-if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex pane.]

(b) When summons not duly served-if it is not proved that the summons was duly serve, 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 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 plaintiffs’ 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 AMENDMENT

Patna.-

In Order IX, in rule 6, in sub-rule (1), in clause (c), omit the words “and shall direct notice of such day to be given to the defendant” and substitute a full stop for the comma after the word “Court”, (w.e.f. 6-5-1946)

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

In Order IX, for rule 7, substitute the following rule, 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.”

[Vide Notification No. 13/SRO, dated 30th June 1956.]

  1. 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.

  1. Decree against plaintiff by default bars fresh suit

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with 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

Calcutta.-

In Order IX, in rule 9,-

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

“(2) The plaintiff shall, for service on the opposite parties, present along with his application under this rule either-

(i) as many copies thereof on plain paper as there are opposite parties, or

(ii) if the Court by reason of the length of the application or the number of opposite parties or for any other sufficient reason grants permission in this behalf, a like number of concise statements.”

(ii) renumber sub-rule (2) as sub-rule (3).

(iii) in sub-rule (3) as so renumbered, after the words “notice of application” insert the words “with a copy thereof (or concise statement) as the case may be”.

Delhi.-

Same as in Punjab.

Gauhati.

Same as in Calcutta.

Himachal Pradesh.-

Same as in Punjab.

Punjab.-

In Order IX, in rule 9, in sub-rule (1), insert the following proviso, namely:-

“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.”

[Vide Notification No. 2212-G, dated 12th May, 1909.1

  1. 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.

  1. 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.

  1. 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 no appear.

Setting aside decrees ex parte

  1. 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:

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 is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff s claim]

2[Explanation.-Where there has been an appeal against a decree passed exparte 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.]

HIGH COURT AMENDMENTS

Allahabad.-

In Order IX, in rule 13, after second proviso, insert the following proviso, namely:-

“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 in Madras.

Bombay.-

In Order IX, for rule 13, substitute the following rule, namely:-

“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 the 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, 01, 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 party 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.” (w.e.f. 1-10-1983)

Calcutta.-

In Order IX, renumber rule 13 as sub-rule (1) thereof and insert the following sub-rule, namely:-

“(2) The defendant shall, for service on the opposite party, present along with his application under this rule either-

(i) as many copies thereof of plain paper as there are opposite parties, or

(ii) in the Court by reason of the length of the application or the number of opposite parties or for any other sufficient reason grants permission in this behalf, a like number of concise statements.”

[Vide Notification No. 3316-G, dated 3rd February, 1933.]

Delhi.-

Same as in Madhya Pradesh.

Gauhati.-

Same as in Calcutta.

Gujrat.-

Same as in Madhya Pradesh.

Himachal Pradesh.-

Same as in Madhya Pradesh.

Kerala.-

In Order IX,-

(i) renumber rule 13 as sub-rule (1) thereof;

(ii) at the end of the existing proviso insert the words “after notice to them”;

(iii) after the existing proviso so amended, insert a further proviso as in Madras;

(iv) after sub-rule (1) as so renumbered, insert sub-rule (2) as in Madras, (w.e.f. 9-6-1959).

[Ed.-This amendment relates to rule 13 prior to its amendment by Central Act 104 of 1976, sec. 59 (w.e.f. 1-2-1977).]

Madhya Pradesh.-

In Order IX:-

(a) renumber rule 13 as sub-rule (1) thereof;

(b) in sub-rule (1) as so renumbered, substitute the words “there was sufficient cause for his failure to appearing” for the words “he was prevented by any sufficient cause from appearing”.

(c) in sub-rule (1) as so renumbered, second proviso and Explanations are same as in Bombay;

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

“(2) The provisions of section 5 of the Indian Limitation Act, 1908 (9 of 1908), shall apply to applications under sub-rule (1).”

Madras.-

In Order IX,-

(a) renumber rule 13 as sub-rule (1) thereof;

(b) same as in Madhya Pradesh (b).

Orissa.-

In Order IX-

(a) renumber rule 13 as sub-rule (1) thereof;

(b) same as in Madhya Pradesh (b);

(c) in sub-rule (1) as so renumbered, renumber Explanation as Explanation I and insert the following Explanation, namely:-

“Explanation II.-A summons 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 shall not be deemed to have been duly served within the meaning of the rule.”

[Vide Notification No. 24-X-7-52, dated 14th May, 1954.]

[Ed.-These amendments relate to rule 13 prior to its amendment by Central Act 104 of 1976, sec. 59 (w.e.f. 1-2-1977).]

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

Bombay.-

In Order IX, after rule 14, insert the following rule, namely-

“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.” {w.e.f. 1-10-1983)

Calcutta.-

In Order IX, in rule 14, substitute the words “together with a copy thereof (or concise statement as the case may be) “for the word “thereof”.

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

Gauhati.-

Same as in Calcutta.

Gujarat-

Same as in Bombay.

Bombay.-

In Order IX, after rule 14, insert the following rule, namely-

“R.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’ and ‘appeal’.” (w.e.f. 1-10-1983)

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 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.

1[1A. Direction of the Court to opt for any one mode of alternative dispute resolution.

After recording the admissions and denials, the court shall direct the parties to the suit to opt either mode of the settlement outside the court as specified in sub-section .(1) of section 89. On the option of the parties, the court shall fix the date of appearance before such forum or authority as may be opted by the parties.

  1. Added by Act No. 46 of 1999, Section 20 (w.e.f. 1 -7-2002).

1B. 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.

1C. Appearance before the court consequent to the failure of efforts of conciliation

Where a suit is referred under rule 1A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the court on the date fixed by it.]

1[2. Oral examination of party, or companion of party

(1) At the first hearing of the suit, the Court-

(a) shall, with a view to elucidating matters in controversy in the suit examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit; and

(b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied.

(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied.

(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.]

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

  1. This rule is not applicable to the Chief Court of Oudh, see the Oudh Court Act, 1925 (U.P. 4 of 1925), sec. 16(2).
  2. 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 1[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.

  1. Subs, by Act No. 46 of 1999, section 20 (w.e.f. 1-7-2002) for “may postpone the hearing of the suit to a future day”.

ORDER XI . DISCOVERY AND INSPECTION

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.

  1. Particular interrogatories to be submitted

On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court 1[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.

  1. Ins. by Act No. 46 of 1999, section 21 (w.e.f. 1-7-2002).
  2. Costs of interrogatories

In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the cost occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.

  1. Form of interrogatories

Interrogatories shall be in Form No. 2 in Appendix C, with such variations as circumstances may require.

  1. 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.

  1. Objections to interrogatories by answer

Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, 1[or on the ground of privilege or any other ground], may be taken in the affidavit in answer.

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

  1. 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.

  1. 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.

  1. 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.

  1. Order to answer or answer further

Where any person interrogated omits to answer, or answer insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.

  1. Application for discovery of documents

Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on 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.

  1. 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.

  1. 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.

  1. Inspection of documents referred to in pleadings or affidavits

Every party to a suit shall be entitled 1[at or before the settlement of issues] to give notice to any other party, in whose pleadings or affidavits reference is made to any document 2[or who has entered any document in any list annexed to his pleadings] or 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 with 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 an otherwise as the Court shall think fit.

  1. Subs, by Act No. 46 of 1999, section 21 for certain words (w.e.f. 1-7-2002).
  2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  3. 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.

  1. Time for inspection when notice given

The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C, with such variations as circumstances may require.

  1. 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.

  1. 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 privilege1[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 anyone or more specific documents, to be specified in the application, is or are, or has or have at an time been, in his possession or power, and, if not then in his possession when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time and, in his possession or power the document or documents specified in the application, and that they relate to the matters in questions in the suit, or to some of them.

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

  1. Non-compliance with order for discovery

1[(1)] Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and 2[an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.]

3[(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.]

  1. Rule 21 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976, (w.e.f. 1-2-1977).
  2. Subs, by Act No. 104 of 1976 for “an order may be made accordingly” (w.e.f. 1-2-1977).
  3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  4. 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.

  1. 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 the persons under disability.

HIGH COURT AMENDMENT

Karnataka.-

In Order XI, after rule 23, insert the following rules, namely-

“24. If where inspection has been ordered out of Court or is to be given out of Court, it found that a satisfactory inspection cannot be obtained, or if it is shown that the documents are being or likely to be tempered with, an application may be made to Court for an order for the deposit and inspection of the documents in Court. Such application shall be supported by affidavit. Notice of such application shall be given to the party effected thereby and orders passed only after hearing both sides, if they appear on the date fixed for hearing in the notice, or on any other date to which the hearing of the same may be adjourned thereafter.

  1. A defendant upon whom summons to appear and answer the plaint has been served, shall on entering, appearance before filing his written statement be entitled along with his pleader, if any, to inspect all documents to produced with the plaint and lying in the custody of the Court.
  2. A plaintiff as well as every defendant on whom summons has been served and who has entered appearance shall be entitled along with his pleader, if any, to inspect all documents produced into Court by any party to the suit.” (w.e.f. 30-3-1967)

ORDER XII. ADMISSIONS

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.

  1. Notice to admit documents

Either party may call upon the other party1[to admit, within 2[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 or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.

HIGH COURT AMENDMENTS

Allahabad.-

In Order XII, after rule 2,-

(a) after the words “neglect to admit”, insert the words “without sufficient cause”;

(b) for the word “the” occurring between the words “after such notice” and the words “costs of printing” substitute the words “such special”;

(c) after the words “any such document”, insert the words “as may be fixed by the Court not exceeding fifty rupees for each document;”

(d) after the words “the result of the suit may be” omit the comma and the words “unless the Court otherwise directs and the semicolon thereafter occurring.

[Vide Notification No. 43/VII-d-29, dated 1-6-1957.]

Patna:- In Order XII, in rule 2, at the end, insert the following words, namely:-

“The Court may allow a penal cost in case of wrongful or unreasonable refusal to admit documents irrespective of the result of the litigation.” (w.e.f. 26-7-1972)

  1. Subs, by Act No. 104 of 1976 for “to admit any document” (w.e.f. 1-2-1977).
  2. Subs. Act No. 46 of 1999, section 22 for “fifteen” (w.e.f. 1-7-2002).

1[2A. Document to be deemed to be admitted if not divided 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.]

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

A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.

1[3A. Power of Court to record admission

Notwithstanding that no notice to admit documents has been given under rule 2, the Court, may at any stage of the proceeding before it, of its own motion, call upon any party to admit any document and shall in such a case, record whether the party admits or refuses or neglects to admit such document.]

  1. Ins. By Act 66 of 1956, sec. 14 (w.e.f. 1-1-1957)
  2. 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 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 :

1[Omitted]

  1. Second proviso omitted by Act No. 46 of 1999, section 22 (w.e.f. 1-7-2002).
  2. 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.

1[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 upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.]

  1. Subs, by Act No. 104 of 1976 for rule 6 (w.e.f. 1-2-1977).
  2. 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.

  1. 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 it was served.

  1. Costs

If a notice to admit or produce specifies documents which are not necessary, the costs occasioned thereby, shall be borne by the party giving such notice.

ORDER XIII. PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

ORDER XIII. PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

1[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 of 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.]

  1. Subs, for rule 1 and 2 by Act No. 46 of 1999, section 23 (w.e.f. 1-7-2002).

1[2. Omitted.]

  1. Subs, for rule 1 and 2 by Act No. 46 of 1999, section 23 (w.e.f. 1-7-2002).
  2. 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.

  1. 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.-

In Order XIII, in rule 4, insert the following proviso, namely:-

“Provided that in proceedings filed in Bombay Civil Court, the endorsement may be signed or initialled by such officer as the Principal Judge may authorise in this behalf.” (w.e.f. 1-10-1983)

Patna.-

In Order XIII, in rule 4, in sub-rule (1) and sub-rule (2), after the word “Judge”, insert the following words, namely:-

“or, in the case of the High Court, by an officer in Court under the order for the Judge or one of the Judges”, (w.e.f. 5-2-1971)

Punjab and Haryana.-

In Order XIII, in rule 4, insert the following proviso, namely:-

“Provided that where the Court is satisfied that the documents, not endorsed in the manner laid down in the above rule, was in fact, admitted having been properly admitted in evidence unless non-compliance with this rule has resulted in miscarriage of justice.” (w.e.f. 11-6-1974)

  1. 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 accusing 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

Bombay.-

In Order XIII, in rule 5, in sub-rule (3), insert the following proviso, namely:-

“Provided that where the entry referred to in this rule is in a language other than English or the language of the Court, the provision contained in the proviso to sub-rule (2) of rule 17 or Order VII shall apply mutatis mutandis to such an entry.”

[Vide Notification No. C 0403/52, dated 1st October, 1983.]

Gujarat.-

Same as in Bombay omitting the words “English or”.

  1. Endorsements on documents rejected as inadmissible in evidence

When 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.-

In Order XIII, in rule 6, insert the following proviso, namely:-

“Provided that in proceedings filed in Bombay City Gvil Court the endorsement may be signed by such officer as the principal Judge may authorise in this behalf.” (w.e.f. 1-10-1983)

  1. recording of admitted and return or 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 in Madras.

Bombay.-

In Order XIII, in rule 7, after sub-rule (2), insert the following sub-rule, namely:-

“(3) Documents in language other than English or Court Language, or in script other than Devnagri.-

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 Devnagri 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.” (w.e.f. 1-10-1983)

Kerala.-

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

Madhya Pradesh.-

In Order XIII, in rule 7, after sub-rule (2), insert sub-rule (3) which is same as in Bombay with the following modifications:-

(a) omit the words “or the Court language” after the words “translation into English”;

(b) between the words “Court language” and “in a script”, substitute the word “but” for “or”. (16-9-1943)

Madras.-

In Order XIII, in rule 7, in sub-rule (2), insert the following proviso, namely:-

“Provided that no document shall be returned which by force of the decree has become wholly void or useless.”

[Vide Dis No. 434 of 1916.]

  1. 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 think fit.

  1. 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:

1[Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefore-

(a) delivers to the proper officer for being substituted for the original,-

(i) in the case of a party to the suit, a certified copy, and

(ii) in the case of any other person, an ordinary copy which has been examined, compared and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and

(b) undertakes to produce the original, if required to do so :]

Provided also, that no document shall be returned with, by force of the decree, has become wholly void or useless.

(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.

HIGH COURT AMENDMENTS

Andhra Pradesh.-

Same as in Madras.

Bombay.-

In Order XIII, in rule 9, in sub-rule (1), after the first proviso, insert the following proviso, namely:-

“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.” (w.e.f. 1-10-1983).

Gujarat.-

(i) In Order XIII, in rule 9, in sub-rule (1), after first proviso insert a second proviso which is same as in Bombay.

Karnataka.-

In Order XIII, in rule 9, after sub-rule (2), insert sub-rules (3) and (4) as in Madras with substitution in sub-rule (3) of the words “verified in the manner prescribed for verification of plaints” for the words “made by a verified petition”.

Kerala.-

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

Madras.-

In Order XIII, in rule 9, after sub-rule (2), insert the following sub-rules, namely:-

“(3) Every application for return 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 the rule 5 of this Order, shall be included as costs in the cause.”

Patna.-

In Order XIII, in rule 9, after sub-rule (1), insert the following sub-rule, namely:-

“(1A) 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 original as hereinafter provided.”

  1. Subs, by Act No. 104 of 1976, for the proviso (w.e.f. 1-2-1977).
  2. 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 suit or proceedings, and inspect the same.

(2) Every application made under this rule (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.

  1. Provisions as to documents applied to material objects

The provisions therein contained as to documents shall, so far as may be, apply to all other material objects producible as evidence.

HIGH COURT AMENDMENTS

Allahabad.-

In Order XIII, after rule 11, insert the following rules, namely:-

“12. Every document not written in the Court vernacular or in 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, 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.

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 staling that he has correctly read out the original document.

  1. 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-l, A-2, A-3, etc. and those of the second party B-l, B-2, B-3, etc. When a number of documents of the same nature is 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.”

Karnataka.-

In Order XIII, after rule 11, insert the following rule, namely:-

“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.” (w.e.f. 9-2-1967)

Orissa.-

In Order XIII, after rule 11, insert the following rule, namely:-

“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.” {w.e.f. 19-12-1961)

ORDER XIV. SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON

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 denied by the other shall form the subject of distinct issue.

(4) Issues are of two kinds :

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and 1[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.

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

1[2. Court to pronounce judgment on all issues

(1) Notwithstanding that a case may be disposed of on 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.]

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

  1. Court may examine witnesses or documents before framing issues

Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it 1[may adjourn the framing of the 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.

  1. Subs, by Act No. 46 of 1999 section 24 (w.e.f. 1-7-2002) for certain words.

1[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.]

  1. Rule 5 which was omitted by Act No. 46 of 1999, section 24 have now been substituted for the original Rule by Act No. 22 of 2002, section 11 (w.e.f. 1-7-2002).
  2. 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 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.

  1. Court, if satisfied that agreement was executed in good faith, may pronounce judgment

Where the Court is satisfied, after making such inquiry as it deems proper,-

(a) that the agreement was duly executed by the parties;

(b) that they have a substantial interest in the decision of such question as aforesaid, and

(c) that the same is fit to be tried and decided,

it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by the Court, and shall, upon the finding or decision on such issue, pronounce judgment according to the terms of the agreement, and, upon the judgment so pronounced a decree shall follow.

ORDER XV . DISPOSAL OF THE SUIT AT THE FIRST HEARING

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.

  1. One of several defendants not at issue

1[(1)] Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.

2[(2) Wherever 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.]

  1. Rule 2 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  3. Parties at issue

(1) Where the parties are at issue on some question of law or of fact, and issues have been frame by the Court as herein before 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.

  1. Failure to produce evidence

Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies, the Court may at once pronounce judgment, or any, if it thinks fit, after framing and recording issues, adjourn the suit for production of such evidence as may be necessary for its decision upon such issues.

STATE AMENDMENTS

Punjab:-

In Order XV, after rule 4, insert the following rule, namely:-

“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 monthly mount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike of 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. (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 on 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, that 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:

Provide further that if the amount deposited includes any sums claimed by the depositor to be deductible or any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.”

Uttar Pradesh.-

In its application to the State of Uttar Pradesh add the following rule 5 after rule 4.

“5. Striking off defence for 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 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 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.”

[U.P. Act (57 of 1976) amended vide U.P. Govt. Gazzette dated 3.10.1981 ].

HIGH COURT AMENDMENT

Bombay:-

After Order XV, insert the following Order, namely:-

“ORDER XVA

STRIKING OFF DEFENCE IN A SUIT BY A LESSOR

(1) In any suit by a lessor or a licensor against a lessee or a licence, 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 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.

(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 or 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 licence from the premises for the purpose of this rule.” (w.e.f. 1-10-1983 and 11-1-1990).

ORDER XVI. SUMMONING AND ATTENDANCE OF WITNESSES

ORDER XVI. SUMMONING AND ATTENDANCE OF WITNESSES

1[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 person 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 part 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 2[Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)].]

  1. Subs, by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).
  2. Subs, by Act No. 46 of 1999, section 25 (w.e.f. 1-7-2002) for certain words.

1[1A. Production of witnesses without summons

A subject to the provisions of sub-rule (3) of rule 1, and 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

Bombay.-

In Order XVI, after rule IB, insert the following rule, namely:-

“(1B) 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.” (w.e.f. 1-11-1966)

Gujarat.-

Same as Bombay without the marginal note (w.e.f. 17-8-1961).

  1. Subs, by Act No. 104 of 1976, for rule 1A (w.e.f. 1-2-1977).
  2. Expenses of witnesses to be paid into Court on applying for summons—

(1) The party applying for a summons shall, before the summons is granted and within a period to be fixed 1[which shall not be later than seven days from the date of making application under sub-rule (4) of rule 1], pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day’s attendance.

(2) Experts—In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.

(3) Scale of expenses—Where the Court is subordinate to High Court, regard shall be had, in fixing the scale of such expenses to a any rules made in that behalf.

2[(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.]

  1. Certain words added by Act No. 46 of 1999, section 25 (w.e.f. 1-7-2002).
  2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

STATE AMENDMENTS

Uttar Pradesh.—

In its application to the State of Uttar Pradesh:

(i) In rule 2, sub-rule (1), insert, at the end, the following proviso,

“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) After sub-rule (4) insert the following, 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].

HIGH COURT AMENDMENTS

Andaman and Nicobar Islands, Assam, Calcutta and Nagaland.-

In Order XVI, in rule 2, for sub-rules (1) and (2), substitute the following sub-rules, namely:-

“(1) The Court shall fix in respect of each summons such a sum of 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.”

Bombay.-

In Order XVI, in rule 2, in sub-rule (1), insert the following proviso, namely:-

“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 with 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.” (w.e.f. 1-10-1983).

Chandigarh, Delhi, Himachal Pradesh, Haryana and Punjab.-

In Order XVI, in rule 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 will be exempt from the operation of clause {!).” (w.e.f. 1-11-1966)

Gauhati.-

Same as in Bombay.

Gujarat.-

Same as in Bombay.

Madhya Pradesh.-

In Order XVI, in rule 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.-Same as that of Patna.

Patna.-

In Order XVI, in rule 2, to sub-rule (1), insert the following proviso, namely:-

“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.” (w.e.f. 13-2-1952)

  1. 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 in Madras.

Bombay.-

In Order XVI,-

(i) in rule 3, insert the following proviso, namely:-

“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 with 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.” (w.e.f. 1-10-1983)

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

“3A. 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 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 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.” (w.e.f. 15-7-1954)

Calcutta.-

In Order XVI, for rule 3, substitute the following rule, namely:-

“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:

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 he 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 Court in Assam, the sum so fixed shall be credited to the Railway to which he belongs.”

[Vide Notification No. 10428-G, dated 25th July, 1928 and Notification No. 1501-G, dated 8th March, 1948.]

Delhi.-

Same as in Punjab.

Gauhati.-

Same as in Calcutta.

Gujarat-

Same as in Bombay omitting the last sentence of the proviso.

Himachal Pradesh.-

Same as in Punjab.

Kerala.-

In Order XVI, in rule 3, insert the following 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.”

Madhya Pradesh.-

In Order XVI, for rule 3, substitute the following rule, namely:-

“3. (1) The sum so paid into Court shall except in case of a Government servant, or a State Railway employees, 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.” (w.e.f. 16-9-1960)

Madras.-

In Order XVI, in rule 3, insert the following as a separate paragraph, namely:-

“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.”

[Vide P Dis No. 11 of 1942.]

Orissa.-

Same as in Patna except for the word and figures “Rs. 10″ substitute the word and figures “Rs. 200″. (w.e.f. 14-5-1984)

Patna.-

In Order XVI, in rule 3, insert the following proviso, namely:-

“Provided that when the person summoned is an officer of Government, who has been summoned to give evidence in a case to which Government is a parry, of facts which have come to his knowledge, or of matters which he has had to deal, in his -”public capacity, then-

(i) if the officer’s salary does not exceed Rs. 10 a month, the Court shall at the time of the service of the summons make payment to him of his expenses as determined by rule 2 and recover the amount from the Treasury,

(ii) if the officer’s salary exceeds Rs. 10 a month, and the Court is situated not more than 5 miles from his headquarters, the Court may, at its discretion, on his appearance, pay him actual travelling expenses incurred;

(iii) if the officer’s salary exceeds Rs. 10 a month and the Court is situated more than 5 miles from his headquarters no payment shall be made to him by the Court. In such cases any expenses paid into Court under rule 2 shall be credited to Government.”

Punjab.-

In Order XVI, for rule 3, substitute the following rule, namely:-

“3. Tenders of expenses to witnesses.-

(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 expense 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.”

[Vide Notification No. 156-G, dated 9th January, 1919.]

Rajasthan.-

In Order XVI, for rule 3, substitute the following rule, namely:-

“3. The sum so paid into Court 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.” (w.e.f. 24-7-1954)

  1. 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 other order such levy and discharge such person as aforesaid.

STATE AMENDMENTS

Uttar Pradesh.—In its application to the State of Uttar Pradesh, in Order XVI, rule 4, add the following proviso:—

“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. [U.P. Act., 57 of 1976].

HIGH COURT AMENDMENTS

Andhra Pradesh.

Same as in Madras.

Calcutta.-

In Order XVI, in rule 4, for sub-rule (1), substitute the following sub-rule, namely:-

“(1) 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 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.” (w.e.f. 25-7-1928)

Delhi.

Same as in Punjab.

Gauhati.-

Same as in Calcutta.

Himachal Pradesh.-

Same as in Punjab.

Karnataka-

In Order XVI,-

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

“4A. (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 on 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 Government or the State Railway or other Commercial Department of the Government 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.”

(ii) after rule 4, insert rule 4B which is same as in Madras with the following modifications, namely:-

In sub-rule (1),-

(i) for the words “Notwithstanding anything 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” substitute the words “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 capacity.”

(ii) for the words “such sum” substitute the words “the said sum” and for the words “officer summoned” substitute the words “officer concerned”.

(iii) at the end, insert the words “The said officer shall be required to produce certificate duly signed by the Head of his office showing the rules 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 the certificate.” {w.e.f. 30-34967)

Kerala.-

In Order XVI, after rule 4, insert rules 4A and 4B which are same as in Madras with the following modifications:-

(1) in rule 4A,-

(a) in sub-rule (1), omit the words “whose salary exceeds Rs. 10 per mensem and”;

(b) in sub-rule (2), omit the words “along with this application”; and for the words “any further sum” substitute the words “any other sum”;

(c) in sub-rule (3), for the words “a State Railway” and “State Railway” substitute “the Railway Administration”;

(2) in Rule 4B, after the words “where a servant of the Central Government” insert the words “or a State Government”, {w.e.f. 9-6-1959)

Madhya Pradesh.-

In Order XVI, in rule 4, in sub-rule (1), between the words “summoned” and “as appears” insert the following words, namely:-

“or, when such person is a Government servant or a State Railway employee to be paid into Court.”

[Vide Notification No. 3409, dated 29th June, 1934.]

Madras.-

In Order XVI, after rule 4, insert the following rules, namely:-

“4A. Special provision for public servants summoned as witnesses in suits to which the Government is a party.-

(1) Notwithstanding anything contained in the foregoing rules, 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 situated 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 the case of employees of the Central Government or of [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.

(4) In all cases where a Government servant appears in accordance with this rule, the Court shall grant him a certificate of attendance.”

[Vide Ft St Geo Gaz, Supplt to Part II, dated 10th March, 1942.]

“4B. 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 the 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 rates 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.”

[Vide P Dis No. 851/52, dated 28th November, 1952.]

Punjab.-

In Order XVI, in rule 4, in sub-rule (1), between the words “summoned” and “as appears” insert the following words, namely:-

“or, when such person is a Government servant, to be paid into Court.”

[Vide Notification No. 156-G, dated 9th January, 1919.]

  1. 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.

  1. 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.

  1. 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.

HIGH COURT AMENDMENTS

Calcutta.-

In Order XVI, after rule 7, insert the following rule, namely:-

“7A. (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 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 V 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.-

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

1[7A. Summons given to party for service

(1) The Court may, on the application of any party for the issue of a summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service.

(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 and 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.]

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

Every summons1[under this Order, not being a summons delivered to a party for service under rule 7A,] shall be served as nearly as may be in the same manner as 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

Andhra Pradesh.-

In Order XVI, for rule 8, substitute the following rule, namely:-

“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.”

Calcutta.-

Same as in Gauhati.

Gauhati.-

In Order XVI, for rule 8, substitute the following rule, namely:-

“8. (1) Every summons under this Order not being a summons made over to a party for service under rule 7A (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 Order.

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.”

Kerala.-

In Order XVI, for rule 8, substitute following rule, namely:-

“8. (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 parry 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.” (w.e.f. 9-6-1959)

Madras.-

Same as in Andhra Pradesh. (w.e.f. 1-11-1951)

Orissa.-

Same as in Gauhati except that omit sub-rule (1) and renumber sub-rule (2) as rules (w.e.f. 29-12-1961)

Patna.-

In Order XVI, in rule 8, insert the following proviso, namely:-

“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.-

In Order XVI, in rule 8, insert the following proviso, namely:-

“Provided that any party may by leave of the Court, by himself or through his agent, serve any of his witness or witnesses personally.” (w.e.f. 24-7-1954)

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

Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.

  1. Procedure whose witness fails to comply with summons

1[(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 or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.

(3) In view 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.-

In Order XVI, in rule 10,-

(i) in sub-rule (1), substitute a colon (:) for the full stop (.) after the words “summons”, and insert the following proviso, namely:-

“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 documents.” (ii) in sub-rule (2),-

(a) between the word “proclamation” and the word “requiring” insert the following words, namely:-

“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 following words, namely:-

“and a copy of the proclamation if issued”;

(iii) in sub-rule (3) between the word “proclamation” and the words “or at any time afterwards” insert the following words, namely:-

“or an order in writing”.

[Vide Notification No. 6745/35{a)-l(8), dated 11th September, 1938.]

Kerala.-

In Order XVI, in rule 10, for the proviso, substitute the following proviso, namely:-

“Provided that no Court exercising Small Cause jurisdiction shall make an order for the attachment of immovable property.” (w.e.f. 9-6-1959)

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

  1. Procedure if witness fails to appear

1[(1)] The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to the attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs to 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.

2[(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.]

  1. Rule 12 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  2. Ins by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  3. 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.

  1. Court may of its own accord summon as witnesses strangers to suit.

Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary 1[to examine any person, including a party to the suit] and not called as 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.

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

  1. 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.-

Same as in Punjab.

Himachal Pradesh.-

Same as in Punjab.

Punjab.-

In Order XVI, in rule 16, after sub-rule (2), insert the following sub-rule, namely:-

“(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:

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.”

[Vide Notification No. 209-R/XI-Y-11, dated 25th July, 1938 and Notification No. 24-R/XI-Y-11, dated 23rd January, 1940.]

  1. 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.

  1. Procedure where witness apprehended cannot give evidence or produce document

Where any person arrested under a warrant is brought before the Court in custody and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, on such bail or security being given, may release him, and, in default of his giving such bail or security, any order him to be detained in the civil prison.

  1. No witness to be ordered to attend in person unless resident within certain limits

No one shall be ordered to attend in person to give evidence unless he resides—

(a) within the local limits of the Court’s ordinary original jurisdiction, or

(b) without such limits but at a place less than 1[one hundred] or (where there is railway or steamer communication .or other established public conveyance foi five-sixths of the distance between the place where he resides and the place were the Court is situate) less than 2[five hundred kilometers] distance from the Court house:

3[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 Order XVI, in rule 19, in clause (b), between the words “public conveyance” and “for five sixths” insert the following words, namely:-

“or private conveyances run for hire”.

[Vide Notification No. 24/VII-d-154, dated 4th April, 1959.]

Punjab.-

In Order XVI, in rule 19, in clause (b), insert the following proviso, namely:-

“Provided that any Court in the State of Punjab may require the personal attendance of any witness residing in the Punjab or Delhi State.”

[Vide Notification No. 60-Genl-XI-Y-8, dated 4th March, 1955.]

  1. Subs, by Act No. 104 of 1976 for “fifty” (w.e.f. 1-2-1977).
  2. Subs, by Act No. 104 of 1976 for “two hundred miles” (w.e.f. 1-2-1977).
  3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  4. 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.

  1. 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 for as they are applicable.

HIGH COURT AMENDMENTS

Allahabad.-

In Order XVI, after rule 21, insert the following rules, namely:-

“22. (1) Save as provided in this rule and in rule 2, the Court shall allow witnesses reasonable actual travelling expenses. Other expenses to be allowed to them shall be on the following scale, namely:-

(a) in the case of witnesses of the class of cultivators, labourers and persons, including Government servants of corresponding rank-rupee one per day.

(b) in the case of witnesses of a better class, such as bhumidars and sirdars, traders, pleaders and persons including Government servants, of corresponding rank-rupee one and fifty naya paise to rupee three per day.

(c) in the case of witnesses of a superior rank, including Government servants-

from rupees three and fifty naya paise to rupees six per 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 rate admissible to him as for journeys on tour in accordance with the travelling allowance rules applicable to him.

[Vide Notification No. 2110/VII-d-57, dated 14th March, 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 expense.

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 witnesss of 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 man 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.

[Vide Notification No. 1953/35, dated 22nd May, 1915.]

  1. In cases of 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 situate than five miles from their headquarters, shall be given a certificate of attendance by the Court in lieu of travelling and other expenses.”

[Vide Notification No. 359/35(a)1(1), dated 7th February, 1920.]

Andhra Pradesh.-

Same as in Madras.

Calcutta.-

In Order XVI, for rule 21, substitute the following rule, namely:-

“21. (1) When any party to a suit is required by any other 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 Court may in its discretion permit him to include as costs in the suit a sum of equal to the amount payable for travelling and other expenses to the other witnesses in the case of similar standing.”

Assam and Nagaland.-

Same as in Calcutta.

[Vide Notification No. 15264-G, dated 11th November, 1927.]

Karnataka.-

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

Kerala.-

Same as in Madras.

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

Madras.-

Same as in Calcutta with the addition of marginal note “Rules in the case of parties appearing as witnesses.”

[Vide GOMs No, 402 Law (Genl.), dated 4th February, 1936; P Dis No. 98 of 1936.]

ORDER XVIA. [APPEALS BY INDIGENT PERSONS]

1[ORDER XVIA. ATTENDANCE OF WITNESSES CONFINED OR DETAINED IN PRISONS

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

  1. Power to require attendance of prisoners to give evidence

Where it appears to a Court that the evidence of a person confined or detained in a prison within the State is material in a suit, the Court may make an order requiring the officer in charge of the prison to produce that person before the Court to give evidence :

Provided that, if the distance from the prison to the Court-house is more than twenty-five kilometres, no such order shall be made unless the Court is satisfied that the examination of such person on commission will not be adequate.

  1. 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 rule made by the High Court in that behalf.

  1. 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.

  1. Officer in charge of prison to abstain from carrying out order in certain cases

Where the person in respect of whom an order is made under rule 2-

(a) is certified by the medical officer attached to the prison as unfit to be removed from the prison by reason of sickness or infirmity; or

(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or

(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or

(d) is a person to whom an order made by the State Government under rule 4 applies,

the officer in charge of the prison shall abstain from carrying out the Court’s order and shall send to the Court a statement of reason for so abstaining.

  1. 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.

  1. 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 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

ORDER XVII. ADJOURNMENTS

  1. Court may grant time and adjourn hearing

1[(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.]

(2) Costs of adjournment-In every such case the Court shall fix a day for the further hearing of the suit and 2[shall make such orders as to costs occassioned by the adjournment or such higher costs as the court deems fit]:

3[Provided that,-

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day unti 1 all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time.

(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.]

HIGH COURT AMENDMENTS

Bombay.-

In Order XVII, in rule 1, in sub-rule (2), after the words “costs occasioned by the adjournment”, insert the words “ordinarily not exceeding fifty rupees in ordinary suits and one hundred rupees in special suit”, (w.e.f. 1-11-1966)

Delhi.-

Same as in Punjab.

Gujarat-

In Order XVII, in rule 1, in sub-rule (2), insert the words as in Bombay substituting “thirty” and “forty-five” for “fifty” and “one hundred” respectively.

Himachal Pradesh.-

Same as in Punjab.

Punjab.-

In Order XVII, in rule 1, in sub-rule (1),-

(i) at the beginning, insert the following words, namely:-

“Subject to the provisions of Order XXIII, rule 3″.

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

“(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.”

[Vide Notification No. 95-G, dated 26th February, 1925 and Notification No. 211-R/ XI-Y-22, dated 21st July, 1937.]

  1. Subs, by Act No. 46 of 1999, section 26 (w.e.f 1-7-2002).
  2. Subs. Act No. 46 of 1999, section 26 for certain words (w.e.f 1-7-2002).

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

  1. 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.

1[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.-

In Order XVII, in rule 2, insert the following, namely:-

“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 is represented in Court by an agent or pleader, though engaged only for the purpose of making an application.” (w.e.f. 28-5-1943}

[Ed.-This amendment relates to rule 2 prior to its amendment made by the Central Act 104 of 1976, sec. 68 (w.e.f. 1-2-1977).]

Andhra Pradesh.-

In Order XVII, in rule 2, insert the following Explanation, namely:-

“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.” (w.e.f. 27-4-1961)

[Ed.-This amendment relates to rule 2 prior to its amendment made by the Central Act 104 of 1976, sec. 68 (w.e.f. 1-24977).]

  1. Ins. by Act No. 104 of 1976 (w.e.f.1-2-1977).
  2. Court may proceed notwithstanding either party fails to produce evidence, etc.

Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, 1[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 Order XVII, 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”, {w.e.f. 17-1-1953)

Andhra Pradesh.-

In Order XVII, in rule 3, insert the following proviso, namely:-

“Provided that in a case where there is default under this rule as well as default of appearance under rule 2 the Court will proceed under rule 2.” (w.e.f. 27-4-1961)

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

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.

  1. 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.

1[(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.

(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.

(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.

(3D) The Court shall fix such time limits for the oral arguments by either of the parties in a case, as it thinks fit.”]

2[(4) Omitted]

HIGH COURT AMENDMENTS

Allahabad.-

In Order XVIII, for rule 2, substitute the following rule, namely:-

“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).” (w.e.f. 24-7-1926)

Andhra Pradesh.-

Same as in Madras.

Bombay.-

Same as in Madras.

Karnataka.-

Same as in Madras (w.e.f. 9-2-1967).

Madras.-

In Order XVIII, in rule 2, at the end, insert the following Explanation, namely:-

“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.-

In Order XVIII, in rule 2, insert the Explanation as in Madras.

Punjab.-

In Order XVIII, in rule 2, insert the Explanation as in Madras as Explanation 1 and after the so renumbered Explanation, insert the following Explanation, namely:-

“Explanation 2.-The expression “witness” in Explanation 1 shall include any party as his own witness.” (w.e.f. 9-6-1942}

Calcutta and Gauhati.-

In Order XVIII, after rule 2, insert the following rule, namely:-

“2A. 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 both been concluded, and may also allow either party to produce any witness at any stage of the suit.”

  1. Sub-rules (3A) (3B) (3C) and (3D) inserted by Act No. 22 of 2002, section 12 (w.e.f. 1-7-2002).
  2. Omitted by Act No. 46 of 1999, section 27 (w.e.f. 1-7-2002).
  3. Evidence where several issues

Where there are several issues, the burden of proving some of which lies on the 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.-

In Order XVIII, for rule 3, substitute the following rule, namely:-

“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 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, in the later 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 parries 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.”

[Vide Notification No. 3837/35 (a)-2(l), dated 20th June, 1936.]

1[3A. Party to appear before other witnesses

Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded permits him to appear as his own witness at a later stage.]

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

1[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 before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.

(8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commissions under this rule.]

  1. Rule 4 which was substituted by Act No. 46 of 1999, section 27 has now again been substituted by Act No. 22 of 2002, section 12 (w.e.f. 1-7-2002).

1[25. 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.]

  1. Subs, by Act No. 104 of 1976, for the former rule 5 (w.e.f. 1-2-1977).
  2. The provisions of rules, 5,6,7, 8,9,11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).
  3. 1 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.

  1. The provisions of rules, 5, 6,7,8,9, 11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).
  2. 1 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.

  1. The provisions of rules, 5, 6,7,8,9, 11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).
  2. 1 Memorandum when evidence not taken down by Judge

Where the evidence is not taken down in writing by the Judge, 2[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.-

In Order XVIII, in rule 8,-

(a) after the words “in writing by the Judge”, insert the words “or from his dictation”;

(b) for the words “and signed by the Judge”, substitute the words “by the Judge or typed to dictation, shall be signed by him”.

[Vide Notification No. 92/X-4, dated 19th May, 1956.]

Bombay.-

In Order XVIII, for rule 8, substitute the following rule, namely:-

“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 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.”

[Vide Maharashtra Notification No. P.O. 102/77, dated 31st December, 1987.]

Calcutta.-

In Order XVIII, omit rule 8. (w.e.f. 6-7-1967)

Madhya Pradesh.-

In Order XVIII, 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 Order XVIII, in rule 8,-

(i) between the words “in writing by the Judge” and “he shall be bound” insert the words “or from his dictation” .

(ii) for the words “and signed by the Judge”, substitute the words “by the Judge typed to has dictation, shall be signed by him”.

  1. The provisions of rules, 5, 6,7,8,9, 11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).
  2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

1[29. 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.]

  1. Subs, by Act No. 104 of 1976 for rule 9 (w.e.f. 1-2-1977).
  2. The provisions of rules, 5, 6,7,8,9, 11,13,14,15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).
  3. 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.-

In Order XVIII, in rule 10, after the words “take down” insert the words, “or cause to be taken down from his dictation in open Court, in the language of the Court or in English”, (w.e.f. 6-7-1967)

  1. 1 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.-

In Order XVIII, in rule 11, after the words “take down”, insert the words “or cause to be taken down from his dictation in open Court, in the language of the Court or in English”, (w.e.f. 6-7-1967)

  1. The provisions of rules, 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16 so far as they relate to the manner of taking evidence are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P 4 of 1925).
  2. Remarks on demeanour of witnesses

The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.

HIGH COURT AMENDMENT

Calcutta.-

In Order XVIII, in rule 12, at the end, insert the following words, namely:- “or cause the same to he recorded under his dictation in open Court, in the language of the Court or in English”, (w.e.f. 6-7-1967)

1[2[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 AMENDMENT

Bombay.-

In Order XVIII, for rule 13, substitute the following rule, namely:-

“13. Memorandum of evidence in unappealable cases.-

In cases in which an appeal in 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 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.”

[Vide Maharashtra Notification No. P.O. 102/77, dated 31st December, 1978.] 14. Judge unable to make such memorandum to record reasons of his inability.-[Rep. by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), sec. 69 (w.e.f. 1-2-1977).]

  1. Subs, by Act No. 104 of 1976, for the former rule (w.e.f. 1-2-1977).
  2. The provisions of rule 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).
  3. 1 [Judge unable to make such memorandum to record reasons of his liability.]

Rep. by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), s. 69 (w.e.f. 1-2-1977).

  1. The provisions of rule 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).
  2. 1 Power to deal with evidence taken before another Judge

(1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.

(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24.

  1. The provisions of rule 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).
  2. 1 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 herein before 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.

  1. The provisions of rule 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U.P. 4 of 1925).
  2. 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.

1[17A. Omitted.]

  1. Omitted by Act No. 46 of 1999, section 27 (w.e.f. 1-7-2002).
  2. 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 1[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 AMENDMENT

Allahabad.-

In Order XVIII, after rule 18, insert the following rule, namely:-

“19. (1) The Judge shall record in his own hand in English all orders passed on applications, other than orders of a purely routine character.

(2) The Judge shall record in his own hand in English all admissions and denials of documents, and the English proceedings 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, and the issues shall be signed by the Judge and shall form part of the English proceedings.”

[Vide Notification No. 794/35 (a), dated 17th March, 1923.]

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

1[19. Power to get statements recorded on commission

Notwithstanding anything contained in these rules, the court may, instead of examining witnesses in open court, direct their statements to be recorded on commission under rule 4A of Order XXVI].

  1. Added by Act No. 46 of 1999, section 27 (w.e.f 1-7-2002).

ORDER XIX. AFFIDAVITS

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 authorizing the evidence of such witness to be given by affidavit.

STATE AMENDMENTS

Uttar Pradesh.-For the existing proviso, substitute the following:-

“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.”. [U.P. Act (57 of 1976)].

Madhya Pradesh.-Insert the following rule, after rule 1:-

“1-A. Proof of fact by affidavit in certain cases.-

Notwithstanding anything contrary to rule 1, the Court shall, in a suit or proceeding referred to in sub-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 fact or facts as it may direct, by affidavit, unless the Court looking to the nature and complexity of the suit or proceeding and for reasons to be recorded in writing deems it just and expedient to dispense with the proof of a fact or facts by affidavits.”.

[M.P. Act 29 of 1984].

HIGH COURT AMENDMENT

Allahabad.-

In Order XIX, after rule 1, insert the following rule, namely:-

“1A. Power to permit ex parts evidence on affidavit.-Where the case proceeds ex parte the Court may permit the evidence of the plaintiff to be given an affidavit.”

[Vide Notification No. 121/IV-K-36 D, dated 10th February, 1981.]

  1. 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.

  1. 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 hear say or argumentative matter, or copies of or extracts from document, shall (unless the Court otherwise directs) be paid by the party filing the same.

HIGH COURT AMENDMENT

Allahabad.-

In Order XIX, after rule 3, insert the following rules, namely:-

“4. Affidavits shall be entitled in the Court of…….. or ……..(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 petition of.

  1. Affidavits shall be divided into paragraphs, and every paragraph shall be numbered consecutively and, as may be, shall be confined to a distinct portion of the subject.

[Vide Notification No. 1953/35 (a), dated 22nd May, 1915; Notification No. 572/35 ia)-(2), dated 18th February, 1928.]

  1. 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 persuation, his rank or degree in life, his profession, calling, occupation or trade, and the true place of his residence.
  2. Unless it be otherwise provided, an affidavit may be made by any person having cognizance 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 own knowledge, and such facts shall be stated in separate paragraphs.
  3. 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”.
  4. 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 informed”, 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.

  1. When any place is referred to in an affidavit, it shall be correctly described. When in an affidavit any person is 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.
  2. 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 some one 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.

11A. 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

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.

  1. No verification of a petition and no affidavit purporting to have been made by a pardahnashin 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 and such women made at the time by the person who identified her.
  2. 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 when 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.
  3. The person before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the 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 and exhibits referred to in the affidavit.
  4. 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.”

ORDER XX. JUDGMENT AND DECREE

  1. 1 Judgment when pronounced

2 [(1)] The Court, after the case has bee heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders:

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.

3[(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment,

4[* * *]

(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 in Madras.

Bombay.-

In Order XX, in rule 1, in sub-rule (3), omit the words “if the Judge is specially empowered by High Court in this behalf”, (w.e.f. 1-10-1983)

Karnataka.-

In Order XX, renumber rule 1 as sub-rule (1) thereof and insert the following sub-rule, namely:-

“(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.” (w.e.f. 30-3-1967}

Kerala.-

In Order XX, renumber rule 1 as sub-rule (1) thereof and insert the following sub-rule, namely:-

“(2) The judgment may be pronounced by dictation to a shorthand writer in open Court.” (w.e.f. 9-6-1959)

Madras.-

In Order XX, for rule 1, substitute the following rule, namely:-

“1. (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.” (w.e.f. 6-5-1930)

  1. The provisions of rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh; see the Outh Court Act, 1925 (U.P. 4 of 1925), s. 16(2).
  2. Rule which was renumbered as sub rule (1) by Act No. 104 of 1976 has been substituted by Act No. 22 of 2002, section 13 (w.e.f. 1-7-2002).
  3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  4. Certain words omitted by Act No. 46 of 1999 section 28 (w.e.f. 1-7-2002).
  5. Power to pronounce judgment written by judge’s predecessor

1[A Judge shall] pronounce a judgment written, but not pronounced, by his predecessor.

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

Same as in Madras.

Gujarat.-

In Order XX, for rule 3, substitute the following rule, namely:-

“3. Judgment to be signed.-

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.”

Karnataka.-

In Order XX, for rule 3, substitute the rule as in Madras with the substitution of the words “section 152 of the Code or upon review” for the words “section 152 or on review”, (w.e.f. 30-3-1967)

Kerala.-

Same as in Madras with the changes that for the words “provided also that where the Judge pronounces his judgment by dictation”, substitute the words “provided that where the Judgment is pronounced by dictation”, (w.e.f. 9-5-1959)

Madras.-

In Order XX, for rule 3, substitute the following new rule, namely:-

“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.” (w.e.f. 6-5-1930).

Rajasthan.-

Renumber the existing rule 3 as sub-rule (1) of that rule and insert the following sub-rules, namely:-

“(2) Where the judgment is pronounced by dictation to a shorthand writer in open Court the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.

(3) In cases where judgment is not written by the Judge in his own hand, and dictated and taken down verbation by another person, each page of the judgement shall be initialled by the Judge.”

[Vide Notification, dated 23rd December, 1964.]

  1. The provisions of rules 1, 3, 4, and 5 are not applicable to the Chief Court of Oudh; see the Oudh Courts Act, 1925 (U.P. 4 of 1925).
  2. 1 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 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, in rule 4.-

(a) in sub-rule (1), for the marginal note “Judgment of Small Cause Courts”, substitute the marginal note “Judgment in suits tried as Small Cause”; and for the words “Judgments of a Court of Small Causes”, substitute the words “Judgments in suits tried as Small Causes”.

(b) in sub-rule (2), for the marginal note “Judgment of other Courts”, substitute the marginal note “Judgment in other cases”; and for the words “Judgments of other Courts” substitute the words “Judgment in all other cases.”

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

  1. The provisions of rules 1, 3, 4, and 5 are not applicable to the Chief Court of Oudh; see the Oudh Courts Act, 1925 (U.P. 4 of 1925).
  2. 1 Court to state its decision on each issue

In suits in which issue, have been framed, the Court shall state its finding or decision, with the reasons therefore, upon separate issue, unless the finding upon any one or more of the issue is sufficient for the suit.

  1. The provisions of rules 1, 3, 4, and 5 are not applicable to the Chief Court of Oudh; see the Oudh Courts Act, 1925 (U.P. 4 of 1925).

1[5A. Court to inform parties as to where an appeal lies in cases where parties are not represented by pleaders

Except where both the parties are represented by pleaders, the Court shall, when it pronounces its judgment in a case subject to appeal, inform the parties present in Court as to the Court to which an appeal lies and the period of limitation for the filing of such appeal and place on record the information so given to the parties.]

  1. Ins. by Act No. 104 of 1976.
  2. Contents of decree

(1) The decree shall agree with the judgment; it shall contain the number of the suit, the 1[names and descriptions of the parties, their registered addresses,] and particulars of the claim and shall specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.

HIGH COURT AMENDMENTS

Andhra Pradesh.-

In Order XX, in rule 6,-

(a) in sub-rule (1), after the words “description of the parties”, insert the words “their addresses for service”,

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

“(2A) 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, in rule 6, for sub-rule (1), substitute the following sub-rule, namely:-

(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.” (w.e.f. 1-10-1983)

Delhi.-

Same as in Himachal Pradesh.

Himachal Pradesh.-

In Order XX, in rule 6, after sub-rule (1), insert the following sub-rule, namely:-

“(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. VII, R. 19 and O. VIII, R. 11 or as subsequently altered under O. VII, R. 24 and O. VIII, R. 12 respectively.”

Karnataka.-

In Order XX, for rule 6, substitute the following rule, namely:-

“6. Contents of decree.-

(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.

(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.” (w.e.f. 30-3-1967)

Kerala.

Same as in Andhra Pradesh (a), (w.e.f. 9-6-1959)

Madras.-

Same as in Andhra Pradesh. (w.e.f. 6-5-1930)

Punjab, Haryana and Chandigarh.-

In Order XX, in rule 6,-

(a) for rule (1), substitute the following sub-rule, namely:-

“(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 Notification G.S.R. 39/C.A. 5/1908/S. 12257 (w.e.f. 11-4-1975).]

(b) after sub-rule (1), insert sub-rule (1A) as in Himachal Pradesh.

  1. Subs, by Act No. 104 of 1976 for “names and descriptions of the parties” (w.e.f. 1-2-1977).

1[6A. Preparation of decree

(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.

(2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.

  1. Subs, by Act No. 46 of 1999, section 28 (w.e.f. 1-2-2002)

6B. Copies of judgments when to be made available

Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment, of such charges as may be specified in the rules made by the High Court.]

  1. Date of decree

The decree shall bear the day on which the judgment was pronounced, and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.

HIGH COURT AMENDMENTS

Bombay.-

In Order XX, in rule 7, insert the following proviso, namely-

“Provided that in proceeding 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.” (w.e.f. 1-10-1983)

Kerala.-

In Order XX, in rule 7, insert the following proviso, namely:-

“Provided that the decrees of the High Court may be signed by the officer empowered in that behalf.” {w.e.f. 9-6-1959)

Allahabad.-

In Order XX, after rule 7, insert the following rule, namely:-

“7A. format 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 XLII, 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.” {w.e.f. 3-10-1981)

  1. 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.

  1. 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 boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers.

  1. 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.

  1. 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 reason1[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.-

Same as in Madras.

Madhya Pradesh.-

In Order XX, in rule 11, in sub-rule (2), for the words “and with the consent of the decree-holder”, substitute the words “and after notice to the decree-holder”.

Madras.-

In Order XX, in rule 11, in sub-rule (2), for the words “with the consent of”, substitute the words “after notice to”.

Orissa.-

Same as in Madhya Pradesh.

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

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

1[(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 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.-

Same as in Madras.

Karnataka.-

Same as in Madras except that for the words “the final decree”, substitute the words “a final decree”, (w.e.f. 30-3-1967)

Kerala.-

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

Madras.-

In Order XX, in rule 12, after sub-rule (2), insert the following sub-rule, namely:-

“(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.”

[Vide Dis. No 93 of 1941.]

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

1[12A. Decree for specific performance of contract for the sale or lease of immovable property

Where a decree for the specific performance of 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.]

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

  1. Decree in pre-emption suit

(1) Where the Court decrees a claim to preemption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall—

(a) specify a day on or before which the purchase-money shall be so paid, and

(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decrees against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accused from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.

(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,—

(a) if and in so far as the claims decreed are equal in 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-emption shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.

HIGH COURT AMENDMENTS

Bombay.-

In Order XX, in rule 14, in sub-rule (1)7 after clause (b), insert the following proviso, namely:-

“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 in 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 take place.” (w.e.f. 1-10-1983)

Karnataka.-

In Order XX, in rule 14, in sub-rule (2), after clause (b), insert the following proviso, namely:-

“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 annum 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.” (w.e.f. 30-3-1967)

Madhya Pradesh.-

Same as in Bombay.

  1. Decree in suit for dissolution of partnership

Where a suit is for the dissolution of 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.

  1. Decree in suit for account between principal and agent

In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not herein before 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 preliminary decree directing such accounts to be taken as it thinks fit.

  1. 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.

  1. 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 right of the several parties interested in the property and giving such further directions as may be required.

HIGH COURT AMENDMENT

Kerala.-

In Order XX, for rule 18, substitute the following rule, namely:-

“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 may be required.

  1. Decree when set-off or counter-claims is allowed

(1) Where the defendant has been allowed a set-off 1[or counter-claim] against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

(2) Appeal from decree relating to set-off or counter-claim—Any decree passed in a suit in which a set-off 1[or counter-claim] is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if not set-off1[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 Order XX, in rule 19, in sub-rule (1), at the end, for the full-stop, substitute a comma and insert the following words, namely:-

“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.”

[Vide Notification No. 1353/35 (a)-3, dated 21st March, 1936.]

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

In Order XX, renumber rule 20 as sub-rule (1) of that rule and insert the following sub-rule, namely:-

“(2) Application may be made by the party himself or by his pleader and may also be sent by post. Whenever such application is sent by post the same shall be sent by the Registered post prepaid for acknowledgement. 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.” (w.e.f. 1-10-1983}

Madhya Pradesh.-In Order XX, for rule 20, substitute the following rule, namely:-

“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 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.” (w.e.f. 13-6-1952}

Allahabad.-

In Order XX, after rule 20, insert the following rule, namely:-

“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 the 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 posted 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.

(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, or the date fixed put up the objection together 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.”

[Notification No. 1953/35(a), dated 22nd May, 1915 and Notification No. 6056/35(a)-4(3), dated 1st November, 1941.]

ORDER XXA. COSTS

1[ORDER XXA. 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.

  1. 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.]

  1. Order XXA (containing rules 1 to 2) ins. by Act 104 of 1976, sec. 71 (w.e.f. 1-2-1977).

ORDER XXI. EXECUTION OF DECREES AND ORDERS

ORDER XXI. EXECUTION OF DECREES AND ORDERS

Payment under decree

1[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, acknowledgement due.

(3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely : –

(a) the number of the original suit;

(b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;

(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;

(d) the number of the execution case of the Court, where such case is pending; and

(e) the name and address of the payer.

(4) On any amount paid under clause (a) or clause (c) of sub-rule (1) interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2).

(5) On any amount paid under clause (b) of sub-rule (1) interest, if any, shall cease to run from the date of such payment :

Provided that, where the decree-holder refuses to accept the postal 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 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 AMENDMENT

Orissa.-

In Order XXI, in rule 1, after the word “decree” wherever it occurs, insert the words “or order”. (w.e.f. 14-5-1984).

  1. Subs, by Act No. 104 of 1976, sec. 72, for rule 1 (w.e.f. 1-2-1977).
  2. Payment out of Court to decree-holder

(1) Where any money payable under a decree of any kind is’paid out of Court 1[or decree of any kind is otherwise adjusted] in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor 1[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 record the same accordingly.

2[(2A) No payment or adjustment shall be recorded at the instance of the Hidgment-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, on before the Court.]

3(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

  1. Subs, by Act No. 104 of 1976, s. 72, for certain words (w.e.f. 1-2-1977).
  2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  3. In the application of the Act, to Punjab, sub-rule (3) has been repealed by the Punjab Relief of Indebtedness Act, 1934 (Pun. 7 of 1934), sec. 36

STATE AMENDMENT

Punjab, Haryana and Chandigarh.-

In Order XXI, in rule (2), omit sub-rule (3).

[Vide Punjab Relief Indebtedness Act, 1934 (Punjab Act VII of 1934, sec. 36 (w.e.f. 19-4-1935) read with Punjab Act XLIV of 1960, sec. 3 (w.e.f. 30-12-1960); see also Act 31 of 1966, secs. 29 and 32 (w.e.f. 1-11-1966).]

HIGH COURT AMENDMENTS

Andhra Pradesh.-

Same as in Madras.

Bombay.-

In Order XXI, in rule 2, in sub-rule (2), after the words “inform the Court”, insert the words “by an application in writing supported by an affidavit”, (w.e.f. 1-10-1983)

Delhi.-

Same as in Punjab.

Himachal Pradesh.-

Same as in Punjab.

Madras.-

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

“(2) Any person to the suit or his legal representatives or any person who has become surety for the decree-debt also may inform the Court to such payment or adjustment and apply to the Court to issue 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.”

Orissa.-

Same as in Patna (i).

Patna.-

(i) In Order XXI, in rule 2, in sub-rule (2), for the words “and if, after service of such notice”, substitute the words “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) Omit sub-rule (3). (w.e.f. 5-4-1961)

Courts executing decrees

  1. Lands situate in more than one jurisdiction

Where immovable property forms one estate or tenure situate within the local limits of jurisdiction of two or more Court, any one of such Courts may attach and sell the entire estate or tenure.

  1. 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 cognizance of either a Presidency or a Provincial Court of Small Causes, and the Court which passed it wishes it to be executed in Calcutta, Madras or Bombay, such Court may send to the Court of Small Causes in Calcutta, Madras or Bombay, as the case may be, the copies and certificates mentioned in rule 6; and such Court of Small Causes shall thereupon execute the decree as if it had been passed by itself.

HIGH COURT AMENDMENT

Bombay.-

In Order XXI,-

(i) renumber rule 4 as sub-rule (1) threof;

(ii) in sub-rule (1) as so renumbered, omit the words “or Bombay” wherever they occur;

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

“(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 ten 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).” (w.e.f. 1-10-1983)

Gujarat.-

Same as in Bombay.

1[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 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.]

  1. Subs. by Act No. 104 of 1976, for rule 5 (w.e.f. 1-2-1977).
  2. Procedure where Court desires that its own decree shall be executed by another Court

The Court sending a decree for execution shall send-

(a) a copy of the decree;

(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and

(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

HIGH COURT AMENDMENTS

Allahabad.-

In Order XXI –

(i) renumber rule 6 as sub-rule (1) thereof;

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

“(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.”

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

Madras.-

In Order XXI, after rule 6, insert the following rule, namely:-

“6A. 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 or the discharge in whole or in part, of such a decree arise, the Court executing the decree shall decide it.” (w.e.f. 15-3-1967)

Orissa.-

Same as in Patna.

Patna.-

In Order XXI, in rule 6, in clause (a), after the word “decree” insert the following words, namely:-

“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 the decree”.

  1. 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.

  1. 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 or be transferred for execution to any subordinate Court of competent jurisdiction.

  1. 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 exercise of its ordinary original civil jurisdiction.

HIGH COURT AMENDMENT

Kerala.-

In Order XXI, omit rule 9. (w.e.f. 9-6-1959)

Application for execution

  1. Application for execution

Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.

HIGH COURT AMENDMENTS

Delhi,-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXI, in rule 10, insert the following proviso, namely:-

“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 the 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.”

[Vide Notification No. 125-Gaz. XI-Y-14, dated 7th April, 1932.]

  1. 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 passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court.

(2) Written application-Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely-

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;

(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;

(h) the amount of the costs (if any) awarded;

(i) the name of the person against whom execution of the decree is sought; and

(j) the mode in which the assistance of the Court is required whether-

(i) by the delivery of any property specifically decreed;

1[(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.

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

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 11, in sub-rule (2),-

(i) for clause (f), substitute the following clause, namely:-

“(f) the date of the last application, if any;”

(ii) insert the following proviso, namely:-

“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.”

[Vide Notification No. 4048/35(a)-3(7), dated 24th July, 1926.]

(iii) In Order XXI, in rule 11, after sub-rule (3), insert the following sub-rule, namely:-

“(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.”

[Vide Notification No. 92/X-14, dated 19th May, 1956.]

Andhra Pradesh.-Same as in Madras. Karnataka.-In Order XXI, in rule 11, in sub-rule (2),-

(i) after clause (f), insert clause (ff) as in Madras with the omission of the word “original” before “decree-holder”;

(ii) in clause (j), after sub-clause (v), insert para as in Madras (b) (w.e.f. 30-3-1967).

Kerala.-In Order XXI, in rule 11, in sub-rule (2}, after clause (f),-

(i) insert the following clause, namely:-

“(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;”

(ii) for clause (j), substitute the following clause, namely:-

“(j) the mode in which me assistance of the Court is required, whether- (i) by the delivery of any property, specifically decreed; (ii) 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.

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.” (w.e.f. 9-6-1959).

Madhya Pradesh.-In Order XXI, in rule 11, in sub-rule (2), insert the following proviso, namely:-

“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 to be given in the application.”

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

Madras.-In Order XXI, in rule 11, in sub-rule (2),-

(a) after clause (f), insert the following clause, namely:-

“(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;”

[Vide P Dis. No. 776 of 1929.]

(b) in clause (j), after sub-clause (v), insert the following para, namely:-

“In an execution petition praying the 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.”

[Vide G.O. Ms. No. 2084-Home, dated 2nd September, 1936, H.C.P. Dis. No. 691, dated 13th October, 1936.]

(c) insert the following proviso, namely:-

“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.”

Patna.-In order XXI, in rule 11,-

(a) after sub-rule (1), insert the following sub-rule, namely:-

“(1A) 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) in sub-rule (2), for the words and figure “sub-rule (1)”, substitute the words and figures “sub-rules (1) and (1A)”.

(c) in sub-rule (2), omit clauses (b), (c), (d), (f) and (h). (w.e.f. 5-4-1961)

1[11A. Application for arrest to state grounds

Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.]

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

  1. Application for attachment of immovable property to contain certain particulars

Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot-

(a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and

(b) a specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

  1. 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.-In Order XXI, in rule 14, in the marginal note for the words “Collector’s register in certain cases”, substitute the words “registers of revenue accounts”. In the body of the rule for the words “in the office of the Collector”, substitute the words “in the revenue accounts”. (w.e.f. 9-6-1959)

  1. Application for execution by joint decree-holders

(1) Where a decree has been passed jointly in favour of more persons than one, any one or more 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 of them has died, for the benefit of the survivors and the legal representatives of the deceased.

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.

  1. 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 if, 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 also that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution :

Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.

1[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

Bombay.-In Order XXI, in rule 16,-

(i) in para 1, after the words “to the Court which passed it”, insert the words “or to the Court which it has been sent for execution”.

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

“Provided further that where the transferee Court holds the assignment proved, 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.”

(iii) renumber Explanation as Explanation II;

(iv) before Explanation JI as so renumbered, insert the following Explanation namely:-

“Explanation 1.-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.” (w.e.f. 1-10-1983)

Calcutta.-In Order XXI, in rule 16, in the first proviso for the words “and the decree shall not be executed until the Court has heard their objections (if any) to its execution”, substitute the following words, namely:-

“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”.

[Vide Notification No. 3516-G, dated 3rd February, 1993.]

Gauhati.-Same as in Calcutta.

Gujarat.-In Order XXI, in rule 16, same as in Bombay (iii) and (iv).

Madhya Pradesh.-In Order XXI, in rule 16, after the words “to the Court which passed it”, insert the words” or to any Court for which it has been sent for execution”, (w.e.f. 16-9-1960}

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 16, for the first proviso, substitute the following proviso, namely:-

“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 unless an affidavit of the transferor admitting the transferor is filed with the application and the decree shall not be executed until the Court has heard his objection (if any) to its execution.”

  1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).
  2. 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 requirement’s of rules 11 to 14 as may be applicable to the case have been complied with; and if, they have not been complied with, 1[the Court shall allow] the defect to be remedied then and there or within a time to be fixed by it.

2[(1A) If the defect is not so remedied, the Court shall reject the application:

Provided that where, in 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, instead of rejecting the application, decide provisonally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for the amount so provisionally decided.]

(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

(3) Every amendment made under this rule shall be signed or initialled by the Judge.

(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application:

Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras, with omission of the words “or order” in both places where they occur.

Kerala.-Same as in Madras.

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

Madras.-In Order XXI, after rule 17, insert the following rule, namely:-

“17A. 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 or 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:

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.”

[Vide ROC No. 2108, dated 29th March, 1945.]

  1. Subs, by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).
  2. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).
  3. 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 which the decrees have been made is the judgment-debtor in the other and each party files the same character in both suits; and

(b) the sums due under the decrees are definite.

(4) The holder of a decree passed against several persons jointly and severally may treat is as a cross-decree in relation to a decree against him singly in favour of one or more of such persons.

Illustrations

(a) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.

(b) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtain a decree for Rs. 1,000 against B. C cannot treat his decree as a cross-decree under this rule.

(c) A obtains a decree against B for Rs. 1,000. C, who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000. B cannot treat C’s decree as a cross-decree under this rule.

(d) A, B, C, D and E are jointly and severely liable for Rs. 1,000 under a decree obtained by F. A obtains a decree for Rs. 1,000 against F singly and applies for execution to the Court in which the joint-decree is being executed. F may treat his joint-decree as cross-decree under this rule.

HIGH COURT AMENDMENT

Madhya Pradesh.-In Order XXI, for rule 18, substitute the following rule, namely:-

“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 decree are definite.

(2) This rule shall be deemed to apply when 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;

(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.” (w.e.f. 16-9-1960)

  1. Execution in case of cross-claims under same decree

Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then-

(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and

(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.

  1. 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.

  1. Simultaneous execution

The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.

  1. Notice to show cause against execution in certain cases

(1) Where an application for execution is made,-

(a) more than 1[two years] after the date of the decree, or

(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A, [or]

2[(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 3[two years] having elapsed between the date of the decree and the application for execution if the application is made within3[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.-

In Order XXI, in rule 22, in sub-rule (2), insert the following proviso, namely:-

“Provided that no order for the execution of a decree shall be invalid by reason of the omission to issue a notice under this rule, unless the judgment-debtor has sustained substantial injury by reason of such omission.” (w.e.f. 21-6-1957)

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, 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.-In Order XXI, in rule 22, after sub-rule (2), insert the following sub-rule, namely:-

“(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 the jurisdiction of the Court in executing the decree.”

[Vide Notification No. 3516-G, dated 3rd February, 1993.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Karnataka.-In Order 21, for rule 22, substitute the following rule, namely:-

“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 tine assignee or receiver in insolvency, or

(d) for the execution of a decree filed under the provisions of section 44A 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 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.” (w.e.f. 30-3-1967)

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

Madhya Pradesh.-In Order XXI, in rule 22, in sub-rule (2), insert proviso as in Allahabad.

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

Madras.-In Order XXI, in rule 22,-

(a) after sub-rule (1), insert the following sub-rule, namely:-

“(1A) 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.”

(b) in sub-rule (2), insert the following proviso, namely:-

“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 the result of such omission.”

Orissa.-Same as in Parna.

Patna.-In Order XXI, in rule 22,-

(a) for sub-rule (1), substitute the following sub-rule, namely:-

“(1) Where an application for execution is made in writing under rule 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) after sub-rule (2), insert the following sub-rule, namely:-

“(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 substantial injury thereby.” (w.e.f. 9-5-1947)

Punjab.-In Order XXI, in rule 22, in sub-rule (2), at the end, insert the following words, imely:-

“Failure to record such reasons shall be considered an irregularity not amounting to a defect in jurisdiction.”

[Vide Notification No. 125-Gaz XI-Y-14, dated 7th April, 1932.]

  1. Subs, by Act No. 104 of 1976, for “one year” (w.e.f. 1-2-1977).
  2. Ins. by Act No. 104 of 1976(w.e.f. 1-2-1977).
  3. Subs, by Act No. 104 of 1976 for ‘one year’ (w.e.f. 1-2-1977).

1[22A. 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.]

  1. Subs, by Act No. 104 of 1976, for “one year” (w.e.f. 1-2-1977).
  2. Procedure after issue of notice

(1) Where the person to whom notice is issued under 1[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.

  1. Subs, by Act No. 38 of 1978, for “the last preceding rule”.

Process for execution

  1. 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.

1[(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

Bombay.-In Order XXI, in rule 24, in sub-rule (2), insert the following proviso, namely:-

“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.” (w.e.f. 1-10-1983)

Gujarat.-In Order XXI, in rule 24, in sub-rule (2), insert the following proviso, namely:-

“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.” (w.e.f. 17-8-1961)

  1. Subs, by Act No. 104 of 1976 s. 72, for sub-rule (3) (w.e.f. 1-2-1977).
  2. 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 is executed, the reason why it was not executed, and shall return the process with such endorsement to the Court.

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court shall examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 25, in sub-rule (2), for the words “shall examine him”, substitute the words “may examine him personally or upon affidavit”.

[Vide Notification No. 2381/35(a)7(3), dated 7th September, 1918.]

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 25, in sub-rule (2), insert the following proviso, namely:-

“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.” (w.e.f. 1-10-1983)

Gujarat.-Same as in Bombay.

Karnataka.-In Order XXI, for rule 25, substitute the following rule, namely:-

“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 that 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 in 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.” (w.e.f. 30-3-1967)

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

Madras.-In Order XXI, in rule 25,-

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

“(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 decree-holder and attested by two respectable witnesses who can identify the decree-holder.”

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

“(3) Where 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 alleged inability, and 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 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 cause why the satisfaction should not be recorded as certified, 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 under the provisions of Order XXI, rule 2, sub-rule (2).”

Stay of execution

  1. When Court may stay execution

(1) the Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto.

(2) Where the property or person of the judgment-debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.

(3) Power to require security from, or impose conditions upon, judgment-debtor-Before making an order to stay execution, or for the restitution of property or the discharge of the judgment-debtor, 1[the Court shall require] such security from, or impose such conditions upon, the judgment-debtor as it thinks fit.

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

  1. Order cf 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.

  1. Stay of execution pending suit between decree-holder and judgment-debtor

Where a suit is pending in any Court against the holder of a decree of such Court 1[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 :

1[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 Order XXI, in, rule 29,-

(a) after the words “the person against whom the decree was passed”, insert the words “or any person whose interest are affected by the decree, or by any order made in execution thereof”;

(b) omit the words “on such terms as to security or otherwise”;

(c) for the word “as” appearing before the words “it thinks fit”, substitute the word “if”;

(d) insert the following as proviso, 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.”

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

Karnataka.-In Order XXI, in rule 29, for the words “on the part of the person against whom the decree was passed”, substitute the words “instituted by the person against whom the said decree was passed”, (w.e.f. 30-3-1967)

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

Mode of execution

  1. 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.-In Order XXI, -in rule 30, between the words “and sale” and “of his property”, insert the words “or any other kind of transfer”, (w.e.f. 13-2-1960)

  1. 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 1[three months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of movable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of 1[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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 31, in sub-rules (2) and (3), for the words “six months” wherever they occur, substitue the words “three months or such extended time as the Court may for good cause direct”.

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

[Ed.-This amendment relates to sub-rules (2) and (3) prior to the amendments made by the Central Act 104 of 1976, sec. 72 (w.e,f. 1-2-1977).]

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, 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”.

[Ed.-This amendment relates to sub-rules (2) and (3) prior to the amendments made by the Centra! Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXI, in rule 31, after sub-rule (3), insert the following sub-rule, namely:-

“(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.” {w.e.f. 30-3-1967)

Kerala.-Same as in Madras.

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

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

Madras,-In Order XXI, in rule 31, after sub-rule (3), insert the following sub-rule, namely:-

“(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.”

[Vide GOM’s No. 2084-Home, dated 2nd September, 1936; HCP Dis No. 691, dated 13th October, 1936).]

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 31, after sub-rule (3), insert the following sub-rule, namely:-

“(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 the whole, as it may think fit.”

Punjab.-In Order XXI, in rule 31,-

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

“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.”

(b) in sub-rule (3), for the words “six months”, substitute the words “three months or such other period as may have been prescribed by the Court”.

[Ed.-This amendment relates to sub-rules (2) and (3) prior to the amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

  1. Subs by Act No. 104 of 1976 for “six months” (w.e.f. 1-2-1977).
  2. Decree for specific performance for restitution of conjugal rights, or for an injunction

(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunctions 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 1[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 here, at the end of 1[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.

2[Explanation.-For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.]

Illustration

A, a person of little substance, effects a building which renders uninhabitable a family mansion belonging to B. A, in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A’s property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution-proceedings.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 32, in sub-rule (3), at the end, after the words “on his application”, insert the words “and the Court may for good cause extend the time”.

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

Andhra Pradesh.-Same as in Madras.

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab. [

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

Madhya Pradesh.-In Order XXI, in rule 32–

(a) in sub-rule (3), at the end, after the word “application”, insert the words “and the Court may also, for good cause shown, extend the time for the attachment remaining in force for a period not exceeding one year”, and

(b) in sub-rule (4), for the words “one year”, substitute the words, “three (now six) months or such further time as may have been fixed by the Court under sub-rule (3)”. (w.e.f. 16-9-1960)

[Ed.-This amendment relates to sub-rule (4) prior to its amendments by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

Madras.-In Order XXI, in rule 32-

(a) in sub-rule (3), at the end, after the word “application” insert the words “The Court may on application extend the period of three (now six) months mentioned herein to such period not exceeding one year on the whole as it may think fit.”

(b) in sub-rule (4), after the words “the date of the attachment”, insert the words “or of such extended period which the Court may order under sub-rule (3)”.

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

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 32, in sub-rule (3), for the words “for one year” substitute the words “for three (now six) months or for such further period, not exceeding one year in the whole, as may on sufficient cause shown, be fixed by the Court”.

[Ed.-This amendment relates to sub-rule (3) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

Punjab.-In Order XXI, in rule 32,-

(a) in sub-rule (3), insert the following proviso, namely:-

“Provided that the. Court may for sufficient reasons, on the application of the judgment-debtor, extend the period beyond three (now six) months; but it shall in no case exceed one year in all.”

(b) in sub-rule (4), for the words “one year” substitute “three (now six) months or such other period as may have been prescribed by the Court”.

[Ed.-This amendment relates to sub-rule (4) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).] ,-

  1. Subs, by Act No. 104 of 1976 for “one year” (w.e.f. 1-2-1977).
  2. Explanation inserted to sub-rule (5) by Act No. 22 of 2002, section 14 (w.ef. 1-7-2002).

ORDER XXI. EXECUTION OF DECREES AND ORDERS

ORDER XXI. EXECUTION OF DECREES AND ORDERS

Payment under decree

  1. Discretion of Court in executing decrees for restitution of conjugal rights

(1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree 1[against a husband] for the restitution of conjugal rights or at any time afterwards, may order that the decree2[shall be executed in the manner provided in this rule.]

(2) Where the Court has made an order under sub-rule (1) 3[* * *] it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.

(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again review the same, either wholly or in part as it may think just.

(4) Any money ordered to be paid under this rule may be recovered as though it were payble under a decree for the payment of money.

  1. Ins. by Act 29 of 1923, sec. 3
  2. Subs. by Act 29 of 1923, sec. 3, for “shall not be executed by detention prison.”
  3. The words “and the decree-holder is the wire” omitted by Act 29 of 1923, sec. 3.
  4. Decree for execution of document, or endoresment of negotiable instrument

(1) Where a decree is for the execution of a document or for the endorsement for 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 :-

“CD., Judge of the Court of

(or as the case may be), for A.B. in suit by E.F. against A.B.”, and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.

1[(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 doucment 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.]

  1. Subs, by Act No. 104 of 1976 for sub-rule (6) (w.e.f. 1-2- 1977).
  2. 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 the 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 AMENDMENT

Madras.-In Order XXI, in rule 35, after sub-rule (3), insert the following as sub-rule, 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 movable 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.” (w.e.f. 17-8-1966)

  1. Decree for delivery of immovable property when in occupancy of tenant

Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. Arrest and detention in the civil prison

Arrest and detention in the civil prion

  1. Discretionary power to permit judgment debtor to show cause against detention in prison

(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:

1[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 Order XXI, in rule 37, in sub-rule (1), for the word “shall”, substitute the word “may” and omit the proviso.

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

Patna.-In Order XXI, in rule 37, in sub-rule (1), for the word “shall”, substitute the word “may”, (w.e.f. 5-4-1961)

  1. Ins. by Act 21 of 1936, sec. 3.
  2. 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.-Same as in Madras.

Karnataka.-In Order XXI, in rule 38, at the end, insert the words “or unless satisfaction of the decree be endorsed by the decree-holder on the warrant in the manner provided in sub-rule (3) of rule 25 of this Order”, (w.e.f. 30-3-1967)

Kerala.-Same as in Madras.

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

Madras.-In Order XXI, in rule 38, at the end, insert the words “or unless satisfaction of the decree be endorsed by the decree-holder on the warrant in the manner provided in rule 25(2) above”. (w.e.f. 30-3-1967)

  1. Subsistence allowance

(1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder into pays Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court.

(2) Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed under section 57, or, where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs.

(3) The monthly allowance fixed by the Court shall be supplied by the party on whose application the 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.-In Order XXI, in rule 39, in sub-rule (5), omit the words “in the civil prison”.

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

Andhra Pradesh.-Same as in Madras.

Bombay.-(i) In Order XXI, in rule 39, in sub-rule (1), at the end, insert the words “and for the cost of conveyance of the judgment-debtor from the place of his arrest to the Court-house”.

(ii) for sub-rules (4) and (5), substitute the following sub-rules, namely:- *

“(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 remain! unexpired, shall be paid to 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 substance and costs of conveyance (if any) of the judgment-debtor 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.”

Calcutta.-In Order XXI, in rule 39, in sub-rule (5), omit the words “in the civil prison”.

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Gujarat.-Same as in Bombay.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXI, in rule 39, for sub-rules (4) and (5), substitute sub-rules (4) and (5) as in Bombay (ii). (w.e.f. 30-3-1967)

Kerala.-In Order XXI, in rule 39, substitute sub-rules (4) and (5) as in Bombay (ii) without the proviso.

Madhya Pradesh.-Same as in Bombay (i) and (ii) without the proviso, (w.e.f. 16-9-1960)

Madras.-(i) In Order XXI, in rule 39, in sub-rule (1), at the end, insert the words “and for payment of the charges for conveyance of the judgment-debtor by bus, train or otherwise whichever is available from the place of arrest to the Court-house”.

(ii) for sub-rules (4) and (5), substitute sub-rules (4) and (5) as in Bombay (ii) without the proviso.

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 39, in sub-rule (5), omit the words “in the civil prison” in the first place where they occur.

Punjab.-In order XXI, in rule 39, in sub-rule (5), omit the words “in the civil prison”.

[Vide Notification No. 125-Gaz-XI-Y-14, dated 17th April, 1932.]

1[40. Proceedings on appearance of judgement-debtor in obedience to notice or after arrest

(1) When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison. i (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 the 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.

  1. Subs. by Act 21 of 1936, sec. 4, for rule 40.

HIGH COURT AMENDMENTS

Bombay.-In Order XXI, in rule 40, after sub-rule (5), insert the following sub-rules, namely:-

“(6) When a judgment-debtor is ordered to be detained in the custody of an officer of the 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 of 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.” (w.e.f. 1-10-1983)

Gujarat.-In Order XXI, in rule 40, after sub-rule (5), insert sub-rules (6) and (7) as in Bombay.

Karnataka.-In Order XXI, in rule 40, after sub-rule (5), insert sub-rules (6) and (7) as in Madras with the following modifications:-

(i) in sub-rule (6), after rule 37, omit the words and figures “or 38”;

(ii) in sub-rule (6), for the words “Subordinate Judge or District Munsif” subsitute the words “Judge”;

(iii) in sub-rule (6), omit the words “and the Judge signing the warrant of commital 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-rule (1), (3) and (5) of this rule”.

Kerala.-In Order XXI, in rule 40,-

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

“(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.” (w.e.f 16-1-1990)

(ii) substitute the sub-rules (6) and (7) as in Madras but in sub-rule (6) for the words “District Munsif”, substitute the word “Munsif”. (w.e.f 16-9-1960)

Madhya Pradesh.-In Order XXI, in rule 40, insert sub-rules (6), (7) and (8) as in Bombay. (16-9-1960)

Madras.-In Order XXI, in rule 40, insert the following sub-rule, namely:-

“(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.

(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.” (w.e.f. 5-9-1968)

Attachment of property

  1. Examination of judgment-debtor as to his property

1[(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) 2[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.

3[(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.]

  1. Rule 41 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976, (w.e.f. 1-2-1977).
  2. Subs, by Act No. 104 of 1976, for “in the case of a corporation” (w.e.f. 1-2-1977).
  3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  4. Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined.

Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.

  1. 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 j udgment-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 in Madras.

Calcutta.-In Order XXI, for rule 43, substitute the following sub-rule, namely:-

“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 at the identification of the decree-holder or his agent, 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.”

[Vide Notification No. 25585-G, dated 3rd November, 1933 and Notification No. 4440-G, dated 29th May, 1941.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Gujarat.-Same as in Madhya Pradesh. (w.e.f. 17-8-1961)

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXI, in rule 43, same as in Madras with the following modifications:-

(i) in the second proviso omit the words “agricultural implements”

(ii) for clause (a), substitute the following clause, namely:-

“(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.”

Kerala.-In Order XXI, for rule 43, substitute the following rule, namely:-

“43. Attachment of moveable 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 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. 15A 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 Court­house.

Nothing in his 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 Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachment from any parry to the proceedings.”

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

Madhya Pradesh.-(i) In Order XXI,-

(i) renumber rule 43 as sub-rule (1) thereof;

(ii) in sub-rule (1) as so renumbered, in the proviso, at the end before semi colon, insert the word “and”;

(iii) in sub-rule (!) as so renumbered, after the proviso, insert the following further proviso, namely:-

“Provided also that when the property attached consist of live-stock, agricultural implements or other articles which cannot be conveniently removed, and the attaching officer does not act under the first proviso to this rule, he may at the instance of the judgment-debtor or of the decree-holder or 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 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.” (iv) after sub-rule (1) as so renumbered insert the following sub-rule namely:- “:

“(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 include both livestock and other articles, a separate list of (tie livestock shall similarly be prepared and attested.” (w.e.f. 16-94960)

Madras.-In Order XXI,-

(i) renumber rule 43 as sub-rule (1) thereof;

(ii) in sub-rule (1) as so renumbered, in the proviso, at the end, before colon insert the word “and”;

(iii) in sub-rule (1) as so renumbered, after the proviso, insert the following further proviso, namely:-

“Provided also that, when the property attached consists of live-stock, agricultural implements or other articles which cannot conveniently by removed and the attaching officer does not act under 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 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 ISA 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 be 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.”

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

(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.”

Orissa.-Same as in Patna.

Patna.-(a) In Order XXI, in rule 43, omit the words “shall keep the property in his own custody or in the custody of one of his subordinates, and.”

Punjab.-(i) In Order XXI,-

(i) re-number rule 43 as sub-rule (1) thereof;

(ii) in sub-rule (1) as so renumbered, insert a further proviso which is same as in Madras with addition of the following clause, namely:-

“(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 No. 15B of Appendix E, with one or more sureties for its production.”;

(iii) Insert sub-rule (2) which is same as in Madras (iv);

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

“(3) When property is made over to custodian under sub-clause as (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;

(a) the custodian and his sureties;

(b) the officer of the Court 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.”

Rajasthan.-In Order XXI, renumber rule 43 as sub-rule (1) thereof and insert a further proviso with clauses (a), (b) and (c}, sub-rules (2) and (3) as in Punjab with the following modifications:-

(ii) in the proviso, in clause (c) for the words “village lambardar”, substitute the words “village Patwari.”

1[43A. Custody of movable property

(1) Where the property attached consists of live-stock, agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to rule 43, he may, at the instance of the judgment-debtor or of the decree-holder or of any other person claiming to be interested in such property, leave it in the village or place where it has been attached, in the custody of any respectable person (hereinafter referred to as the “custodian”).

(2) If the custodian fails, after due notice, to produce such property at the place named by the Court before the officer deputed for the purpose or to restore it to the person in whose favour restoration is ordered by the Court, or if the property, though so produced or restored, is not in the same condition as it was when it was entrusted to him,-

(a) the custodian shall be liable to pay compensation to the decree-holder, judgment-debtor or any other person who is found to be entitled to the restoration thereof, for any loss or damage cause 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.]

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

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras. Bombay.-In Order XXI, after rule 43A, insert the following rule, namely:-

“43B. Attachment of live-stock.-(1) When an application is made for the attachment of live-stock the Court may demand in advance in cash at rate 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 live-stock 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 live-stock be entrusted to any person other than the judgment-debtor, the amount paid by the decree-holder for the maintenance of the live-stock or a part thereof, may, at the discretion of the Court, be paid to the custodian of the live-stock 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 cost of maintenance of the live-stock.” (w.e.f. 1-10-1983)

Delhi.-Same as in Punjab, (w.e.f 31-10-1966)

Gujrat-Same as in Madhya Pradesh. (w.e.f 17-8-1961)

Himachal Pradesh.-Same as in Punjab, (w.e.f. 31-10-1966)

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

Madhya Pradesh.-In Order XXI, after rule 43, insert the following rule, namely:-

“43A. 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.” (w.e.f. 16-9-1960)

Madras.-In Order XXI, after rule 43, insert the following rules, namely:-

“43A. (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.

43B. (1) Whenever attached property kept in the village or place where it is attached is live-stock, 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 arrangements 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 care payable to him, if not duly deposited or paid, be removed 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 attachments from any party to the proceedings.” (w.e.f. 5-9-1968)

Orissa.-Same as in Patna.’

Patna.-In Order XXI, after rule 43, insert the following rule, namely:-

“43A. (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 the 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, 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 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 the property without awaiting the expiry of the terms prescribed in rule 68, the officer shall receive the same and forward it 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 own sole responsibility in such place as may be approved by the Court. If the property cannot, from its nature of 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 properly 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 (5) 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 from the premises in which it was seized, replace it where it was found at the time of seizure.

(8) Whenever live-stock 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 live-stock 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 live-stock 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 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 live-stock 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 live-stock with reference to seasons and local circumstances. The District Judge may make any alteration he deems fit in the rates prescribed by Counts subordinate to him. Where there are two or more Courts in the same place, the rates shall be the same for each Court.”

Punjab.-In Order XXI, after rule 43, insert the following rules, namely:-

“43A. (1) Same as sub-rule (1) of Madras.

(2) Same as sub-rule (2) of Madras.

(3) A custodian appointed under the second proviso to rule 43, 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 the 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. ji

43B. (1) Same as sub-rule (1) of Madras. —

(2) Same as sub-rule (2) of Madras.

43C. When an application is made for the attachment of live-stock or other moveable property, the CPC-63 decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for 15 days. If within the clear days, before the expiry of any such period of 15 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 office, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

43D. Any person who has undertaken to keep attached property under rule 43(l)(c) shall be liable to be proceeded against as a 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.”

[Ed.-All the amendments quoted above relating to rule 43A (rule 43B, 43C, 43D) were made prior to the insertion of rule 43A by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

  1. 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

Bombay.-In Order XXI, after rule 44, insert the following rule, namely:-

“44A. Copy of the warrant of attachment to be sent to the 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.” (w.e.f. 1-10-1983)

Calcutta.-In Order XXI, in rule 44, after the words “attachment shall be made”, insert the words “at the identification of the decree-holder or his agent”.

[Vide Notification No. 4440-G, dated 29th May, 1941.]

Gauhati.-Same as in Calcutta. Gujarat-Same as in Bombay.

  1. 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 the 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.-Same as in Madras.

Bombay.-In Order XXI, in rule 45, in sub-rule (1), at the end, insert the words “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”, (w.e.f. 1-10-1983)

Calcutta.-In Order XXI, in rule 45, in sub-rule (1), at the end, insert the following words “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”.

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Gujarat.-Same as in Bombay.

Himachal Pradesh.-Same as in Punjab.

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

Kerala.-Same as in Madras.

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

Madras.

In Order XXI, in rule 45, in sub-rule (1), at the end, insert the words “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”.

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

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 45, in sub-rule {!), at the end, insert the words “and the applicant shall pay into Court such Sums as he may from time to time be required by the Court to pay in order to defray the cost of such arrangements”.

Punjab.-In Order XXI, in rule 45, in sub-rule (1), at the end, insert the words “and with every such application such charges as may be necessary for the custody of the crop up to the time at which it is likely to be fit to be cut or gathered shall be paid to the Court”.

[Vide Notification No. 125-Gaz-XI-Y-14, dated 7th April, 1932.]

  1. Attachment of debt, share and other property not in possession of judgment-debtor

(1) In the case of-

(a) a debt not secured by a negotiable instrument,

(b) a share in the capital of a corporation,

(c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting,-

(i) in the case of the debt, the credit or from recovering the debt and the debtor from making payment thereof until the further order of the Court;

(ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;

(iii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the 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.

1[46A. Notice to garnishee

(1) The Court may in the case of a debt (other than a debt secured by a mortgage or a charge) which has been attached under rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt, calling upon him either to pay into Court the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause why he should not do so.

(2) An application under sub-rule (1) shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent, the garnishee is indebted to the judgment-debtor.

(3) Where the garnishee pays in the Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of the execution, the Court may direct that the amount may be paid to the decree-holder towards satisfaction of the decree and costs of the execution.

  1. Ss. 46A to 46I Ins. by Act. No. 104 of 1976 (w.e.f. 1-2-1977).

46B. Order against garnishee

Where the garnishee does not forthwith pay into Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, and does not appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice, and on such order, execution may issue as though such order were a decree against him.

46C. 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 46A is made is in respect of a sum of money beyond the pecuniary jurisdiction of the Court, the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate, and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge shall deal with it in the same manner as if the case had been originally instituted in that Court.

46D. Procedure where debt belongs to third person

Where it is suggested or appears to be probable that the debt belongs to some third person, or that any third person has a lien or charge on, or other interest in such debt, the Court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt and prove the same.

46E. Order as regards third person

After hearing such third person and any person or persons who any 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.

46F. Payment by garnishee to be valid discharge

Payment made by the garnishee on notice under rule 46A or under any such order as aforesaid shall be a valid discharge to him as against the 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 46A was made, or the order passed in the proceedings on such application may be set aside or reversed.

46G. Costs

The costs of any application made under rule 46A and of any proceeding arising therefrom or incidental thereto shall be in the discretion of the Court.

46H. Appeals

An order made under rule 46B, rule 46C or rule 46E shall be appealable as a decree.

46I. Application to negotiable instruments

The provisions of rule 46A to 46H (both inclusive) shall, so far as may be, apply in relation to negotiable instruments attached under rule 51 as they apply in relation to debts.]

HIGH COURT AMENDMENT

Bombay.-In Order XXI, for rules 46A to 46-1, substitute the following rules, namely:-

“46A. *[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 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 debtor 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 be served eight clear days before the returnable data thereof:

Provided that, subject to the proviso of rule 46C 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 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.-(1) When the District Court itself is the competent Court it may deal ‘the case in the same manner as if it had 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.

46B. *[Order against Garnishee].-Where the garnishee does not within the time specified in the notice within such rime as the Court may allow to pay into Court the said debt or the amount payable under the said negotiable instrument or does not deliver into Court the said 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 as it may deem fit.

46C. *[Determination of disputed qualifications].-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 order upon the notice as it may think fit:

Provided that if the amount of the debt or the amount payable under the 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.

46D. *[Discharge of Garnishes}.-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.

46E. *[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 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.

46F. *[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 persons not appearing when ordered, the Court may pass such order as is provided under rule 46B, 46C or 46D or such 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 the third or other person be tried as though it were an issue in a suit.

46G. [*Execution of order under rules 46B, 46C and 46F],-(a) An order made by the Court under rules 46B, 46C or 46F against the garnishee shall be executable as if it were 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 46B, 46C or 46F 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 whether an appeal is filed, till further orders of the Appellate Court.

46H. *[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 46B, 46C or 46F 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 46E or 46F 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 46A 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 46A to 46H 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:

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.

46J. *[Costs].-The costs of any application made under rule 46A of this order and of any proceedings arising therefrom or incidental thereto shall be in the discretion of the Court.

46K. *[Appeal against order made under rules 46B, 46C, 46F and 46G].-Any order made under rule 46B, 46C, 46F or 46G of this Order shall be appealable as a decree.”

[Vide Maharashtra Government Gazette, Ft. IV, ka., p. 413, dated 15th September, 1983 (w.e.f. 1-10-1983) and *Maharashtra Government Gazette, Ft, IV, ka, p. 100, dated 20th April, 1989 (w.e.f. 20-4-1989).

  1. 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.

  1. Attachment of salary or allowances of servant of the Government or railway company or local authority

(1) Where the property to be attached is the salary or allowances of a 1[servant of the Government] or of a servant of a railway company or local authority 2[or of a servant of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act, or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)] the Court, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and, upon notice of the order to such officer as 3[the appropriate Government may by notification in the Official Gazette] appoint 4[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 remits 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 the 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 Courts.

(2) Where the attachable proportion of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate Government in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.

5[(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 the rule.]

6[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 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 in Madras.

Madras.-In Order XXI, in rule 48, in sub-rule (1), in clause (a), at the end, insert the words “such amount or instalment being calculated to the nearest anna by factions of an anna or six pies and over being considered as one anna and omitting amounts less than six pies”.

[Vide ROC No. 1310 of 1926.]

  1. Subs. by Act 5 of 1943, sec. 3, for “public officer”.
  2. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).
  3. Subs. by Act 25 of 1942, sec. 3 and Sch. II, for certain words.
  4. Subs. by Act 26 of 1939, sec. 2, for certain words.
  5. Subs. by Act 104 of 1976, sec. 72, for sub-rule (3) (w.e.f. 1-2-1977).
  6. Subs. by Act No. 104 of 1976 for Explanation (w.e.f. 1-2-1977).

1[48A. Attachment of salary or allowances of private employees

(1) Where the property to be attached is the salary or allowances of an employee other than an employee to whom rule 48 applies, the Court, where the disbursing officer of the employee is within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and upon notice of the order to such 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 v/hile the judgment-debtors is within the local limits to which this Code for the time being extents 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.]

  1. Ins. by Act. No. 104 of 1976, sec. 72, (w.e.f. 1-2-1977).
  2. 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 degree-holder by such partner, or as the circumstances of the case may require.

(3) The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same.

(4) Every application for an order under sub-rule (2) shall be served on the judgment-debtor and on his partners or such of them as are within 1[India].

(5) Every application made by any partner of the judgment-debtor under sub-rule (3) shall be served on the decree-holder and on the judgment-debtor, and on such of the other partners as do not join in the application and as are within India.

(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners and all orders made on such application shall be similarly served.

  1. Subs. by Act 2 fo 1951, sec. 3, for “the States.”
  2. Execution of decree against firm.

(1) Where a decree has been passed against a firm, execution may be granted-

(a) against any property of the partnership;

(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;

(c) against any person who has been individually served as a partner with a summons and has failed to appear:

Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of 1[section 30 of the Indian Partnership Act, 1932 (9 of 1932)].

(2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.

(3) Where the liability of any person has been tried and determined under sub-rule (2) the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(4) Save as against any property of the partnership, a decree against a firm shall not lease, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.

2[(5) Nothing in this rule shall apply to a decree passed against a Hindu Undivided Family by virtue of the provision of rule 10 of Order XXX.]

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 50, in sub-rule (2), after the words “passed the decree”, insert the words “or to which the decree is transferred for execution”.

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

Orrisa.-Same as in Patna. ” ,-.

Patna.-In Order XXI, in rule 50, in sub-rule (2), after the words “passed the decree”, insert the words “or to the Court to which it is suit for execution”.

  1. Subs, by Act No. 104 of 1976, for “section 247 of the Indian Contract Act, 1872 (9 of 1872)” (w.e.f. 1-2-1977).
  2. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

ORDER XXI. EXECUTION OF DECREES AND ORDERS

Payment under decree

  1. Attachment of negotiable instruments

Where the property is a negotiable instrument not deposited in a Court, not in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.

HIGH COURT AMENDMENTS

Allahabad.– In Order XXI, for rule 51, substitute the following rule, 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 is made, the attachment shall cease:

Provided that in the case of movable property the attachment shall not be continue 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.” (w.e.f. 1-7-1957)

  1. 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.-Same as in Madras.

Karnataka.-In Order XXI, in rule 52, same as in Madras without the word “Explanation”. (w.e.f. 30-3-1967)

Madras.-In Order XXI, in rule 52, renumber the existing proviso as proviso (i) and insert the following proviso, namely:-

“(ii) Provided further that, where the Court attachment is determined to be prior receives or realizes such property, the receipt or realization shall be deemed to be on behalf of all the Courts in which there have been attachments of such property in execution of money decrees prior to the receipt of such assets.

Explanation.-Priority of attachment in the case of attachment of property in the custody of Court shall be determined on the principles as in the case of attachment of property not in the custody of Court.”

[Vide P Dis No 445 of 1935.]

  1. 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

1[(ii) (a) the holder of the decree sought to be executed, or

(b) his judgment-debtor with the previous consent in writing of such decree-holder, or with the permission of the attaching Court, applies to the Court receiving such notice to execute the attached decree.]

(2) Where a Court makes an order under clause (a) of sub-rule (1), or receives an application under sub-head (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceeds to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

(3) The holder of a decree sought to be executed by the attachment of another of decree the nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to executive such attached decree in any manner lawful for the holder thereof.

(4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1) the attachment shall be made by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court, also by sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.

(5) The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.

(6) On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order 2[with knowledge thereof or] after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force.

HIGH COURT AMENDMENTS

Allahabad.-(a) In Order XXI, in rule 53, in sub-rule (1), in clause (b) and in sub-rule (4), after the words “to such other Court”, insert the words “and to any other Court to which the decree has been transferred for execution.”

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

Andhra Pradesh.- Same as in Madras.

Bombay.-In Order XXI, in rule 53, in sub-rule (1), in clause (b) and in sub-rule (4), after the words “such other Court”, insert the words “and to any other Court to which the decree has been transferred for execution”, (w.e.f. 1-10-1983)

Calcutta.-(a) In Order XXI, in rule 53, sub-rule (1), in clause (b), after the words “to such other Court”, insert the words “and to any Court to which it has been transferred for execution” and after the words “requesting such other Court”, insert the words “or Courts”.

(b) In sub-rule (4), after the words “by sending to such other Court”, insert the words “and to any Court to which it has been transferred for execution”.

[Vide Notification No- 3516-G, dated 3rd February, 1953.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-Same as in Madras, (w.e.f. 30-3-1967) ‘: ! i ‘. \ ..

Kerala.-Same as in Madras. –

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

Madhya Pradesh.-(a) In Order XXI, in rule 53, in sub-rule (1), in clause (b) and in sub-rule (4), after the words “to such other-Court”, insert the words “and to any other Court to which the decree has been transferred for execution”, (w.e.f. 16-9-1960)

Madras.-In Order XXI, in rule 53, in rule (1), after clause (b), insert the following clause, namely:-

“(c) If 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.”

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

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 53, in sub-rule (1), for clause (b), substitute the following clause, namely:-

“(b) If the decree sought to be attached was passed by another Court, then by the issue to such other Court (or to 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 for 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 to the Court to which the decree may have been transferred for execution) to execute the attached decree.”

Punjab.-In Order XXI, in rule 53, in sub-rule (1), in clause (b), after the words “such other Court”, insert the words “and to the Court to which it has been transferred for execution”.

[Vide Notification No. 125-Gaz-XI-Y-14, dated 7th April, 1932 and Notification No. 225-R-XI-Y-14, dated 5th August, 1937.]

  1. Subs, by Act. No. 104 of 1976, sec. 72, for sub-clause (ii) (w.e.f. 1- 2-1977).
  2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
  3. 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.

1[(1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.]

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government in the office of the Collector of the district in which the land is situate 1[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.-(a) In Order XXI, in rule 54, in sub-rule (2), at the end, for the full stop, substitute a common and insert the following words, namely:-

“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.”

[Vide Notification No. 5691/35(a)-3(9), dated 27th September, 1941.]

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

“(3) The attachment shall be deemed to have been made against transferee 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.” (w.e.f. 5-3-1983)

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, for rule 54, substitute the following rule, namely:-

“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.

(1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.

(2) 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. (w.e.f. 1-10-1983). See also Goa Gazette, Extra. Sec. 1, No. 28, p. 385 (w.e.f. 1-4-1987).

Calcutta.-In Order XXI,-

(a) in rule 54, in sub-rule (2), at the end, insert the following words:-

“and also, where the property is situated within cantonment limits, in the office of the local Cantonment Board and the Military Estates Officer concerned”.

[Vide Notification No. 6149-G, dated 26th July, 1941.]

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

“(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 for 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.”

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Gujarat.-(1) In Order XXI, in rule 54, in sub-rule (1), at the end, insert the following words, namely:-

“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) In sub-rule (2), at the end, substitute comma for the full stop and insert 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.” (w.e.f. 17-8-1961)

Himachal Pradesh.-Same as in Punjab.

Karnataka,-In Order XXI, in rule 54, in sub-rule (2), at the end, delete the full stop and insert the following 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.” (w.e.f. 30-3-1967)

Kerala.-In Order XXI, in rule 54,-

(i) for sub-rule (2), substitute the following sub-rule, 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), insert the following sub-rule, 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.” (w.e.f. 9-6-1959)

Madhya Pradesh.-(a) In Order XXI, in rule 54,-

(a) in sub-rule (2), at the end, delete the full stop and insert the 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.”

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

“(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 judgment-debtor from the date on which such order is made.”

Madras.-(a) In Order XXI, rule 54-

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

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

“(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 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.”

[Vide Notification No. 3409, dated 29th June, 1949.]

Orissa.-Same as in Patna.

Patna.-Same as in Madhya Pradesh (a).

[Vide Notification No. 21-R, dated 28th January, 1941.]

Punjab.-In Order XXI, in rule 54,- (a) in sub-rule (2), at the end, insert the following words, namely:-

“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.”

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

“(3) the order shall take effect, as against persons claiming under a 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.”

[Vide Notification No. 125-Gaz XI-Y-14, dated 7th April, 1932; Notification No. 109-R1 XI-Y-14, dated 1st April, 1939 and Notification No. 273-R-XI-Y-14, dated 30th July, 1941.]

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

Where-

(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or

(b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or

(c) the decree is set aside or reversed,

the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, for rule 55, substitute the following rule, namely:-

“55. (1) Notice shall be sent to the sale officer executing a decree of all applications for reteable distribution of assets made under section 73 (1) in respect of the property of the same judgment-debtor 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 passed against the same judgment-debtor, notice of which has been sent to the sale 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 judgment-debtor, notice of which has been sent to the sale officer under sub­section (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 sale 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 proclamation shall be affixed in the manner prescribed by the last preceding rule.”

[Vide Notification No. 1477/35(a)-3(3), dated 1st June, 1918.]

  1. 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.

1[57. Determination of attachment

(1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease.

(2) If the Court omits to give such direction, the attachment shall be deemed to have ceased.]

  1. Subs. by Act 104 of 1976, sec. 72, for rule 57 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Bombay.-In Order XXI, for rule 57, substitute the following rule, namely:-

“57. Determination of attachment.-Where any property has been attached in execution of a decree and the Court for any reason passed an order dismissing an execution application, the Court shall direct whether the attachment shall continue or cease. If the Court omits to make an order rand 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.” (w.e.f. 1-10-1983)

1[Adjudication of claims and objections

  1. Subs. by Act. No. 104 of 1976,sec. 72, for “Investigation of claims and objections” (w.e.f. 1-2-1977).

1[58. Adjudication of claims to, or objections to attachment of, property-

(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:

Provided that no such claim or objection shall be entertained-

(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or

(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,-

(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or

(b) disallow the claim or objection; or

(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or

(d) pass such order as in the circumstances of the case it deems fit.

(4) Where any claim or objection has been adjudicated upon under this rule, 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 claims or objection shall be conclusive.