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The
Code of Civil Procedure, 1908
(Part-III)
10.Procedure
where witness fails to comply with summons.- (1) Where a person to
whom a summons has been issued either to attend to give evidence or
to produce a document fails to attend or to produce the document in
compliance with such summons the Court shall, if the certificate of
the serving-officer has not been so verified by affidavit, 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 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 lieu of or at the time
of issuing such proclamation, or at any time afterwards, the Court
may, in its discretion, issue a warrant, either with or without
bail, for the arrest of such person, and may make an order for the
attachment of his property to such amount as it thinks fit, not
exceeding the amount of the costs of attachment and of any fine
which may be imposed under rule 12:
Provided that no Court of
Small Causes shall make an order for the attachment of immovable
property.
11.If witness appears attachment may be withdrawn.-
Where, at any time after the attachment of his property, such person
appears and satisfies the Court,—
(a) that he did not,
without lawful excuse, fail to comply with the summons or
intentionally avoid service, and,
(b) where he has failed to
attend at the time and place named in a proclamation issued under
the last preceding rule, that he had no notice of such proclamation
in time to attend,
the Court shall direct that the property be
released from attachment, and shall make such order as to the costs
of the attachment as it thinks fit.
12.Procedure if witness
fails to appear.- The Court may where such person does not appear,
or appears but fails so to satisfy the Court, impose upon him such
fine not exceeding five hundred rupees as it thinks fit, having
regard to his condition in life and all the circumstances of the
case, and may order his property, or any part thereof to be attached
and sold or, if already attached under rule 10, to be sold for the
purpose of satisfying all costs of such attachment, together with
the amount of the said fine, if any:
Provided that, if the
person whose attendance is required pays into Court the costs and
fine aforesaid, the Court shall order the property to be released
from attachment.
13.Mode of attachment.- The provisions with
regard to the attachment and sale of property in the execution of a
decree shall, so far as they are applicable, be deemed to apply to
any attachment and sale under this Order as if the person whose
property is so attached were a judgment debtor.
14.Court may
of its own accord summon as witnesses strangers to suit.- Court may
of its own accord summon as witnesses strangers to suit.-Subject to
the provisions of this Code as to attendance and appearance and to
any law for the time being in force, where the Court at any time
thinks it necessary to examine any person other than a party to the
suit and not called as a witness by a party to the suit, the Court
may, of its own motion, cause such person to be is summoned as a
witness to give evidence, or to produce any document in his
possession, on a day to be appointed, and may examine him as a
witness or require him to produce such document.
15.Duty of
person summoned to give evidence or produce document.- Subject as
last aforesaid, whoever is summoned to appear and give evidence in a
suit shall attend at the time and place earned in the summons for
that purpose, and whoever is summoned to produce a document shall
either attend to produce it, or cause it to be produced, at such
time and place.
16.When they may depart.- (1) A person so
summoned and attending shall, unless the Court otherwise directs,
attend at each hearing until the suit has ' been disposed
of.
(2) On the application of either party and the payment
through the Court of all necessary expenses (if any), the Court may
require any person so summoned and attending to furnish security to
attend at the next or any other hearing or until the suit is
disposed of and, in default of his furnishing such security, may
order him to be detained in the civil prison.
17.Application
of rules 10 to 13.- The provisions of rules 10 to 13 shall, so far
as they are applicable, be deemed to apply to any person who having
attended in compliance with a summons departs, without lawful
excuse, in contravention of rule 16.
18.Procedure where
witness adore headed can not give evidence or produce document.-
Where any person arrested under a warrant is brought before the
Court in custody and cannot, owing to the absence of the parties or
any of them, give the evidence or produce the document which he has
been summoned to give or produce, the Court may require him to give
reasonable bail or other security for his appearance at such time
and place as it thinks fit, and, on such bail or security being
given, may release him, and, in default of his giving such bail or
security, may order him to be detained in the civil
prison
19.No witness to be ordered to attend in person unless
resident within certain limits.- No one shall be ordered to attend
in person to give evidence unless he resides—
(a) within the
local limits of the Court's ordinary original jurisdiction,
or
(b) without such limits but at a place less than fifty or
(where there is railway or steamer communication or other
established public conveyance for five-sixths of the distance
between the place where he resides and the place where the Court is
situate) less than two hundred miles distance from the
court-house.
20.Consequences if refusal of party to give
evidence when called on by court.- Where any party to a suit present
in Court refuses, without lawful excuse, when required by the Court,
to give evidence or to produce any document then and there in his
possession or power, the Court may pronounce judgment against him or
make such order in relation to the suit as it thinks
fit.
21.Rules as to witnesses to apply to parties summoned.-
Where any party to a suit is required to give evidence or to produce
a document, the provisions as to witnesses shall apply to him so far
as they are applicable.
ORDER
XVII
ADJOURNMENTS
1.Court may grant time and adjourn
hearing.- (1) The Court may, if sufficient cause is shown, at any
stage fern 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.
Costs of adjournment.- (2) In every such case the Court
shall fix a day for the further.hearing of the suit, and may make
such order as it thinks fit with respect to the costs occasioned by
the adjournment:
Provided that, when the hearing of evidence
has once begun, the hearing of the suit shall be continued from day
to day until all the witnesses in attendance have been examined,
unless the Court finds the adjournment of the hearing beyond the
following day to be necessary for reasons to be
recorded.
2.Procedure if parties fail to appear on day
fixed.- Where, on any day to which the hearing of the suit is
adjourned the parties or any of them fail to appear, the Court may
proceed to dispose of the suit in one of the modes directed in that
behalf by order IX or make such other order as it thinks
fit.
3.Court may proceed not-withstanding 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 by or to perform any other act necessary
to the further progress of the suit, for which time has been
allowed.the Court may, notwithstanding to.such default, proceed to
decide the suit forthwith,
ORDER XIII
HEARING OF THE
SUIT AND EXAMINATION OF WITNESSES
1.Right to being.-The
plaintiff has the right to begin unless the defendant admits the
facts alleged by the plaintiff and contends that either in point of
be; 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.
2.Statement and production of evidence.- (1) On the
day fixed for the hearing of the suit or on any other day to which
the hearing is adjourned, the party having the right to begin shall
state his case and produce his evidence in support of the issues
which he is bound to prove.
(2) The other party shall then
state his case and produce his evidence (if any) and may then
address the Court generally on the whole case.
(3) The party
beginning may then reply generally on the whole
case.
3.Evidence where several issues.- Where there are
several issues, the burden of proving some of which lies on the
other party, the party beginning may, at his option either produce
his evidence on those issues or reserve it by way of answer to the
evidence produced by the other party; and, in the latter case, the
party beginning may produce evidence on those issues after the other
party has produced all his evidence, and the other party may then
reply specially on the evidence so produced by the party beginning;
but the party beginning will then be entitled to reply generally on
the whole case.
4.Witnesses to be examined in open Court.-The
evidence of the witnesses in attendance shall be taken orally in
open Court in the presence and under the personal direction in and
superintendent of the Judge.
{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 Such,
see the Such Courts Act, 1925 (U.P.4 of 1925), s.16 (2).}5.How
evidence shall be taken in appealable cases.- In cases in which an
appeal is allowed the evidence of each witness, shall be taken down
in writing, in the language of the Court by or in the presence and
under the personal direction and super intendance of the Judge, not
ordinarily in the form of question and answer, but in that of a
narrative, and, when completed, shall be read over in the presence
of the Judge and of the witness, and the Judge shall, if necessary,
correct the same, and shall sign it.
{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
Such, see the Such Courts Act, 1925 (U.P.4 of 1925), s.16
(2)}.6.When deposition to be interpreted.- Where the evidence is
taken down in a language different from that in which it is given,
and the witness does not understand the language in which it is
taken down, the evidence as taken down in writing shall be
interpreted to him in the language in which it is given.
{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 Such, see the Such Courts Act, 1925 (U.P.4 of
1925), s.16 (2)}.7.Evidence under section 138.- Evidence taken down
under section 130 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.
{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 Such, see the Such Courts
Act, 1925 (U.P.4 of 1925), s.16 (2)}.8.Memorandum when evidence not
taken in English.- Where the evidence is not taken down in writing
by the ,lt.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 and signed by
the Judge` and shall form part of the record.
{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 Such, see the Such Courts Act, 1925 (U.P.4 of 1925), s.16
(2)}.9.When evidence may be taken in English.- 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 as appear by pleaders, do
not object to have such evidence as is given in English taken down
in English, the Judge may so take it down.
10.Any particular
question and answer may be taken down.- The Court may, of its own
motion or on the application of any party or his pleader, take down
any particular question and be answer, or any objection to any
question, if there appears to be any special reason for so
doing.
{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 Such, see the Such Courts Act,
1925 (U.P.4 of 1925), s.16 (2)}.11.Questions objected to and allowed
by court.- Where any question put to a witness is objected to by a
party or his pleader, and the Court allows the same to be put,
the.Judge shall take down the question, the answer, the objection
and the name of the person making it, together with the decision of
the Court thereon.
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(2) Where
the Court has adjudicated upon rival claims to pre-emption, the
decree shall direct,—
(a) if and in so far as the claims
decreed are equal in degree, that the claim of each pre-emptier
complying with the provisions of sub-rule]e (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-emptier
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-emptier shall not take effect unless and until the
superior pre-emptier has failed to comply with the said
provisions.
15.Decree in suit for dissolution of
partnership.- Where a suit is for the dissolution of a partnership,
or the taking of partnership accounts, the Court, before passing a
final decree, may pass a preliminary decree declaring the
proportionate shares of the parties, fixing the day on which the
partnership shall stand dissolved or be deemed to have been
dissolved, and directing such accounts to be taken, and other acts
to be done, as it thinks fit.
16.Decree inset for account
between principal and agent.-In a suit for an account of pecuniary
transactions between a principal and an agent, and in any other suit
not hereinbefore provided for, where it is necessary, in order to
ascertain the amount of money due to or from any party, that an
account should be taken, the Court shall, before passing its final
decree, pass a preliminary decree directing such accounts to be
taken as it thinks fit.
17.Special directions as to
accounts.- The Court may either by the decree directing an account
to be taken or by any subsequent order give special directions with
regard to the mode in which the account is to be taken or vouched
and in particular may direct that in taking the account the books of
account in which the accounts in question have been kept shall be
taken as primâ facie evidence of the truth of the matters therein
contained with liberty to the parties interested to take such
objection thereto as they may be advised.
18.Decree in suit
for partition of property or separate possession of a share
therein.- Where the Court passes a decree for the partition of
property or for the separate possession of a share therein,
then,—
(1) if and in so far as the decree relates to an
estate assessed to the payment of revenue to the Government, the
decree shall declare the rights of the several parties interested in
the property, but shall direct such partition or separation to be
made by the Collector, or any gazette subordinate of the Collector
debuted by him in this behalf, in accordance with such declaration
and with the provisions of section 54;
(2) if and in so far
as such decree relates to any other immovable property or to movable
property, the Court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree
declaring the rights of the several parties interested in the
property and giving such further directions as may be
required
19.Decree when set-off is allowed.- (1) Where the
defendant has been allowed a set-off 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.- Any
decree passed in a suit in which a set-off is claimed shall be
subject to the same provisions in respect of appeal to which it
would have been subject if no set-off 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.
20.Certified copies of judgment and decree to be
furnished.- Certified copies of the judgment and decree shall be
furnished to the parties on application to the Court, and at their
expense.
ORDER XXI
EXECUTION OF DECREES AND
ORDERS
Payment under decree
1.Modes of paying money
under decree.- (1) All money payable under a decree shall be paid as
follows, namely:—
(a) into the Court whose duty it is to
execute the decree; or
(b) out of Court to the decree-holder;
or
(c) otherwise as the Court which made the decree
directs.
(2) Where any payment is made under clause (a) of
sub-rule (1), notice of such payment shall be given to the
decree-holder.
2.Payment out of Court to decree-holder.- (1)
Where any money payable under a decree of any kind is paid out of
Court, or the decree 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 also may inform the
Court of such payment or adjustment, and apply to the Court to issue
a notice to the decree-holder to show cause, on a day to be fixed by
the Court, why such payment or adjustment should not be recorded as
certified; and if, after service of such notice, the decree-holder
fails to show cause why the payment or adjustment should not be
recorded as certified, the Court shall record the same
accordingly.
{In the application of the Act to Punjab,
sub-rule (3) has been rep.by the Punjab Relief of Indebtedness Act,
1934 (Pun.7 of 1934), s.36.} (3) A payment or adjustment, which has
not been certified or recorded as aforesaid, shall not be recognized
by any Court executing the decree.
Courts executing
decrees
3.Lands situate in more than one jurisdiction.- Where
immovable property forms one estate or tenure situate within the
local limits of the jurisdiction of two or more Courts, any one of
such Courts may attach and sell the entire estate or
tenure.
4.Transfer to Court of Small Causes.- Where a decree
has been passed in a suit of which the value as set forth in the
plaint did not exceed two thousand rupees and which, as regards its
subject-matter, is not excepted by the law for the time being in
force from the 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 {Subs.by the A.O.1937 for " Bombay or
Rangoon ".} [or Bombay], such Court may send to the Court of Small
Causes in Calcutta, Madras {Subs.by the A.O.1937 for " Bombay or
Rangoon ".} [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.
5.Mode of transfer.- Where the Court to which a
decree is to be sent for execution is situate within the same
district as the Court which passed such decree, such Court shall
send the same directly to the former Court But, where the Court to
which the decree is to be sent for execution is situate in a
different district, the Court which passed it shall send it to the
District Court of the district in which the decree is to be
executed.
6.Procedure where court desires that its own decree
shall be executed by another Court.-The Court sending a decree for
execution shall send—
(a) a copy of the decree;
(b) a
certificate setting forth that satisfaction of the decree has not
been obtained by execution within the jurisdiction of the Court by
which it was passed, or, where the decree has been executed in part,
the extent to which satisfaction has been obtained and what part of
the decree remains unsatisfied; and
(c) a copy of any order
for the execution of the decree, or, if no such order has been made,
a certificate to that effect.
7.Court receiving copies of
decree etc., to file same without proof.- The Court to which a
decree is so sent shall cause such copies and certificates to be
filed, without any further proof of the decree or order for
execution, or of the copies thereof, unless the Court, for any
special reasons to be recorded under the hand of the Judge, requires
pr such proof.
8.Execution of decree or order by Court to
which it is sent.- Where such copies are so filed, the decree or
order may, if the Court to which it is sent is the District Court,
be executed by such Court or be transferred for execution to any
subordinate Court of competent jurisdiction.we
9.Execution by
High Court officer transferred by order Court.- Where the Court to
which the decree is sent for execution is a High Court, the decree
shall be executed by such Court in the same manner as if it had been
passed by such Court in the exercise of its ordinary original civil
jurisdiction.
Application for
execution.
10.Application for execution.- Where the holder of
a decree desires to execute it, he shall apply to the Court which
passed the decree or to the officer (if any) appointed in this
behalf, or if the decree has been sent under the provisions
hereinbefore contained to another Court then to such Court or to the
proper officer thereof.
11.Oral application.- (1) Where a
decree is for the payment of money the Court may, on the oral
application of the decree-holder at the time of the passing of the
decree, order immediate execution thereof by the arrest of the
judgment-debtor, prior to the preparation of a warrant if he is
within the precincts of the Court.
(2) Written application.-
Save as otherwise provided by sub-rule (1), every application for
the execution of a decree shall be in writing, signed and verified
by the applicant or by some other person proved to the satisfaction
of the Court to be acquainted with the facts of the case, and shall
contain in a tabular form the following particulars,
namely:—
(a) the number of the suit;
(b) the names of
the parties;
(c) the date of the decree;
(d) whether
any appeal has been preferred from the decree;
(e) whether
any, and (if any) what, payment or other adjustment of the matter in
controversy has been made between the parties subsequently to the
decree;
(f) whether any, and (if any) what, previous
applications have been made for the execution of the decree, the
dates of such applications and their results;
(g) the amount
with interest (if any) due upon the decree, or other relief granted
thereby, together with particulars of any cross-decree, whether
passed before or after the date of the decree sought to be
executed;
(h) the amount of the costs (if any)
awarded;
(i) the name of the person against whom execution of
the decree is sought; and
(j) the mode in which the
assistance of the Court is required, whether—
(i) by the
delivery of any property specifically decreed;
(ii) by the
attachment 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.
12.Application for attachment of movable
property not in judgment-debtors possession.- Where an application
is made for the attachment of any movable property belonging to a
judgment-debtor but not in his possession, the decree-holder shall
annex to the application an inventory of the property to be
attached, containing a reasonably accurate description of the
same.
13.Application for attachment of immovable property to
contain certain particulars.- Where an application is made for the
attachment of any immovable property belonging to a judgment-debtor,
it shall contain at the foot—
(a) a description of such
property sufficient to identify the same and, in case such property
can be identified by boundaries or numbers in a record of settlement
or survey, a specification of such boundaries or numbers;
and
(b) a specification of the judgment-debtor's share or
interest in such property to the best of the belief of the
applicant, and so far as he has been able to ascertain the
same.
14.Power to require certified extract from Collectors
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.
15.Application for execution by joint
decree-holder.- (1) Where a decree has been passed jointly in favour
of more persons than one, any one or more of such persons may,
unless the decree imposes any condition to the contrary, apply for
the execution of the whole decree for the benefit of them all, or,
where any of them has died, for the benefit of the survivors and the
legal representatives of the deceased.
(2) Where the Court
sees sufficient cause for allowing the decree to be executed on an
application made under this rule, it shall make such order as it
deems necessary for protecting the interests of the persons who have
not joined in the application.
16.Application for execution
transferee of decree.- Where a decree or, if a decree has been
passed jointly in favour of two or more persons, the interest of any
decree-holder in the decree is transferred by assignment in writing
or by operation of law, the transferee may apply for execution of
the decree to the Court which passed it; and the decree may be
executed in the same manner and subject to the same conditions as if
the application were made by such decree-holder:
Provided
that, where the decree, or such interest as aforesaid, has been
transferred by assignment, notice of such application shall be given
to the transferor and the judgment-debtor, and the decree shall not
be executed until the Court has heard their objections (if any) to
its execution :
Provided also that, where a decree for the
payment of money against two or more persons has been transferred to
one of them, it shall not be executed against the
others.
17.Procedure on receiving application for execution
of decree.- (1) On receiving an application for the execution of a
decree as provided by rule 11, sub-rule (2), the Court shall
ascertain whether such of the requirements of rules 11 to 14 as may
be applicable to on the case have been complied with; and, if they
have not been complied with, the Court may reject the application,
or may allow the defect to be remedied then and there or within a
time to be fixed by it.
(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 presented.
(3) Every amendment made under this
rule shall be signed or initialed 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.
18.Execution in case of cross-decree.- (1) Where
applications are made to a Court for the execution of cress-decrees
in separate suits for the payment of two sums of money passed
between the same parties and capable of execution at the same time
by such Court, then—
(a) if the two sums are equal,
satisfaction shall be entered upon both decrees; and
(b) if
the two sums are unequal, execution may be taken out only by the
holder of the decree for the larger sum and for so much only as
remains after deducting the smaller sum, and satisfaction for the
smaller sum shall be entered on the decree for the larger sum as
well as satisfaction on the decree for the smaller sum.
(2)
This rule shall be deemed to apply where either party is an assignee
of one of the decrees and as well in respect of judgment debts due
by the original assignor as in respect of judgment-debts due by the
assignee himself.
(3) This rule shall not be deemed to apply
unless—
(a) the decree-holder in one of the suits in which
the decrees have been made is the judgment-debtor in the other and
each party fills the same character in both suits; and
(b)
the sums due under the decrees are definite.
(4) The holder
of a decree passed against several persons jointly and severally may
treat it as a cross-decree in relation to a decree passed against
him singly in favour of one or more of such
persons.
Illustrations
(a) A holds a decree against B
for Rs.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
obtains 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 severally liable for Rs.1,000 under a decree obtained by
F.A obtains a decree for Rs.100 against F singly and applies for
execution to the Court in which the joint-decree is being executed.F
may treat his joint-decree as a cross-decree under this
rule.
19.Execution in cast off cross-claims sunder 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
of 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.
20.Cross-decrees and cross-claims in
mortgage-suits.-The provisions contained in rules 18 and 19 shall
apply to decrees for sale in enforcement of a mortgage or
charge.
21.Simultaneous execution.-The Court may, in its
discretion, refuse execution at the same time against the person and
property of the judgment-debtor.e
22.Notice to show cause
against execution in certain case.- (1) Where an application for
execution is made-
(a) more than one year after the date of
the decree, or
(b) against the legal representative of a
party to the decree,
{Ins.by Act 8 of 1937, s.3.} [or where
an application is made for execution of a decree filed under the
provisions of section 44A], 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 one year
having elapsed between the date of the decree and the application
for execution if the application is made within one year 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.
23.Procedure after
issue of notice.- (1) Where the person to whom notice is issued
under the last preceding rule does not appear or does not show cause
to the satisfaction of the Court why the decree should not be
executed, the Court shall order the decree to be
executed.
(2) Where such person offers any objection to the
execution of the decree, the Court shall consider such objection and
make such order as it thinks fit.
Process for
execution
24.Process for execution.- (1) When the preliminary
measures (if any) required by the foregoing rules have been taken,
the Court shall, unless it sees cause to the contrary, issue its
process for the execution of the decree.
(2) Every such
process shall bear date the day on which it is issued, and shall be
signed by the Judge or such officer as the Court may appoint in this
behalf, and shall be sealed with the seal of the Court and delivered
to the proper ricer to be executed.
(3) In every such process
a day shall be specified on or before which it shall be
executed.
25.Endorsement on process.- (1) The officer
entrusted with the execution of the process shall endorse thereon
the day on.and the manner in, which it was executed, and, if the
latest day specified in the process for the return thereof has been
exceeded, the reason of the delay, or, if it was not executed, the
reason why it was not executed, and shall return the process with
such endorsement to the Court.
(2) Where the endorsement is
to the effect that such officer is unable to execute the process,
the Court shall examine him touching his alleged inability, and may,
if it thinks fit, summon and examine witnesses as to such inability,
and shall record the result.
Stay of execution
26.When
Court may stay execution.- (1) The Court to which a decree has been
sent for execution shall, upon sufficient cause being shown, stay
the execution of such decree for a reasonable time, to enable the
judgment-debtor to apply to the Court by which the decree was
passed, or to any Court having appellate jurisdiction in respect of
the decree or the execution thereof, for an order to stay execution,
or for any other order relating to the decree or execution which
might have been made by such Court of first instance or Appellate
Court if execution had been issued thereby, or if application for
execution had been made thereto.
(2) Where the property or
person of the judgment-debtor has been seized under an execution,
the Court which issued the execution may order the restitution of
such property or the discharge of such person pending the result of
the application.
(3) Power to require security form or impose
conditions upon judgment-debtor.-Before making an order to stay
execution or for the restitution of property or the discharge of the
judgment-debtor, the Court may require such security from, or impose
such conditions upon, the judgment-debtor as it thinks
fit.
27.Liability of judgment-debtor discharged.- No order of
restitution or discharge under rule 26 shall prevent the property or
person of a judgment-debtor from being retaken in execution of the
decree sent for execution.
28.Order of Court which passed
decree or of Appellate Court to be binding upon Court applied to.-
Any order of the Court by which the decree was passed, or of such
Court of appeal as aforesaid, in relation to the execution of such
decree, shall be binding upon the Court to which the decree was sent
for execution.
29.Stay of execution pending suit between
decree-holder and judgment-debtor.-Where a suit is pending in any
Court against the holder of a decree of 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.
Mode of execution
30.Decree for payment of
money.- Every decree for the payment of money, including a decree
for the payment of money as the alternative to some other relief,
may be executed by the detention in the civil prison of the judgment
debtor, or by the attachment and sale of his property, or by
both.
31.Decree for specific movable property.- (1) Where the
decree is for any specific movable, or for any share in a specific
movable, it may be executed by the seizure, if practicable, of the
movable or share and by the delivery thereof to the party to whom it
has been adjudged, or to such person as he appoints to receive
delivery on his behalf, or by the detention in the civil prison of
the judgment-debtor, or by the attachment of his property, or by
both.
(2) Where any attachment under sub-rule (1) has
remained in force for 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, 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
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.
32.Decree for specific performance
for restitution of conjugal rights or for an injunction.- (1) Where
the party against whom a decree for the specific performance of a
contract, or for restitution of conjugal rights, or for an
injunction, has been passed, has had an opportunity of obeying the
decree and has wilfully failed to obey it, the decree may be
enforced {Ins.by Act 29 of 1923, s.2.} [in the case of a decree for
restitution of conjugal rights by the attachment of his property or,
in the case of a decree for the specific performance of a contract,
or for an injunction] by his detention in the civil prison, or by
the attachment of his property, or by both].
(2) Where the
party against whom a decree for specific performance or for an
injunction has been passed is a corporation, the decree may be
enforced by the attachment of the property of the corporation or,
with the leave of the Court, by the detention in the civil prison of
the directors or other principal officers thereof, or by both
attachment and detention.
(3) Where any attachment under
sub-rule (1) or sub-rule (2) has remained in force for one year, if
the judgment-debtor has not obeyed the decree and the decree-holder
has applied to have the attached property sold, such property may be
sold; and out of the proceeds the Court may award to the
decree-holder such compensation as it thinks fit, and shall pay the
balance (if any) to the judgment-debtor on his
application.
(4) Where the judgment-debtor has obeyed the
decree and paid all costs of executing the same which he is bound to
pay, or where, at the end of one year 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.
Illustration
A, a person of little substance,
erects a building which renders uninhabitable a family mansion
belonging to B.A, in spite of his detention in prison and the
attachment of his property, declines to obey a dear 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.
33.Discretion of Court in executing
decrees for restitution of conjugal rights.- (1) Notwithstanding
anything in rule 32, the Court, either at the time of passing a
decree {Ins.by Act 29 of 1923, s.3} [against a husband] for the
restitution of conjugal rights or at any time afterwards, may order
that the decree {Subs.by s.3, ibid., for " shall not be executed by
detention in prison ".} [shall be executed in the manner provided in
this rule].
(2) Where the Court has made an order under
sub-rule (1) {" The words " and the decree-holder is the wife "
rep.by Act 29 of 1923, s.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 revive the same, either
wholly or in part as it may think just.
(4) Any money ordered
to be paid under this rule may be recovered as though it were
payable under a decree for the payment of money.
34.Decree
for execution of document ,or endorsement of negotiable instrument.-
(1) Where a decree is for the execution of a document or for the
endorsement of a negotiable instrument and the judgment-debtor
neglects or refuses to obey the decree, the decree-holder may
prepare a draft of the document or endorsement in accordance with
the terms of the decree and deliver the same to the
Court.
(2) The Court shall thereupon cause the draft to be
served on the judgment-debtor together with a notice requiring his
objections (if any) to be made within such time as the Court fixes
in this behalf.
(3) Where the judgment-debtor objects to the
draft, his objections shall be stated in writing within such time,
and the Court shall make such order approving or altering the draft,
as it thinks fit.
(4) The decree-holder shall deliver to the
Court a copy of the draft with such alterations (if any) as the
Court may have directed upon the proper stamp-paper if a stamp is
required by the law for the time being in force; and the Judge or
such officer as may be appointed in this behalf shall execute the
document so delivered.
(5) The execution of a document or the
endorsement of a negotiable instrument under this rule may be in the
following form, namely:—
" C.D., Judge of the Court
of
(or as the case may be)! for A.B., in a suit by
E.F.against A.B."
and shall have the same effect as the
execution of the document or the endorsement of the negotiable
instrument by the party ordered to execute or endorse the
same.
(6) The Court, or such officer as it may appoint in
this behalf, shall cause the document to be registered if its
registration is required by the law for the time being in force or
the decree-holder desires to have it registered, and may make such
order as it thinks fit as to the payment of the expenses of the
registration.
35.Decree for immovable property.- (1) Where a
decree is for the delivery of any immovable property, possession
thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on
his behalf, and, if necessary, by removing any person bound by the
decree who refuses to vacate the property.
(2) Where a decree
is for the joint possession of immovable property, such possession
shall be delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming by beat of drum,
or other customary mode, at some convenient place, the substance of
the decree.
(3) Where possession of any building or 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.
36.Decree for delivery of immovable property
when in occupancy of tenant.- Where a decree is for the delivery of
any immovable property in the occupancy of a tenant or of-her person
entitled to occupy the same and not bound by the decree to
relinquish such occupancy, the Court shall order delivery to be made
by affixing a copy of the warrant in some conspicuous place on the
property, and proclaiming to the occupant by beat of drum or other
customary mode, at some convenient place, the substance of the
decree in regard to the property.
Arrest and detention in the
civil prison
37.Discretionary power to permit judgment debtor
to show cause 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 {Subs.by Act 21 of 1936,
s.3, for " may".} [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:
{Ins.by s.3, ibid.}
[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.
38.Warrant for arrest to direct
judgment-debtor to be brought up.- Every warrant for the arrest of a
judgment-debtor shall direct the officer entrusted with its
execution to bring him before the Court with all convenient speed,
unless the amount which he has been ordered to pay, together with
the interest thereon and the costs (if any) to which he is liable,
be sooner paid.
39.Subsistence allowance.- (1) No
judgment-debtor shall be arrested in execution of a decree unless
and until the decree-holder pays into Court such sum as the Judge
thinks sufficient for the subsistence of the judgment debtor from
the time of his arrest until he can be brought before the
Court.
(2) Where a judgment-debtor is committed to the civil
prison in execution of a decree, the Court shall fix for his
subsistence such monthly allowance as he may be entitled to
according to the scales fixed under section 57, or, where no such
scales have been fixed, as it considers sufficient with reference to
the class to which he belongs.
(3) The monthly allowance
fixed by the Court shall be supplied by the party on whose
application the 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 unexplored 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.
{Subs; by Act 21
of 1936, s.4, for the original rule 40.} [40.Proceedings on
appearance of judgment.debtor in obedience to notice or after
arrest.- (1) When a judgment-debtor appears before the Court in
obedience to a notice issued under rule 37, or is brought before the
Court after being arrested in execution of a decree for the payment
of money, the Court shall proceed to hear the decree-holder and take
all such evidence as may be produced by him in support of his
application for execution, and shall then give the judgment-debtor
an opportunity of showing cause why he should not be committed to
the civil prison.
(2) Pending the conclusion of the inquiry
under sub-rule (1) the Court may, in its discretion, order the
judgment-debtor to be detained in the custody of an officer of the
Court or release him on his furnishing security to the satisfaction
of the Court for his appearance when required.
(3) Upon the
conclusion of the inquiry under sub-rule (1) the Court may, subject
to the provisions of section 51 and to the other provisions of this
Code, make an order for the detention of the judgment-debtor in the
civil prison and shall in that event cause him to be arrested if he
is not already under arrest:
Provided that in order to give
the judgment-debtor an opportunity of satisfying the decree, the
Court may, before making the order of detention, leave the
judgment-debtor- in the custody of an officer of the Court for a
specified period not exceeding fifteen days or release him on his
furnishing security to the satisfaction of the Court for his
appearance at the expiration of the specified period if the decree
be not sooner satisfied.
(4) A judgment-debtor released under
this rule may be reasserted.
(5) When the Court does not make
an order of detention under sub-rule (3), it shall disallow the
application and, if the judgment debtor is under arrest, direct his
release.]
Attachment of property
41.Examination of
judgment-debtor as to his property.- 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) in the
case of 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.
42.Attachment in case
of decree for rent or profits or other matter amount of which to be
subsequently determined.- Where a decree directs an inquiry as to
rent or meson 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.
43.Attachment of movable property,
other than agricultural produce, in possession judgment-debtor.-
Where the property to be attached is movable property, other than
agricultural produce, in the possession of the judgment-debtor, the
attachment shall be made by actual seizure, and the attaching
officer shall keep the property in his own custody or in the custody
of one of his subordinates, and shall be responsible for the due
custody thereof:
Provided that, when the property seized is
subject to speedy and natural decay, or when the expense of keeping
it in custody is likely to exceed its value, the attaching officer
may sell it at once.
44.Attachment of agricultural produce.-
Where the property to be attached is agricultural produce, the
attachment shall be made by affixing a copy of the warrant of
attachment,—
(a) where such produce is a growing crop, on the
land on which such crop has grown, or
(b) where such produce
has been cut or gathered, on the threshing-floor or place for
trading 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.
45.Provisions as to
agricultural produce under attachment.- (1) Where agricultural
produce is attached, the Court shall make such arrangements for the
custody thereof as it may deem sufficient and, for the purpose of
enabling the Court to make such' arrangements, every application for
the attachment of a growing crop shall specify the time at which it
is likely to be fit to be cut or gathered.
(2) Subject to
such conditions as may be imposed by the Court in this behalf either
in the order of attachment or in any subsequent order, the
judgment-debtor may tend, cut, gather and store the produce and do
any other act necessary for maturing or preserving it; and if the
judgment-debtor fails to do all or any of such acts, the
decree-holder may, with the permission of the Court and subject to
the like conditions, do all or any of them either by himself or by
any person appointed by him in this behalf, and the costs incurred
by the decree-holder shall be recoverable from the judgment-debtor
as if they were included in, or formed part of, the
decree.
(3) Agricultural produce attached as a growing crop
shall not be deemed to have ceased to be under attachment or to
require reattachment merely because it has been severed from the
soil.
(4) Where an order for the attachment of a growing crop
has been made at a considerable time before the crop is likely to be
fit to be cut or gathered, the Court may suspend the execution of
the order for such time as it thinks fit, and may, in its
discretion, make a further order prohibiting the removal of the crop
pending the execution of the order of attachment.
(5) A
growing crop which from its nature does not admit of being stored
shall not be attached under this rule at any time less than twenty
days before the time at which it is likely to be fit to be cut or
gathered.
46.Attachment of debt, share and other property not
in possession of judgment-debtor.(1) In the case of-
(a) a
debt not secured by a negotiable instrument, "
(b) a share in
the capital of a corporation,
(c) other movable property not
in the possession of the judgment-debtor, except property deposited
in or in the custody of, any Court, the attachment shall be made by
a written order prohibiting,—
(i) in the case of the debt,
the creditor from recovering the debt and the debtor from making
payment thereof until the further order of the Court;
(ii) in
the case of the share, the person in whose name the share may be
standing from transferring the same or receiving any dividend
thereon;
(iii) in the case of the other movable property
except as aforesaid, the person in possession of the same from
giving it over to the judgment-debtor.
(2) A copy of such
order shall be affixed on some conspicuous part of the court-house,
and another copy shall be sent in the case of the debt, to the
debtor, in the case of the share, to the proper officer of the
corporation, and, in the case of the other movable property (except
as aforesaid), to the person in possession of the same.
(3) A
debtor prohibited under clause (i) of sub-rule (1) may pay the
amount of his debt into Court, and such payment shall discharge him
as effectual as payment to the party entitled to receive the
same.
47.Attachment of share in movable.- Where the property
to be attached consists of the share or interest of the
judgment-debtor in movable property belonging to him and another as
co-owners, the attachment shall be made by a notice to the
judgment-debtor prohibiting him from transferring the share or
interest or charging it in any way.
48.Attachment of salary
or allowances of servant of the Government or railway company or
local authority.- (1) Where the property to be attached is the
salary or allowances of a {Subs.by Act 5 of 1943, s.3, for " public
officer ".} [servant of the Government] or of a servant of a railway
of company or local authority, 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 {Subs.by Act 25 of 1942, s.3 and Sch.II, for "the
Central Govt.or the Provincial Govt.may by notification in their
official- Gazette ".} [the appropriate Government may by
notification in the Official Gazette] appoint {Subs.by Act 26 of
1939, s.2, for the original words.} [in this behalf,—
(a)
where such salary or allowances are to be disbursed within the local
limits to which this Code for the time being extends, the officer or
other person whose duty it is to disburse the same shall withhold
and remit to the Court the amount due under the order, or the
monthly instalments as the case may be;
(b) where such salary
or allowances are to be disbursed beyond the said limits.the officer
or other person within those limits whose duty it is to instruct the
disbursing authority regarding the amount of the salary or
allowances to be disbursed shall remit to the Court the amount due
under the order, or the monthly instalments, as the case may be, and
shall direct the disbursing authority to reduce the aggregate of the
amounts from time to time to be disbursed by the aggregate of the
amounts from time to time remitted to the Court.]
(2) Where
the attachable proportion of such salary or allowances is already
being withheld and remitted to a Court in pursuance of a previous
and unsatisfied order of attachment, the officer appointed by
{Subs.by Act 25 of 1942, s.3 and Sch.II, for " the Central Govt.or
the Provincial Govt., as the case may be ".} [the appropriate
Government] in this behalf shall forthwith return the subsequent
order to the Court issuing it with a full statement of all the
particulars of the existing attachment.
(3) Every order made
under this rule, unless it is returned in accordance with the
provisions of sub-rule (2), shall, without further notice or other
process, bind {Subs.by s.3 and Sch.II, ibid., for " the Central
Govt.or the Provincial Govt.".} [the appropriate Government] or the
railway company or local authority, 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 {Subs.by the
A.O.1950 for " His Majesty's Indian revenues ".} [the revenues of
the Central Government or a State Government] or the funds of a
railway company carrying on business in any part of {Subs.by Act 2
of 1951, s.3, for "the States".} [India] or local authority in
{Subs.by Act 2 of 1951, s.3, for "the States".} [India]; and
{Subs.by s.3 and Sch.II, ibid., for " the Central Govt.or the
Provincial Govt.".} [the appropriate Governmental or the railway
company or local authority, as the case may be, shall be liable for
any sum paid in contravention of this rule.
{Ins by Act 25 of
1942 s.3 and Sch.II.} [Explanation.—In this rule "appropriate
Government" means-
(i) as respects any {Subs.by Act 5 of
1943, s.3 for " public officer ".} [person] in the service of the
Central Government, or any servant of {Subs.by the A.O.1950 for " a
Federal Railway ".} [a railway administration] or of a cantonment
authority or of the port authority of a major port, the Central
Government;
{Cl.(ii) rep.by the A.O.1948.}
(iii) as
respects any other {Subs.by Act 5 of 1943, s.3 for " public officer
".} [servant of the Government] or a servant of any other {The words
" railway or " rep.by the A.O.1950.} local authority, the State
Government.]
49.Attachment of partner ship property.- (1)
Save as otherwise provided by this rule, property belonging to a
partnership shall not be attached or sold in execution of a decree
other than a decree passed against the firm or against the partners
in the firm as such.
(2) The Court may, on the application of
the holder of a decree against a partner, make an order charging the
interest of such partner in the partnership property and profits
with payment of the amount due under the decree, and may, by the
same or a subsequent order, appoint a receiver of the share of such
partner in the profits (whether already declared or accruing) and of
any other money which may be coming to him in respect of the
partnership, and direct accounts and inquiries and make an order for
the sale of such interest or other orders as might have been
directed or made if a charge had been made in favour of the
decree-holder by such partner, or as the circumstances of the case
may require.
(3) The other partner or partners shall be at
liberty at any time to redeem the interest charged or, in the case
of a sale being directed, to purchase the same.
(4) Every
application for an order under sub-rule (2) shall be served on the
judgment-debtor and on his partners or such of them as are within
{Subs.by Act 2 of 1951, s.3, for "the States".} [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 {Subs.by Act 2 of 1951, s.3, for
"the States".} [India].
(6) Service under sub-rule (4) or
sub-rule (5) shall be deemed to be service on all the partners, and
all orders made on such applications shall be similarly
served.
50.Execution of decree against firm.- (1) Where a
decree has been passed against a firm, execution may be
granted—
(a) against any property of the
partnership;
(b) against any person who has appeared in his
own name under rule 6 or rule 7 of Order XXX or who has admitted on
the pleadings that he is, or who has been adjudged to be, a
partner;
(c) against any person who has been individually
served as a partner with a summons and has failed to
appear:
Provided that nothing in this sub-rule shall be
deemed to limit or otherwise affect the provisions of section 247 of
the Indian Contract , Act, 1872.(9 of 1872).
(2) Where the
decree-holder claims to be entitled to cause the decree to be
executed against any person other than such a person as is referred
to in sub-rule (1), clauses (b) and (c), as being a partner in the
firm, he may apply to the Court which passed the decree for leave,
and where the liability is not disputed, such Court may grant such
leave, or, where such liability is disputed, may order that the
liability of such person be tried and determined in any manner in
which any issue in a suit may be tried and determined.
(3)
Where the liability of any person has been tried and determined
under sub-rule (2), the order made thereon shall have the same force
and be subject to the same conditions as to appeal or otherwise as
if it were a decree.
(4) Save as against any property of the
partnership, a decree against a firm shall not release, render
liable or otherwise affect any partner therein unless he has been
served with a summons to appear and answer.
51.Attachment of
negotiable instruments.- Where the property is a negotiable
instrument not deposited in a Court, nor in the custody of a public
officer, the attachment shall be made by actual seizure, and the
instrument shall be brought into Court and held subject to further
orders of the Court.
52.Attachment of property in custody of
Court or public officer.- Where the property to be attached is in
the custody of any At 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.
53.Attachment of decrees.- (1)
Where the property to be attached is a decree, either for the
payment of money or for sale in enforcement of a mortgage or charge,
the attachment shall be made,—
(a) if the decrees were passed
by the same Court, then by order of such Court, and
(b) if
the decree sought to be attached was passed by another Court, then
by the issue to such other Court of a notice by the Court which
passed the decree sought to be executed, requesting such other Court
to stay the execution of its decree unless and until—
(i) the
Court which passed the decree sought to be executed cancels the
notice, or
(ii) the holder of the decree sought to be
executed or his judgment-debtor applies to the Court receiving such
notice to execute its own decree.
(2) Where a Court makes an
order under clause (a) of sub-rule (1), or receives an application
under sub-head (ii) of clause (b) of the said sub-rule, it shall, on
the application of the creditor who has attached the decree or his
judgment-debtor, proceed to execute the attached decree and apply
the net proceeds in satisfaction of the decree sought to be
executed.
(3) The holder of a decree sought to be executed by
the attachment of another decree of the nature specified in sub-rule
(1) shall be deemed to be the representative of the holder of the
attached decree and to be entitled to execute such attached decree
in any manner lawful for the holder thereof.
(4) Where the
property to be attached in the execution of a decree is a decree
other than a decree of the nature referred to in sub-rule (1), the
attachment shall be made, by a notice by the Court which passed the
decree sought to be executed, to the holder of the decree sought to
be attached, prohibiting him from transferring or charging the same
in any way; and, where such decree has been passed by any other
Court, also by sending to such other Court a notice to abstain from
executing the decree sought to be attached until such notice is
cancelled by the Court from which it was sent.
(5) The holder
of a decree attached under this rule shall give the Court executing
the decree such information and aid as may reasonably be
required.
(6) On the application of the holder of a decree
sought to be executed by the attachment of another decree, the Court
making an order of attachment under this rule shall give notice of
such order to the judgment-debtor bound by the decree attached; and
no payment or adjustment of the attached decree made by the judgment
debtor in contravention of such order 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.
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.
(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.
55.Removal of attachment after
satisfaction of decree.- Where—
(a) the amount decreed with
costs and all charges and expenses resulting from the attachment of
any property are paid d 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,
56.Order for payment of coin or currency
notes to party entitled under decree.- Where the property attached
is current coin or currency notes, the Court may, at any time during
the continuance of the attachment, direct that such coin or notes,
or a part thereof sufficient to satisfy the decree, be paid over to
the party entitled under the decree to receive the
same.
57.Determination of attachment.- Where any property has
been attached in execution of a decree but by reason of the
decree-holder's default the Court is unable to proceed further with
the application for execution, it shall either dismiss the
application or for any sufficient reason adjourn the proceedings to
a future date.Upon the dismissal of such application the attachment
shall cease.
Investigation of claims and
objections
58.Investigation of claims to, and objections to
attachment of, attached 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 meant on the ground that such
property is not liable to such attachment, had the Court shall
proceed to investigate the claim or objection with the like power as
regards the examination of the claimant or objector, and in all
other respects, as if he was a party to the suit:
Provided
that no such investigation shall be made where the Court considers
that the claim or objection was designedly or unnecessarily
delayed.
(2) Postponement of sale.- Where the property to
which the claim or objection applies has been advertised for sale,
the Court ordering the sale may postpone it pending the
investigation of the claim or objection.
59.Evidence to be
adduced by claimant.
The claimant or objector must adduce
evidence to show that at the date of the attachment he had some
interest in, or was possessed of, the property
attached.
60.Release of property from attachment.- Where upon
the said investigation the Court is satisfied that for the reason
stated in the claim or objection such property was not, when
attached, in the possession of the judgment-debtor or of some person
in trust for him, or in the occupancy of a tenant or other person
paying rent to him, or that, being in the possession of the
judgment-debtor at such time, it was so in his possession, not on
his own account or as his own property, but on account of or in
trust for some other person, or partly on his own account and partly
on account of some other person, the Court shall make an order
releasing the property, wholly or to such extent as it thinks fit,
from attachment.
61.Disallowance of claim to property
attached.- Where the Court is satisfied that the property was, at
the time it was attached, in the possession of the judgment-debtor
as his own property and not on account of any other person, or was
in the possession of some other person in trust for him, or in the
occupancy of a tenant or other person paying rent to him, the Court
shall disallow the claim.
62.Continuance of attachment
subject to claim of incumbrancer.- Where the Court is satisfied that
the property is subject to a mortgage or charge in favour of some
person not in possession, and thinks fit to continue the attachment,
it may do so, subject to such mortgage or charge.
63.Saving
of suits to establish right to attached property.- Where a claim or
an objection is preferred, the party against whom an order is made
may institute a suit to establish the right which he claims to the
property in dispute, but, subject to the result of such suit, if
any, the order shall be conclusive.
Sale
generally
64.Power to order property attached to be sold and
proceeds to be paid to person entitled.- Any Court executing a
decree may order that any property attached by it and liable to
sale, or such portion thereof as may seem necessary to satisfy the
decree, shall be sold, and that the proceeds of such sale, or a
sufficient portion thereof, shall be paid to the party entitled
under the decree to receive the same.
65.Sales by whom
conducted and how made.- Save as otherwise prescribed, every sale in
execution of a decree shall be conducted by an officer of the Court
or by such other person as the Court may appoint in this behalf, and
shall be made by public auction in manner
prescribed.
66.Proclamation of sales by public auction.- (1)
Where any property is ordered to be sold by public auction in
execution of a decree, the Court shall cause a proclamation of the'
intended sale to be made in the language of such Court.
(2)
Such proclamation shall be drawn up after notice to the decree
holder and the judgment-debtor and shall state the time and place of
sale, and specify as fairly and accurately as possible—
(a)
the property to be sold;
(b) the revenue assessed upon the
estate or part of the estate, where the property to be sold is an
interest in an estate or in part of an estate paying revenue to the
Government;
(c) any incumbrance to which the property is
liable;
(d) the amount for the recovery of which the sale is
ordered; and
(e) every other thing which the Court considers
material for a purchaser to know in order to judge of the nature and
value of the property.
(3) Every application for an order for
sale under this rule shall be accompanied by a statement signed and
verified in the manner hereinbefore prescribed for the signing and
verification of pleadings and containing, so far as they are known
to or can be ascertained by the person making the verification, the
matters required by sub-rule (2) to be specified in the
proclamation.
(4) For the purpose of ascertaining the matters
to be specified in the proclamation, the Court may summon any person
whom it thinks necessary to summon and may examine him in respect to
any such matters and require him to produce any document in his
possession or power relating thereto.
67.Mode of making
proclamation.- (1) Every proclamation shall be made and published,
as nearly as may be, in the manner prescribed by rule 54, sub-rule
(2).
(2) Where the Court so directs, such proclamation shall
also be published in the Official Gazette or in a local newspaper,
or in both, and the costs of such publication shall be deemed to be
costs of the sale.
(3) Where property is divided into lots
for the purpose of being sold separately, it shall not be necessary
to make a separate proclamation for each lot unless proper notice of
the sale cannot, in the opinion of the Court, otherwise be
given.
68.Time of sale.- Save in the case of property of the
kind described in the proviso to rule 43, no sale hereunder shall,
without the consent in writing of the judgment-debtor, take place
until after the expiration of at least thirty days in the case of
immovable property, and of at least fifteen days in the case of
movable property, calculated from the date on which the copy of the
proclamation has been affixed on the court-house of the Judge
ordering the sale.
69.Adjournment or stoppage of sale.- (1)
The Court may, in its discretion, adjourn any sale here-under to a
specified day and hour, and the officer conducting any such sale may
in his discretion adjourn the sale, recording his reasons for such
adjournment:
Provided that, where the sale is made in, or
within the precincts of, the Court-house, no such adjournment shall
be made without the leave of the Court.
(2) Where a sale is
adjourned under sub-rule (1) for a longer period than seven days, a
fresh proclamation under rule 67 shall be made, unless the
judgment-debtor consents to waive it.
(3) Every sale shall be
stopped if, before the lot is knocked down, the debt and costs
(including the costs of the sale) are tendered to the officer
conducting the sale, or proof is given to his satisfaction that the
amount of such debt and costs has been paid into the Court which
ordered the sale.
70.Saving of certain Sales.- Nothing in
rules 66 to 69 shall be deemed to apply to any save case in which
the execution of a decree has been transferred to the Court
Collector.
71.Defaulting purchaser answerable for loss on
re-sale.- Any deficiency of price which may happen on a re-sale by
reason of the purchaser's default, and all expenses attending such
re-sale, shall be certified to the Court or to the Collector or
sub-ordinate of the Collector, as the case may be, by the officer or
other person holding the sale, and shall, at the instance of either
the decree holder or the judgment-debtor, be recoverable from the
defaulting purchaser under the provisions relating to the execution
of a decree for the payment of money.
72.Decree-holder not to
bid for or buy property with out permission.- (1) No holder of a
decree in execution of which property is sold shall, without the
express permission of the Court, bid for or purchase the
property.
(2) Where decree-holder purchases, amount of decree
may be taken as payment.- Where a decree-holder purchases with such
permission, the purchase-money and the amount due on the decree may,
subject to the of provisions of section 73, be set off against one
another, and the Court dc executing the decree shall enter up
satisfaction of the decree in whole be or in part
accordingly.
(3) Where a decree-holder purchases, by himself
or through another person, without such permission, the Court may,
if it thinks fit, on the application of the judgment-debtor or any
other person whose interests are affected by the sale, by order set
aside the sale; and the costs of such application and order, and any
deficiency of price which may happen on the re-sale and all expenses
attending it, shall be paid by the
decree-holder.
73.Restriction on bidding or purchase by
officers.- No officer or other person having any duty to perform in
connection with any sale shall, either directly or indirectly, bid
for, acquire or attempt to acquire any interest in the property
sold.
Sale of movable property
74.Sale of agricultural
produce.- (1) Where the property to be sold is agricultural produce,
the sale shall be held,-
(a) if such produce is a growing
crop, on or near the land on which such crop has grown,
or,
(b) if such produce has been cut or gathered, at or near
the threshing-floor or place for treading out grain or the like or
fodder-stack on or in which it is deposited:
Provided that
the Court may direct the sale to be held at the nearest place of
public resort, if it is of opinion that the produce is thereby
likely to sell to greater advantage.
(2) Where, on the
produce being put up for sale,-
(a) a fair price, in the
estimation of the person holding the sale, is not offered for it,
and
(b) the owner of the produce or a person authorized to
act in his behalf applies to have the sale postponed till the next
day or, if a market is held at the place of sale, the next
market-day,
the sale shall be postponed accordingly and shall
be then completed, whatever price may be offered for the
produce.
75.Special provisions relating to growing crops.-
(1) Where the property to be sold is a growing crop and the crop
from its nature admits of being stored but has not yet been stored,
the day of the sale shall be so fixed as to admit of its being made
ready for storing before the arrival of such day, and the sale shall
not be held until the crop has been cut or gathered and is ready for
storing.
(2) Where the crop from its nature does not admit of
being stored, it may be sold before it is cut and gathered, and the
purchaser shall be entitled to enter on the land, and to do all that
is necessary for the purpose of tending and cutting or gathering
it.
76.Negotiable instruments and shares in corporations.-
Where the property to be sold is a negotiable instrument or a share
in a corporation, the Court may, instead of directing the sale to be
made by public auction, authorize the sale of such instrument or
share through a broker.
77.Sale by public auction.- (1) Where
movable property is sold by public auction the price of each lot
shall be paid at the time of sale or as soon after as the officer or
other person holding the sale directs, and in default of payment the
property shall forthwith be re-sold.
(2) On payment of the
purchase-money, the officer or other person holding the sale shall
grant a receipt for the same, and the sale shall become
absolute.
(3) Where the movable property to be sold is a
share in goods belonging to the judgment-debtor and a co-owner, and
two or more persons, of whom one is such co-owner, respectively bid
the same for such property or for any lot, the bidding shall be
deemed to be the bidding of the co-owner.
78.Irregularity not
to vitiate sale, but any person injured may sue.- No irregularity in
publishing or conducting the sale of movable property shall vitiate
the sale; but any person sustaining any injury by reason of such
irregularity at the hand of any other person may institute a suit
against him for compensation or (if such other person is the
purchaser) for the recovery of the specific property and for
compensation in default of such recovery.
79.Delivery of
movable property, debts and shares.- (1) Where the property sold is
movable property of which actual seizure has been made, it shall be
delivered to the purchaser.
(2) Where the property sold is
movable property in the possession of some person other than the
judgment-debtor, the delivery thereof to the purchaser shall be made
by giving notice to the person in possession prohibiting him from
delivering possession of the property to any person except the
purchaser.
(3) Where the property sold is a debt not secured
by a negotiable instrument, or is a share in a corporation, the
delivery thereof shall] be made by a written order of the Court
prohibiting the creditor from receiving the debt or any interest
thereon, and the debtor from making payment thereof to any person
except the purchaser, or prohibiting the person in whose name the
share may be standing from making any transfer of the share to any
person except the purchaser, or receiving payment of any dividend or
interest thereon, and the manager, secretary or other proper officer
of the corporation from permitting any such transfer or making any
such payment to any person except the purchaser.
80.Transfer
of negotiable instruments and shares.- (1) Where the execution of a
document or the endorsement of the party in whose name a negotiable
instrument or a share in a corporation is standing is required to
transfer such negotiable instrument or share, the Judge or such
officer as he may appoint in this behalf may execute such document
or make such endorsement as may be necessary, and such execution or
endorsement shall have the same effect as an execution or
endorsement by the party.
(2) Such execution or endorsement
may be in the following form, namely:—
A.B.by C.D., Judge of
the Court of (or as the case may be), in a suit by E.F.against
A.B.
(3) Until the transfer of such negotiable instrument or
share, the Court may, by order, appoint some person to receive any
interest or dividend due thereon and to sign a receipt for the same;
and any receipt so signed shall be as valid and effectual for all
purposes as if the same had been signed by the party
himself.
81.Vesting order in case of other property.- In the
case of any movable property not hereinbefore provided for, the
Court may make an order vesting such property in the purchaser or as
he may direct; and such property shall vest accordingly.
Sale
of immovable property
82.What Courts may order sales.- Sales
of immovable property in executing of decrees may be ordered by any
Court other than a Court of Small Causes.
83.Postponement of
sale to enable judgment-debtor to raise amount of decree.- (1) Where
an order for the sale of immovable property has been made, if the
judgment-debtor can satisfy the Court that there is reason to
believe that the amount of the decree may be raised by the in
mortgage or lease or private sale of such property, or some part
thereof, or of any other immovable property of the.judgment-debtor,
the Court may, on his application, postpone the sale of the property
comprised in the order for sale on such terms and for such period as
it thinks proper, to enable him to raise the amount.
83.(2)
In such case the Court shall grant a certificate to the judgment
debtor authorizing him within a period to be mentioned therein, and
notwithstanding anything contained in section 64, to make the
proposed mortgage, lease or sale:
Provided that all moneys
payable under such mortgage, lease or sale shall be paid, not to the
judgment-debtor, but, save in so far as a decree-holder is entitled
to set off such money under the provisions of rule 72, into
Court:
Provided also that no mortgage, lease or sale under
this rule shall become absolute until it has been confirmed by the
Court.
(3) Nothing in this rule shall be deemed to apply to a
sale of property directed to be sold in execution of a decree for
sale in enforcement of a mortgage of, or charge on, such
property.
84.Deposit by purchaser and re-sale on default.-
(1) On every sale of immovable property the person declared to be
the purchaser shall pay immediately after such declaration a deposit
of twenty-five per cent.on the amount of his purchase-money to the
officer or other person conducting the sale, and in default of such
deposit, the property shall forthwith be re-sold.
(2) Where
the decree-holder is the purchaser and is entitled to setoff the
purchase-money under rule 72, the Court may dispense with the
requirements of this rule
85.Time for payment in full of
purchase-money.- The full amount of purchase-money payable shall be
paid by the purchaser into Court before the Court closes on the
fifteenth day from the sale of the property:
Provided that,
in calculating the amount to be so paid into Court, the purchaser
shall have the advantage of any set-off to which he may be entitled
under rule 72.
86.Procedure in default of payment.- In
default of payment within the period mentioned in the last preceding
rule, the deposit may, if the Court thinks fit, after defraying the
expenses of the sale, be forfeited to the Government, and the
property shall be re-sold, and the defaulting purchaser shall
forfeit all claim to the property or to any part of the sum for
which it may subsequently be sold.
87.Notification on
re-sale.- Every re-sale of immovable property, in default of payment
of the purchase-money within the period allowed for such payment,
shall be made after the issue of a fresh proclamation in the manner
and for the period hereinbefore prescribed for the
sale.
88.Bid of co-sharer to have preference.- Where the
property sold is a share of undivided immovable property and two or
more persons, of whom one is a co-sharer, respectively bid the same
sum for such property or for any lot, the bid shall be deemed to be
the bid of the co-sharer.
89.Application to set aside sale on
deposit.- (1) Where immovable property has been sold in execution of
a decree, any person, either owning such property or holding an
interest therein by virtue of a title acquired before such sale, may
apply to have the sale set aside on his depositing in
Court,—
(a) for payment to the purchaser, a sum equal to five
per cent.Of the purchase-money, and
(b) for payment to the
decree-holder, the amount specified in the proclamation of sale as
that for the recovery of which the sale was ordered, less any amount
which may, since the date of such proclamation of sale, have been
received by the decree-holder.
(2) Where a person applies
under rule 90 to set aside the sale of his immovable property he
shall not, unless he withdraws his application, be entitled to make
or prosecute an application under this rule.
(3) Nothing in
this rule shall relieve the judgment-debtor from any liability he
may be under in respect of costs and interest not covered by the
proclamation of sale.
90.Application to set aside sale on
ground of irregularity or fraud.- (1) Where any immovable property
has been sold in execution of a decree, the decree-holder, or any
person entitled to share in a rateable distribution of assets, or
whose interests are affected by the sale, may apply to the Court to
set aside sale on the ground of a material irregularity or fraud in
publishing or conducting it:
Provided that no sale shall be
set aside on the ground of irregularity or fraud unless upon the
facts proved the Court is satisfied that the applicant has sustained
substantial injury by reason of such irregularity or
fraud.
91.Application by purchaser to set aside sale on
ground of judgment-debtor having no saleable interest.- The
purchaser at any such sale in execution of a decree may apply to the
Court to set aside the sale, on the ground that the judgment-debtor
had no saleable interest in the property sold.
92.Sale when
to become absolute or be set aside.- (1) Where no application is
made under rule 89, rule 90 or rule 91, or where such application is
made and disallowed, the Court shall make an order confirming the
sale, and thereupon the sale shall become absolute.
(2) Where
such application is made and allowed, and where, in the case of an
application under rule 89, the deposit required by that rule is made
within thirty days from the date of sale, the Court shall make an
order setting aside the sale:
Provided that no order shall be
made unless notice of the application has been given to all persons
affected thereby.
(3) No suit to set aside an order made
under this rule shall he brought by any person against whom such
order is made.
93.Return of purchase-money in certain cases.-
Where a sale of immovable property is set aside under rule 92, the
purchaser shall be entitled to an order for repayment of his
purchase-money, with or without interest as the Court may direct,
against any person to whom it has been paid.
94.Certificate
to purchaser.- Where a sale of immovable property has become
absolute, the Court shall grant a certificate specifying the
property sold and the name of the person who at the time of sale is
declared to be the purchaser.Such certificate shall bear date the
day on which the sale became absolute.
95.Delivery of
property in occupancy of judgment-debtor.- Where the immovable
property sold is in the occupancy of the judgment-debtor or of some
person on his behalf or of some person claiming under a title
created by the judgment-debtor subsequently to the attachment of
such property and a certificate in respect thereof has been granted
under rule 94, the Court shall, on the application of the purchaser,
order delivery to be made by putting such purchaser or any person
whom he may appoint to receive delivery on his behalf in possession
of the property, and, if need be, by removing any person who refuses
to vacate the same.
96.Delivery of property in occupancy of
tenant.- Where the property sold is in the occupancy of a tenant or
other person entitled to occupy the same and a certificate in
respect thereof has been granted under rule 94, the Court shall, on
the application of the purchaser, order delivery to be made by
affixing a copy of the certificate of sale in some conspicuous place
on the property, and proclaiming to the occupant by beat of drum or
other customary mode, at some convenient place, that the interest of
the judgment debtor has been transferred to the
purchaser.
Resistance to delivery of possession to
decree-holder or purchaser
97.Resistance or obstruction to
possession of immovable property.- (1) Where the holder of a decree
for the possession of immovable property or the purchaser of any
such property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of the property, he
may make an application to the Court complaining of such resistance
or obstruction.
(2) The Court shall fix a day for
investigating the matter and shall summon the party against whom the
application is made to appear and answer the
same.
98.Resistance or obstruction by judgment-debtor.- Where
the Court is satisfied that the resistance or obstruction was
occasioned without any just cause by the judgment-debtor or by some
other person at his instigation, it shall direct that the applicant
be put into possession of the property, and where the applicant is
still resisted or obstructed in obtaining possession, the Court may
also, at the instance of the applicant, order the judgment-debtor,
or any person acting at his instigation, to be detained in the civil
prison for a term which may extend to thirty
days.
99.Resistance or obstruction by bona fide claimant.-
Where the Court is satisfied that the resistance or obstruction was
occasioned by any person (other than the Judgment-debtor) claiming
in good faith to be in possession of the property on his own account
or on account of some person other than the judgment-debtor, the
Court shall make an order dismissing the
application.
100.Dispossession by decree-holder or
purchaser.- (1) Where any person other than the judgment-debtor is
dispossessed of immovable property by the holder of a decree for the
possession of such property or, where such property has been sold in
execution of a decree, by the purchaser thereof, he may make an
application to the Court complaining of such
dispossession.
(2) The Court shall fix a day for
investigating the matter and shall summon the party against whom the
application is made to appear and answer the same.
101.Bona
fide claimant to be restored to possession.- Where the Court is
satisfied that the applicant was in possession of the property on
his own account or on account of some person other than the
judgment-debtor, it shall direct that the applicant be put into
possession of the property.
102.Rules not applicable to
transfer life pendent.- Nothing in rules 99 and 101 shall apply to
resistance or obstruction in execution of a decree for the
possession of immovable property by a person to whom the
judgment-debtor has transferred the property after the institution
of the suit in which the decree was passed or to the dispossession
of any such person.
103.Orders conclusive subject to regular
suit.- Any party not being a judgment-debtor against whom an order
is made under rule 98, rule 99, or rule 101 may institute a suit to
establish the right which he claims to the present possession of the
or property; but, subject to the result of such suit (if any), the
order shall be conclusive.
ORDER XXII
DEATH, MARRIAGE
AND INSOLVENCY OF PARTIES
1.No abatement by partys death if
right to sue survives.- The death of a plaintiff or defendant shall
not cause the suit to abate if the right to sue
survives.
2.Procedure where one of several plaintiffs or
defendants dies and right to sue survives.- Where there are more
plaintiffs or defendants than one, and any of them dies, and where
the right to sue survives to the surviving plaintiff or plaintiffs
alone, or against the surviving defendant or defendants alone, the
Court shall cause an entry to that effect to bean made on the
record, and the suit shall proceed at the instance of the surviving
plaintiff or plaintiffs, or against the surviving defendant or
defendants.
3.Procedure in case of death of one of several
plaintiffs or sole plaintiff.- (1) Where one of two or more
plaintiffs dies and the right to sue does not survive to the
surviving plaintiff' or plaintiffs alone, or a sole plaintiff or
sole surviving plaintiff dies and the right to sue survives, the
Court, on an application made in that behalf, shall cause the legal
representative of the deceased plaintiff to be made a party and
shall proceed with the suit.
(2) Where within the time
limited by law no application is made under sub-rule (1), the suit
shall abate so far as the deceased plaintiff is concerned, and, on
the application of the defendant, the Court may award to him the
costs which he may have incurred in defending the suit, to be
recovered from the estate of the deceased
plaintiff.
4.Procedure in case of death of one of several
defendants or of sole be defendant.- (1) Where one of two or more
defendants dies and the right to sue does not survive against the
surviving defendant or defendants alone, or a sole defendant or sole
surviving defendant dies and the right to sue survives, the Court,
on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and
shall proceed with the suit.
.
(2) Any person so made a party
may make any defence appropriate to his character as legal
representative of the deceased defendant.
(3) Where within
the time limited by law no application is made under sub-rule (13,
the suit shall abate as against the deceased
defendant.
5.Determination of question as to legal
representative.- Where a question arises as to whether any person is
or is not the legal representative of a deceased plaintiff or a
deceased defendant, such question shall be determined by the
Court.
6.No abatement by reason of death after hearing.-
Notwithstanding anything contained in the foregoing rules, whether
the cause of action survives or not, there shall be no abatement by
reason of the death of either party between the conclusion of the
hearing and the pronouncing of the judgment, but judgment may in
such case be pronounced notwithstanding the death and shall have the
same force and effect as if it had been pronounced before the death
took place
7.Suit not abated by marriage of female party.-
(1) The marriage of a female plaintiff or defendant shall not cause
the suit to abate, but the suit may notwithstanding be proceeded
with to judgment, and, where the decree is against a female
defendant, it may be executed against her alone.
(2) Where
the husband is by law liable for the debts of his wife, the decree
may, with the permission of the Court, be executed against the
husband also; and, in case of judgment for the wife, execution of
the decree may, with such permission, be issued upon the application
of the husband, where the husband is by law entitled to the
subject-matter of the decree.
8.When plaintiffs insolvency
bars suit.- (1) The insolvency of a plaintiff in any suit which the
assignee or receiver might maintain for the benefit of his
creditors, shall not cause the suit to abate, unless such assignee
or receiver declines to continue the suit or (unless for any special
reason the Court otherwise directs) to give security for the costs
thereof within such time as the Court may direct.
(2)
Procedure where assignee fails to continue sit or give security.-
Where the assignee or receiver neglects or refuses to continue the
suit and to give such security within the time so ordered, the
defendant may apply for the dismissal of the suit on the ground of
the plaintiff's insolvency, and the Court may make an order
dismissing the suit and awarding to the defendant the costs which he
has incurred in defending the same to be proved as a debt against
the plaintiff's estate.
9.Effect of abatement or dismissal.-
(1) Where a suit abates or is dismissed under this Order, no fresh
suit shall be brought on the same cause of action.
(2) The
plaintiff or the person claiming to be the legal representative of a
deceased plaintiff or the assignee or the receiver in the case of an
insolvent plaintiff may apply for an order to set aside the
abatement or dismissal; and if it is proved that he was prevented by
any sufficient cause from continuing the suit, the Court shall set
aside the abatement or dismissal upon such terms as to costs or
otherwise as it thinks fit.
(3) The provisions of section 5
of the {See now the Indian Limitation Act, 1908 (9 of 1908), ss.4
and 5.} Indian Limitation Act, 1877 (15 of 1877), shall apply to
applications under sub-rule (2).
10.Procedure in case of
assignment before final order in suit.- (1) In other cases of an
assignment, creation or devolution of any interest during the
tendency of a suit, the suit may, by leave of the Court, be
continued by or against the person to or upon whom such interest has
come or devolved.
(2) The attachment of a decree pending an
appeal therefrom shall be deemed to be an interest entitling the
person who procured such attachment to the benefit of sub-rule
(1).
11.Application or 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.
12.Application or
Order to proceedings.- Nothing in rules 3, 4 and 8 shall apply to
proceedings in execution of a decree or order.
ORDER
XXIII
WITH DRAWAL AND ADJUSTMENT OF SUITS
1.Withdrawal
of sit or abandonment of part of claim.- (1) At any time after the
institution of a suit the plaintiff may, as against all or any of
the defendants, withdraw his suit or abandon part of his
claim.
(2) Where the Court is satisfied—
(a) that a
suit must fail by reason of some formal defect, or
(b) that
there are other sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of a
claim,
it may, on such terms as it thinks fit, grant the
plaintiff permission to withdraw from such suit or abandon such part
of a claim with liberty to institute a fresh suit in respect of the
subject-matter of such suit or such part of a claim.
(3)
Where the plaintiff withdraws from a suit, or abandons part of a
claim' without the permission referred to in sub-rule (2), he shall
be liable for such costs as the Court may award and shall be
precluded from instituting any fresh suit in respect of such
subject-matter or such part of the claim.
(4) Nothing in this
rule shall be deemed to authorize the Court to permit one of several
plaintiffs to withdraw without the consent of the
others.
2.Limitation law not affected by first suit.- In any
fresh suit instituted on permission granted under the last preceding
rule, the plaintiff shall be bound by the law of limitation in the
same manner as if the first suit had not been
instituted.
3.Compromise of suit.- Where it is proved to the
satisfaction of the Court that a suit has been adjusted wholly or in
part by any lawful agreement or com- promise, or where the defendant
satisfies the plaintiff in respect of the whole or any part of the
subject-matter of the suit, the Court shall order such agreement,
compromise or satisfaction to be recorded, and shall pass a decree
in accordance therewith so far as it relates to the
suit.
4.Proceedings in execution of decrees not affected.-
Nothing in this Order shall apply to any proceedings in execution of
a decree or order.
ORDER XXIV
PAYMENT INTO
COURT
1.Deposit by defendant of amount in satisfaction of
claim.- The defendant in any suit to recover a debt or damages may,
at any stage of the suit, deposit in Court such sum of money as he
on considers a satisfaction in full of the claim.
2.Notice of
deposit.- Notice of the deposit shall be given through the Court by
the defendant to the plaintiff, and the amount of the deposit shall
(unless the Court otherwise directs) be paid to the plaintiff on his
application.
3.Interest on deposit not allowed to plaintiff
after notice.- No interest shall be allowed to the plaintiff on any
sum deposited by the defendant from the date of the receipt of such
notice, after whether the sum deposited is in full of the claim or
falls short thereof
4.Procedure where plaintiff accepts
deposit as satisfaction in part.- (1) Where the plaintiff accepts
such amount as satisfaction in part only of his claim he may
prosecute his suit for the balance; and, if the Court decides that
the deposit by the defendant was a full satisfaction of the
plaintiff's claim, the plaintiff shall pay the costs of the suit
incurred after the deposit and the costs incurred previous thereto,
so far as they were caused by excess in the plaintiff's
claim.
(2) Procedure where he accepts it as satisfaction in
full.- Where the plaintiff accepts such amount as satisfaction in
full of his claim, he shall present to the Court a statement to that
effect, and such statement shall be filed and the Court shall
pronounce judgment accordingly; and, in directing by whom the costs
of each party are to be paid, the Court shall consider which of the
parties is most to blame for the
litigation.
Illustrations
(a) A owes B Rs.100.B sues A
for the amount, having made no demand for payment and having no
reason to believe that the delay caused by making a demand would
place him at a disadvantage.On the plaint being filed, A pays the
money into Court.B accepts it in full satisfaction of his claim, but
the Court should not allow him any costs, the litigation being
presumably groundless on his part.
(b) B sues A under the
circumstances mentioned in illustration (a).On the plaint being
filed, A disputes the claim.Afterwards A pays the money into Court.B
accepts it in full satisfaction of his claim.The Court should also
give B his costs of suit, A's conduct having shown that the
litigation was necessary.
(c) A owes B Rs.100, and is willing
to pay him that sum without suit.B claims Rs.150 and sues A for that
amount.On the plaint being filed A pays Rs.100 into Court and
disputes only his liability to pay the remaining Rs.50.B accepts the
Rs.100 in full satisfaction of his claim.The Court should order him
to pay A's costs.
ORDER XXV
SECURITY FOR
COSTS
1.Residence out of India.- (1) Where, at any stage of a
suit, it appears to the Court that a sole plaintiff is, or (when
there are more plaintiffs than one) that all the plaintiffs are
residing out of {Subs.by Act 2 of 1951, s.3, for "the States".}
[India], and that such plaintiff does not, or that no one of such
plaintiffs does, possess any sufficient immovable property within
{Subs.by Act 2 of 1951, s.3, for "the States".} [India] other than
the property in suit, the Court may, either of its own motion or on
the application of any defendant, order the plaintiff or plaintiffs,
within a time fixed by it, to give security for the payment of all
costs incurred and likely to be incurred by any
defendant.
(2) Residence out of India.- Whoever leaves
{Subs.by Act 2 of 1951, s.3, for " the States ".} [India] under such
circumstances as to afford reasonable probability that he will not
be forthcoming whenever he may be called upon to pay costs shall be
deemed to be residing out of {Subs.by Act 2 of 1951, s.3, for " the
States ".} [India] within the meaning of sub-rule (1).
(3) On
the application of any defendant in a suit for the payment of money,
in which the plaintiff is a woman, the Court may at any stage of the
suit make a like order if it is satisfied that such plaintiff does
not possess any sufficient immovable property within {Subs.by Act 2
of 1951, s.3, for " the States ".} [India].
2.Effect of
failure to furnish security.- (1) In the event of such security not
being furnished within the time fixed, the Court shall make an order
dismissing the suit unless the plaintiff or plaintiffs are permitted
to withdraw therefrom.
(2) Where a suit is dismissed under
this rule, the plaintiff may apply for any order to set the
dismissal aside, and, if it is proved to the satisfaction of the
Court that he was prevented by any sufficient cause from furnishing
the security within the time allowed, the Court shall set aside the
dismissal upon such terms as to security, costs or otherwise as it
thinks fit, and shall appoint a day for proceeding with the
suit.
(3) The dismissal shall not be set aside unless notice
of such application has been served on the defendant.
ORDER
XXVI
COMMISSIONS
Commissions to examine
witnesses
1.Cases in which Court may issue commission to
examine witness.- Any Court may in any suit issue a commission for
the examination on interrogatories or otherwise of any person
resident within the local limits of its jurisdiction who is exempted
under this Code from attending the Court or who is from sickness or
infirmity unable to attend it.
2.Order for commission.- An
order for the issue of a commission for the examination of a witness
may be made by the Court either of its own motion or on the
application, supported by affidavit or otherwise, of any party to
the suit or of the witness to be examined.
.
3.Where witness
resides within Courts jurisdiction.- A commission for the
examination of a person who resides within the local limits of the
jurisdiction of the Court issuing the same may be issued to any
person whom the Court thinks fit to execute it.
4.Persons for
whose examination commission may issue.- (1) Any Court may in any
suit issue a commission for the examination of—
(a) any
person resident beyond the local limits of its m
jurisdiction;
(b) any person who is about to leave such
limits before the date on which he is required to be examined in
Court; and
(c) {Subs.by the A.O.1937 for "any civil or
military officer of the Govt." 2} [any person in the service of the
Government] who cannot, in the opinion of the Court, attend without
detriment as' the public service.
(2) Such commission may be
issued to any Court, not being a High Court, within the local limits
of whose jurisdiction such person resides, or to any pleader or
other person whom the Court issuing the commission may
appoint..
(3) The Court on issuing any commission under this
rule shall direct whether the commission shall be returned to itself
or to any subordinate Court.
5.Commission or request to
examine witness not within India.- Where any Court to which
application is made for the issue of a commission for the
examination of a person residing at any place not within {Subs.by
Act 2 of 1951, s.3, for "the States".} [India] is satisfied that the
evidence of such person is necessary, the Court may issue such
commission or a letter of request.
6.Court examine witness
pursuant to commission.- Every Court receiving a commission for the
examination of any person shall examine him or cause him to be
examined pursuant thereto.
7.Return of commission with
depositions of witnesses.- Where a commission has been duly
executed, it shall be returned, together with the evidence taken
under it, to the Court from which it was issued, unless the order
for issuing the commission has otherwise directed, in which case the
commission shall be returned in terms of such order; and the
commission and the return thereto and the evidence taken under it
shall (subject to the provisions of the next following rule) form
part of the record of the suit.
8.When depositions may be
read in evidence.- Evidence taken under a commission shall not be
read as evidence in the suit without the consent of the party
against whom the same is offered, unless—
(a) the person who
gave the evidence is beyond the jurisdiction of the Court, or dead
or unable from sickness or infirmity to attend to be personally
examined, or exempted from personal appearance in Court, or is a
{Subs.by the A.O.1937 for "civil or military officer of the Govt.".}
[person in the service of the Government] who cannot, in the opinion
of the Court, attend without detriment to the public service,
or
(b) the Court in its discretion dispenses with the proof
of any of the circumstances mentioned in clause (a), and authorizes
the evidence of any person being read as evidence in the suit,
notwithstanding proof that the cause for taking such evidence by
commission has ceased at the time of reading the
same.
Commissions for local
investigations
9.Commission to make local investigations.- In
any suit in which the Court deems a local investigation to be
requisite or proper for the purpose of elucidating any matter in
dispute, or of ascertaining the market-value of any property, or the
amount of any meson profits or damages or annual net profits, the
Court may issue a commission to such person as it thinks fit
directing him to make such investigation and to report thereon to
the Court:
Provided that, where the State Government has made
rules as to the persons to whom such commission shall be issued, the
Court shall be bound by such rules.
10.Procedure of
Commission.- (1) The Commissioner, after such local inspection as he
deems necessary and after reducing to writing the evidence taken by
him, shall return such evidence, together with his report in writing
signed by him, to the Court.
(2) Report and depositions to be
evidence in suit.- The report of the Commissioner and the evidence
taken by him (but not the evidence without the report) shall be
evidence in the suit and shall form part of the record; but the
Court or, with the permission of the Court, any of the parties to
the suit may examine the Commissioner may be examined in
person.Commissioner personally in open Court touching any of the
matters referred to him or mentioned in his report, or as to his
report, or as to the manner in which he has made the
investigation.
(3) Where the Court is for any reason
dissatisfied with the proceedings of the Commissioner, it may direct
such further inquiry to be made as it shall think
fit.
11.Commissions to examine accounts.- In any suit in
which an examination or adjustment of accounts is necessary, the
Court may issue a commission to such person as it thinks fit
directing him to make such examination or
adjustment.
Commission to examine or adjust
accounts
12.Commission to give Commissioner necessary
instructions.- (1) The Court shall furnish the Commissioner with
such part of the proceedings and such instructions as appear
necessary, and the instructions shall distinctly specify whether the
Commissioner is merely to transmit the proceedings which he may hold
on the inquiry, or also to report his own opinion on the point
referred for his examination.
(2) Proceedings and report to
be evidence.Court may direct further inquiry.-The proceedings and
report (if any) of the Commissioner shall be evidence in the suit,
but where the Court has reason to be dissatisfied with them, it may
direct such further inquiry as it shall think
fit.
Commissions to make partitions
13.Commission to
make partition of immovable property.- Where a preliminary decree
for partition has been passed, the Court may, in any case not
provided for by section 54, issue a commission to such person as it
thinks fit to make the partition or separation according to the
rights as declared in such decree.
14.Procedure of
Commissioner.- (1) The Commissioner shall, after such inquiry as may
be necessary, divide the property into as many shares as may be
directed by the order under which the commission was issued, and
shall allot such shares to the parties, and may, if authorized
thereto by the said order, award sums to be paid for the purpose of
equalizing the value of the shares.
(2) The Commissioner
shall then prepare and sign a report or the Commissioners (where the
commission was issued to more than one person and they cannot agree)
shall prepare and sign separate reports appointing the share of each
party and distinguishing each share (if so directed by the said
order) by metes and bounds.Such report or reports shall be annexed
to the commission and transmitted to the Court; and the Court, after
hearing any objections which the parties may make to the report or
reports, shall confirm, vary or set aside the same.
(3) Where
the Court confirms or varies the report or reports it shall pass a
decree in accordance with the same as confirmed or varied; but where
the Court sets aside the report or reports it shall either issue a
new commission or make such other order as it shall think;
fit.
General provisions
15.Expenses of commission to
be paid into Court.- Before issuing any commission under this Order,
the Court may order such sum (if any) as it thinks reasonable for
the expenses of the commission to be, within a time to be fixed,
paid into Court by the party at whose instance or for whose benefit
the commission is issued.
16.Power of Commissioners.- Any
Commissioner appointed under this Order may, unless otherwise
directed by the order of appointment,—
(a) examine the
parties themselves and any witness whom they or any of them may
produce, and any other person whom the Commissioner thinks proper to
call upon to give evidence in the matter referred to him;
(b)
call for and examine documents and other things relevant to the
subject of inquiry;
(c) at any reasonable timè enter upon or
into any land or building mentioned in the
order.
17.Attendance and examination of witnesses before
Commissioner.- (1) The provisions of this Code relating to the
summoning, attendance and examination of witnesses, and to the
remuneration of, and penalties to be imposed upon, witnesses, shall
apply to persons required to give evidence or to produce documents
under this Order whether the commission in execution of which they
are so required has been issued by a Court situate within an by a
Court situate beyond the limits of {Subs.by Act 2 of 1951, s.3, for
" the States ".} [India], and for the purposes of this rule the
Commissioner shall be deemed to be a Civil Court.
(2)
Commissioner may apply to any Court (not being a High Court) within
the local limits of whose jurisdiction a witness resides for the
issue of any process which he may find it necessary to issue to or
against such witness, and such Court may, in its discretion, issue
such process as it considers reasonable and
proper.
18.Parties to appear before Commissioner.- (1) Where
a commission is issued under this Order, the Court shall direct that
the parties to the suit shall appear before the Commissioner in
person or by their agents or pleaders.
(2) Where all or any
of the parties do not so appear, the Commissioner may proceed in
their absence.
{Rules 19 to 22 and the heading above them
ins.by Act 10 of 1932, s.3.} [Commissions issued at the instance of
foreign Tribunals
19.Case in which High Court may issue
commission to examine witness.- (1) If a High Court is
satisfied—
(a) that a foreign Court situated in a foreign
country wishes to obtain the evidence of a witness in any proceeding
before it,
(b) that the proceeding is of a civil nature,
and
(c) that the witness is residing within the limits of the
High Court's appellate jurisdiction,
it may, subject to the
provisions of rule 20, issue a commission for the examination of
such witness.
(2) Evidence may be given of the matters
specified in clauses (a), (b) and (c) of sub-rule (1)—
(a) by
a certificate signed by the consular officer of the foreign country
of the highest rank in India and transmitted to the High Court
through the Central Government, or
(b) by a letter of request
issued by the foreign Court and transmitted to the High Court
through the Central Government, or
(c) by a letter of request
issued by the foreign Court and produced before the High Court by a
party to the proceeding.
20.Application for issue of
commission.- The High Court may issue a commission under rule
19—
(a) upon application by a party to the proceeding before
the foreign Court, or
(b) upon an application by a law
officer of the State Government acting under instructions from the
State Government.
21.To whom commission may be issued.- A
commission under rule 19 may be issued to any Court within the local
limits of whose jurisdiction the witness resides, or where {The
words "the High Court is established under the Indian High Courts
Act, 1861, or the G.of I.Act, 1915, and" rep.by the AO 1937} the
witness resides within the local limits of {Subs.by the A.O.1937 for
"its ordinary original civil jurisdiction".} [the ordinary original
civil jurisdiction of the High Court], to any person whom the Court
thinks fit to execute the commission.
22.Issue, execution and
return of commissions, and transmission of evidence to foreign
Court.- The provisions of rules 6, 15, 16, 17 and 18 of this Order
in so far as they are applicable shall apply to the issue, execution
and return of such commissions, and when any such commission has
been miss duly executed it shall be returned, together with the
evidence taken under it, to the High Court, which shall forward it
to the Central Government, along with the letter of request for
transmission to the foreign Court.]
ORDER XXVII
SUITS
BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR
OFFICIAL
CAPACITY
1.Suits by or against Government.- In any suit by or
against {Subs.by the A.O.1937 for " the Secretary of State for India
in Council ".} [the Government], the plaint or written statement
shall be signed by such person as the Government may, by general or
special order, appoint in this behalf, and shall be verified by any
person whom the Government may so appoint and who is acquainted with
the facts of the case.
2.Persons authorized to act for
Government.- Persons being ex officio or otherwise authorized to act
for the Government in respect of any judicial proceeding shall be
deemed to not be the recognized agents by whom appearances, acts and
applications under this Code may be made or done on behalf of the
Government.
3.In suits by or {Subs., ibid., for " against the
Secretary of State for India in Council ".} [against the
Government], instead of inserting in the plaint the name and
description and place of residence of the plaintiff or defendant, it
shall be sufficient to insert {Subs.by the A.O.1937 for the words
"the Secretary of State for India in Council ".} [ the appropriate
name as provided in section 79 {The words "or, if the suit is
against the Secretary of State, the words 'the Secretary of State'"
rep.by the A.O.1948.}.]
{Subs.by the A.O.1937 for the
original rule.} [4.Agent for Government to receive process.- The
Government pleader in any Court shall be the agent of the Government
for the purpose of receiving processes against the Government issued
by such Court.]
5.Fixing of day for appearance on be-half of
Government.- The Court, in fixing the day for {Subs.by the A.O.1937
for "the Secretary of State for India in Council".} [the Government]
to answer to the plaint, shall allow a reasonable time for the
necessary communication with the Government through the proper
channel, and for the issue of instructions to the {Subs.by the
A.O.1950 for "Crown pleader" which had been subs.by the A.O.1937 for
" Government pleader ".} [Government pleader] to appear and answer
on behalf of {Subs.by the A.O.1937 for "the said Secretary of State
for India in Council".} [the Government] {The words "or the Govt."
rep.by the A.O.1948.} , and may extend the time at its
discretion
6.Attendance of person able to answer questions
relating to suit against Government.- The Court may also, in any
case in which the {Subs.by the A..O.1950 for "Crown pleader" which
had been subs.by the AO1937 for "Government pleader".} [Government A
pleader] is not accompanied by any person on the part of {Subs.by
the A.O.1937 for "the said Secretary of State for India in [the
Government], who may be able to answer any material questions
relating to the suit, direct the attendance of such a
person.
7.Extension of time to enable public officer to make
reference to Government.- (1) Where the defendant is a public
officer and, on receiving the summons, considers it proper to make a
reference to the Government before answering the plaint, he may
apply to the Court to grant such extension of the time fixed in the
summons as may be necessary to enable him to make such reference and
to receive orders thereon through the proper channel.
(2)
Upon such application the Court shall extend the time -or so long as
appears to it to be necessary.
8.Procedure in suits against
public officer.(1) Where the Government undertakes the defence of a
suit against a public officer, the {Subs.by the AO 1950 for "Crown
pleader" which had been subs.by the AO1937 for "Government pleader"}
[Government pleader], upon being furnished with authority to appear
and answer the plaint, shall apply to the Court, and upon such
application the Court shall cause a note of his authority to be
entered in the register of civil suits.
(2) Where no
application under sub-rule (1) is made by the {Subs.by the AO 1950
for "Crown pleader" which had been subs.by the AO1937 for
"Government pleader"} [Government pleader] on or before the day
fixed in the notice for the defendant to appear and answer, the case
shall proceed as in a suit between private parties:
Provided
that the defendant shall not be liable to arrest, nor his property
to attachment, otherwise than in execution of a
decree.
{Rules 8A and 3B ins.by the A.O.1937.} [8A.No
security to be required from Govt.or a public officer in certain
cases.- No such security as is mentioned in rules 5 and 6 of Order
XLI shall be required from the Government or, where the Government
has undertaken the defence of the suit, from any public officer sued
in respect of an act alleged to be done by him in his official
capacity.
8B.Definitions of Government and Government
pleader.- In this Order {Ins.by the A.O.1950.} [unless otherwise
expressly provided] "Government" "{Subs., ibid., for " Crown
pleader',.} [Government pleader]" mean respectively-—
(a) in
relation to any suit by or against {The words " the Secretary of
State or " rep.by the A.O.1948.} the Central Government, or against
a public officer in the service of that Government, the Central
Government and such pleader as that Government may appoint whether
generally or specially for the purposes of this
Order;
{C1.(b) rep.by the A.O.1948.}
(c) in relation
to any suit by or against a State Government or against a public
officer in the service of a State, the State Government and the
Government pleader 361 [as defined in clause (7) of section 2], or
such other pleader as the State Government may appoint, whether
generally or specially, for the purposes of this
Order.]
{Order XXVIIA was ins.by Act 23 of 1942,
s.2.}
[ORDER XXVIIA
SUITS INVOLVING A SUBSTANTIAL QUESTION
OF LAW AS
TO THE INTER
PRECAUTION OF {Subs.by the A.O.1950
for " the Government of India Act, 1935, or any Order-in-Council
made thereunder ".} [THE CONSTITUTION]
1.Notice to the
Attorney General or the Advocate General.- In any suit in which it
appears to the Court that {Subs.by the A.O.1948 for " a substantial
question of law as to the interpretation of the Government of India
Act, 1935, or any Order-in-Council made thereunder ".} [any such
question as is referred to {Subs.by the A.O.1950 for " in
sub-section (1) of section 205 of the Government of India Act,
1935't.} [in clause (1) of Article 132 read with Article 147 of the
Constitution], is involved, the Court shall not proceed to determine
that question until after notice has been given to in the Attorney
General for India] if the question of law concerns the Central
Government and to the Advocate-General of the State if the question
of law concerns a State Government.
2.Court may add
Government as party.- The Court may at any stage of the proceedings
order that the Central Government or a State Government shall be
added as a defendant in any suit involving {Subs.by the A.O.1950 for
"in sub-section (1) of section 205 of the Government of India Act,
1935 ".} [any such question as is referred to {Subs.by the A.O.1950
for "in sub-section (1) of section 205 of the Government of India
Act, 1935 ".} [in clause (1) of Article 132 read with Article 147 of
the Constitution], if {Ins.by Act 35 of 1934, s.2 and Sch.} [the
Attorney General for India] or the Advocate-General of the State, as
the case may be, whether upon receipt of notice under rule l, or
otherwise, applies for such addition and the Court is satisfied that
such addition is necessary or desirable for the satisfactory
determination of the question of law involved.
3.Costs.-
Where under rule 2 Government is added as a defendant in a suit,
{Ins.by Act 35 of 1934, s.2 and Sch.} [the Attorney General] the
Advocate-General or the Government shall not be entitled to or
liable for costs in the Court which ordered the addition unless the
Court having regard to all the circumstances of the case for any
special reason otherwise orders.
4.Application of Order to
Appeals.- In the application of this Order to appeals the word
'defendant' shall be held to include a respondent and the word
'suit' an appeal].
ORDER XXVIII
SUITS BY OR AGAINST
MILITARY {Ins.by Act 10 of 1927, s.2 and Sch.I.}
[OR NAVAL ] MEN
{The words "soldier or airman" subs.by s.2 and Sch.I, ibid.,
for
"or soldier", and the word "sailor' ins.by Act 35 of 1934,
s.2 and Sch.}[OR AIRMEN]
1.Officers, soldiers, sailors or
airmen who cannot obtain suit, leave may authorize any person to sue
or defend for them.- (1) Where any officer, {Subs.by the A.O.1937
for "serving the Govt.".} [soldier, sailor or airman] actually of
{Subs.by Act 35 of 1934, s.2 and Sch., for "a military or
air-force".4.} [serving under the Government] in [such] capacity is
a party to a suit, and cannot obtain leave of absence for the
purpose of prosecuting or defending the suit in person, he may
authorize any person to sue such_ or defend in his stead.
(2)
The authority shall be in writing and shall be signed by the
officer, {'The words " soldier or airman " were subs.by Act 10 of
1927, s.2 and Sch.I, for " or soldier " and " or a soldier ", and
the word " sailor " was ins.by Act 35 of 1934, s.2, and Sch.}
[soldier, sailor or airman] in the presence of (a) his commanding
officer, or the next subordinate officer, if the party is himself
the commanding officer, or (b) where the officer, {'The words "
soldier or airman " were subs.by Act 10 of 1927, s.2 and Sch.I, for
" or soldier " and " or a soldier ", and the word " sailor " was
ins.by Act 35 of 1934, s.2, and Sch.} [soldier, sailor or airman] is
serving in military, {Ins.by Act 35 of 1934, s.2 and Sch.} [naval,]
{Ins.by Act 10 of 1927, s.2 and Sch.I.} [or air force] staff
employment, the head or other superior officer of the office in
which he is employed.Such commanding or other officer shall
countersign the authority, which shall be filed in Court.
(3)
When so filed the countersignature shall be sufficient proof that
the authority was duly executed, and that the officer, {'The words "
soldier or airman " were subs.by Act 10 of 1927, s.2 and Sch.I, for
" or soldier " and " or a soldier ", and the word " sailor " was
ins.by Act 35 of 1934, s.2, and Sch.} [soldier, sailor or airman] by
whom it was granted could not obtain leave of absence for the
purpose of prosecuting or defending the suit in
person.
Exploration.—In this Order the expression "
commanding officer " means the officer in actual command for the
time being of any regiment, corps, {Ins.by Act 35 of 1934, s.2 and
Sch.} [ship,] detachment or depot to which the officer {Ins.by Act
10 of 1927, s.2 and Sch.I.} [soldier, sailor or airman]
belongs.
2.Person so authorized may act personally or appoint
pleader.- Any person authorized by an Officer, {'The words " soldier
or airman " were subs.by Act 10 of 1927, s.2 and Sch.I, for " or
soldier " and " or a soldier ", and the word " sailor " was ins.by
Act 35 of 1934, s.2, and Sch.} [soldier, sailor or airman] to
prosecute or defend a suit in his stead may prosecute or defend it
in person in the same manner as the officer, {'The words " soldier
or airman " were subs.by Act 10 of 1927, s.2 and Sch.I, for " or
soldier " and " or a soldier ", and the word " sailor " was ins.by
Act 35 of 1934, s.2, and Sch.} [soldier, sailor or airman] could do
if present; or he may appoint a pleader to prosecute or defend the
suit on behalf of such officer, {'The words " soldier or airman "
were subs.by Act 10 of 1927, s.2 and Sch.I, for " or soldier " and "
or a soldier ", and the word " sailor " was ins.by Act 35 of 1934,
s.2, and Sch.} [soldier, sailor or airman].
3.Service on
person so authorized, or on his pleader, to be good service.-
Processes served upon any person authorized by an officer, [soldier,
sailor or airman under rule 1 or upon any pleader appointee s
aforesaid by such person shall be as effectual as if they had been
to served on the party in person.
ORDER XXIX
SUITS BY
OR AGAINST CORPORATIONS
1.Subscription and verification of
pleading.- In suits by or against a corporation, any pleading may be
signed and verified on behalf of the corporation by the secretary or
by any director or other principal officer of the corporation who is
able to depose to the facts of the case.
2.Service on
corporation.- Subject to any statutory provision regulating service
of process, such where the suit is against a corporation, the
summons may be served.
(a) on the secretary, or on any
director, or other principal officer of the corporation,
or
(b) by leaving it or sending it by post addressed to the
corporation at the registered office, or if there is no registered
office then at the place where the corporation carries on
business.
3.Powers to require personal attendance of officer
of corporation.- The Court may, at any stage of the suit, require
the personal appearance of the secretary or of any director, or
other principal officer of the corporation who may be able to answer
material questions relating to the suit.
ORDER
XXX
SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON
BUSINESS TN
NAMES OTHER THAN THEIR OWN
1.Suing of partners
in name of firm.- (1) Any two or more persons claiming or being
liable as partners and carrying on business in {Subs.by Act 2 of
1951, s.3, for " the States ".} [India] may sue or be sued in the
name of the firm (if any) of which such persons were partners at the
time of the accruing of the cause of action, and any party to a suit
may in such case apply to the Court for a statement of the names and
addresses of the persons who were, at the time of the accruing of
the cause of action, partners in such firm, to be furnished and
verified in such manner as the Court may direct.
(2) Where
persons sue or are sued as partners in the name of their firm under
sub-rule]e (1), it shall, in the case of any pleading or other
document required by or under this Code to be signed, verified or
certified by the plaintiff or the defendant, suffice if such
pleading or the document is signed, verified or certified by any one
of such persons.
2.Disclosure of partners name.- (1) Where a
suit is instituted by partners in the name of their firm, the
plaintiffs or their pleader shall, on demand in writing b' or on
behalf of any defendant, forthwith declare in writing the name and
places of residence of all the persons constituting the firm of
whose behalf the suit is instituted.
(2) Where the plaintiffs
or their pleader fail to comply with any demand made under sub-rule
(1), all proceedings in the suit may, upon an application for that
purpose, be stayed upon such terms as the Court may
direct.
(3) Where the names of the partners are declared in
the manner referred to in sub-rule (1), the suit shall proceed in
the same manner, and the same consequences in all respects shall
follow, as if they had been named as plaintiffs in the
plaint:
Provided that all the proceedings shall nevertheless
continue in the name of the firm.
3.Service.- Where persons
are sued as partners in the name of their firm, the summons shall be
served either—
(a) upon any one or more of the partners,
or
(b) at the principal place at which the partnership
business is carried on within {Subs.by Act 2 of 1951, s.3, for "the
States".} [India] upon any person having, at the time of service,
the control or management of the partnership business
there,
as the Court may direct; and such service shall be
deemed good service upon the firm so sued, whether all or any of the
partners are within or without {Subs.by Act 2 of 1951, s.3, for "the
States".} [India]:
Provided that, in the case of a
partnership which has been dissolved to the knowledge of the
plaintiff before the institution of the suit, the summons shall be
served upon every person within {Subs.by Act 2 of 1951, s.3, for
"the States".} [India] whom it is sought to make
liable.
4.Right of suit on death of partner.- (1)
Notwithstanding anything contained in section 45 of the Indian
Contract Act, 1872, where two or more persons may sue or be in the
name of a firm under the foregoing provisions and any of such
persons dies, whether before the institution or during the pendency
of any suit, it shall not be necessary to join the legal
representative of the deceased as a party to the suit.
(2)
Nothing in sub-rule (1) shall limit or otherwise affect any right
which the legal representative of the deceased may have—
(a)
to apply to be made a party to the suit, or
(b) to enforce
any claim against the survivor or survivors.
5.Notice in what
capacity served.- Where a summons is issued to a firm and is served
in the manner provided by rule 3, every person upon whom it is
served shall be informed by notice in writing given at the time of
such service, whether he is served as a partner or as a person
having the control or management of the partnership business, or in
both characters, and, in default of such notice, the person served
shall be deemed to be served as a partner.
6.Appearance of
partners.- Where persons are sued as partners in the name of their
firm, they shall appear individually in their own names, but all
subsequent proceedings shall nevertheless, continue in the name of
the firms.
7.No appearance except by partners.- Where a
summons is served in the manner provided by rule 3 upon a person
having the control or management of the partnership business, no
appearance by him shall be necessary unless he is a partner of the
firm sued.
8.Appearance under protest.- Any person served
with summons as a partner under rule 3 may appear under protest,
denying that he is a partner, but such appearance shall both
preclude the plaintiff from otherwise serving a summons on the firm
and obtaining a decree against the firm in default of appearance
where no partner has appeared.
9.Suits between co-partners.-
This Order shall apply to suits between a firm and one or more of
the partners therein and to suits between firms having one or more
partners in common; but not execution shall be issued in such suits
except by leave of the Court, and, on an application for leave to
issue such execution, all such accounts and inquiries may be
directed to be taken and made and directions given as may be
just.
10.Suit against person carrying on business in name
other than his own.- Any person carrying on business in a name or
style other than his own name may be sued in such name or style as
if it were a firm name; and, so far as the nature of the case will
permit, all rules under this Order shall apply.
ORDER
XXXI
SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND
ADMINISTRATORS
1.Representation of beneficiaries in suits
concerning property vested in trustees, etc.- In all suits
concerning property vested in a trustee, executor or administrator,
where the contention is between the persons beneficially interested
in such property and a third person, the trustee, executor or
administrator shall represent the persons so interested, and it
shall not ordinarily be necessary to make them parties to the
suit.But the Court may, if it thinks fir, order them or any of them
to be made parties.
2.Joinder of trustees, executors and
administrators.- Where there are several trustees, executors or
administrators, they shall all be made parties to a suit against one
or more of them :
Provided that the executors who have not
proved their testator's will, and trustees, executors and
administrators outside {Subs.by Act 2 of 1951, s.3, for " the States
".} [ India ], need not be made parties.
3.Husband of married
executrix not to join.- Unless the Court directs otherwise, the
husband of a married trustee, administratrix or executrix shall not
as such be a party to a suit by or against her.
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