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Code of Civil Procedure,1908

 

Civil Procedure Code,1908 (PDF)

 

Civil Procedure Code,1908

 

The Code of Civil Procedure, 1908

(5 OF 1908)

379

[21st March, 1908]

An Act to consolidate and amend the laws relating to the procedure of the

Courts of Civil Judicature

Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as follows:—

FACT SHEET 6

 

It has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and, by notification under Sections 5 and 5-A of the Schedule Districts Act, 1874 (14 of 1874), also to the following Scheduled Districts:-

(1) The Districts of Jalpaiguri, Cachar (excluding the North Cachar Hills), Goalpara (including the Eastern Duars), Damrup, Darrang, Nowgong (excluding the Mikir Hill Tracts), Sibsagar (excluding the Mikir Hill Tracts) and Lakhimpur (excluding the Dibrugarh Frontier Tracts): Gazette of India, 1909, Pt. I, p. 5 and ibid., 1914, Pt. I, P. 1690.

(2) The District of Darjeeling and the District of Hazaribagh, Ranchi, Palamau and Manbhum in Chota Nagpur: Calcutta Gazette, 1909, Pt. I, p. 25 and Gazette of India, 1909, Pt. P. 33.

(3) The Province of Kumaon and Garhwal and the Tarai Parganas (with modifications): U.P. Gazette, 1909, Pt. I, P. 3 and Gazette of India, Pt. I, P. 31.c (4) The Pargana of Jaunsar-Bawar in Dehra Dun and the Scheduled portion of the Mirzapur District; U.P. Gazette, 1909, Pt. I, P. 4 and Gazette of India, 1909, Pt. I, P. 32.

(5) Coorg: Gazette of India, 1909, Pt. I, P. 32.

(6) Scheduled Districts in the Punjab: Gazette of India, 1909, Pt. I, P. 152.

(7) Sections 36 to 43 to all the Scheduled Districts in Madras: Gazette of India, 1909, Pt. I, P. 152.

(8) Scheduled Districts in the C.P., except so much as is already in force and so much as authorizes the attachment and sale of immovable property in execution of a decree, not being a decree directing the sale of such property: Gazette of India, 1909, Pt. II, p. 239.

(9) Ajmer-Merwara except Sections 1 and 155 to 158: Gazette of India, 1909, Pt. II, p. 480.

(10) Pargana Dhalbhum, the Municipality of Chaibassa in the Kolhan and the Porahat Estate in the District of Singhbhum: Calcutta Gazette, 1909, Pt. I, p. 453 and Gazette of India, 1909, Pt. I, p. 443.

Under Section 3(3)(a) of the Sonthal Parganas Settlement Regulation (3 of 1872), Sections 38 to 42 and 156 and Rr. 4 to 9 in O. XXI in the First Schedule have been declared to be in force in the Sonthal Parganas and the rest of the Code for the trial of suits referred to in Section 10 of the Sonthal Parganas Justice Regulation, 1893 (5 of 1893): See Calcutta Gazette, 1909, Pt. I, p. 45.

It has been declared to be in force in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (1 of 1929), Section 2; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), Section 3 and Sch., and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), Section 3 and Sch.

It has been extended to the Districts of Koraput and Ganjam Agency by Orissa Regulation, 1951 (5 of 1951), Section 2.

It has been extended, with modification to Laccadive, Minicoy and Amindivi Islands (w.e.f. 1.10.1967) by Regulation 8 of 1965, Section 3 and Sch. and to Goa, Daman and Diu (w.e.f. 15.6.1966) by Act 30 of 1965, Section 3.

It has been extended to and brought into force in the State of Manipur (w.e.f. 1.1.1957) by Act 30 of 1950, Section 3.

It has been extended to the State of Sikkim (except for Sections 123 and 124) w.e.f. 1.9.1984).

As to the meaning of the expression ” Scheduled Districts” see A.I.R. 1958 Pat. 603.

Preliminary

  1. Short title, commencement and extent .—(1) This Act may be cited as The Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January, 1909.

[(3) It extends to the whole of India except—

(a) the State of Jammu and Kashmir;

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

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

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

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

  1. Definitions .—In this Act, unless there is anything repugnant in the subject or context,—

(1) “Code” includes rules;

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

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

(b) any order of dismissal for default.

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

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

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

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

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

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

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

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

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

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

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

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

(12) “ mesne profits ” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;

(13) “movable property” includes growing crops;

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

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

(16) “prescribed” means prescribed by rules;

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

(a) every Judge;

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

(c) every commissioned or gazetted officer in the military, [naval or air] forces of [the Union] [* * *]

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;

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

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

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

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

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

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

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

[* * *]
  1. Subordination of Courts .—For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade, inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.
  2. Savings .—(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

  1. Application of the Code to Revenue Courts .—(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government [* * *]may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government [* * *]may prescribe.

(2) “Revenue Court” in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

  1. Pecuniary jurisdiction .—Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
  2. Provincial Small Cause Courts .—The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), [or under the Berar Small Cause Courts Law, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law],[or to Courts in [any part of India to which the said Act does not extend]exercising a corresponding jurisdiction], that is to say,—

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

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

(ii) the execution of decrees in such suits;

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

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

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

(i) orders for the attachment of immovable property;

(ii) injunctions;

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

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

sections 96 to 112 and 115.

  1. Presidency Small Cause Courts .—Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76, [77, 157 and 158], and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), the provisions in the body of this Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay:
[Provided that—

(1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may be, may from time to time, by notification in the Official Gazette, [direct] that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882 (15 of 1882), and with such modifications and adaptations as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court;

(2) all rules hereto fore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), shall be deemed to have been validly made.]

PART I

SUITS IN GENERAL

Jurisdiction of the Courts and res judicata

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

Explanation [I ].—A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

[ Explanation II .—For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]
  1. Stay of suit .—No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India]having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India]established or continued by [the Central Government] [* * *] and having like jurisdiction, or before [the Supreme Court].

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

  1. Res judicata .—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I .—The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II .—For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III .—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI .—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

[ Explanation VII .—The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII .—An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

  1. Bar to further suit .—Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
  2. When foreign judgment not conclusive .—A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—

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

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

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of [India] in cases in which such law is applicable;

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

(e) where it has been obtained by fraud;

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

  1. Presumption as to foreign judgments .—The Court shall presume, upon the production of any document purporting to be a certified copy of, a foreign judgment, that such judgment was pronounced by a Court of, competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Place of suing

  1. Court in which suits to be instituted .—Every suit shall be instituted in the Court of the lowest grade competent to try it.
  2. Suits to be instituted where subject-matter situate .—Subject to the pecuniary or other limitations prescribed by any law, suits—

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

(b) for the partition of immovable property,

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

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

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

  1. Suits for immovable property situate within jurisdiction of different Courts .—Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate:

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

  1. Place of institution of suit where local limits of jurisdiction of Courts are uncertain .—(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction:

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and an objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice.

  1. Suits for compensation for wrongs to person or movables .—Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
  2. Other suits to be instituted where defendants reside or cause of, action arises .—Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—

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

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

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

[* * * *] [ Explanation ].—A corporation shall be deemed to carry on business at its sole or principal office in [India]or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

  1. Objections to jurisdiction .— [(1)]No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]

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

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

  1. Power to transfer suits which may be instituted in more than one Court .—Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.
  2. To what Court application lies .—(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

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

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

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

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

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

(i) try or dispose of the same; or

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

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

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

[(3) For the purposes of this section,—

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) “proceeding” includes a proceeding for the execution of a decree or order.]

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]

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

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

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

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

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

Institution of suits

  1. Institution of suits .— [(1)]Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
[(2) In every plaint, facts shall be proved by affidavit.]

Summons and discovery

  1. Summons to defendants .—Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed [on such day not beyond thirty days from date of the institution of the suit.]
  2. Service of summons where defendant resides in another State .— (1) A summons may be sent for service in another State to such Court and in such manner as may be prescribed by rules in force in that State.

(2) The Court to which such summons is sent shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

[(3) Where the language of the summons sent for service in another State is different from the language of the record referred to in sub-section (2), a translation of the record,

(a) in Hindi, where the language of the Court issuing the summons is Hindi, or

(b) in Hindi or English where the language of such record is other than Hindi or English, shall also be sent together with the record sent under that sub-section.]

[29. Service of foreign summonses .—Summonses and other processes issued by—

(a) any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extend, or

(b) any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or

(c) any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply, may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.]

  1. Power to order discovery and the like .—Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,—

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

  1. Summons to witness .—The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.
  2. Penalty for default .—The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may—

(a) issue a warrant for his arrest;

(b) attach and sell his property;

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

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

Judgment and decree

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

Interest

  1. Interest .—(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent. per annum, as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:
[Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent. per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

Explanation.—In this sub-section, “nationalised bank” means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).

Explanation II.—For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.]

(2) Where such a decree is silent with respect to the payment of further interest [on such principal sum]from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.

Costs

  1. Costs .—(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

[* * *]

[35-A. Compensatory costs in respect of false or vexatious claims or defences .—(1) If in any suit or other proceeding, [including an execution proceeding but [excluding an appeal or a revision],] any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, [if it so thinks fit], may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.

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

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887), [or under a corresponding law in force in [any part of India to which the said Act does not extend] and not being a Court constituted [under such Act or law], are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

Provided, further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.

(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.]

[35-B. Costs for causing delay .—(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit—

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

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of—

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

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

Explanation .—Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.]

PART II

Execution

General

[36. Application to orders .—The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).]

  1. Definition of Court which passed a decree .—The expression “Court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,—

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

[ Explanation .—The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.]

Courts by which decrees may be executed

  1. Court by which decree may be executed .—A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
  2. Transfer of decree .—(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court [of competent jurisdiction],—

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

[(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.] [(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.]
  1. Transfer of decree to Court in another State .—Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.
  2. Result of execution proceedings to be certified .—The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.
  3. Powers of Court in executing transferred decree .— [(1)]The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
[(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of the Court under that sub-section shall include the following powers of the Court which passed the decree, namely:—

(a) power to send the decree for execution to another Court under section 39;

(b) power to execute the decree against the legal representative of the deceased judgment-debtor under section 50;

(c) power to order attachment of a decree.

(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the Court to which a decree is sent for execution any of the following powers, namely:—

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

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

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

[44. Execution of decrees passed by Revenue Courts in places to which this Code does not extend.—The State Government may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend, or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State.]

[44-A. Execution of decrees passed by Courts in reciprocating territory .—(1) Where a certified copy of a decree of any of the superior Courts of [* * *] any reciprocating territory has been filed in a District Court, the decree may be executed in [India ]as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

[ Explanation I .—“Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation II .—“Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.]

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

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

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

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

Questions to be determined by Court executing decree

  1. Questions to be determined by the Court executing decree .—(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
[* * *]

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

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

Explanation II .—

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

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

Limit of time for execution

  1. Execution barred in certain cases .—[Repealed by the Limitation Act, 1963 (36 of 1963), section 28(w.e.f. 1-1-1964).]

Transferees and legal representatives

  1. Transferee .—Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.
  2. Legal representative .—(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

Procedure in execution

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

(a) by delivery of any property specifically decreed;

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

(c) by arrest and detention in prison [for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section;]

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

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

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

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

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

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

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

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

  1. Enforcement of decree against legal representative .—(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.

  1. Liability of ancestral property .—For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
  2. Partition of estate or separation of share .—Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

Arrest and detention

  1. Arrest and detention .—(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the State Government may appoint for the detention of persons ordered by the Courts of such district to be detained:

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise:

Provided, secondly, that, no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found:

Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest:

Provided, fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

(2) The State Government may, by notification in the Official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the State Government in this behalf.

(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he[may be discharged] if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.

(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court [may release] him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree.

  1. Prohibition of arrest or detention of women in execution of decree for money .—Notwithstanding anything in this Part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.
  2. Subsistence allowance .—The State Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors.
  3. Detention and release .—(1) Every person detained in the civil prison in execution of a decree shall be so detained,—

(a) where the decree is for the payment of a sum of money exceeding [** [five thousand rupees], for a period not exceeding three months, and,] [(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks:]

Provided that he shall be released from such detention before the ex-piration of the [said period of detention]—

(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance:

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

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

(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

  1. Release on ground of illness .—(1) At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on the ground of his serious illness.

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

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

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

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

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

Attachment

  1. Property liable to attachment and sale in execution of decree .— (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:—

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

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

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to [an agriculturist or a labourer or a domestic servant]and occupied by him;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government or of a local authority [or of any other employer], or payable out of any service family pension fund [notified] in the Official Gazette by [the Central Government or the State Government] in this behalf, and political pensions;

[(h) the wages of labourers and domestic servants, whether payable in money or in kind;] [* * *] [(i) salary to the extent of [the first [ [one thousand rupees] and two-thirds of the remainder][in execution of any decree other than a decree for maintenance:] [Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or inter-mittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree;] [(ia) one-third of the salary in execution of any decree for maintenance;] [(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;]

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, [1925] (19 of 1925), for the time being applies, in so far as they are declared by the said Act not to be liable to attachment;

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

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

(kc) the interest of a lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;] [(l) any allowance forming part of the emoluments of any [servant of the Government] or of any servant of a railway company or local authority which the [appropriate Government] may, by notification in the Official Gazette, declare to be exempt from attachment, and any subsistence grant or allowance made to [any such servant] while under suspension;]

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

(n) a right to future maintenance;

(o) any allowance declared by [any Indian law] to be exempt from liability to attachment or sale in execution of a decree; and

(p) where the judgment-debtor is a person liable for the payment of land-revenue, any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue.

[ Explanation I .—The moneys payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), (j), (l) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable.] [[ Explanation II .—In clauses (i) and (ia)], [“salary” means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (l), derived by a person from his employment whether on duty or on leave.]] [ Explanation [III] .—In clause (l) “appropriate Government” means—

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

[* * *]

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

[Explanation IV .—For the purposes of this proviso, “wages” includes bonus, and “labourer” includes a skilled, unskilled or semi-skilled labourer.

Explanation V .—For the purposes of this proviso, the expression “agriculturist” means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer.

Explanation VI .—For the purposes of Explanation V , an agriculturist shall be deemed to cultivate land personally, if he cultivates land—

(a) by his own labour, or

(b) by the labour of any member of his family, or

(c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both.] [(1-A) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void.]

(2) Nothing in this section shall be deemed [* * *] to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land [* * *].

[* * *]
  1. Partial exemption of agricultural produce .—The State Government [* * *]may, by general or special order published in the Official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in execution of a decree.
  2. Seizure of property in dwelling-house .—(1) No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise.

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

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

  1. Property attached in execution of decrees of several Courts .—(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realise such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

[ Explanation .—For the purposes of sub-section (2), “proceeding taken by a Court” does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.]
  1. Private alienation of property after attachment to be void .— [(1)]Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.
[(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.]

Explanation .—For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

Sale

  1. Purchaser’s title .—Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
  2. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff .—[Repealed by the Benami Transactions (Prohibition) Act , 1988, section 7 (w.e.f.19-5-1988).]
  3. Power for State Government to make rules as to sales of land in execution of decrees for payment of money .— [(1)]The State Government [* * *]may, by notification in the Official Gazette, make rules for any local area imposing conditions in respect of the sale of any class of interests in land in execution of decrees for the payment of money, where such interests are so uncertain or undetermined as, in the opinion of the State Government, to make it impossible to fix their value.
[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the State Government may, by notification in the Official Gazette, declare such rules to be in force, or may ][* * *] [by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this sub-section shall set out the rules so continued or modified.] [(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

Delegation to Collector of power to execute decrees against immovable property

68 to 72.—[ Repealed by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), section 7 (w.e.f.1-1-1957).]

Distribution of assets

  1. Proceeds of execution-sale to be rateably distributed among decree-holders .—(1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons:

Provided as follows:—

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

(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mort-gagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;

(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied—

first, in defraying the expenses of the sale;

secondly, in discharging the amount due under the decree;

thirdly, in discharging the interest and principal moneys due on subsequent incumbrances (if any); and

fourthly, rateably among the holders of decrees for the payment of money against the judgment-debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.

(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

(3) Nothing in this section affects any right of the Government.

Resistance to execution

  1. Resistance to execution .—Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.

PART III

Incidental Proceedings

Commissions

  1. Power of Court to issue commissions .—Subject to such conditions and limitations as may be prescribed, the Court may issue a commission—

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

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

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

(g) to perform any ministerial act.]

  1. Commission to another Court .—(1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.

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

[78. Commissions issued by foreign Courts .—Subject to such conditions and limitations as may be prescribed, the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of—

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India; or

(c) Courts of any State or country outside India.]

PART IV

Suits In Particular Cases

Suits by or against the Government or Public Officers in their official capacity

[79. Suits by or against Government .—In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be—

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

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

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

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

[[(b)] [in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;] [* * *] [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]

(c) in the case of a suit against [any other State Government], a Secretary to that Government or the Collector of the district; [* * *] [* * *]

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

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

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

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

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

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

  1. Exemption from arrest and personal appearance .—In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity—

(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree, and

(b) where the Court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

  1. Execution of decree .— [(1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done by him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section (2).]

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

[(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award—

(a) is passed or made against [the Union of India][or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; and

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

[Suits by Aliens and by or against Foreign Rulers, Ambassadors and Envoys]

  1. When aliens may sue .—Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such Court.

Explanation .—Every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a licence in that behalf granted by the Central Government, shall, for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.

  1. When foreign States may sue .—A foreign State may sue in any competent Court:

Provided that the object of the suit is to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity.

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

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

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

  1. Suits against foreign Rulers, Ambassadors and Envoys .—(1) No [* * *]foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid [a foreign State] from whom he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the foreign State may be sued, but it shall not be given, unless it appears to the Central Government that [the foreign State]—

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

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

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

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

[(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.]

(4) The preceding provisions of this section shall apply in relation to—

[(a) any Ruler of a foreign State;] [(aa)] any Ambassador or Envoy of a foreign State;

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

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

[as they apply in relation to a foreign State.] [(5) The following persons shall not be arrested under this Code, namely:—

(a) any Ruler of a foreign State;

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

(c) any High Commissioner of a Commonwealth country;

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

(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.]

  1. Style of foreign Rulers as parties to suits .—The Ruler of a foreign State may sue, and shall be sued, in the name of his State:

Provided that in giving the consent referred to in section 86, the Central Government may direct that the Ruler may be sued in the name of an agent or in any other name.

87-A. Definitions of “foreign State” and “Ruler”.—(1) In this Part,—

(a) “foreign State” means any State outside India which has been recognised by the Central Government; and

(b) “Ruler”, in relation to a foreign State, means the person who is for the time being recognised by the Central Government to be the head of that State.

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

(a) that a State has or has not been recognised by the Central Government;

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

Suits against Rulers of former Indian States

87-B. Application of sections 85 and 86 to Rulers of former Indian States .— [(1) In the case of any suit by or against the Ruler of any former Indian State which is based wholly or in part upon a cause of action which arose before the commencement of the Constitution or any proceeding arising out of such suit, the provisions of section 85 and sub-sections (1) and (3) of section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign State.]

(2) In this section—

(a) “former Indian State” means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this section; [* * *] [(b) “commencement of the Constitution” means the 26th day of January, 1950; and

(c) “Ruler”, in relation to a former Indian State, has the same meaning as in article 363 of the Constitution.]

Interpleader

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

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

PART V

Special Proceedings

Arbitration

[89. Settlement of disputes outside the Court .—(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for—

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute has been referred—

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

Special case

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

[Public nuisances and other wrongful acts affecting the public]

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

(a) by the Advocate-General, or

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

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

  1. Public charities .—(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the [leave of the Court,]may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree—

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;]

(d) directing accounts and inquiries;

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

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), [or by any corresponding law in force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

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

(a) where the original purposes of the trust, in whole or in part,—

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

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

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

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

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

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

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

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

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]

[93. Exercise of powers of Advocate-General outside Presidency-towns .—The powers conferred by sections 91 and 92 on the Advocate-General may, outside the Presidency-towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in this behalf.]

PART VI

Supplemental Proceedings

  1. Supplemental proceedings .—In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,—

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

  1. Compensation for obtaining arrest, attachment or injunction on insufficient grounds .—(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,—

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

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, [not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the [expense or injury (including injury to reputation) caused to him]:

Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction.

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

PART VII

Appeals

Appeals from original decrees

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

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

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

[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.]
  1. Appeal from final decree where no appeal from preliminary, decree .—Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
  2. Decision where appeal heard by two or more Judges .—(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal is [composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench], and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.]
  1. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder]of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

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

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

Appeals from appellate decrees

[100. Second appeal .—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte .

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

[100-A. No further appeal in certain cases .—Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge.]

  1. Second appeal on no other grounds .—No second appeal shall lie except on the grounds mentioned in section 100.

[102. No second appeal in certain cases .—No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.]

[103. Power of High Court to determine issue of fact .—In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,—

(a) which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100.]

Appeals from orders

  1. Orders from which appeal lies .—(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:—
[* * * * *] [(ff) an order under section 35-A;] [(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. ]

(2) No appeal shall lie from any order passed in appeal under this section.

  1. Other orders .—(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand [* * *] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

  1. What Courts to hear appeals .—Where an appeal from any order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

General provisions relating to appeals

  1. Powers of appellate Court .—(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power—

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

  1. Procedure in appeals from appellate decrees and orders .—The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals—

(a) from appellate decrees, and

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

Appeals to the Supreme Court

[109. When appeals lie to the Supreme Court .—Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies—

(i) that the case involves a substantial question of law of general importance; and

(ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.]

  1. Value of subject-matter .—[Omitted by the Code of Civil Procedure (Amendment) Act , 1973 (49 of1973), section 3 (w.e.f.29-11-1973).]
  2. Bar of certain appeals .—[Repealed by A.O. 1950.]

[111-A. Appeals to Federal Court .—[ Repealed by the Federal Court Act, 1941 (21 of 1941), section 2 (w.e.f.1-9-1942).]]

  1. Savings .— [(1) Nothing contained in this Code shall be deemed—

(a) to affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution, or

(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.

PART VIII

Reference, Review And Revision

  1. Reference to High Court .—Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:
[Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.

Explanation.—In this section, “Regulation” means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.]

  1. Review .—Subject as aforesaid, any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

  1. Revision .— [(1)]The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears—

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

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

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] [(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.]

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

PART IX

Special Provisions Relating To The [High Courts [Not Being The Court Of A Judicial Commissioner]]

  1. Part to apply only to certain High Courts .—This Part applies only to High Courts [not being the Court of a Judicial Commissioner].
  2. Application of Code to High Courts —Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts.
  3. Execution of decree before ascertainment of costs .—Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs;

and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.

  1. Unauthorised persons not to address Court .—Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorised him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.
  2. Provisions not applicable to High Court in original civil jurisdiction .—(1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20.
[* * *]

PART X

Rules

  1. Effect of rules in First Schedule .—The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.
  2. Power of certain High Courts to make rules .— [High Courts [not being the Court of a Judicial Commissioner]][* * *]may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.
  3. Constitution of Rule Committees in certain States .—(1) A Committee, to be called the Rule Committee shall be constituted at [the town which is the usual place of sitting of each of the High Courts [* * *]referred to in section 122.]

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

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

[(b) two legal practitioners enrolled in that Court,] [(c) a Judge of a Civil Court subordinate to the High Court,] [* * * ] [* * *]

(3) The members of each such Committee shall be appointed by the [High Court], who shall also nominate one of their member to be President:

[* * *]

(4) Each member of any such Committee shall hold office for such period as may be prescribed by the[High Court] in this behalf; and whenever any member retires, resigns, dies or ceases to reside in the State in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said [High Court] may appoint another person to be a member in his stead.

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

  1. Committee to report to High Court .—Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.
  2. Power of other High Courts to make rules .—High Courts, other than the Courts specified in section 122, may exercise the powers conferred by that section in such manner and subject to such conditions [as [the State Government]may determine]:

Provided that any such High Court may, after previous publication, make a rule extending within the local limits of its jurisdiction any rules which have been made by any other High Court.

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

  1. Publication of rules .—Rules so made and [approved]shall be published in the [Official Gazette], and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.
  2. Matters for which rules may provide .—(1) Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.

(2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely:—

(a) the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

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

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

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

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

(f) summary procedure—

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

on a contract express or implied; or

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

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

on a trust; or

(ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits , by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant;

(g) procedure by way of originating summons;

(h) consolidation of suits, appeals and other proceedings;

(i) delegation to any Registrar, Prothonotary or Master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and

(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of Civil Courts.

  1. Power of High Courts to make rules as to their original civil procedure .—Notwithstanding anything in this Code, any High Court [not being the Court of a Judicial Commissioner]may make such rules not inconsistent with the Letters Patent [or order][or other law] establishing it, to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

[130. Power of other High Courts to make rules as to matters other than procedure .—A High Court[not being a High Court to which section 129 applies] may, with the previous approval of the State Government, make with respect to any matter other than procedure any rule which a High Court [for a [* * *] State] might under [article 227 of the Constitution] make with respect to any such matter for any part of the territories under its jurisdiction which is not included within the limits of a Presidency-town.]

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

PART XI

Miscellaneous

  1. Exemption of certain women from personal appearance .—(1) Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.

  1. Exemption of other persons .— [(1) The following persons shall be entitled to exemption from personal appearance in Court, namely:—

(i) the President of India;

(ii) the Vice-President of India;

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

(iv) the Ministers of the Union;

(v) the Judges of the Supreme Court;

(vi) the Governors of States and the Administrators of Union territories;

(vii) the Speakers of the State Legislative Assemblies;

(viii) the Chairmen of the State Legislative Councils;

(ix) the Ministers of States;

(x) the Judges of the High Courts ; and

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

(3) Where any person [* * *] claims the privilege of such exemption, and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays such costs.

  1. Arrest other than in execution of decree .—The provisions of sections 55, 57 and 59 shall apply, so far as may be, to all persons arrested under this Code.
  2. Exemption from arrest under civil process .—(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court.

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

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

[135-A. Exemption of members of legislative bodies from arrest and detention under civil process .— [(1) No person shall be liable to arrest or detention in prison under civil process—

(a) if he is a member of—

(i) either House of Parliament, or

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

(iii) a Legislative Assembly of a Union territory, during the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;

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

(i) either House of Parliament, or

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

(iii) the Legislative Council of a State, during the continuance of any meeting of such committee;

(c) if he is a member of—

(i) either House of Parliament, or

(ii) a Legislative Assembly or Legislative Council of a State having both such Houses, during the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be;

and during the forty days before and after such meeting, sitting or conference. ]

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

  1. Procedure where person to be arrested or property to be attached is outside district .—(1) Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment, and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment.

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

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

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

  1. Language of subordinate Courts .—(1) The language which, on the commencement of this Code, is the language of any Court subordinate to a High Court shall continue to be the language of such subordinate Court until the State Government otherwise directs.

(2) The State Government may declare what shall be the language of any such Court and in what character applications to and proceedings in such Courts shall be written.

(3) Where this Code requires or allows anything other than the recording of evidence to be done in writing in any such Court, such writing may be in English; but if any party or his pleader is unacquainted with English, a translation into the language of the Court shall, at his request, be supplied to him; and the Court shall make such order as it thinks fit in respect of the payment of the costs of such translation.

  1. Power of High Court to require evidence to be recorded in English .—(1) The [High Court]may, by notification in the Official Gazette, direct with respect to any Judge specified in the notification, or falling under a description set forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in the manner prescribed.

(2) Where a Judge is prevented by any sufficient reason from complying with a direction under sub-section (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.

  1. Oath on affidavit by whom to be administered .—In the case of any affidavit under this Code—

(a) any Court or Magistrate, or

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

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

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

  1. Assessors in causes of salvage, etc.—(1) In any admiralty or vice-admiralty cause of salvage, towage or collision, the Court, whether it be exercising its original or its appellate jurisdiction, may, if it thinks fit, and shall upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed, two competent assessors, and such assessors shall attend and assist accordingly.

(2) Every such assessor shall receive such fees for his attendance, to be paid by such of the parties as the Court may direct or as may be prescribed.

  1. Miscellaneous proceedings .—The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
[ Explanation .—In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.]
  1. Orders and notices to be in writing .—All orders and notices served on or given to any person under the provisions of this Code shall be in writing.
  2. Postage .—Postage, where chargeable on a notice, summons or letter issued under this Code and forwarded by post, and the fee for registering the same, shall be paid within a time to be fixed before the communication is made:

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

  1. Application for restitution .—(1) Where and in so far as a decree [or an order]is [varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order]shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree [or order] or [such part thereof as has been varied, reversed, set aside or modified] and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation andmesne profits , which are properly [consequential on such variation, reversal, setting aside or modification of the decree or order].
[ Explanation .—For the purposes of sub-section (1), the expression “Court which passed the decree or order” shall be deemed to include,—

(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;

(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;

(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.]

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

  1. Enforcement of liability of surety .—Where any person [has furnished security or given a guarantee]—

(a) for the performance of any decree or any part thereof, or

(b) for the restitution of any property taken in execution of a decree, or

(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon,

the decree or order may be executed in the manner herein provided for the execution of decrees, namely:—

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

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

(iii) if the case falls both under clauses (i) and (ii), then to the extent specified in those clauses, and such person shall be deemed to be a party within the meaning of section 47]:

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

  1. Proceedings by or against representatives .—Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.
  2. Consent or agreement by persons under disability .—In all suits to which any person under disability is a party, any consent or agreement, as to any proceeding shall, if given or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such person were under no disability and had given such consent or made such agreement.
  3. Enlargement of time .—Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period,[not exceeding thirty days in total,]even though the period originally fixed or granted may have expired.

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

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

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

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

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

  1. Power to make up deficiency of Court-fees .—Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
  2. Transfer of business .—Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.
  3. Saving of inherent powers of Court .—Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.
  4. Amendment of judgments, decrees or orders .—Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
  5. General power to amend .—The Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

[153-A. Power to amend decree or order where appeal is summarily dismissed .—Where an Appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to amend, under section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.

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

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

  1. Saving of present right of appeal .—[Repealed by the Repealing and Amending Act,1952 (48 of1952), section 2 and Schedule I.]
  2. Amendment of certain Acts .—[Repealed by the Repealing and Amending Act, 1952 (48of 1952), section 2 and Schedule I.]
  3. Repeals .—[Repealed by the Second Repealing and Amending Act,1914 (17 of 1914), section 3and Schedule II.]
  4. Continuance of orders under repealed enactments .—Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act 8 of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf.
  5. Reference to Code of Civil Procedure and other repealed enactments .—In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act 8 of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, section or rule.

THE FIRST SCHEDULE

Order 1

PARTIES OF SUITS

[1. Who may be joined as plaintiffs. — All persons may be joined in one suit as plaintiffs where—

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

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

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

[3. Who may be joined as defendants. — All persons may be joined in one suit as defendants where—

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

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

STATE AMENDMENTS 6

 

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

“Provided that in suits for declaration of title or for possession relating to immovable properties of a member of the Scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950, the Deputy Commissioner concerned shall also be joined as a defendant.”-[Bihar Scheduled Areas Regulation, 1969].

[3A. Power to order separate trials where joinder of defendants may embarrass or delay trial. — Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.]

STATE AMENDMENTS 6

 

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

[3-B. Conditions for entertainment of suits. — (1) No suit or proceeding for.—

(a) declaration of title or any right over any agricultural land, with or without any other relief; or

(b) specific performance of any contract for transfer of any agricultural land, with or without any other relief, shall be entertained by any Court, unless the plaintiff or applicant, as the case may be, knowing or having reason to believe that a return under section 9 of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) in relation to land aforesaid has been or is required to be filed by him or by any other person before competent authority appointed under that Act, has impleaded the State of Madhya Pradesh as one of the defendants or non-applicants, as the case may be, to such suit or proceeding.

(2) No Court shall proceed with pending suit or proceeding referred to in sub-rule (1) unless, as soon as may be, the State Government is so impleaded as a defendant or non-applicant.

Explanation.— The expression “suit or proceeding” used in this sub-rule shall include appeal, reference or revision, but shall not include any proceeding for or connected with execution of any decree or final order passed in such suit or proceeding”.-[M.P. Act 29 of 1984].

  1. Court may give judgment for or against one or more of joint parties.. – Judgment may be given without any amendment—

(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to;

(b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities.

  1. Defendant need not be interested in all the relief claimed. – It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.
  2. Joinder of parties liable on same contract. – The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severely, liable on any one contract, including parties to bills of exchange, hundis and promissory notes.
  3. When plaintiff in doubt from whom redress is to be sought. – Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.

[8. One person may sue or defend on behalf of all in same interest. — (1) Where there are numerous persons having the same interest in one suit,—

(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.

Explanation.—For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]

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

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

  1. Misjoinder and nonjoinder. – No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
[Provided that nothing in this rule shall apply to nonjoinder of a necessary party.]
  1. Suit in name of wrong plaintiff. – (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

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

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

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

(5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

STATE AMENDMENTS 6

 

High Court Amendment-[Karnataka].-In its application to the State of Karnataka, in Order 1, rule 10, add the following as sub-rule (6):

“(6) The Court may on the application of any party and after notice to the other partiesaffected by the application and on such terms and conditions as it may impose, transpose a plaintiff to the position of a defendant or subject to the provisions of sub-rule (3), aedant to the position of a plaintiff.”-(w.e.f. 30-3-1962)

[10A. Power of Court to request any pleader to address it. — The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader.]

  1. Conduct of suit. – The Court may give the conduct of [a suit]to such persons as it deems proper.
  2. Appearance of one of several plaintiffs or defendants for others. – (1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

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

  1. Objections as to nonjoinder or misjoinder. – All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issue are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

ORDER 2

FRAME OF SUIT

  1. Frame of suit. – Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
  2. Suit to include the whole claim. – (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation.—For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Illustration

A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.

STATE AMENDMENTS 6

 

Uttar Pradesh.— In Order II, Rule 2.—

(a) the existing Explanation shall be numbered as Explanation I, and after Explanation I, as so numbered the following Explanation II shall be inserted, namely:—

“Explanation II.— For the purposes of this rule a claim for ejectment of the defendant from immoable property let out to him and a claim for money due from him on account of rent or compensation for use and occupation of that property, shall be deemed to be claims in respect of distinct causes of action”:

(b) for the illustration, the following illustration shall be substituted, namely:—

“Illustration.— A lets immovable property to B at a yearly rent. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid, and the tenancy is determined before A sues B in 1908, only for the rent due for 1906. A may afterwards sue B for ejectment but not for the rent due for 1905 or 1907”.-[U.P. Act 57 of 1976].

  1. Joinder of causes of action. – (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.

  1. Only certain claims to be joined for recovery of immovable property. – No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except—

(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;

(b) claims for damages for breach of any contract under which the property or any part thereof is held; and

(c) claims in which the relief sought is based on the same cause of action:

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.

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

[6. Power of Court to separate trials. — Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.]

  1. Objections as to misjoinder. – All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and any such objection to so taken shall be deemed to have been waived.
STATE AMENDMENTS 6

 

High Court Amendments-[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Kerala].-In Order 2, after rule 7, the following rule shall be inserted, namely:

“8. (1) Where an objection, duly taken, has been allowed by the Court, the plaintiff shall be permitted to select the cause of action with which he will proceed and shall, within a time to be fixed by the Court, amend the plaint suitably.

(2) When the plaintiff has selected the cause of action with which he will proceed, the Court shall pass an order giving him time, within which, to submit the amended plaint for the remaining cause of action and for making up the Court-fees that may be necessary. Should the plaintiff not comply with the Court’s order, the Court shall proceed as provided in rule 18 of Order 6 and as required by the provisions of the Court-fees Act.”-(9-6-1959).

[Punjab].-Add rule 8, Order 2:

“8.(1) Where an objection, duly taken, has been allowed by the Court, the plaintiff shall be permitted to select the cause of action with which he will proceed and shall, within a time to be fixed by the Court, amend the plaint by striking out the remaining causes of action.

(2) When the plaintiff has selected the cause of action with which he will proceed, the Court shall pass an order giving him time, within which, to submit amended plaints for the remaining causes of action and for making up the Court-fees that may be necessary. Should the plaintiff not comply with the Court’s order, the Court shall proceed as provided in rule 18 of Order 6 and as required by the provisions of the Court-fees Act.”

[Rajasthan].-Add rule 8 in Order 2:

“8.(1) Where such objection has been allowed by the Court, the plaintiff shall be permitted to select the cause of action with which he will proceed and shall, within a time to be fixed by the Court, amend the plaint by striking out the remaining causes of action.

(2) When the plaintiff has selected the cause of action with which he will proceed, the Court may on his application pass an order giving him time, within which, to submit amended plaints for the remaining causes of action and for making up the Court-fees that may be necessary. Should the plaintiff not comply with the Court’s order, the Court shall proceed as provided in rule 18 of Order 6 and as required by the provisions of the Court-fees Act.”-(14-8-1954).

Order 3

RECOGNIZED AGENTS AND PLEADERS

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

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

  1. Recognized agent. – The recognized agent of parties by whom such appearances, applications and acts may be made or done are—

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.

STATE AMENDMENTS 6

 

High Court Amendments-[Gujarat].-Substitute the following for rule 2(a):-“Persons holding on behalf of such parties either (i) a general power-of-attorney, or (ii) in the case of proceedings in the High Court of Gujarat an Advocate, and in the case of proceedings in any District, an Advocate or a pleader to whom a sanad for that District has been issued, holding the requisite special power-of-attorney from parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, authorizing them or him to make and do such appearances, applications and acts on behalf of such parties.”-(17-8-1961).

[Madhya Pradesh].-Clause (a) is the same as that of Gujarat except that for the words “in the High Court of Gujarat, an Advocate”, the words “in the High Court of Madhya Pradesh, an Advocate of that High Court” and for the words “in any District, an Advocate”, the words “in any District, any Advocate” are substituted.-(16-9-1960).

  1. Service of process on recognized agent. – (1) Process served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs.

(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent.

STATE AMENDMENTS 6

 

High Court Amendment-[Punjab, Haryana and Chandigarh].-The following shall be substituted for sub-rule (1) to rule 3 of Order III:

“(1) Processes served on the recognised agent or on an Advocate of the party shall be as effectual as if the same had been served on the party in person unless the Court otherwise directs.”-(Punjab 11-4-1975; Haryana 25-3-1975; Chandigarh 1-5-1975).

[4. Appointment of pleader. – (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be ][filed in Court and shall, for the purposes of sub-rule(1), be] [deemed to be in force until determined with the leave of the Court by a writing singed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.] [Explanation.—For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,—

(a) an application for the review of decree or order in the suit,

(b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit,

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

(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.] [(3) Nothing in sub-rule (2) shall be construed—

(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or

(b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred in in sub-rule (1)].

[(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating—

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

(c) the name of the person by whom he is authorized to appear :

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.]

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-(i) In sub-rule (2), in Explanation, after clause (a), insert the following clause:

“(aa) a proceeding for revision of an order in the suit.”-(21-3-1981).

(ii) In sub-rule (2), after the existing clause (d), add the following new clauses (e) to (j):-

“(e) An application or proceedings for transfer under sections 22, 24 and 25 of this Code;

(f) An application under rule 4 or rule 9 or rule 13 of Order 9 of this Code;

(g) An application under rule 4 of Order 37 of this Code;

(h) A reference arising from or out of suit;

(i) An application for execution of any decree or order in the suit;

(j) Any application relating to or incidental to or arising from or out of any proceedings referred to in clauses (a) to (i) of this sub-rule (including an application) for leave to appeal to Supreme Court:

Provided that, where the venue of the suit or the proceedings shifts from one Court (subordinate or otherwise) to another situate at a different station, the pleader filing the appointment referred to, in sub-rule (2) in the former Court shall not be bound to appear, act or plead in the latter Court unless he files or he has already filed a memorandum signed by him that he has instructions from his client to appear, act or plead in that Court.”-(22-10-1994).

[Andhra Pradesh].-Same as that of Madras.

[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Gujarat].-In rule 4(3) the words “or any application relating to such appeal” shall be inserted between the words “order in the suit” and “and any application or act”.-(17-8-1961).

[Karnataka].-Substitute the following for rule 4, namely:

“4. (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document subscribed with his signature in his own hand by such person or by his recognised agent or by some other person, duly authorised by or under a power-of-attorney, to make such appointment and the appointment has been accepted in writing by the pleader.

(2) Every such appointment shall be filed into Court. Except as otherwise provided in this rule, no such appointment shall be deemed to have been terminated until its determination with the leave of the Court by a document subscribed with his signature in his own hand by the client or his recognised or authorised agent or by the pleader, as the case may be, and filed into Court; or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

(3) For the purpose of sub-rule (2), proceedings in the suit shall mean all interlocutory and miscellaneous proceedings connected with the suit or any decree or order passed therein taken in the Court in which the suit has been instituted or by which the suit has been disposed of, and shall include applications for review of judgment, applications for amendment or correction of the decree, applications for execution of the decree or any order in the suit or for restitution under section 144 of the Code or otherwise, applications for leave to appeal against any decree or order passed in the suit, and applications or acts for the purpose of obtaining copies of documents or copies of judgments, decrees or orders, or for the return of documents produced or filed in the suit or for obtaining payment or refunds of monies paid into Court in connection with the suit or any decree or order therein.

(4)(a) In the case of applications for execution of a decree, applications for review of judgment and applications for leave to appeal, a pleader whose appointment continues in force by virtue of sub-rule (2) of this rule and who has been served with the notice in any such application shall be at liberty to intimate to the Court in writing in the form of a memorandum filed into Court at or before the first hearing of any such application or appeal that he has not received instructions from his client and to retire from the case.

(b) Where, however, the pleader, does not so report the absence of instructions to the Court but proposes to continue to act on the strength of the original appointment, he shall file into Court at or before the first hearing of such matter a formal memorandum stating that he will continue to appear and act for his client in the said application or appeal, as the case may be.

(c) If a pleader files the memorandum referred to in clause (a) or omits to file the memorandum referred to in clause (b) within the time prescribed therefor, the Court shall proceed as provided in sub-rule (2) of rule 5 of this Order.

(5) The High Court may by rule or general order direct that where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified in the rule or order.

(6) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party unless he has filed into Court a memorandum of appearance signed by himself and stating (a) the names of the parties to the suit, (b) name of the party for whom he appears, and (c) the name of the person by whom he is authorized to appear:Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has himself been duly appointed to act in Court on behalf of such party.

(7) No Government pleader or other pleader appearing on behalf of the Government or on behalf of any public servant sued in his official capacity shall be required to present any document empowering him to act, but such pleader shall file into Court a memorandum of appearance signed by him and stating the particulars mentioned in sub-rule (6).”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-In Order 3, rule 4,

(i) in sub-rule (2), after the words “Every such appointment” the words “when accepted by the pleader in writing” shall be inserted;

(ii) in sub-rule (3) after the words “or section 152” the words “or applications under Order 9, rule 9 or 13” shall be inserted;

(iii) sub-rule (5) shall be omitted;

(iv) after sub-rule (5) the following sub-rule shall be inserted, namely:

“(6) No pleader appearing on behalf of the Government or on behalf of any public servant sued, in his official capacity shall be required to present any document empowering him to act, but such pleader shall file a memorandum of appearance signed by himself and stating:

(a) the names of the parties to the suit;

(b) the name of the party for whom he appears; and

(c) the name of the person by whom he is authorized to appear.”-(9-6-1959).

[Madhya Pradesh].-Substitute the following for clause (3) of rule 4:

“(3) For the purposes of sub-rule (2) above, (i) an application or a proceeding for transfer under sections 23, 24 or 25 of this Code, (ii) an application under rule 9 or rule 13 of Order 9 of this Code, (iii) an application under rule 4 of Order 38 of this Code, (iv) an application for review of judgment, (v) an application under section 152 of this Code, (vi) a reference arising from or out of the suit, (vii) an application for amendment of the decree or order or the record in the suit or an appeal, reference or revision arising from or out of the suit, (viii) an application for the execution of any decree or order in the suit, (ix) an application under section 144 of this Code, (x) any appeal (including an appeal under the Letters Patent of the High Court) or revision application from any decree or order in the suit or an appeal arising from or out of the suit, (xi) any application relating to or incidental to or arising in or out of such appeal or revision or a reference arising from or out of the suit (including an application for leave to appeal under the Letters Patent of the High Court or for leave to appeal to the Supreme Court), (xii) any application or proceeding forsanctioning prosecution under Chapter 35 of the Code of Criminal Procedure, 1898, relating to the suit of any of the proceedings mentioned hereinbefore, or any appeal or revision arising from and out or any order passed in such application or proceeding, (xiii) any application or act for the purposes of obtaining, copies of documents or the return of documents produced or filed in the suit or in any of the proceeding mentioned hereinbefore, (xiv) any application for the withdrawal or for obtaining the refund or payment of or out of the moneys paid or deposited into the Court in connection with the suit or any of the proceedings mentioned hereinbefore (including withdrawal, refund or payment of or out of the moneys deposited as security for costs or for covering the costs of the preparation and printing of the Transcript Record of the appeal to the Supreme Court), (xv) any application for expunging any remarks or observations on the record of or made in the judgment in the suit or any appeal, revision, reference or review arising from or out of the suit, (xvi) any application for certificate in regard to the substitution of heirs in appeal to the Supreme Court arising from the suit, and (xvii) any application under rule 15 of Order 45 of this Code, shall be deemed to be proceedings in the suit:

Provided that where the venue of the suit or the proceedings shifts from one Court (Subordinate or otherwise) to another the Pleader filing the appointment referred to in sub-rule (2) in the former Court shall not be bound to appear, act or plead in the latter Court, unless he files or he has already filed a memorandum signed by him that he has instructions from his client to appear, act and plead in that Court.”-(18-10-1968).

[Madras].-In sub-rules (1) and (2) of Order 3, rule 4, the words “a document subscribed with his signature in his own hand” have been substituted for the words “in writing signed”.

The following has been inserted as sub-rule (6):

“(6) No Government or other pleader appearing on behalf of the Government, or on behalf of any public servant sued in his official capacity, shall be required to present any document empowering him to act, but such pleader shall file a memorandum of appearance signed by himself and stating the particulars mentioned in sub-rule (5).”

[Orissa].-Same as that of Patna-(26-7-1948).

[Patna].-The following has been substituted for sub-rule (4):

“(4) Notwithstanding anything contained in Order 3, rule 4(3) of the First Schedule of the Code of Civil Procedure, 1908, no advocate shall be entitled to make or do any appearance, application of act for any person unless he presents an appointment in writing, duly signed by such person or his recognised agent or by some other agent duly authorized by power of attorney to act in this behalf, or unless he is instructed by an attorney or pleader duly authorized to act on behalf of such person.”

[Punjab].-For sub-rule (3) of rule 4, substitute-

“(3) For the purpose of sub-rule (2),

(i) an application or a proceeding for transfer under sections 22, 24 or 25 of this Code, (ii) an application under rule 4 or rule 9 or rule 13 of Order 9 of this Code, (iii) an application under rule 4 of Order 38 of this Code, (iv) an application for review of judgment, (v) a reference arising from or out of the suit, (vi) an application for amendment of the decree or order or the record in the suit, or an appeal, reference or revision arising from or out of the suit, (vii) an application for the execution of any decree or order in the suit, (viii) an application for restitution under section 144 or section 151 of this Code, (ix) an application under section 151 of this Code, (x) an application under section 152 of this Code, (xi) any appeal (including an appeal under the Letters Patent of the High Court) or revision application from any decree or order in the suit or an appeal arising from or out of the suit, (xii) any application relating to, or incidental to, or arising from or out of such appeal or revision or a reference arising from or out of the suit (including an application for leave to appeal under the Letters Patent of the High Court or for leave to appeal to the Supreme Court), (xiii) any application for directing or proceeding for prosecution under Chapter 35 of the Code of Criminal Procedure, 1898, relating to the suit or any of the proceedings, mentioned hereitibefore or an appeal or revision arising from and out of any order passed insuch application or proceeding, (xiv) any application or act for the purposes of obtaining copies of documents or the return of documents produced or filed in the suit or in any of the proceedings mentioned hereinbefore, (xv) any application for the withdrawal or for obtaining the refund to payment of or out of the monies paid or deposited into the Court in connection with the suit or any of the proceedings mentioned hereinbefore (including withdrawal, refund or payment of or out of the monies deposited as security for costs or for covering the costs of the preparation and printing of the Transcript Record of the appeal to the Supreme Court), (xvi) any application for expunging any remarks, observations on the record of or made in the judgment in the suit or any appeal, revision, reference or review arising from or out of the suit, (xvii) any application for certificate in regard to_ the substitution of heirs in appeal to the Supreme Court arising from the suit, and (xviii) any application under rule 15 of Order 45 of the Code, shall be deemed to be proceedings in the suit:

Provided that, where the venue of the suit or the proceedings shift from one Court (subordinate or otherwise) to another, situate at a different station, the pleader filing the appointment referred to in sub-rule (2) in the former Court shall not be bound to appear, act or plead in the latter Court, unless he files or he has already filed a memorandum signed by him that he has instructions from his client to appear, act and plead in that Court.”-(31-9-1968).

[Rajasthan].-(a) Sub-rule (3) is the same as in Gujarat.

(b) Add as sub-rule (6):

“(6) No Government pleader within the meaning of Order 27, rule 8-B shall be required to present any document empowering him to act, but such pleader shall file a memorandum of appearance signed by himself and stating the particulars mentioned in sub-rule (5).”-(14-8-1954).

  1. Service of process on pleader. – [Any process served on the pleader who has been duly appointed to act in Court for any party] or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Gujarat].-In rule 5, for the words “on the pleader of any party”, the words “on a pleader who has been appointed to act for any party” shall be substituted-(17-8-1961).

[Karnataka].-Substitute the following for rule 5:

“5. (1) Any process served on the pleader of any party or left at the office or ordinary residence of such pleader and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.

Explanation.-Service on a pleader engaged only to plead and who does not act for his client shall not raise the presumption under this rule.

(2) A pleader appointed to act shall be bound to receive notice on behalf of his client in all proceedings in the suit as defined in sub-rule (3) of rule 4. Where, however, such pleaderhaving been served with notice reports to Court absence of instructions from his client under sub-rule (4) of rule 4, the Court shall direct that notice shall be issued and served personally on the party in the manner prescribed for service of summons on a defendant under Order V of this Code.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Madhya Pradesh].-Same as that of Gujarat-(16-9-1960).

[Madras].-The following has been added at the end:

“Explanation.-Service on a pleader who does not act for his client, shall not raise the presumption under this rule.”-(20-12-1927).

[Rajasthan].-Same as that of Gujarat-(14-8-1954).

Order 3, Rule 5-B

[Orissa].-Same as that of Patna-(26-7-1948).

[Patna].-The following has been added as rule 5-B to Order 3:

“5-B. Notwithstanding anything contained in Order 3, sub-rules (2) and (3) of rule 4 of the First Schedule of the Code of Civil Procedure, 1908, no pleader shall act for any person in the High Court, unless he has been appointed for the purpose in the manner prescribed by sub-rule (1) and the appointment has been filed in the High Court.”

  1. Agent to accept service. – (1) Besides the recognized agents described in rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process.

(2) Appointment to be in writing and to be filed in Court.—Such appointment may be special or general and shall be made by a instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.

[(3)The Court may, at any stage of the suit, order any party to the suit not having a recognised agent residing within the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court on his behalf, to appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of the procession his behalf.]
STATE AMENDMENTS 6

 

High Court Amendment–[Gujarat].-In Order III, rule 6, after the existing sub-rule (2), idd the following sub-rule with marginal note as new sub-rule (3) and its marginal note:

“(3) Court may order appointment of agent for service within its jurisdiction.-The Court nay, at any stage of a suit, order any party to the suit not having a recognised agent residing vithin the jurisdiction of the Court, to appoint within a specified time an agent within the urisdiction of the Court to accept service of process on his behalf.”-(17-8-1961).

Order 4

INSTITUTION OF SUITS

  1. Suit to be commenced by plaint. – (1) Every suit shall be instituted by presenting a [plaint in duplicate to the Court]or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

[(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub rules (1) and (2).]
  1. Register of suits. – The Court shall cause the particulars of every suit to be entered in a book to be kept for the purposes and called the resister of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.
STATE AMENDMENTS 6

 

Uttar Pradesh. — In its application to the State of Uttar Pradesh after Order IV, the following Order shall be inserted:—

Order 4A

CONSOLIDATION OF CASES

1. Consolidation of suits and proceedings. – When two or more suits or proceedings are pending in the same Court, and the Court is of opinion that it is expedient in the interest of justice, it may by order direct their joint trial, where upon all such suits and proceedings may be decided upon the evidence in all or any of such suits or proceedings.”.-[U.P. Act 57 of 1976].

.

Order 5

ISSUE AND SERVICE OF SUMMONS

Issue of Summons

  1. Summons.. – [(1)When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendants: Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim :

Provided further that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on the date of his appearance and cause an entry to be made to that effect in the summons.]

(2) A defendant to whom a summons has been issued under sub-rule (1) may appear—

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or

(c) by a pleader accompanied by some person able to answer all such questions.

(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.

[2. Copy or statement annexed to summons. – Every summons shall be accompanied by a copy of the plaint.]

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-(a) Substitute the following for sub rule

“(1) Every suit shall be instituted by presenting to the Court or such officer as itappoints in this behalf, a plaint together with a true copy for service with the summons upon each defendant, unless the Court for good cause shown allows time for filing such copies.

(2) The Court-fee chargeable for such service shall be paid in the case of suit when the plaint is filed and in the case of all other proceedings when the process is applied for”.-(24-7-1926).

(b) Re-number sub-rule (2) as sub-rule (3).-(24-7-1926).

[Bombay].-In Order IV, for the existing rule 1 and its marginal note, substitute the following as rule 1 and marginal note:

“1. Suit to be commenced by a plaint.-(1)(a) Every suit shall be instituted by presenting a plaint to the Court or such Officer as it appoints in this behalf.

(b) The plaintiff shall, except in the Bombay City Civil Court, file as many true copies on plain paper, of the plaint with annexures as there are defendants, for service with the summons upon the defendants, unless the Court by reason of the length of the plaint or the number of defendants or for any other sufficient reason permits him to present a like number of concise statements of the nature of the claim made or of the relief claimed in the suit in which case, he shall present such statements. Such copies or statements shall be filed alongwith the plaint unless the Court, for good cause shown, allows time for filing such copies or statements.

(2) Where the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, such statements shall show in what capacity the plaintiff or the defendant sues or is sued.

(3) The plaintiff may, by leave of the Court, amend such statements so as to make them correspond with the plaint.

(4) The fee, chargeable for service of the summons upon the defendants, shall be paid when the plaint is filed or within such time as may be extended by the Court.

(5) Every plaint shall comply with the rules contained in Orders VI and VII so far as they are applicable.”-(1-10-1983).

[Madhya Pradesh].-Substitute the following for sub-rule (1)-“(1) Every suit shall be instituted by presenting to the Court or such officer as it appoints in this behalf a plaint, together with as many true copies on plain paper of the plaint as there are defendants, forservice with the summons upon each defendant, unless the Court, for good cause shown, allows time for filing such copies.”

Add the following as sub-rule (2) to rule 1 and re-number the present sub-rule (2) as sub-rule (3)

“(2) The Court-fee chargeable for such service shall be paid in the case of suits when the plaint is filed, and in the case of all other proceedings when the process is applied for.”-(16-9-1960).

[Rajasthan].-Substitute for sub-rule (1) as in Madhya Pradesh-(21-7-1954).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]
  1. Court may order defendant or plaintiff to appear in person. – (1) where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.

(2) Where the Court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance.

  1. No party to be ordered to appear in person unless resident with certain limits. – No party shall be ordered to appear in person unless he resides—

(a) within the local limits of the Court’s ordinary original jurisdiction, or

(b) without such limits but at 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.

STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order V, for the existing rule 4, substitute, the following:

“4. No party shall be ordered to appear in person unless he resides

(a) within the local limits of the Court’s Ordinary Original jurisdiction, or

(b) without such limits but at a place less than 100 or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate), less than five hundred kilometres distance from the Court house.”-(1-10-1983).

Order 5, Rule 4-A

[Allahabad].-In Order 5, insert the following as rule 4-A:

“4-A. Except as otherwise provided, in every interlocutory proceeding and in every proceeding after decree in the trial Court, the Court may, either on the application of any party or of its own motion, dispense with service upon any defendant who has not appeared or upon any defendant who has not filed a written statement.”-(24-7-1926).

  1. Summons to be either to settle issues or for final disposal. – The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly :

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Assam].-Same as that of Calcutta.

[Bombay].-For the existing rule 5 and its marginal note, substitute the following as rule 5 and marginal note:

“5. Summons to be either to settle issues or for final disposal.-The Court shall determine at the time of issuing the summons whether it shall be for the filing of written statement and the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:

Provided that in every suit heard by a Court of Small Causes the summons shall be for final disposal of the suit.”-(1-10-1983).

[Calcutta].-Insert the words “for the ascertainment whether the suit will be contested”, after the words “issues only”.

[Karnataka].-Delete rule 5 and substitute the following:

“5. The Court shall determine, at the time of issuing the summons, whether it shall be-

(a) for the settlement of issues only, or

(b) for the defendant to appear and state whether he contests or does not contest the claim and directing him if he contests to receive directions as to the date on which he has to file his written statement, the date of trial and other matters, and if he does not contest for final disposal of the suit at once, or

(c) for the final disposal of the suit;

and the summons shall contain a direction accordingly:

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for final disposal of the suit.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-For rule 5 the following rule shall be substituted, namely:

“5. Summons to be either (1) to ascertain whether the suit is contested or not or (2) for the final disposal of the suit. The Court shall determine, at the time of issuing the summons, whether it shall be

(i) for the defendant to appear and state whether he contests or does not contest the claim and directing him, if he contests, to receive directions as to the date on which he has to file his written statement, the date of trial and other matters, and if he does not contest, for final disposal of the suit at once, or

(ii) for the final disposal of the suit at once;, and the summons shall contain a direction accordingly:

Provided that in every non-appealable case the summons shall be for the final disposal of the suit.”-(9-6-1959).

[Madras].Delete the first paragraph of rule 5 in Order 5 and substitute the following in lieu thereof:

“5. The Court shall determine at the time of issuing the summons, whether it shall be-

(1) for the settlement of issues only; or;

(2) for the defendant to appear and state whether he contests or does not contest the claim and directing him, if he contests, to receive directions as to the date on which he has to file his written statement, the date of trial and other matters and if he does not contest, for final disposal of the suit at once; or;

(3) for the final disposal of the suit; and the summons shall contain a direction accordingly.”

  1. Fixing day for appearance of defendant. – The day [under sub-rule (1) of rule 1]shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day.
  2. Summons to order defendant to produce documents relied on by him. – The summons to appeal and answer shall order the defendant to produce [all documents or copies thereof specified in rule 1-A of Order VIII]in his possession or power upon which he intends to rely in support of his case.
STATE AMENDMENTS 6

 

High Court Amendments-[Delhi].-Same as that of Punjab-(5-9-1966).

[Himachal Pradesh].-Same as that of Punjab-(25-1-1971).

[Punjab].-Substitute the following for rule 7:

“The summons to appear and answer shall order the defendant to produce all documents in his possession or power upon which he bases his defence or any claim for set-off and shall further order that where he relied on any other documents (whether in his possession or power or not) as evidence in support of his defence or claim for set-off, he shall enter such documents in a list to be added or annexed to the written statement.”-(1-11-1966).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]
  1. On issue of summons for final disposal, defendant to be directed to produce his witnesses. – Where the summons is for the final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to relay in support of his case.

Service Of Summons

  1. Delivery or transmission of summons for service. – (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.

(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct.

(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (!) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:

(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of dsummons as is referred to in sub-rule (3)(except by registered post acknowledgment due), the provisions of rule 21 shall not apply.

(5) When aan acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made nothwithstanding the fact that the acknowledgment having been lost or mislaid, or for nay other reason, has not been received by the Court within thirty days from the date of issue of summons.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel or courier agencies for the purposes of sub-rule (1).

9-A. Summons given to the plaintiff for service.-(1) The Court may, in addition -to the service of summons under rule 9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service.

(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court or by such mode of service as is referred to in sub-rule (3) of rule 9.

(3) The provisions of rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.

(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgment of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re- issue such summons to be served by the Court in the same manner as a summons to a defendant.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Add the following as sub-rule (3) to rule 9-

“(3) In lieu of, or in addition to, the procedure indicated in sub-rule (1), such summonsmay be served by sending it by registered post addressed to the defendant at the place where he resides or carries on business or works for gain or to the agent at the place where he resides. Unless the cover is returned undelivered by the Post Office on account of want of proper address or any other sufficient reason, the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in the ordinary course.”-(29-3-1958 and 14-4-1962).

[Andhra Pradesh].-Same as that of Kerala.

[Kerala].-Add the following after rule 9(2):

“(3) Where the defendant resides in India, whether within the jurisdiction of the Court in which the suit is instituted or not, the Court may direct the proper officer to cause a summons under this Order to be addressed to the defendant at the place where he ordinarily resides, or carries on business or works for gain and sent to him by registered post, prepaid for acknowledgment. An acknowledgment purporting to be signed by the defendant shall be deemed to be sufficient proof of service of such summons.”-(9-6-1959).

[N.B.-These High Court Amendments relate to the provisions as existed before the 2002 Amendment Act.]
  1. Mode of service. – Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court.
STATE AMENDMENTS 6

 

High Court Amendments-[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Add the following proviso to rule 10:

“Provided that, in any case the Court may either on its own motion or on the application of the plaintiff, either in the first instance or when summons last issued is returned unserved direct the service of summons by registered post prepaid for acknowledgment, instead of the mode of service laid down in this rule. The postal acknowledgment purporting to contain the signature of the defendant may be deemed to be prima facie proof of sufficient service of the summons on the defendant on the day on which it purports to have been signed by him. If the postal cover is returned unserved, any endorsement purporting to have been made thereon by the delivery peon or either an employee or officer of the Postal Department shall be prima facie evidence of the statements contained therein.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Patna].-Add the following:

“Provided that in any case the Court may, of its own motion, or on the application of the plaintiff, send the summons to the defendant by post in addition to the mode of service laid down in this rule. An acknowledgment purporting to be signed by the defendant or an endorsement by postal servant that the defendant refused to take delivery may be deemed by the Court issuing the summons to be prima facie proof of service.”

[Punjab].-Add the following proviso:

“Provided that in any case if the plaintiff so wishes, the Court may serve the summons in the first instance by registered post (acknowledgment due) instead of in the mode of service laid down in this rule.”-(1-11-1966).

[Rajasthan].-Add the following proviso:

“Provided that in any case the Court may in its discretion send the summons to the defendant by registered post in addition to the mode of service laid down in this rule. An acknowledgment purporting to be signed by the defendant or an endorsement by postal -servant that the defendant refused to take the delivery may be deemed by the Court issuing the summons to be prima facie proof of service.”-(14-8-1954).

  1. Service on several defendants. – Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.
  2. Service to be on defendant on person when practicable, or on his agent. – Wherever it is practicable service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.
  3. Service on agent by whom defendant carries on business. – (1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.

(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or chartered.

  1. Service on agent in charge in suits for immovable property. – Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.

[15. Where service may be on an adult member of defendant’s family. — Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation.—A servant is not a member of the family within the meaning of this rule.]

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-For the words “Where in any suit the defendant cannot be found”, read “When the defendant is absent or cannot be personally served”.-(24-7-1926).

[Andhra Pradesh].-Same as that of Madras.

[Assam].-Same as that of Calcutta.

[Bombay].-For the existing rule 15 and its marginal note, substitute the following as rule 15 and marginal note:

“15. Where service may be on male member of defendant’s family.-When the defendant cannot for any reason be personally served and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him.

Explanation.-A servant is not a member of the family within the meaning of this rule.”-(1-10-1983).

[Calcutta].-For rule 15 substitute the following:

“15. Where in any suit the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time, then unless he has an agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him:

Provided that where such adult male member has an interest in the suit and such interest is adverse to that of the defendant, a summon so served shall be deemed for the purposes of the third column of Article 164 of Schedule I of the Limitation Act, 1908, not to have been duly served.

Explanation.-A servant is not a member of the family within the meaning of this rule.”

[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Delete rule 15 and substitute the following:

“15. Where in any suit the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time, then unless he has an agent duly empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant (not being a servant) who is residing with him:

Provided that where such adult male member has an interest in the suit and such interest is adverse to that of the defendant, summons so served shall be deemed for the purposes of rule 13 of Order IX of this Code or of the 3rd column of Article 123 of the Schedule of the Limitation Act, 1963, not to have been duly served.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-In rule 15, for the word “male” in the marginal note, the word “adult” shall be substituted and the word “male” in the rule shall be omitted.-(9-6-1959).

[Madhya Pradesh].-Same as that of Allahabad-(16-9-1960).

[Madras].-In rule 15 of Order 5, delete the words “the defendant cannot be found” and in lieu thereof insert the words “the defendant is absent”.

[Punjab].-In rule 15 after the words “where in any suit the defendant cannot be found”, insert “or is absent from his residence”.

[Rajasthan].-Same as that of Allahabad.

  1. Person served to sign acknowledgement. – Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.
  2. Procedure when defendant refuses to accept service, or cannot be found. – Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time]and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
STATE AMENDMENTS 6

 

High Court Amendments-[Assam].-Same as that of Calcutta.

[Calcutta].-Substitute the following:

” 17. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person upon whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was so affixed.”-(25-7-1928).

[Karnataka].-Delete rule 17 and substitute the following:

“17. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the defendant is not present at the house in which he ordinarily resides or carries on business or personally works for gain at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time and there is no agent empowered to accept service of the summons on his behalf nor any other person upon whom service can be made under rule 15, the serving officer shall affix a copy of the summons on the outer door of or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person, if any, by whom the house was identified and in whose presence the copy was so affixed.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Madhya Pradesh].-The following proviso shall be inserted, namely:

“Provided that where a special service has been issued and the defendant refuses to sign the acknowledgment, it shall not be necessary to affix a copy as directed hereinbefore.”-(16-9-1960).

  1. Endorsement of time and manner of service. – The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.
STATE AMENDMENTS 6

 

Order 5, Rule 18-A

High Court Amendments-[Andhra Pradesh].-Add the following as rule 18-A:-

“18-A. Chief Ministerial Officer, District Court, may be empowered to order issue of fresh summons.-A District Judge, within the meaning of the Madras Civil Courts Act, 1873, maydelegate to the Chief Ministerial Officer bf the District Court the power to order the issue of -fresh summons to a defendant when the return on the previous summons is to the effect that the defendant was not served and the plaintiff does not object to the issue of fresh summons within seven days after the return has been notified on the Notice Board.”

[Karnataka].-Add the following as rule 18-A:

“18-A. The Presiding Officer of a Civil Court may delegate to the Chief Ministerial Officer of the Court, the power to order issue of fresh summons to a defendant when the return on the previous summons is to the effect that the defendant was not served and the plaintiff does not object to the issue of fresh summons within 7 days after he has been required to deposit the necessary process fee for the issue of fresh summons. If the plaintiff objects, the matter shall be placed before the Presiding Officer for his orders.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Madras].-For rule 18-A, substitute the following:

“18-A. A District Judge, a Subordinate Judge and a District Munsif within the meaning of the Madras Civil Courts Act, 1873, and a City Civil Judge within the meaning of the Madras City Civil Courts Act, 1892, may delegate to the Chief Ministerial Officer of their respective Courts the power to issue fresh summons to a defendant when (i) the return on the previous sununons is to the effect that the defendant was not served, and (ii) the plaintiff does not object to the issue of fresh summons within seven days after the return has been notified on the Notice Board.”-(9-11-1955).

  1. Examination of serving officer.. – Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.
STATE AMENDMENTS 6

 

High Court Amendments-[Assam].-Same as that of Calcutta.

[Calcutta].-Substitute the word “declaration”, for the word “affidavit”.

[19A. Simultaneous issue of summons for service by post in addition to personal service. .— ]Omitted by the Code of Civil Procedure (Amendment Act 1999 (46 of 1999), section 15 (w.e.f. 1.7.2002).]

STATE AMENDMENTS 6

 

High Court Amendments-[Assam].-Same as that of Calcutta.

[Bombay].-In sub-rule (1) for the word “shall”, substitute “may” and delete the proviso.-(1-10-1983).

[Calcutta].-Add after rule 19:

“19-A. A declaration made and subscribed by a serving officer shall be received as evidence of the facts as to the service or attempted service of the summons.”

[Madras].-For rule 19-A, the following rule shall be substituted, namely:

“(1) The Court shall, in addition to and simultaneously with the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive) also direct the summons to be served by registered post, acknowledgment due; either through an officer of Court or by the plaintiff personally, addressed to the defendant or his agent empowered to accept the service at the place where the defendant or his agent, actually and voluntarily resides or carries on business or personally works for gain:

Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.

(2)(i) Where an acknowledgment purporting to be signed by the defendant or his agent is received by this Court, or is filed into Court by the plaintiff together with an affidavit, sworn to by the plaintiff as to the manner of service, such service shall be deemed to be sufficient proof of service of summons in the suit.

(ii) Where the summons sent by registered post by an officer of Court is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing such summons may declare that the summons had been duly served on the defendant.

(iii) Where, however, the plaintiff files into Court an affidavit sworn to by him, stating that the postal article containing the summons is received back by him with an endorsement purporting to have been made by a postal employee that the defendant or his agent had refused to take delivery of the postal articles containing the summons, together with the returned postal article containing the summons, the Court issuing such summons shall not declare that the summons had been duly served on the defendant. “-(10-9-1986).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]
  1. Substituted service. – (1) Where the Court is satisfied that there is preason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
[(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.]

(2) Effect of substituted service.—Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed.—Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.

STATE AMENDMENTS 6

 

High Court Amendment-[Punjab, Haryana and Chandigarh].-In rule 20, add the following proviso to rule 1:

“Provided that if service in the ordinary manner or by registered post is not effected for the first date of hearing, the Court may direct substituted service, in such manner as the Court may deem fit, even if no application is made by or on behalf of the plaintiff for that purpose.”-(Punjab 11-4-1975; Haryana 25-3-1975; Chandigarh 1-5-1975).

20-A. [Service of summons by post.] Repealed by the Code of Civil Procedure (Amendment) Act, 1976 ( 104 of 1976), Section 55 (w.e.f. 1-2-1977).

STATE AMENDMENTS 6

 

Order 5, Rule 20-B

High Court Amendment-[Punjab, Haryana and Chandigarh].-In Order 5, after existing rule 20-A, insert the following:

“20-B. On the occurrence of an unanticipated holiday or in the event of the Presiding Officer of a Court being absent owing to sudden illness or other unexpected cause, all cases fixed for the day in question shall be deemed to have been automatically adjourned to the next working day when the Presiding Officer is present and it shall be the duty of the parties or their Counsel to attend Court on that day.”-(Notification No. G.S.R. 70/C.A. 5/8/ Section 127/Amd. /93, dated 27-8-1993.

  1. Service of summons where defendant resides within jurisdiction of another Court. – A summons may sent by the Court by which it is issued, whether within or without the State, either by one of its officers or by post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Rule 21 has been renumbered as sub-rule (1) and the following has been added as sub-rule (2):

“(2) In lieu of, or in addition to, the procedure indicated in sub-rule (1), such summons may also be served by sending it by registered post addressed to the defendant at the place where he ordinarily resides or carries on business or works for gain. Unless the cover is returned undelivered by the post office on account of want of proper address, or other similar reason, the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in the ordinary course.”-(1-6-1957).

[Andhra Pradesh].-To rule 21, the following proviso shall be added, namely:-

“Provided that summons intended for service in the twin cities of Hyderabad and Secunderabad shall be sent to the City Civil Court, Hyderabad at Secunderabad.”-(23-3-1967).

[Punjab, Haryana and Chandigarh].-For existing rule 21, substitute the following rule:

“21. A summons may be sent by the Court by which it is issued, whether within or without the State, either by one its officers or by post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides:

Provided that where the defendant resides within the State at a place not exceeding sixteen kilometers from the place where the Court is situate, a summons may be delivered or sent by the Court to one of its officers to be served by him or one of his subordinates.”-(w.e.f. 12-9-1978).

Order 5, Rule 21-A

[Gujarat].-In Order 5, after the existing rule 21, insert the following rule with marginal note as new rule 21-A and its marginal note:

“21-A. Service of summons by pre-paid post wherever the defendant may be residing if plaintiff so desires.-The Court may notwithstanding anything in the foregoing rules and whether the defendant resides within the jurisdiction of the Court or not, cause the summons to be addressed to the defendant at the place where he is residing, and sent to him by registered post, pre-paid for acknowledgment, provided that at such place there is a regular daily postal service. An acknowledgment purporting to be signed by the defertdant shall be deemed by the Court issuing the summons to be prima facie proof of service. In allother cases the Court shall hold such enquiry as it thinks fit and declare the summons to have been duly served or order such further service as may in its opinion be necessary.”-(17-8-1961).

  1. Service within presidency-towns of summons issued by Courts outside. – Where as summons issued by any Court established beyond the limits of the towns of Calcutta, Madras [and Bombay]is to be served within any such limits, it shall be sent to the Court of Small Causes within whose jurisdiction it is to be served.
STATE AMENDMENTS 6

 

High Court Amendments-[Gujarat].-Add the following proviso to rule 22:-

“Provided that where any such summons is to be served within the limits of Greater Bombay, it may be addressed to the defendant at the place within such limits where he is residing and may be sent to him by the Court by post registered for acknowledgment. An acknowledgment purporting to be signed by the defendant or an endorsement purporting to be by a postal servant that the defendant refused service shall be deemed by the Court issuing the summons to be prima facie proof of service. In all other cases the Court shall hold such enquiry as it thinks fit and either declare the summons to have been duly served or order such further service as may, in its opinion, be necessary.”-(17-8-1961).

[Rajasthan].-The following proviso be added to rule 22:

“Provided that any such summons may instead be addressed to the defendant at the place within such limits where he is residing and may be sent to him by the Court by post registered for acknowledgment. An acknowledgment purporting to be signed by the defendant or an endorsement by a postal servant that the defendant refused service shall be deemed by the Court issuing the summons to be prima facie proof of service. In all other cases the Court shall hold such inquiry as it thinks fit and either declare the summons to have been duly served or order such further service as may, in its opinion, be necessary.”-(25-7-1957).

  1. Duty of Court to which summons is sent. – The Court to which a summons is sent under rule 21 or rule 22 shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regard thereto.
  2. Service on defendant in prison. – Where the defendant is confined in a prison, the summons shall be delivered or sent [by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court]to the officer in charge of the prison for service on the defendant.
  3. Service where defendant resides out of India and has no agent. – Where the defendant resides out of [India]and has no agent in [India]empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him [by post or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court], if there is postal communication between such place and the place where the Court is situate :

Provided that where any such defendant [resides in Bangladesh or Pakistan] the summons, together with a copy thereof, may be sent for service on the defendant, to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:

Provided further that where any such defendant is a public officer [in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be, Pakistan military naval or air forces)] or is servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification in the Official Gazette, specify in this behalf.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Substitute the following for rule 25:

“25. Where the defendant resides out of India and has no agent in India empowered to accept service, the summons, unless the Court otherwise directs, be addressed to the defendant at the place where he is residing and sent to him, by registered post, if .there is postal communication between such place and the place where the Court is sitting. Unless the cover is returned undelivered by the Post Office on account of want of proper address or other similar reason, the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in ordinary course.”-(29-3-1958 and 14-4-1962).

[Andhra Pradesh.-Same as that of Madras, except omit the words “British” wherever it occurs and delete the existing proviso.

[Karnataka].-Delete rule 25 and substitute the following:

“25. (1) Where the defendant resides outside the State of Mysore but within the territories of India, the Court may direct the proper officer within the meaning of rule 9 to cause the summons to be addressed to the defendant at the place where he ordinarily resides or carries on business, or works for gain and sent to him by registered post prepaid for acknowledgment. When it is so sent by registered post, the provisions of the proviso to rule 10 shall apply thereto.

(2) Where the defendant resides out of India and has no agent in India empowered to accept service, the summons may be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situate :

Provided that, if by any arrangement between the Central Government and the Government of the foreign territory in which the defendant resides, the summons can be served by an officer of the Government of such territory, the summons may be sent to such officer in the same manner as by the said arrangement may have been agreed upon:

Provided further that, where any such defendant resides in Pakistan, the summons together with a copy thereof, may be sent for service on the defendant to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:

Provided further that, where any such defendant is a public officer in Pakistan (not belonging to Pakistan military, naval or air forces) or is a servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification in the Official Gazette specify in that behalf.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-In rule 25

(i) the following shall be added before the existing provisos, namely:

“Provided that, if by any arrangement between the Government of the State in which the Court issuing summons is situate and the Government of the foreign territory in which the defendant resides, the summons can be served by an officer of the Government of such territory, the summons may be sent to such officer in such manner as by the said arrangement may have been agreed upon.”

(ii) in the last proviso for the word “company”, the word “Administration” shall be substituted.-(9-6-1959).

[Madhya Pradesh].-For the word “shall”, substitute the word “may”.-(16-9-1960).

[Madras].-Substitute the following for rule 25:

“25. Service where defendant resides out of British India and has no agent.-Where the defendant resides out of British India and has no agent in British India empowered to accept service, the summons may be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situate:

Provided that if, by any arrangement between the Government of the province in which the Court issuing summons is situate and the Government of the foreign territory in which the defendant resides, the summons can be served by an officer of the Government of such territory, the summons may be sent to such officer in such manner as by the said arrangement may have been agreed upon.

Note.-The proviso to rule 25 was omitted with effect from 23-12-1964.

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]

Order 5, Rule 25-A

[Allahabad].-Add the following as rule 25-A:

“25-A. Where the defendant resides out of India but has an agent empowered to accept service of summons on his behalf residing in India but outside the jurisdiction of the Court, the summons, unless directed otherwise by the Court, may be addressed to such agent and sent to him by registered post if there is postal communication between such place and the place where the Court is sitting. Unless the cover is returned undelivered for want of proper address or any other sufficient reason, the summons may be deemed to have been delivered to the address at the time when it should have reached him in ordinary course.”-(14-4-1962).

[Madhya Pradesh].-Add the following as rule 25-A:

“25-A. Service where defendant resides in India but outside Madhya Pradesh.–Where the defendant resides in India but outside the limits of Madhya Pradesh, the Court may, in addition to any other mode of service, send the summons by registered post to the defendant at the place where he is residing or carrying on business. An acknowledgment purporting to be signed by him or an endorsement by a postal servant that the defendant refused service may be deemed by the Court issuing the summons to be prima facie proof of service.”-(16-9-1960).

[26. Service in foreign territory through Political Agent or Court.— Where—

(a) in the exercise of any foreign jurisdiction vested in the Central Government, a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons, issued by a Court under this code, in any foreign territory in which the defendant actually and voluntarily resides, caries on business or personally works for gain, or

(b) the Central Government has, by notification in the Official Gazette, declared, in respect of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons issued by a Court under this Code shall be deemed to be vaild service, the summons may be sent to such Political Agent or Court, by post, or otherwise, or if so directed by the Central Government, through the Ministry of that Government dealing with foreign affairs, or in such other manner as may be specified by the Central Government for the purpose of being served upon the defendant

: and, if the Political Agent or Court returns the summons with an endorsement purporting to have been made by such Political Agent or by the Judge or other officer of the Court to the effect that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-After the words “the summons may”, insert the words “in addition to, or in substitution for the method permitted by rule 25”.-(24-7-1926).

[Andhra Pradesh].-Same as that of Madras-(9-8-1957).

[Gujarat].-Insert in rule 26 “in addition to or in substitution for the method permitted by rule 25”, between the words “may” and “be sent”.-(17-8-1961).

[Karnataka].-Delete rule 26 and substitute the following:-

“26. Where

(a) in the exercise of any foreign jurisdiction vested in the Central Government, a political agent has been appointed, or a Court has been established or continued with power to serve a summons or process issued by a Court under this Code in any foreign territory in which the defendant resides, or

(b) the State Government has, by notification in the Official Gazette declared, in respect of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons or process issued under this Code by a Court of the State shall be deemed to be valid service, or

(c) by any arrangement between the Central Government and the Government of the foreign territory in which the defendant resides, the summons or process may be served by an officer of the Government of such territory, the summons or process may be sent to such Political Agent, Court or officer through the Ministry of the Central Government dealing in the external affairs, or such officers as maybe specified in the notification in this behalf by the State Government in the Official Gazette, and if such Political Agent, Court or other officer specified returns the summons with an endorsement signed by the Judge or other officer of such Court or by the other officer specified that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.”-(R.O.C. No. 2526/ 1959, dated 9-2-1967).

[Kerala].-For rule 26, the following rule shall be substituted, namely:

“26. Service in foreign territory through Political Agent or Court or by special arrangement.-Where

(a) In the exercise of any foreign jurisdiction vested in the Central Government, a Political Agent has been appointed or a Court has been established or continued, with power to serve a summons or process issued by a Court under this Code in any foreign territory in which the defendant resides, or

(b) the State Government has, by notification in the Official Gazette declared in respect of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons or process issued under this Code by a Court of the State shall be deemed to be valid service, or

(c) by any arrangement between the Government of the State in which the Court issuing the summons or process is situate and the Government of the foreign territory in which the defendant resides, the summons or process can be served by an officer of the Government of such territory, the summons or process may be sent to such Political Agent or Court in such manner as may have been agreed upon or to the proper officer of the Government of the foreign territory by post or otherwise for the purpose of being served upon the defendant; and if the summons or process is returned with an endorsement signed by such Political Agent or by the Judge or other officer of the Court or by the Officer of the Government of the foreign territory, that the summons or process has been served on the defendant in the manner hereinbefore directed such endorsement shall be deemed to be evidence of service.-(9-6-1959).

Provided that the Court issuing the summons shall, if the State Government by a notification in the Official Gazette so directs, send the summons to the Government or other officer specified in that behalf of the foreign territory in which the Court, in respect of which a declaration has been made by the State Government under clause (b) is situated and in which the defendant resides, through the Ministry of the Central Government dealing with external affairs, or such officer as may be specified in the notification in this behalf for causing the summons to be served upon the defendant by such Court or other officer specified and if such Court or other officer specified returns the summons with an endorsement signed by the Judge or other officer of such Court or by the other officer specified that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.” (As amended with effect from 22-9-1964).

[Madhya Pradesh].-Same as that of Gujarat-(16-9-1960).

[Madras].-Substitute the following for rule 26:

“26. Service in foreign territory through Political Agent or Court or by special arrangement.-Where

(a) in the exercise of any foreign jurisdiction vested in the Central Government, a Political Agent has been appointed or a Court has been established or continued, with power to serve a summons or process issued by a Court under this Code in any foreign territory in which the defendant resides, or

(b) the Central Government has, by notification in the Official Gazette, declared, in respect of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons or process issued under this Code by a Court in India shall be deemed to be valid service, or (sic.)

the summons or process may be sent to such Political Agent or Court, or in such manner as may have been agreed upon to the proper officer of the Government of the foreign territory, by post or otherwise, for the purpose of being served upon the defendant, and if thesummons or process is returned with an endorsement signed by such Political Agent or by the Judge or other officer of the Court or by the officer of the Government of the foreign territory that the summons or process has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.”

[Rajasthan].-In rule 26, the following proviso shall be inserted, namely:

“Provided that the Court issuing the summons shall, if the State Government by notification in the Official Gazette so directs, send the summons to the Government or other officers specified in that behalf, of the foreign territory in which the Court in respect of which declaration has been made by the State Government under clause (b) is situated and in which the defendant resides, through the Ministry of the Central Government dealing with the External Affairs, or such officers as may be specified in the said. notification in this behalf, for causing the summons to be served upon the defendant by such Court or the officer of the foreign territory as aforesaid, and if such Court or the officer returns the summons with an endorsement signed by the Judge or any officer of such Court of the aforesaid Officer of the foreign territory, that the summons has been served on the defendant in the manner hereinbefore directed such endorsement shall be deemed to be the evidence of service.”-(S.R.O. No. 8, Jodhpur, 23-12-1964).

26A. Summonses to be sent to officer to foreign countries. – Where the Central Government has, by notification in the Official Gazette, declared in respect of any foreign territory that summonses to be served on defendants actually and voluntarily residing or carrying on business or personally working for gain in that foreign territory may be sent to an officer of the Government of the the foreign territory specified by the Central Government, the summonses may be sent to such officer, through the Ministry of the Government of India dealing with foreign affairs or in such other manner as may be specified by the Central Government; and if such officer returns any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant, such endorsement shall be deemed to be evidence of service.]

  1. Service on civil public or on servant of railway officer or on servant of railway company or local authority. – Where the defendant is a public officer (not belonging to [the Indian]military [naval or air]forces [***], or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed together with a copy to be retained by the defendant.
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-To rule 27, add the following as note (1) and note (2):

“Note (1). A list of heads of offices to whom summons shall be sent for service on the servants of Railway companies working in whole or in part in these States is given in Appendix II of the General Rules (Civil).-(22-5-1915).

Note (2). In every case where a Court sees fit to issue a summons, direct to any public servant other than a soldier under Order 16, simultaneously with the issue of the summons, notice shall be sent to the head of the office in which the person concerned is employed, in order that arrangements may be made for the performance of the duties of such person.

Illustration.-If the Court sees fit to issue a summons to a kanungo or lekhpal it shall inform the Collector of the district, and if to a Sub-Registrar it shall inform the District Registrar to whom the Sub-Registrar is subordinate.”-(1-3-1916).

[Andhra Pradesh].-Same as that of Madras.

[Bombay].-For the existing rule 27 and its marginal note, substitute the following as rule 27 and marginal note:

“27. Service on civil public officer or on servantof railway administration or local authority.- Where the defendant is a public officer not belonging to the Indian Military, Naval or Air Forces, or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it by registered post pre-paid for acknowledgement for service on the defendant to the head of the office in which he is employed, together with a copy to be retained by the defendant.”-(1-10-1983).

[Karnataka].-Same as that of Bombay-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-in Order 5, for rule 27, the following rule shall be substituted, namely:

“27. Service on civil public officer or on servant of railway administration or local authority.-Where the defendant is a public officer (not belonging to the Indian Military, Naval or Air Forces) or is the servant of Railway Administration or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it by registered post pre-paid for acknowledgment for service on the defendant to the head of the office in which he is employed, together with a copy to be retained by the defendant.”-(9-6-1959).

[Madras].-In Order 5, rule 27, after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”.

  1. Service on soldiers, sailors or airmen. – Where the defendant is a soldier, [sailor][or airman], the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant.
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-The present rule 28 shall be re-numbered as 28(1), and add the following:

“(2) Where the address of such Commanding Officer is not known, the Court may apply to the Officer Commanding the station in which the defendant was serving when the cause of action arose to supply such address, in the manner prescribed in sub-rule (4) of this rule.-(5-3-1927).

(3) Where the defendant is an officer of the Indian military forces, wherever it is practicable, service shall be made on the defendant in person.-(5-3-1927).

(4) Where such defendant resides outside the jurisdiction of the Court in which the suit is instituted, or outside India the Court may apply over the seal and signature of the Court to the Officer Commanding the station in which the defendant was residing when the cause of action arose, for the address of such defendant, and the Officer Commanding to whom such application is made shall supply the address of the defendant or all such information that it is in his power to give, as may lead to the discovery of his address.- (5-3-1927).

(5) Where personal service is not practicable, the Court shall issue the summons to the defendant at the address so supplied by registered post.”-(5-3-1927).

[Andhra Pradesh].-Same as that of Madras.

[Bombay].-Same as that of Madras-(1-10-1983).

[Karnataka].-Delete rule 28 and substitute the following:

“28. Where the defendant is a soldier, sailor or airman, the Court shall send by registered post pre-paid, for acknowledgment the summons for service on the defendant to his commanding officer together with a copy to be retained by the defendant.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-In Order 5, rule 28, after the words “shall send”, insert the words “by registered post pre-paid for acknowledgment”.

  1. Duty of person to whom summons is delivered or sent for service. – (1) Where a summons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, such person shall be bound to serve it if possible and to return it under his signature, with the written acknowledgement of the defendant, and such signature shall be deemed to be evidence of service.

(2) Where from any cause service is impossible, the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In rule 29, sub-rule (1), for the words “rule 28”, read “rule 28(1)”.-(5-3-1927).

Order 5, Rule 29-A

[Andhra Pradesh].-Same as that of Madras-(29-8-1957).

[Karnataka].-Add the following as rule 29-A:

“29-A. Notwithstanding anything contained in the foregoing rules, where the defendant is a public officer (not belonging to military, naval or air forces) sued in his official capacity, service of summons shall be made by sending a copy of the summons to the defendant by registered post pre-paid for acknowledgment together with the original summons, which the defendant shall sign and return to the Court which issued the summons.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-Insert the following as rule 29-A of Order 5:

“29-A. Notwithstanding anything contained in the foregoing rules, where the defendant is a public officer (not belonging to the Military, Naval or Air Forces of India) sued in his official capacity, service of summons shall be made by sending a copy of the summons to defendant by registered post pre-paid for acknowledgment together with the original summons, which the defendant shall sign and return to the Court which issued the summons.”

  1. Substitution of letter for summons. – (1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter signed by the Judge or such officer as he may appoint in this behalf, where the defendant is, in the opinion of the Court, of a rank entitling him to such mark of consideration.

(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in a summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as a summons.

(3) A letter so substituted may be sent to the defendant by spot or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent.

STATE AMENDMENTS 6

 

High Court Amendments-Rules 31 and 32-[Allahabad].-To Order 5, add the following as rules 31 and 32:

“31. An application for the issue of summons for a party or a witness shall be made in the form prescribed for the purpose. No other forms shall be received by the Court.

32. Ordinarily every process, except those that are to be served on Europeans, shall be written in the Court vernacular. But where a process is sent for execution to the Court of a district where a different language is in ordinary use, it shall be written in English and shall be accompanied by a letter in English requesting its execution.-(22-5-1915).

In cases where the return of service is in a language different from that of the district from which it is issued, it shall be accompanied by an English translation.”-(19-3-1921).

Rule 31-[Andhra Pradesh].-Same as that of Madras.-(29-8-1957).

Rules 31 to 34-[Karnataka].-Add the following rules at the end of the Order 5:-

“31.(1). The Court may on the application of the plaintiff and on such terms as to security or otherwise as the Court thinks fit, dispense with the service of summons on a’defendant who is a resident in a territory belonging to or occupied by a State at war with the Central Government:

Provided that an order dispensing with the service of summons shall not be made unless the Court is satisfied that the defendant is a resident in such territory and that the service of summons on him in the manner prescribed by this Code is not possible.

(2) The Court may before making any such order direct such publication of the application as it considers necessary in the circumstances.

(3) Where in any suit an order dispensing with the service of summons on a defendant is made under this rule and a decree or order is passed against him, the Court may on his application and on such terms as may be just set aside such decree or order and appoint a day for proceeding with the suit.

(4) The provisions of the first proviso to rule 13 of Order 9 of this Code and the provisions of rule 14 of the said Order shall apply to an order setting aside the decree or order made under sub-rule (3).

(5) The application under sub-rule (3) shall be filed within one year from the date of cessation of hostilities with the said State.

(6) The provisions of section 5 of the Limitation Act, 1963 shall apply to applications under sub-rule (3).

(7) The provisions of this rule shall apply mutatis mutandis to a respondent in an appeal or a civil revision petition who is resident in such territory as is referred to in sub-rule (1).

32. Where any party in a suit is represented by a pleader, the plaint or the written statement, as the case may be, shall give the address of the pleader within the local limits of the city, town or place where the Court is situate and the said address of the pleader shall be the address for service on the party represented by the said pleader for purposes of all notices and processes issued in the suit. All such notices and processes in the suit or in any interlocutory matter in the suit shall be sufficiently served if left by a party or pleader or by a person employed by the defendant or by an officer or employee of the Court at the said address for service of the party intended to be served.

33. Unless the Court otherwise directs, notice of an interlocutory application in the suit need not be served on a party who having been duly served with summons in the main suit has failed to appear and has been declared ex parte by the Court:

Provided that the Court shall direct such notice to be issued and served on any such party in applications for the amendment of any pleading in the suit, if the Court is of the opinion that such party may be interested in or affected by the proposed amendment.

34. The provisions of rules 32 and 33 shall also apply mutatis mutandis to appeals and revision petitions.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

Rule 31-[Kerala].-Same as in Madras, except that the words “the Government” are substituted for “India”.-(9-6-1959).

Rule 31-[Madras].-Add the following after rule 30:

“31.(1) The Court may, on the application of the plaintiff and on such terms as to security or otherwise as the Court thinks fit, dispense with the service of summons on a defendant who is resident in the territory belonging to or occupied by a State at war with India:

Provided that an order dispensing with service of summons shall not be made unless the Court is satisfied that the defendant is resident in such territory and that service of summons on him in the mode prescribed by the Code is not possible.

(2) The Court may, before making the said order, direct such publication of the application as it considers necessary in the circumstances.

(3) Where in any suit an order dispensing with service of summons on a defendant is made under this rule, and a decree or order is passed against him, the Court may on his application, and on such terms as may be just set aside such decree or order and appoint a day for proceeding with the suit.

(4) The provisions of the first proviso to rule 13 of Order 9 and the provisions of rule 14 of the said Order shall apply to an order setting aside a decree or order under sub-rule (3).

(5) The application under sub-rule (3) shall be filed within one year from the date of cessation of hostilities with the said State.

(6) The provisions of section 5 of the Indian Limitation Act shall apply to application under sub-rule (3).

(7) The provisions of this rule shall apply mutatis mutandis to a respondent in an appeal or a revision petition, who is resident in such territory as is referred to in sub-rule (1).”

Order 6

PLEADINGS GENERALLY

  1. Pleading. – “Pleading”, shall mean plaint or written statement.

[2. Pleading to state material facts and not evidence.— (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defnece as the case may be, but not the evidence by which they are to be proved.

(2) Every pleading shall, when necessary, be devided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.]

  1. Forms of pleading. – The forms in Appendix A when applicable, and where they are not applicable forms of the like character, nearly as may be, shall be used for all pleadings.
  2. Particulars to be given where necessary. – In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
STATE AMENDMENTS 6

 

High Court Amendments-[Karnataka].-Renumber rule 4 as rule 4(1) and add the following as sub-rule (2):

“(2) In a suit for infringement of a patent, the plaintiff shall state in his plaint or annex thereto the particulars of the breaches relied upon, and the defendant if he disputes the validity of the patent shall state in his written statement or annex thereto the particulars of the objections on which he relies in support of such invalidity; at the hearing of any such suit no evidence shall, except with the leave of the Court (to be given upon such terms as to the Court may seem just), be admitted in proof of any alleged infringement or objections not raised in the particulars of breaches or objections respectively.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

Order 6, Rule 4-A

[Andhra Pradesh].-Same as that of Madras.

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-After rule 4, the following rule shall be inserted, namely:

“4-A. (1) In a suit for infringement of a patent, the plaintiff shall state in his plaint or annex thereto the particulars of breaches relied upon.

(2) In any such suit the defendant if he disputes the validity of the patent shall state in his written statement or annex thereto the particulars of the objections on which he relies in support of such invalidity.

(3) At the hearing of any such suit no evidence shall, except by leave of the Court (to be given upon such terms as to the Court may seem just), be admitted in proof of any alleged infringement or objections not raised in the particulars of breaches or objections respectively.”

Madhya Pradesh.— After rule 4, the following rule shall be inserted, namely:—

“4-A. Particulars of pleading for agricultural land.— In any suit or proceeding contemplated under rule 3-B of Order 1, the parties, other than the State Government, shall plead the particulars of total agricultural land which is owned, claimed or held by them in any right and shall further declare whether the subject-matter of suit or proceeding is or is not covered by Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (20 of 1960), and whether any proceedings in relation to such subject-matter are to the knowledge of the party pending before the competent authority.”-[M.P. Act 29 of 1984]

  1. Further and better statement, or particulars. [Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 16 (w.e.f. 1.7.2002).]
STATE AMENDMENTS 6

 

High Court Amendments-[Bombay]-In Order VI, for the existing rule 5 and its marginal note, substitute the following as rule 5 and marginal note:

“5. Further and better statement, or particulars.-(1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading may in all cases be ordered upon such terms, as to costs and otherwise, as may be just.

(2) No application for further and better particulars from the plaintiff or the defendant except the one given by the defendant on or before the returnable date of the summons or by the plaintiff on or before the first date fixed for hearing after the filing of the written statement, shall be entertained, unless the plaintiff or the defendant assigns good cause for the same.

(3) After filing the written statement, the Court shall fix a date for (1) reception of documents other than those in possession or power of parties, and (ii) applications for interrogatories, discovery of documents and the inspection thereof. Such applications should not be entertained thereafter, unless good cause is shown to the satisfaction of the Court.”-(1-10-1983).

[Karnataka].-Renumber rule 5 as rule 5(1) and add the following as sub-rule (2):

“(2) In a suit for infringement of a trade mark or copyright, the Court may either on its own motion or on the application of any party apply the provisions of sub-rule (2) of rule 4 of this Order so far as the circumstances of the case may allow.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]
  1. Condition precedent. – Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case my be; and, subject thereto, an avernment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.
  2. Departure. – No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.
  3. Denial of contract. – Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied and not as a denial of the legality or sufficiency in law of such contract.
  4. Effect of document to be stated.. – Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.
  5. Malice, knowledge, etc.,. – Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.
  6. Notice. – Wherever it is material to allege notice to any person of any fact, mater or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred are material.
  7. Implied contract, or relation. – Wherever any contract or any relation between any persons is to be implied from a series of letters or conversations or otherwise from a number of circumstances it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letter, conversations or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.
  8. Presumptions of law. – Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g. consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim.)
  9. Pleading to be signed. – Every pleading shall be signed by the party and his pleader (if any) :

Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

STATE AMENDMENTS 6

 

High Court Amendment-[Karnataka].-Renumber rule 14 as rule 14(2) thereof and insert the following as sub-rule (1):

“(1) Every pleading shall contain the party’s full address for service, that is to say, full address of his place of residence as well as place of business, if any, in addition to his pleader’s address for service as required by rule 32 of Order V of this Code. Such address for service furnished by the party, unless a change therein has been notified to the Court by filing a memorandum to that effect, shall be presumed to be his correct address for service for purposes of the suit, any appeal or revision or other proceeding directed against the decree or order passed in that suit. When a memorandum of change of address is filed by any party, a note to that effect shall be made in the cause title of the pleading and if the pleading happens to be the written statement also in the cause title of the plaint.”-(R.O.C. No. 2526/1959, dated 9-2-1967.)

[14A. Address for service of notice. — (1) Every pleading, when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in rule 14, regarding the address of the party.

(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition.

(3) The address furnished in the statement made sub-rule (1) shall be called the “registered address” of the party, and shall, until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit of in any appeal from any decree or order therein made and for the purpose of execution, and shall hold good, subject as aforesaid, for a period of two years after the final determination of the cause or matter.

(4) Service of any process may be effected upon a party at his registered address in all respects as though such party resided there at.

(5) Where the registered address of a party is discovered by the court to be incomplete, false or fictitious, the Court may, either on its own motion, or on the application of any party, order—

(a) in the case where such registered address was furnished by a plaintiff, stay of the suit, or

(b) in the case where such registered address was furnished by a defendant, his be struck out and he be placed in the same position as if he had not put up and defence.

(6) Where a suit is stayed or a defence is struck out under sub-rule (5), the plaintiff or, as the case may be, the defendant may, after furnishing his true address, apply to the Court for an order to set aside the order of stay or, as the case may be, the order striking out the defence.

(7) the Court, if satisfied that the party was prevented by any sufficient cause from filing the true address at the proper time, shall set aside the order of stay or order striking out the defence, on such term as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit or defence, as the case may be.

(8) Nothing in this rule shall prevent the Court from directing the service of a process at any other address, if, for any reason, it thinks fit to do so.]

STATE AMENDMENTS 6

 

High Court Amendments-[Assam].-Same as that of Calcutta.

[Bombay].-Substitute the following sub-rules (1) to (4) for existing sub-rules (1) to (4) of rule 14:

“14-A. Address for service of notice.-(1) Every pleading, when filed by a party, shall be accompanied by a statement in the prescribed form, signed as provided in rule 14, regarding the address of the party. Parties subsequently added shall immediately on being so added file a memorandum in writing of this nature.

(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition. Notice of such change shall be given to such other parties as the Court may deem it necessary and the form showing the change may be served either on the pleaders or such parties or be sent to them by registered post pre-paid for acknowledgment as the Court thinks fit.

(3) The address furnished in the statement made under sub-rule (1) shall be called the “registered address” of the party, and shall, until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit or in any appeal from any decree or order therein made and for the purpose of execution, and shall hold good subject as aforesaid, for a period of six years after the final determination of the cause or matter.

(4)(i) Where a party is not found at the registered address and no agent or adult male member of his family, on whom a notice or process can be served is present, a copy of the notice or process shall be affixed to the outer door of the house. If on the date fixed such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to registered address of that party by registered post pre-paid for acknowledgment (which pre-payment shall be made within one month from the date originally fixed for hearing) and such service shall be deemed to be as effectual as if the notice of process had been personally served.

(ii) Where a party engages a pleader, notice or process issued against the party shall be served in the manner prescribed by Order III, rule 5, unless the Court directs service at the registered address of the party.

(5) Where the registered address of a party is not filed within the specified time or is discovered by the Court to be incomplete, false or fictitious, the Court may, either on its own motion, or on the application of any party, order

(a) in case where the default in furnishing registered address is by the plaintiff or where such registered address was furnished by a plaintiff, rejection of the plaint, or

(b) in case where the default in furnishing registered address is by the defendant or where such registered address was furnished by a defendant, his defence is struck out and he be placed in the same position as if he had not put any defence.

(6) Where a plaint is rejected or defence is struck out under sub-rule (5), the plaintiff or, as the case may be the, defendant after furnishing his true address, apply to the Court for an order to set aside the rejection of the plaint or, as the case may be, the orders striking out the defence.

(7) The Court is satisfied that the party was prevented by any sufficient cause from filing the true address at the proper time, shall set aside the rejection of the plaint or order striking out the defence, on such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit or defence as the case may be.

(8) Where a party is not found at the registered address and no agent or adult member of his family on whom a notice or process can be served is present, a copy of the notice or process, shall be affixed to the outer door of the house. If on the date fixed suchparty is not present another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address of that party by registered post pre-paid for acknowledgment (which pre-payment shall be made within one month from the date originally fixed for hearing) and such service shall be deemed to be as effectual as if the notice or process had been personally served.

(9) Where the Court has struck out the defence under sub-rule (5) and has consequently passed a decree or an order, the defendant or the opposite party, as the case may be, may apply to the Court by which the decree or order was passed for an order setting aside the decree or order and if he files a registered address and satisfies the Court that he was prevented by any sufficient cause from filing the address, the Court shall make an order setting aside the decree or order against him upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit or proceeding, provided that where the decree or order is of such a nature that it cannot be set aside as against such defendant or opposite party only, it may set aside as against all or any of the defendants or opposite party.

(10) Nothing in this rule shall prevent the Court from directing service of a process at any other address, if for any reason it thinks fit to do so.

(11) Where a party engages a pleader, a notice or process issued against the party shall be served in the manner prescribed by Order III, rule 5, unless the Court directs service at the registered address of the party.”-(1-10-1983).

[Calcutta].-Add the following:

“14-A. Every pleading when filed shall be accompanied by a statement in a prescribed form, signed as provided in rule 14 of this Order, of the party’s address for service. Such address may from time to time be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition. The address so given shall be called the registered address of the party and shall, until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit or in any appeal from any decree or order therein made and for the purposes of execution and shall hold good subject as aforesaid for a period of two years, after the final determination of the cause of matter. Service of any process may be effected upon a party at this registered address in all respects as though such party resided thereat.”-(25-7-1928).

  1. Verification of pleadings. – (1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

[(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.]
STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order VI, rule 15, substitute a colon for the full stop at the end of sub-rule (1) and add thereafter the following proviso:

“Provided that in respect of pleadings to be filed in the Bombay City Civil Court such verification shall, within the local jurisdiction of the Court, be made before one of the officers of the said Court empowered to administer oath, and elsewhere, before any officer mentioned in section 139 of the Code of Civil Procedure, 1908.”-(1-10-1983).

[Orissa].-Same as that of Patna-(w.e.f. 27-9-1961).

[Patna].-For sub-rule (1), substitute the following:

“Save as otherwise provided by any law for the time being in force, the facts stated in every pleading shall be verified by solemn affirmation or on oath of the party or of one of the parties pleading or of some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, before any officer empowered to administer oath under section 139 of the Code.”-(27-9-1961).

[16. Striking out pleadings. — The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading—

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or

(c) which is otherwise an abuse of the process of the Court.]

[17. Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.]

STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order VI, for the existing rule 17 and its marginal note, substitute the following as rule 17 and marginal note:

“17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Where, however, an application for amendment is made by the plaintiff in a suit in which the defendant has not appeared, though served with a summons, and where in the opinion of the Court the amendment applied for is a material one, the Court shall give notice of the application to the defendant before allowing the amendment; and where in the absence of the defendant the Court grants any amendment in a form materially different from that of which notice has been given to the defendant, a copy of the amended plaint shall be served on the defendant.”-(1-10-1983).

[Gujarat].-Add the following to rule 17:

“Where, however, an application for amendment is made by the plaintiff in a suit in which the defendant has not appeared though served with a summons, and where in the opinion of the Court the amendment applied for is a material one, the Court shall give notice of the application to the defendant before allowing the amendment; and where in the absence of the defendant the Court grants any amendment in a form materially different from that applied for, a copy of the amended plaint shall be served on the defendant.”-(17-8-1961).

[Orissa].Re-number rule 17 as sub-rule (1) thereof and add the following as sub-rule (2):

“(2) Every application for amendment shall be in writing and duly verified in the manner laid down in rule 15 and shall state the specific amendments which are sought to be made, indicating the words or paragraphs to be added to, omitted from or substituted in place of, the original pleading.”-(14-5-1984).

[Punjab, Haryana and Chandigarh].-Re-number rule 17 as sub-rule (1) thereof and add the following as sub-rule (2):

“(2) Every application for amendment shall be in writing and shall state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original pleading.”-(1-11-1966).

[N.B.-These High Court Amendments relate to the provisions as existed before the 2002 Amendment Act.]
  1. Failure to amend after order. – If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.
STATE AMENDMENTS 6

 

High Court Amendment-[Orissa].-For rule 18, substitute the following:

“Where any party has obtained an order to amend and the amendment is extensive, within a time limited for that purpose by the order, or if no time is thereby limited, then, within fourteen days from the date of the order, he shall file a consolidated pleading incorporating the amendments, and he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.

In all other cases the Bench clerk shall carry out the amendment.”-(25-5-1984).

[N.B.-This High Court Amendment relates to the provisions as existed before the 2002 Amendment Act.]

Order 7

PLAINT

  1. Particulars to be contained in plaint. – The plaint shall contain the following particulars:—

(a) the name of the Court in which the suit is brought ;

(b) the name, description and place of residence of the plaintiff;

(c) the name, description and place of residence of the defendant, so far as they can be ascertained;

(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;

(e) the facts constituting the cause of action and when it arose;

(f) the facts showing that the Court has jurisdiction;

(g) the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and

(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Order 7, rule 1(d)-Same as that of Madras.

[Bombay].-Order 7, rule 1(i)-In Order VII, rule 1, for the existing item (i) of particulars, substitute the following as item (i).

“(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees, so far as the case admits, showing the provisions of law under which the valuation for Court-fees and jurisdiction is separately made.”-(1-10-1983).

[Karnataka].-Delete rule 1 and substitute the following:-

“1. The plaint shall contain the following particulars:-

(a) the name of the Court in which the suit is brought;

(b) the name, age, description, place of residence and place of business, if any, of the plaintiff;

(c) the name, age, description, place of residence and the place of business, if any, of the defendant, so far as can be ascertained by the plaintiff;

(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect and in the case of a minor, his age to the best of the knowledge and belief of the person verifying the plaint:

Provided that, where, owing to the large number of defendants or any other sufficient cause, it is not practicable to ascertain with reasonable accuracy the age of the minor defendants, it may be stated that the age of the minor defendants is not known;

(e) the facts constituting the cause of action and when it arose;

(f) the facts showing that the Court has jurisdiction;

(g) the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set-off or relinquished a portion of the claim, the amount so allowed or relinquished; and

(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees, so far as the case admits.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Order 7, rule 1(d)-Same as that of Madras but without the proviso.-(7-6-1959).

[Madras].-Substitute the following for sub-clause (d) of rule 1:

“(d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect, and in the case of a minor, a statement regarding his age to the best of the knowledge and belief of the person verifying plaint:

Provided that, where, owing to the large number of defendants or any other sufficient reason, it is not practicable to ascertain with reasonable accuracy the age of the minor defendant, it may be stated that the age of the minor defendant is not known.”

[Punjab, Haryana and Chandigarh].-Insert the following new clause (j) after existing clause (i):

“(j) A statement to the effect that no suit between the same parties, or between parties under whom they or any of them claim, litigating on the same grounds has been previously instituted or finally decided by a Court of competent jurisdiction or limited jurisdiction, and if so, with what results.” [Noti. No. G.S.R. 17/C.Section 5/1908/S.122/78, dated 15-3-1991].

  1. In money suits. – Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:

But where the plaintiff sue for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, [or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for].

STATE AMENDMENTS 6

 

High Court Amendments-[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Delete rule 2 and substitute the following:

“2. Where the plaintiff seeks for recovery of money, the plaint shall state the precise amount claimed, and wherever a statement of account or a memorandum of calculation is necessary for the purpose, such statement or memorandum shall be set out in the schedule to the plaint or separately annexed thereto.But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Punjab, Haryana and Chandigarh].-In the second paragraph of rule 2 of Order 7, after the word “defendant” insert “or for movables in the possession of the defendant, or for debts the value of which he cannot after the exercise of reasonable diligence, estimate” and after the word “amount” where it last occurs insert “or value”.-(1-11-1966).

  1. Where the subject-matter of the suit is immovable property. – Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
STATE AMENDMENTS6

 

High Court Amendments-[Assam].-Same as that of Calcutta.

[Bombay].-In Order VII, for the existing rule 3 and its marginal note, substitute the following as rule 3 and marginal note:

“3. Where the subject-matter of the suit is immovable property.-Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In case of encroachment a sketch showing as approximately as possible the location and extent of encroachment shall also be filed alongwith the plaint.”-(1-10-1983).

[Calcutta].Add at the end the words:

“and where the area is mentioned, such description shall further state the area according to the notation used in the record of settlement or survey, with or without, at the option of the party, the same area in terms of the local measures”.

  1. When plaintiff sues as representative. – Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.
STATE AMENDMENTS 6

 

High Court Amendment – [Karnataka].-Delete runs 4 and substitute the following rule 4, namely :-

“4.(1) Where the plaintiff sues in a representative character, the plaint shall show not only that he has an actual existing interest in the subject-matter, but also that he has tken the steps (if any) necessary to enable him to institute a suit concerning it.

(2) When the permission of the court under rule 8 of Order 1 of the Code is sought, before or at the time of the institution of the suit, the plaint shall be accompanied by an application supported by an affidavit stating the number or approximate number of parties interested, the places where they respectively reside, that they have all the same interest in the subject-matter of the suit and the nature of the said interest, and the best means of giving noticeof the institution of the suit to the said partires. If the permission sought is granted, the plaint shall state or be amended so as to state that the plaintiff sues on behalf of himself and all other persons interested in the subject-matter of the suit and that he has been permitted by the Court to do so by an order of Court made on a particular date, in the application mentioned above.”-(R.O.C. No. 2526/1959, dated 9.2.1967).

  1. Defendant’s interest and liability to be shown. – The plaint shall show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.
  2. Grounds of exemption from limitation law. – Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed :
[Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.]
  1. Relief to be specifically stated. – Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.
  2. Relief founded on separate ground. – Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and district grounds, they shall be stated as far as may be separately and distinctly.
  3. Procedure on admitting plaint.- Where the Court orders that the summons be served on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order alongwith requisite fee for service of summons on the defendants.
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In rule 9(a). for the semicolon after “it” in clause (1) substitute a full stop and delete the rest of this clause as well as clauses (2) and (3); and re-number clause (4) as clause (2), deleting the words “or statements” therein.-(12-2-1927).

[Andhra Pradesh].-Same as that of Madras.

[Assam].-Same as that of Calcutta.

[Bombay].-For the existing rule 9 and its marginal notes, substitute, the following as rule 9 and marginal note:

“9. Chief Ministerial Officer to sign lists and copies produced alongwith plaint.-(1) The plaintiff shall endorse on the plaint or annex thereto a list of documents (if any) which he has produced along with it.

(2) The Chief Ministerial Officer of the Court shall sign such lists and the copies of the plaint with annexures presented under rule 1 of Order IV, if on examination he finds them to be correct.”-(1-10-1983).

[Calcutta].-For rule 9(1), substitute:

“9. (1) The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it.

(1-A) The plaintiff shall present with his plaint:

(i) As many copies on plain paper of the plaint as there are defendants, unless the Court by reason of the length of the plaint or the number of the defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claim made, or of the relief claimed in the suit, in which case he shall present such statements;

(ii) Draft forms of summons and fees or service thereof.”-(3-2-1933).

[Karnataka].-Delete rule 9 and substitute the following:

“9. The plaintiff shall present alongwith the plaint as many copies on plain paper of the plaint as there are defendants, unless by reason of the length of the plaint or the number of the defendants or for any other sufficient reason, the Court permits him to present a like number of concise statements of the nature of the claim made or of the relief claimed in the suit, in which case he shall present such statements. Where the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, such statements shall show in what capacity the plaintiff or the defendant sues or is sued. The plaintiff may, by leave of the Court, amend such statements so as to make them correspond with the plaint. The copies or concise statements, as the case may be, shall bear an endorsement signed by the party or the pleader filing the same as to the effect that they are true and correct.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-In Order 7, rule 9,

(i) for sub-rule (1) the following sub-rule shall be substituted, namely:

“9. (1) The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it, and shall present along with the plaint as many copies on plain paper of the plaint as there are defendants.”

(ii) sub-rules (2) and (3) shall be omitted.

(iii) in sub-rule (4) the words “or statements” shall be omitted.-(9-6-1959).

[Madhya Pradesh].-Substitute the following for rule 9:

“9. (1) The plaintiff shall endorse on the plaint or annex thereto, a list of the documents (if any) which he has produced along with it.

(2) The Chief Ministerial Officer of the Court shall sign such lists and the copies of the plaint presented under rule 1 of Order 4, if on examination, he finds them to be correct. “-(16-9-1960).

[Madras].-In rule 9(1) of Order 7, after the word “and” occurring in the third line, delete the comma and the five words following, viz., “if the plaint is admitted” and insert the expression “along with the plaint” after the words “shall present”.

[Punjab, Haryana and Chandigarh].-For sub-rule (1-A) substitute the following:-

“The plaintiff shall, within the time fixed by the Court or extended by it under sub-rule (1), file summons in the prescribed form, in duplicate, after being duly filled in, for each of the defendants and pay the requisite fee for the service thereof on the defendants.”-Punjab (26-2-1982) Haryana (16-2-1982) and Chandigarh (1 -4-1982).

[N.B.-These High Court Amendments relate to the provisions as existed before the 2002 Amendment Act.]

[10. Return of plaint.— (1) ][Subject to the provisions of rule 10A, the plaint shall] at any state of the suit be returned to be presented to the Court in which the suit should have been instituted.

[Explanation.—For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.]

(2) Procedure on returning plaint.—On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

STATE AMENDMENTS 6

 

High Court Amendment-[Bombay].-In Order VII, rule 10, for the existing sub-rule (1) and its marginal note, substitute the following as sub-rule (1) and marginal note: “10. Return of plaint.-(1) Subject to the provisions of rule 10-A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. The plaintiff or his pleader shall be informed of the date fixed for the return of the plaint. “-(1-10-1983).

[10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return. —(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing, so, intimate its decision to the plaintiff.

(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the Court—

(a) specifying the Court in which he proposes to present the plaint after its return,

(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and

(c) requesting that the notice of the date so fixed may be given to him and to the defendant.

(3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,—

(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and

(b) give to the plaintiff and to the defendant notice of such date for appearance.

(4) Where the notice of the date for appearance is given under sub-rule (3),—

(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded otherwise directs, and

(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.

10B. Power of appellate Court to transfer suit to the proper Court. – (1) Where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so desires, while returning the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should have been instituted,(whether such Court is within or without the State in which the Court hearing the appeal is situated), and fit a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be necessary for the Court in which the plaint is filed to serve the defendant with the summons for appearance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, otherwise directs.

(2) The direction made by the Court under sub-rule (1), shall be without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit.]

  1. Rejection of plaint. – The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law :

[(e)where it is not filed in duplicate;] [(f) where the plaintiff fails to comply with the provisions of rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper , as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Assam].-Same as that of Calcutta.

[Calcutta].-Add the following as clause (e):

“(e) Where any of the provisions of rule 9 (1-A) is not complied with and the plaintiff on being required by the Court to comply therewith within a time to be fixed by the Court, fails to do so.”-(25-7-1928).

[Karnataka].-Delete rule 11(c) and substitute the following:

“11(c) Where the relief claimed is properly valued, but the Court-fee actually paid is insufficient and the plaintiff does not make good the deficiency within the time, if any, granted by the Court.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Madras].-For clause (c), the following clause shall be substituted, namely:

“Where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court”-(9-2-1967).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999/2002 Amendment Acts.]
  1. Procedure on rejecting plaint. – Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.
  2. Where rejection of plaint does not preclude presentation of fresh plaint. – The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
STATE AMENDMENTS 6

 

High Court Amendment-[Bombay].-In Order VII, for the existing rule 13 and its marginal note, substitute the following as rule 13 and marginal note:

“13. Where rejection of plaint does not preclude presentation of fresh plaint.-The rejection of the plaint on any of the grounds hereinbefore mentioned or on the ground mentioned in rule 14-A (5)(a) of Order VI shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.”-(1-10-1983).

Documents Relied On In Plaint

[14. Production of document on which plaintiff sues. – (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.] [(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] [(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.]

STATE AMENDMENTS 6

 

High Court Amendment-[Karnataka].-Delete rule 14 and substitute the following:- “14. (1) The plaintiff shall endorse on the plaint or annex thereto a list of documents required to be produced or disclosed as hereinafter provided in this rule. (2) Where the plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (3) Where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in the list above referred to showing separately which of the documents are in his possession or power and which are not, which of the documents in his possession or power he has produced with the plaint and which are not so produced. In regard to any such documents which are not produced, the list shall contain a statement of the reason for their non-production and the steps which the plaintiff has taken or will take to produce them or cause their production.”-(R.O.C. No. 2526/1959, dated 9-2-1967). [N.B.-This High Court Amendment relates to the provisions as existed before the 1999 Amendment Act.]
  1. Statement in case of documents not in plaintiff’s possession or power. [Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 17 (w.e.f. 1.7.2002).]
  2. Suits on lost negotiable instruments. – Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.
  3. Production of shop-book. – (1) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in shop-book or other account in his possession or power the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.

(2) Original entry to be marked and returned.—The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification, and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Add the following proviso at the end of clause (2) of rule 17:

“Provided that, if the copy is not written in English or is written in a character other than the ordinary Persian or Nagri character in use, the procedure laid down in Order 13, rule 12 as to verification shall be followed, and in that case the Court or its officer need not examine or compare the copy with the original.”-(29-1-1927 and 10-12-1932).

[Bombay].-Substitute a colon for the full stop at the end of sub-rule (2) and add thereafter the following provisos:

“Provided that where the entry referred to in this rule is in a language other than English or the language of the Court, the plaintiff shall file with the plaint a true copy of the entry together with its translation either in English or in the language of the Court, such translation being verified as regards its correctness by an affidavit of the person making the translation:

Provided further that the Court may accept a plaint without the translation and permit the party to file the said translation within a time to be fixed by the Court.

In either of such cases the Court or its officer need not examine and compare the copy with the original and certify the same to be correct.”-(1-10-1983).

[Delhi].-Same as that of Punjab.

[Gujarat].-The following proviso shall be added at the end of sub-rule (2) of rule 17:-

“Provided that where the entry referred to in this rule is in a language other than the language of the Court, the plaintiff shall file with the plaint a true copy of the entry together with its translation in the language of the Court such translation being verified as regards its correctness by an affidavit of the person making the translation. In such a case the Court or its officer need not examine and compare the copy with the original and certify the same to be correct.”-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Add the following as sub-rule (3) to rule 17:

“(3) Where the document is not in the language of the Court. the Chief Ministerial Officer of the Court shall take the directions of the Judge or Presiding Officer of the Court as to whether the procedure prescribed in rule 12 of Order XIII of this Code shall be followed.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Punjab, Haryana and Chandigarh].-Add the following after sub-rule (2):-

“Explanation.-When a shop-book or other account written in a language other than English or the language of the Court is produced with a translation or transliteration of the relevant entry, the party producing it shall not be required to present a separate affidavit as to the correctness of the translation or transliteration, but shall add a certificate on the document itself, that it is a full and true translation or transliteration of the original entry, and no examination or comparison by the ministerial officer shall be required except by a special order of the Court.”

High Court Amendments-Rules 19 to 25-[Allahabad].-Add the following rules to Order 7:

“19. Every plaint or original petition shall be accompanied by a proceeding giving an address written in Hindi in Devnagri script at which service of notice, summons or other process may be made on the plaintiff or petitioner. Plaintiffs or petitioners subsequently added shall, immediately on being so added, file a proceeding of this nature.

20. An address for service filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or of the District Court within which the party ordinarily resided, if within the limits of the United Provinces of Agra and Oudh.

21. Where a plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or his petition rejected by the Court sue motu or any party may apply for an order to that effect and the Court may make such order as it thinks just.

22. Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice or process can be served, is present, a copy of the notice or process shall be affixed to the outer door of the !louse. If on the date fixed, such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address by registered post, and such service shall be deemed to be as effectual as if the notice or process had been personally served.

23. Where a party engages a pleader, notices or processes for service on him shall be served in the manner prescribed by Order 3, rule 5, unless the Court directs service at the address for service given by the party.

24. A party who desires to change the address for service given by him as aforesaid shall file a verified petition, and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.

25. Nothing in these rules shall prevent the Court from directing the service of a notice or process in any other maimer, if for any reasons, it thinks fit to do so.”-(1-6-1918 and 12-12-1970).

26. Deleted by Notification 4084, 35-A-3(7), dated 24-7-1926.

Rules 19 to 26-[Bombay].-In Order VII, after the existing rule 18, add the following rules with marginal notes as new rules 19 to 26 and their respective marginal notes:

19. (1) Address to be filed with plaint or original petition.-Every plaint or original petition shall be accompanied by a memorandum in writing giving an address at which service of notice, or summons or other process may be made on the plaintiff or petitioner. Plaintiffs or petitioners subsequently added shall, immediately on being so added, file a memorandum in writing of this nature.

(2) Registered address.-This address shall be called the “registered address”, and it shall, subject to rule 24 of this Order, hold good in all proceedings in the suit and in appeals and also for a further period of six years from the date of the final decision for all purposes including those of execution.

20. Nature of address to be filed.-The registered address filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed or, if a party cannot conveniently give an address as aforesaid, at a place where the party ordinarily resides.

21. (1) Consequences of failure to file address.-Where a plaintiff or petitioner, after being required to file the registered address within a specified time, fails to file the registered address, he shall be liable to have his plaint or petition rejected by the Court suo mote, or any party may apply for an order to that effect and the Court may make such order as it thinks just.

(2) When default may be condoned.-Where a plaint or a petition is rejected under sub-rule (1) the plaintiff or the petitioner may apply for an order to set aside the rejection and, if he files a registered address and satisfies the Court that he was prevented by any sufficientcause from filing a registered address at the proper time, the Court shall set aside the rejection on such terms as to costs or otherwise as it deems fit and shall appoint a date for proceeding with the suit or petition.

22. Procedure when party not found at the place of registered address.-Where a party is not found at the registered address and no agent or adult male member of his family, on whom a notice or process can be served is present, a copy of the notice or process shall be affixed to the outer door of the house. If on the date fixed such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address of that party by registered post pre-paid for acknowledgment, (which payment shall be made within one month from the date originally fixed for hearing) and such service shall be deemed to be as effectual as if the notice or process had been personally served.

23. Service of process where party engages pleader.-Where a party engages a pleader, notice or process issued against the party shall be served in the manner prescribed by Order 3, rule 5, unless the Court directs service at the registered address of the party.

24. Change of registered address.-A party who desires to change the registered address given by him as aforesaid shall file a fresh memorandum in writing to this effect, and the Court may direct the amendment of the record accordingly. Notice of such memorandum shall be given to such other parties as the Court may deem it necessary to inform, and may be served either upon the pleaders or such parties or be sent to them by registered post pre-paid for acknowledgment as the Court thinks fit.

25. Rules not binding on Court.-Nothing in rules 19, 22, 23 and 24 of this Order shall prevent the Court from directing the service of a notice or process in any other manner, if, for any reasons, it thinks fit to do so.

26. Applicability to notice under Order 21, Rule 22.-Nothing in rules 19,22,23 and 24 of this Order shall apply to the notice prescribed by clause (b) of sub-rule (1) of rule 22 of Order 21 of this Code.”-(1-11-1966).

[Delhi].-Same as that of Punjab.

Rules 19 to 25-[Gujarat].-Rule 19 be added:

“19. Address to be filed with plaint or original petition.-Every plaint or original petition shall be accompanied by a memorandum in writing giving an address at which service of notice, or summons or other process may be made on the plaintiff or petitioner. Plaintiffs or petitioners subsequently added shall immediately on being so added, file a memorandum in writing of this nature. The address so given shall hold good throughout interlocutory proceedings and appeals and also for a further period of two years from the date of the final decision and for all purposes including those of execution.”

Rule 20 be added:

“20. Nature of address to be filed.-An address for service filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or if he cannot conveniently give an address as aforesaid, at the place where a party ordinarily resides.”

Rule 21 be added:

“21. Consequences of failure to file address.-Where a plaintiff or petitioner fails to file an address for service he shall be liable to have his suit dismissed or his petition rejected by the Court suo motu, or any party may apply for an order to that effect, and the Court may make such order as it thinks just.”

Rule 22 be added:

“22. Procedure when party is not found at the place of address.-Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice or process can be served, is present, a copy of the notice or process shall be affixed to the outer door of the house. If on the date fixed such party is not present anotherdate shall be fixed and a copy of the notice, summons or other process shall be sent to the address supplied by that party by registered post pre-paid for acknowledgment (which pre-payment shall be made within one month from the date originally fixed for hearing) and such service shall be deemed to be as effectual as if the notice or process had been personally served.”

Rule 23 be added:

“23. Service of notice on pleaders.-Where a party engages a pleader, notice or process on him shall be served in the manner prescribed by Order 3, rule 5 unless the Court directs service at the address for service given by the party.”

Rule 24 be added:

“24. Change of the registered address.-A party who desires to change the address for service given by him as aforesaid shall file a fresh memorandum in writing to this effect and the Court may 1irect the amendment of the record accordingly: Notice of such memorandum shall be given to such other parties to the suit as Court may deem it necessary to inform and may be served either upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.”

Rule 25 be added:

“25. Service of notice or process in any other manner.-Nothing in these rules shall prevent the Court from directing the service of a notice or process in any other manner, if for any reasons, it thinks fit to do so.”

Rule 26 be added:

“26. Applicability to notice under Order 21, rule 22.-Nothing in these rules shall apply to the notice prescribed by Order 21, rule 22.”-(17-18-1961).

Rules 19 to 25-[Himachal Pradesh].-Same as those of Punjab except in rule 20 the words “Judicial Commissioner’s Court, Himachal Pradesh” are substituted for the words “High Court of Judicature at Lahore.”

Rules 19 to 23-[Madhya Pradesh].-Add the following as rules 19 to 23:

“19. Registered address.-Every plaint or original petition shall be accompanied by a memorandum giving an address at which service of process may be made on the plaintiff or petitioner. The address shall be within the local limits of the Civil District in which the plaint or original petition is filed or, if an address within such Civil District cannot conveniently be given, within the local limits of the Civil District in which the party ordinarily resides.

This address shall be called the “registered address” and it shall hold good throughout interlocutory proceedings and appeals and also for a further period of two years from the date of final decision and for all purposes including those of execution.

20. Registered address by a party subsequently added as plaintiff or petitioner.-Any party subsequently added as plaintiff or petitioner shall in like manner file a registered address at the time of applying or consenting to be joined as plaintiff or petitioner.

21. Consequences of non filing of registered address.-(1) If the plaintiff or the petitioner fails to file a registered address as required by rule 19 or 20, he shall be liable, at the discretion of the Court, to have his suit dismissed or his petition rejected.

An order under this rule may be passed by the Court suo motu or on application of any party.

(2) Where a suit is dismissed or a petition rejected under sub-rule (1) the plaintiff or the petitioner may apply for an order to set the dismissal or rejection aside and if he files a registered, address and satisfies the Court that he was prevented by any sufficient cause from filing the registered address at the proper time the Court shall set aside the dismissal or the rejection upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit or petition.

22. Affixing of process and its validity.-Where the plaintiff or the petitioner is not found at his registered address, and no agent or adult male member of his family on whom a process can be served is present, a copy of the process shall be affixed to the outer door of the house and such service shall be deemed to be as effectual as if the process had been personally served.

23. Change of registered address.-A plaintiff or petitioner who wishes to change his registered address shall file a verified petition and the Court shall direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit or proceedings as the Court may deem it necessary to inform.”-(16-9-1960).

Order 7-[Orissa].-Same as those of Patna amendment except rules 19, 20, 21 and 22 of Order 7 (Patna Amendment) (7-5-1954).

Rules 19 to 22-[Patna].-Add the following rules:

“19. Every plaint or original petition shall be accompanied by a statement giving an address at which service of notice, summons or other process may be made on the plaintiff, or petitioner, and every plaintiff or petitioner subsequently added shall, immediately on being so added, file a similar statement.

20. An address for service filed under the preceding rule shall state the following particulars

(1) the name of the street and number of the house (if mi a town);

(2) the name of the town or village;

(3) the post office;

(4) the district; and

(5) the munsiff (if in Bihar) or the district Court (if outside Bihar).

21. Where a plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or his petition rejected by the Court suo motu or any party may apply for an order to that effect and the Court may make such order as it thinks fit.

22. A party who desires to change the address for service given by him as aforesaid shall file a verified petition, and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post as the Court thinks fit.”

Rules 19 to 25-[Punjab].-Add the following rules:

“19. Every plaint or original petition shall be accompanied by a proceeding giving an address at which service of notice, summons or other process may be made on the plaintiff or petitioner. Plaintiffs or petitioners subsequently added shall, immediately on being so added, file a proceeding of this nature.

20. An address for service filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or of the District Court within which the party ordinarily resides, if within the limits of the territorial jurisdiction of the High Court of judicature at Lahore.

21. Where a plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or his petition rejected by the Court suo motu or any party may apply for an order to that effect and the Court may make such order as it thinks just.

22. Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice, summons or other process can be served is present, a copy of the notice, summons or other process shall be fixed to the outer door of the house. If on the date fixed such party is not present another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address byregistered post, and such service shall be deemed to be as effectual as if the notice, summons or other process had been personally served.

23. Where a party engages a pleader, notices, summonses or other processes for service on him shall be served in the manner prescribed by Order 3, . ule 5, unless the Court directs services at the address for service given by the party.

24. A party who desires to change the address for service given by him as aforesaid shall file a verified petition, and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.

25. Nothing in these rules shall prevent the Court from directing the service of a notice, summons or other process in any other manner, if for-any reasons, it thinks fit to do so.”

Rules 19 to 25–[Rajasthan].-Add the following as rules 19 to 25:

“19. (1) Every plaint or original petition shall be accompanied by a memorandum giving an address at which service of process may be made on the plaintiff or petitioner. Plaintiffs or petitioners subsequently added ‘hall, immediately on being so added, file a memorandum of this nature.

(2) This address shall be called the registered address and it shall hold good throughout interlocutory proceedings and appeals and also for a further period of two years from the date of final decision and for all purposes including those of execution.

20. An address for service filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or of the District Court within which the party ordinarily resides, if within the limits of Rajasthan.

21. (1) Where a plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or his petition rejected by the Court suo motu or any party may apply for an order to that effect, and the Court may make such order as it thinks just.

(2) Where a suit is dismissed or a petition rejected under sub-rule (1) the plaintiff or the petitioner may apply for an order to set the dismissal or the rejection aside and if he files a registered address and satisfies the Court that he was prevented by any sufficient cause from filing the registered address at the proper time, the Court shall set aside the dismissalor the rejection upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit or petition.

22. Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a process can be served, is present, a copy of the process shall be affixed to the outer door of the house. If on the date fixed, such party is not present and the process is not declared by the Court under rule 19 of Order 5, to have been duly served, another date shall be fixed and a copy of the process shall be sent to the registered address by registered post, and such service shall be deemed to be as effectual as if the process had been personally served.

23. Where a party engages a pleader, process for service on him shall be served in the manner prescribed by Order 3, rule 5, unless the Court directs service at the address for service given by the party.

24. A party who desires to change the address for service given by him as aforesaid, shall file a verified petition, and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.

25. Nothing in these rules shall prevent the Court from directing the service of a-process in any other manner, if for any reasons it thinks fit to do so.”-(24-7-1954).

  1. Inadmissibility of document not produced when plaint filed. – [Omitted by the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002), section 8 (w.e.f. 1.7.2002).]

Order 8

[WRITTEN STATEMENT, SET-OF AND COUNTER-CLAIM]

STATE AMENDMENTS 6

 

High Court Amendment-Order 8, title-[Bombay].-For the existing title of Order VIII, substitute the following title:

“Written Statement, Set-off, Counter-claim, and Third Party Procedure.”-(1-10-1983).

  1. Written statement. – [(1)]The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service oof summons.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Omit the full stop at the end and add the following at the end:

“and shall file with his written statement a list of documents (whether in his possession or power or not) on which he relies as evidence in support of his defence.”-(17-1-1953).

[Bombay].-For the existing rule 1 and its marginal note, substitute the following as rule 1 and marginal note:

“1. Written statement.-The defendant may, and if so required by the Court, shall within such time as may be specified in this behalf or within such extended time as the Court may permit, present a written statement of his defence after serving a copy thereof on the plaintiff or his pleader on or before the date fixed for presenting the same in Court, or file in Court for the use of the plaintiff a copy of the written statement while presenting the same in Court:

Provided that the first adjournment for filing the written statement shall not ordinarily exceed four weeks and no further adjournment shall be granted except for reasons to be recorded in writing.”-(1-10-1983).

[Patna].-For rule 1 substitute the following:

“1. (1) The defendant may, and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence, and with such written statement, or if there is no written statement, at the first hearing shall produce in Court all documents in his possession or power on which he bases his defence or any claim for set-off.

(2) Where he relies on any other documents as evidence in support of his defence or claim for set-off, he shall enter such documents in a list to be added or annexed to the written statement, or where there is no written statement, to be presented at the first hearing. If no such list is so annexed or presented the defendant shall be allowed a further period of ten days to file this list of documents.

(3) A document which ought to be entered in the list referred to in sub-clause (2) but which has not been so entered, shall not, without the leave of the Court, be received in evidence on the defendant’s behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents produced for cross-examination of plaintiff’s witnesses or handed to a witness merely to refresh his memory.”-(9-8-1972).

[N.B.-These High Court Amendments relate to the provisions as existed before the 2002 Amendment Act.]

[1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.-(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.] [(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] [(4) Nothing in this rule shall apply to documents

(a) produced for the cross-examination of the plaintiff’s witnesses, or

(b) handed over to a witness merely to refresh his memory.]

  1. New facts must be specially pleaded. – The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.
  2. Denial to be specific. – It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
  3. Evasive denial. – Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance, Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
  4. Specific denial. – [(1)]Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :

Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.

[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]

  1. Particulars of set-off to be given in written statement. – (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff’s suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, presents a written statement containing the particulars of the debt sought to be set-off.

(2) Effect of set-off.—The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off : but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.

Illustrations

(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B’s effect, C pays Rs. 1,000 as surety for D: then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of Rs. 1,000.

(b) A dies intestate and in debt to B. C takes out administration to A’s effects and B buys part of the effects from C. In a suit for the purchase-money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A.

(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B’s goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.

(d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The two claims being both definite, pecuniary demands may be set-off.

(e) A sues B for compensation on account of trespass. B holds a promissory note for Rs. 1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so, for as soon as A recovers, both sums are definite pecuniary demands.

(f) A and B sue C for Rs. 1,000 C cannot set-off a debt due to him by A alone.

(g) A sues B and C for Rs. 1000. B cannot set-off a debt due to him alone by A.

(h) A owes the partnership firm of B and C Rs. 1,000 B dies, leaving C surviving. A sues C for a debt of Rs.

1,500 due in his separate character. C may set-off the debt of Rs. 1,000.

STATE AMENDMENTS 6

 

High Court Amendments-[Karnataka].-Same as that of Patna-(R.O.C. No. 2526/ 1959, dated 9-2-1967).

[Patna].-Add the following to sub-rule (1):

“and the provisions of Order 7, rules 14 to 18 shall mutatis mutandis apply to a defendant claiming set off as if he were a plaintiff.”

[6A. Counter-claim by defendant. — (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. whether such counter-claim is in the nature of a claim for damages or not :

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

6B. Counter-claim to be stated. – Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.

6C. Exclusion of counter-claim. – Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.

6D. Effect of discontinuance of suit. – If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

6E. Default of plaintiff to reply to counter-claim. – If the plaintiff makes default in putting in reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him or make such order in relation to the counter-claim as it thinks fit.

6F. Relief to defendant where counter-claim succeeds. – Where in any suit a set-off or counter-claim is established as defence against the plaintiff’s claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.

6G. Rules relating to written statement to apply. – The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.]

  1. Defence or set-off founder upon separate grounds. – Where the defendant relies upon several distinct grounds of defence or set-off [or counter-claim]founded separate and distinct facts, they shall be stated, as far as may be, separately and distinctly.
STATE AMENDMENTS 6

 

Order 8, Rule 7-A

High Court Amendment-[Karnataka].-After rule 7 and before rule 8 add the following as rule 7-A:

“7-A. Where the defendant seeks the permission of the Court under rule 8 of Order I of this Code to defend the suit on behalf of or for the benefit of himself and other persons having the same interest as the defendant in the subject-matter of the suit he shall file an application supported by an affidavit setting out the particulars detailed in sub-rule (2) of rule 4 of Order VII of this Code. Notice of such an application shall be given to all parties to the suit, and if the permission sought is granted the plaint may be amended by inserting a statement that the defendant is with the leave of the Court sued as the representative of all persons interested in subject-matter of the suit.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

  1. New ground of defence. – Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off [or counter-claim]may be raised by the defendant or plaintiff as the case may be, in his written statement.

8A. Duty of defendant to produce documents upon which relief is claimed by him.- [Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 18 (w.e.f. 1.7.2002).]

[9. Subsequent pleadings. – No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.]

[10. Procedure when party fails to present written statement called for by Court. – Where any party from whom a written statement is required under rule 1 or 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.]

STATE AMENDMENTS 6

 

High Court Amendments-Rules 11 and 12-[Allahabad].-Add the following rules to Order 8:

11. Every party, whether original, added or substituted, who appears in any suit or other proceeding shall, on or before the date fixed in the summons or notice served on him as the date of hearing, file in a Court a proceeding stating his address for service, written in Hindi in Devanagri script, and if he fails to do so he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect, and the Court may make such order as it thinks just.

12. Rules 20, 22, 23, 24 and 25 of Order 7 shall apply, so far as may be, to addresses for service filed under the preceding rule.”-(1-6-1918).

Rules 11 to 30-[Bombay].-In Order 8, after the existing rule 10, add the following rules with marginal notes and topical headings as new rules 11 to 30 and their respective marginal notes and topical headings:

11. (1)(a) Parties to file addresses.-Every party, whether original, added or substituted, who appears in any suit or other proceeding, shall file in the Court on or before the date fixed in the summons or notice served on him as the date for his appearance or within such further time as may be allowed by the Court, a memorandum in writing stating the address at which he may be served.

(b) Registered address.-This address shall be called the “registered address” and it shall, subject to rule 24 of Order 7 read with rule 12 of this Order hold good in all proceedings in the suit and in appeals and also for a further period of six years from the date of the final decision for all purposes including those of execution.

(c) Consequences of default in filing registered address.-If, after being required to file the registered address within a specified time, he fails to do so, he shall be liable to have his defences, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect, and the Court may make such order as it thinks fit.

(2) When default may be condoned.–Where the Court has struck out the defences under sub-rule (1) and has adjourned the hearing of the suit or the proceeding and where the defendant or the opposite party at or before such hearing appears and assigns sufficient cause for his failure to file the registered address and also files the registered address, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit or the proceeding as if the defences had not been struck out.

(3) When decree passed on default can be set aside.-Where the Court has struck out the defences under sub-rule (1) and has consequently passed a decree or order, the defendant or the opposite party, as the case may be, may apply to the Court by which the decree or order was passed for an order to set aside the decree or order, and, if he files a registered address and satisfies the Court that he was prevented by any sufficient cause from filing the address the Court shall make an order setting aside the decree or order as against him upon terms as to costs or otherwise as it thinks fit and shall appoint a date for proceeding with the suit or proceeding:

Provided that where the decree or order is of such a nature that it cannot be set aside as against such defendant or opposite party only, it may be set aside as against all or any of the other defendants or the opposite parties.

12. Applicability of rules 20 and 22 to 26 of Order 7.-Rules 20, 22, 23, 24, 25 and 26 of Order 7 shall apply so far as they may be applicable, to registered addresses filed under the last preceding rule.

Counter-claim

13. Defendant may set up counter-claim against the claims of the plaintiff in addition to set off.A defendant in a suit, in addition to his right of pleading a set-off under Order 8, rule 6 of the Code of Civil Procedure, 1908, may set up by way of counter-claim against the claims of the plaintiff any right or claim in respect of a cause of action accruing to the defendant either before or after the filing of the suit, but before the defendant has delivered his defence and before the time limited for delivering his defence has expired, whether such counter-claim sounds in damages or not, and such a counter-claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit both on the original and on the counter-claim and the plaintiff (if so advised) shall be at liberty to file a written statement in answer to the counter-claim of the defendant within four weeks after service upon him or his pleader of a copy of the defendant’s counter-claim; and the Court or a Judge may, on the application of the plaintiff before trial if in the opinion of the Court or Judge such counter-claim cannot be disposed of in the pending suit or ought not to be allowed, refuse permission to the defendant to avail himself thereof, and require him to file a separate suit in respect thereof.

14. Defendant setting up a counter-claim to specifically state so in the written statement.-Where any defendant seeks to rely upon any grounds as supporting a right of counter-claim, he shall in his written statement state specifically that he does so by way of counter-claim.

15. Where the counter-claim involves in addition to the plaintiff other persons also, the defendant to add further title to the title of the written statement and deliver copies of his written statement to such persons as are already parties to the suit.-Where a defendant by a written statement sets up any counter-claim, which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his written statement a further title similar to the title in a plaint, setting forth the names of all the persons who, if such counter-claim were to be enforced by a cross-suit, would be defendants to such cross-suit, and shall deliver copies of his written statement to such of them as are already parties to the suit within the period within which he is required to deliver it to the plaintiff.

16. Service of summons when counter-claim is against persons who are not already parties to the suit.-Where any such person as is mentioned in the last preceding rule, is not already a party to the suit, he shall be summoned to appear by being served with a copy of the written statement and such service shall be regulated by the same rules as are contained in the Code of Civil Procedure, 1908, with respect to the service of a writ of summons.

17. Appearance of persons other than defendants to the suit, when served with counter-claim.-Any person not a defendant to the suit, who is served with a written statement and counter-claim as aforesaid, must appear therein as if he had been servecwith a writ of summons to appear in the suit.

18. Reply to counter-claim.-Any person named in a written statement as a party to a counter-claim thereby made, may deliver a reply within the time, within which he might deliver a written statement if it were a plaint.

19. Objection to countdr-claim being allowed to be set up in the suit.-Where a defendant sets up a counter-claim, if the plaintiff or any other person named in the manner aforesaid as party to such counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, he may, at any time before reply, apply to the Court or a Judge for an order that such counter-claim may be excluded and the Court or Judge may, on the hearing of such application, make such order as shall be just.

20. Counter-claim may be proceeded with, even if suit be stayed, discontinued or dismissed.-If in any case in which the defendant sets up a counter-claim the suit of the plaintiff is stayed, discontinued or dismissed the counter-claim may nevertheless be proceeded with.

21. On default of reply to counter-claim, the counter-claim may be set down for judgment.-If the defendant to the counter-claim makes default in putting in reply to the counter-claim, the defendant in the suit who is the plaintiff to the counter-claim, may, in such cases, get the suit set down for judgment on the counter-claim, and such judgment shall be given as the Court shall consider him to be entitled to.

22. Judgment when set-off or counter-claim is established.-Where in any suit a set-off or counter-claim is established as a defence against the plaintiff’s claim the Court or a Judge may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled upon the merits of the case.-(1-11-1966).

Third Party Procedure

23. Third Party Notice.-Where in a suit a defendant claims against any person not already a party to the suit (hereinafter called the Third Party)

(a) that he is entitled to contribution or indemnity, or

(b) that he is entitled to any relief or remedy relating to or connected with the subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff, or

(c) that any question or issue relating to or connected with the subject-matter of the suit is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the Third Party or between any or either of them, he may apply to the Court for leave to issue a notice (hereinafter called the “Third Party Notice”) to that effect. The application shall be made by affidavit, stating the nature of the claim made by the defendant and the facts on which proposed. Third Party Notice is based and may be made ex parte. The application shall be made within four weeks from the service of the summons upon defendant.

24. Form and Service of Notice.-(1) Third Party Notice shall state the nature of the claim made by the plaintiff against the defendant and the nature and grounds of the claim made by the defendant against the Third Party or the nature and extent of any relief or remedy claimed by him against Third Party or the nature of the question or issue sought to be determined and shall be sealed with the seal of the Court. It shall be served on the Third Party according to the rules relating to service of summons and shall, unless otherwise ordered, be served within two weeks from the date of the order granting leave to issue the Third Party Notice. A copy of the plaint and copy of the affidavit of the defendant in support of the Third Party Notice shall be served on the Third Party along with the Third Party Notice.

(2) A copy of the Third Party Notice and of the affidavit of the defendant in support of the Third Party Notice shall be furnished to all parties to the suit within two weeks from the date of the order granting leave to issue the Third Party Notice.

25. Effect of Service of Notice.-The Third Party shall, as from the time of the service upon him of the Notice, be a party to the suit with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

26. Third Party to enter Appearance or Vakalatnama.-If the Third Party desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the Notice has been issued or his own liability to the defendant, the Third Party shall enter an appearance in person or a Vakalatnama in the suit within two weeks from the service of the Notice:

Provided that a person so served and failing to appear within the said period of two weeks may apply to the Court for leave to appear and such leave may be given on such terms, if any, as the Court may think fit.

27. Consequence of failure to enter Appearance or Vakalatnama.-If the Third Party does not enter an appearance in person or a Vakalatnama he shall be deemed to admit the claim stated in the Third Party Notice and shall be bound by any judgment or decision in the suit, whether by consent or otherwise, in so far as it is relevant to any claim, question or issue stated in the Notice.

28. Decree when Third Party makes default in Appearance or Vakalatnama.-Where the Third Party makes default in entering an appearance in person or a Vakalatnama in the suit,

(1) in cases where the suit is tried and results in favour of the plaintiff, the Court which tries the suit may, at or after the trial, pass such decree in favour of the defendant against the Third Party as the nature of the case may require:

Provided that, execution thereof shall not issue without the leave of the Court until the decree against the defendant has been satisfied, and

(2) in cases where the suit is decided in plaintiff’s favour, otherwise than by trial, the Court may, at any time after the decree against the defendant has been satisfied, on the application of the defendant pass such decree in favour of the defendant against the Third Party as the nature of the case may require.

29. Third Party to file Affidavit in Reply.-If the Third Party enters an appearance in person or a Vakalatnama he shall file within two weeks thereafter an affidavit in reply to the affidavit of the defendant in support of the Third Party Notice, setting out his case in respect of the Third Party Notice, and his case, if any, in respect of the plaint.

30. Appearance or Vakalatnama of Third Party Directions to be given.-(1) Where the Third Party enters an appearance in person or a Vakalatnama and files his affidavit as required by the last preceding rule, and the suit appears on Board for directions before the Court it may,

(a) order any claim, question or issue stated in the Third Party Notice to be tried in such manner, before, at or after the trial of the suit, as the Court may think fit and may, in that event, give the Third Party leave to defend the suit either along or jointly with any defendant, upon such terms as he may think just, or to appear at the trial and take such part therein as he may think just and generally may make such orders and give such directions as may appear proper for having the questions and the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the Third Party shall be bound or made liable by any decree in the suit, or

(b) dismiss the Third Party Notice.

(2) Any order made or direction given under this rule may be varied or rescinded by the Court any time before the disposal of the suit.

31. Defendant to apply for directions in certain cases.-Where for any reason it is not possible for the Court to give direction on the Third Party Notice at the time when the suit appears on the Board for directions, the defendant issuing the Third Party Notice shall, within two weeks, after the filing of the affidavit in reply by the Third Party apply for directions. Upon the hearing of such applications, the Court may pass such orders and give such directions as are mentioned in the last preceding rule.

32. Costs.-The Court may decide all questions of costs as between a Third Party and the other parties to the suit, and may order any one or more to pay the costs of any other, or others or give such directions to costs as the justice of the case may require.

33. Setting aside third party proceedings.-Proceedings on a Third Party Notice may, at any stage of the proceedings, be set aside by the Court.

34. Right of the third party and of each successive third party to apply for third party notice against other persons.-(1) Where the Third Party makes against any person not already a party to the suit (to be called “the second third party”) such a claim as is mentioned in rule 23, he may by leave of the Court issue a Third Party Notice to that effect.

(2) Where the second “Third Party” in his turn makes such a claim as is mentioned in rule 23 against any person not already a party to the suit (to be called “the Third Party”) or where each successive Third Party in his turn makes such a claim against any person not already a Party to the suit, such second “Third Party” or any successive Third Party may, by leave of the Court issue a Third Party Notice to that effect.

(3) The provisions contained in the preceding rules as to Third Party Procedure shall, with any necessary modification apply to all cases where Third Party Notices have been issued, whether at the instance of the Third Party or any successive Third Party.

35. Right of defendant to issue third party notice against co-defendant.-(1) Where a defendant makes against a co-defendant such a claim as is mentioned in rule 23 he may, without leave of the Court, issue and serve on such co-defendant within six weeks from the service of the summons upon him (the defendant making the claim) a notice stating the nature and g!bund of such claim and shall at the same time file an affidavit in support of such claim and furnish copies thereof to all parties in the suit.

(2) The provisions contained in the preceding rules regarding Third Party Procedure shall, with necessary modifications, apply to cases where a defendant has issued such notice against a co-defendant, but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the suit.

36. Third Party proceedings in a counter-claim.-Where in any suit a counter-claim is made by a defendant, the provisions contained in the preceding rules regarding Third Party Procedure shall, with any necessary modifications, apply in relation to the counter-claim as if the subject-matter of the counter-claim were the subject-matter of the suit, and as if the person making the counter-claim were the plaintiff and the person against whom it is made a defendant.”-(31-12-1987).

[Delhi].-Same as that of Punjab.

Rules 11 and 12-[Gujarat].-Add the following as rule 11:

“11. Parties to file addresses.-Every party, whether original, added or substituted, who appears in any suit or other proceeding shall on or before the date fixed in the summons or notice served on him as the date of hearing, file in Court a memorandum in writing stating his address for service, and if he fails to do so, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect, and the Court may make such order as it thinks fit. The address so given shall hold good throughout the interlocutory proceedings and appeals and also for a further period of two years from the date of the final decision and for all purposes including those of execution:

Provided that this rule shall not apply to a defendant who has not filed a written statement but who is examined by the Court under section 7 of the Dekkhan Agriculturists’ Relief Act, 1879, or otherwise or in any case where the Court permits the address for service to be given by a party on a date later than that specified in this rule.”

Rule 12 be added:

“Applicability of rules 20 and 22, 24 and 25 of Order 7 to addresses for service.-Rules 20,22,24 and 25 of Order VII shall apply so far as may be, to addresses for service filed under rule 11.”-(17-8-1961).

Rules 11 and 12-[Himachal Pradesh].-Same as that of Punjab.

Rules 11 to 13-[Madhya Pradesh].-Add the following as rules 11 to 13:

“11. Registered address.-Every defendant in a suit on opposite party in any proceedings shall, on the first day of his appearance in Court, file a memorandum giving an address for service on him of any subsequent process. The address shall be within the local limits of the Civil District in which the suit or petition is fixed or, if an address within the limits of such Civil District cannot conveniently be given, within the local limits of the Civil District in which the party ordinarily resides.

This address shall be called the “registered address” and it shall hold good throughout interlocutory proceedings and appeals and also for a further period of two years from the date of final decision and for all purposes including those of execution.

12. Consequence of non filing of registered address.-(1) If the defendant or the opposite party fails to file a registered address as required by rule 11, he shall be liable, at the discretion of the Court to have his defence struck out and to be placed in the same position as if he had made no defence.

An order under this rule may be passed by the Court suo motu or on the application of any party.

(2) Where the Court has struck out the defence under sub-rule (1) and has adjourned the hearing of the suit or the proceedings and where the defendant or the opposite party at or before such hearing, appears and assigns sufficient cause for his failure to file the registered address he may upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit or the proceedings as if the defence had not been struck out.

(3) Where the Court has struck out the defence under sub-rule (1) and has, consequently passed a decree or order, the defendant or the opposite party, as the case may be, may apply to the Court by which the decree or order was passed for an order to set aside the decree or order; and if he files a registered address and satisfies the Court that he was prevented by any sufficient cause from filing the address, the Court shall, make an order setting aside the decree or order as against him upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit or proceeding:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant or opposite party only it may be set aside as against all or any of the other defendants or opposite parties.”

13. Rules 20, 22 and 23 of Order 7 shall apply, so far as may be, to addresses for service, filed under rule 11.”-(16-9-1960).

Rules 11 and 12-[Orissa].-Omit rules 11 and 12 of Order 8 (Patna Amendment)-(7-5-1954).

Rules 11 and 12-[Patna].-Add the following rules:

“11. Every party, whether original, added or substituted, who appears in any suit or other proceedings shall, at the time of entering appearance to the summons, notice or other process served on him, file in Court a statement stating his address for service and if he fails to do so he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect and the Court may make such order as it thinks just.

12. Rules 20 and 22 of Order 7, shall apply, so far as may be, to addresses for service filed under the preceding rule.”

Rules 11 and 12-[Punjab].-Add the following rules:

“11. Every party, whether original, added or substituted, who appears in any suit or other proceeding shall, on or before the date fixed in the summons, notice or other process served on him as the date of the hearing file in Court a proceeding stating his address for service, and if he fails to do so, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect and the Court may make such order as it thinks just.

12. Rules 20, 22, 23, 24 and 25 of Order 7, shall apply so far as may be, to addresses for service filed under the preceding rule.”-(24-11-1927).

Rules 11 and 12-[Rajasthan].Add the following rules:

“11. (1) Every party whether original, added or substituted who appears in any suit or other proceeding shall on or before the date fixed in the summons or notice served on him as the date of hearing, file in Court a memorandum stating his address for service and if he fails to do so he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect, and the Court may make such order as it thinks just.

(2) Where the Court has struck out the defence under sub-rule (1) and has adjourned the hearing of the suit or the proceeding and where the defendant or the opposite party at or before such hearing, appears and assigns good cause for his failure to file the registered address he may upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit or the proceeding as if the defence has not been struck out.

(3) Where the Court has struck out the defence under sub-rule (1) and has consequently passed a decree or order, the defendant or the opposite party, as the case may be, may apply to the Court by which the decree or order was passed for an order to set aside the decree or order, and if he files a registered address, and satisfies the Court that he was prevented by any sufficient cause from filing the address, the Court shall make an order setting aside the decree or order as against him upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with suit or proceeding:

Provided that where the decree or order is of such a nature that it cannot be set aside as against such defendant or opposite party only it may set aside as against all or any of the other defendants or opposite parties.

12. Rules 19(2), 20, 22, 23, 24 and 25 of Order 7, shall apply, so far as may be, to addresses for service filed under the preceding rule.”-(24-7-1954).

Order 8-A

[Andhra Pradesh].-Same as that of Madras.

[Karnataka].-After Order VIII and before Order IX insert the following as Order VIII

A:

“ORDER VIII-A

THIRD PARTY PROCEDURE

1. (1) Where in respect of the claim made against him in the suit, a defendant claims to be entitled to contribution from or indemnity against any person not already a party to the suit (hereinafter called the third party) he may, by leave of Court, issue a notice (hereinafter called the third party notice) to that effect, sealed with the seal of the Court.

(2) An application for leave to issue such notice shall be filed along with the written statement of the said defendant and be accompanied by a draft of the notice sought to be issued. The notice shall state the nature and grounds of the claim and when the draft of the same is approved by Court with or without corrections, it shall be served on the third partytogether with a copy of the plaint and a copy of the said defendant’s written statement in the manner prescribed for the service of summons.

2. (1) If on being served with such notice the third party does not enter appearance on or before the date fixed therein for his appearance, he shall be deemed to admit the validity of the decree that may be passed against the defendant, on whose behalf the notice was issued, whether upon contest or consent or otherwise, and to admit his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice:

Provided that a person so served and failing to appear may, at any time before the disposal of the suit, apply to Court for leave to appear and the Court may grant such leave upon such terms, if any, as it may think fit to impose.

(2) Where the third party does not enter appearance in the suit and the suit is decreed upon contest or consent or otherwise against the defendant on whose behalf the notice was issued, the Court may in the said decree make such directions as to contribution or indemnity, as the case may be, against the third party and in favour of the said defendant as the circumstances of the case may require:

Provided that the execution thereof shall not issue against the third party without the leave of the Court until after satisfaction by such defendant of the decree against him.

3. If the third party desires to dispute either the claim made against him in the third party notice or the plaintiff’s claim in the suit or both, he shall enter appearance in the suit on or before the date fixed therefor in the notice.

4. When the third party enters appearance under rule 3 or upon leave being granted under the proviso to sub-rule (1) of rule 2, he shall apply to Court for directions as to further proceedings to be taken on the notice setting out his case or pleas in respect of the same. Notice thereof shall be given both to the defendant on whose behalf the third party notice was issued as well as to the plaintiff, fixing an early date for its hearing.

5. (1) On the hearing of such application:

(a) if the Court is of the opinion either that the claim made in the third party notice, is prima facie not warranted or that it is not so intimately connected with the plaintiff’s claim in the suit as to render its being conveniently tried along with the plaintiff’s claim in the suit, or that its trial in the suit will unduly prolong or hamper the trial of the suit, the Court may dismiss the proceedings on the third party notice;

(b) if the Court is satisfied that there is a question to be tried as to the liability of the third party to make the contribution or pay the indemnity claimed, in whole or in part, and that it is just and convenient to try the same in the suit itself, the Court may order the question of such liability as between the third party and the defendant giving notice, to be tried in such manner as it may direct, and may by the said order also give liberty to the third party to defend the suit itself upon such terms as may be just.

(2) When the Court proceeds under clause (b) of sub-rule (1) it shall also give such directions as may be necessary for the delivery of pleadings, production of documents or the taking of further appropriate proceedings in the suit.

(3) If upon trial a decree comes to be passed, either on contest or consent or otherwise against the defendant on whose behalf notice was given, the Court shall in such decree make such direction as to contribution or indemnity, as the case may be, against the third party and in favour of the said defendant as the circumstances of the case may require, and also as to whether execution in respect of such direction against the third party shall or shall not be conditional upon the defendant satisfying the decree against him.

(4) The Court, while making such decrees, may decide all questions of costs as between the third party and other parties and may order any one or more to pay the costs of any other or others and give such directions as to costs as the justice of the case may require.

6. (1) Where the Court dismisses the proceedings on a third party notice under clause (a) sub-rule (1) of rule 5, the claim made in the third party notice shall be deemed to havebeen left undecided, and the defendant on whose behalf notice was issued will be at liberty to take such other independent proceeding in respect thereof as may be open to him, as if no such notice had been issued by him.

(2) Where the Court decides to proceed under clause (b) of sub-rule (1) of rule 5, the third party shall, as from the date on which the third party notice was served on him, be a party to the suit and shall have

(a) the same rights as respects the claims made against him by or the decree passed against him in favour of the defendant on whose behalf the notice was issued, as if he had been sued in the ordinary way by the said defendant; and

(b) where he is given the liberty to defend the suit itself, the same rights as respects his defence in the suit and the decree passed therein as if he had been sued in the ordinary way by the plaintiff in the suit.

(3) On the making of an order under clause (b) of sub-rule (1) of rule 5, the cause-title of the suit shall be amended by inserting the name of the third party in the array of defendants, with the addition in brackets after his name the words “Third party on the notice of the defendants served on.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-Add after Order 8, the following:-

“ORDER VIII-A

THIRD PARTY PROCEDURE

1. Third party notice.-Where a defendant claims to be entitled to contribution from or .-indemnity against any person not already a party to the suit (hereinafter called a third party), he may, by leave of the Court, issue a notice (hereinafter called a third party notice) to that effect, sealed with the seal of the Court. The notice shall state the nature and grounds of the claim. Such notice shall be filed into Court with copy of the plaint and shall be served on the third party according to the rules relating to the service of summons.

2. Effect of notice.-The third party shall, as from the time of the service upon him of the notice, be deemed to be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

3. Default by third party.-If the third party desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party may enter appearance in the suit on or before the date fixed for his appearance in the notice. If he does not enter appearance he shall be deemed to admit the validity of the decree that may be obtained against such defendant, whether by consent or otherwise and his own liability to contribute or indemnify as the case may be, to the extent claimed in the third party notice:

Provided always that a person so served and failing to appear may apply to the Court for leave to appear, and such leave may be given upon such terms, if any, as the Court shall think fit.

4. Procedure on default.-Where the third party does not enter appearance in the suit and the suit is decreed by consent or otherwise in favour of the plaintiff, the Court may pass such decree as the nature of the case may require against the third party and in favour of the defendant on whose behalf notice was issued:

Provided that execution thereof shall not be issued without leave of the Court until after satisfaction by such defendant of the decree against him.

5. Third party directions.-If the third party enters appearance, the defendant on whose behalf notice was issued may apply to the Court for directions and the Court may, if satisfied that there is a question to be tried as to the liability of the third party to make the contribution or pay the indemnity claimed, in whole or in part, order the question of suchliability, as between the third party and the defendant giving the notice to be tried in such manner, at or after the trial of the suit, as the Court may direct; and, if not so satisfied, may pass such decree or order as the nature of the case may require.

6. Leave to defend.-The Court may, upon the hearing of the application mentioned in rule 5, give the third party liberty to defend the suit upon such terms as may be just, or to appear that the trial and take such part therein as may be just and generally may order such proceedings to be taken, documents to be delivered or amendments to be made, and give such directions as appear proper for the most convenient determination of the question or questions in issue, and as to the mode and extent in or to which the third party shall be bound or made liable by the decree in the suit.

7. Costs.-The Court may decide all questions of costs, as between the third party and the other parties to the suit, and may order anyone or more to pay the costs of any other, or others, or give such directions as to costs as the justice of the case may require.

8. Questions between co-defendants.-Where a defendant claims to be entitled to contribution from or indemnity against any other defendant to the suit, a notice may be issued and the same procedure shall be adopted for the determination of such questions between the defendants as would be issued and taken, if such last mentioned defendant were third party; but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the suit.

9. Further parties.-Where any person served with a third party notice by a defendant under these rules claims to be entitled to contribution from or indemnity against any person not already a party to the suit, he may, by leave of the Court, issue a third party notice to that effect and the preceding rules as to the third party procedure, shall apply mutatis mutandis to every notice so issued and the expressions “third party notice” and “third party” in these rules shall apply to and include every notice so issued and every person served with such notice, respectively.”-(Act 26 of 1968) (w.e.f. 5-9-1968).

Order 9

APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

  1. Parties to appear on day fixed in summons for defendant to appear and answer. – On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

[2. Dismissal of suit where summons not served in consequence of plaintiffs failure to pay cost. – Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee of postal charges (if any) chargeable for such service, or failure to present copies of the plaint or concise statements, as required by rule 9 of order VII, the Court may make an order that the suit be dismissed :

Provided that no such order shall be made, if, notwithstanding such failure the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.]

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In rule 2, after the words, “for such service”, insert “or that the plaintiff has failed to comply with the rules for filing the copy of the plaint for service on the defendant”.

[Orissa].-In rule 2 for the words “Court-fee or postal-charges”, substitute the words and comma “Court-fee, postal or other charges”.-(7-5-1954).

[N.B.-These High Court Amendments relate to the provisions as existed before the 2002 Amendment Act.]
  1. Where neither party appears, suit to be dismissed. – Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.
  2. Plaintiff may bring fresh suit or Court may restore suit to file. – Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.
STATE AMENDMENTS 6

 

High Court Amendments-[Delhi].-Same as that of Gujarat.

[Gujarat].-Re-number rule 4 as rule 4(1) and add the following as sub-rule (2) of rule 4:

“(2) The provisions of section 5 of the Indian Limitation Act, 1908, shall apply to application under this rule.”-(17-8-1961).

[Himachal Pradesh].-Same as that of Gujarat.

[Madhya Pradesh].-Same as that of Gujarat.

[Orissa].-Add the following proviso:

“Provided that in cases where the defendant had entered into contest by filing his defence, no suit shall be restored without notice to him.”-(14-5-1984).

[Punjab].-Same as that of Gujarat.

  1. Dismissal of suit where plaintiff after summons returned unserved, fails for [seven days]to apply for fresh summons. – [(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a period of ][seven days][from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that—

(a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order IX, in rule 5, for sub-rule (1), the following shall be substituted, namely:”5. (1) Dismissal of suit where plaintiff after summons returned unserved fails for two months to apply for fresh summons.-Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of two months from the next hearing of the suit to apply for issue of a fresh summons the Court, shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that

(a) he has failed, after using his best endeavour to discover the residence of the defendant who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.”-(31-12-1987).

[Kerala].-In Order 9, in rule 5

(i) for the existing marginal note the following shall be substituted, namely:-

“Dismissal of suit where plaintiff fails to apply for steps.”

(ii) in sub-rule (1) for the words “three months from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers” the words “one month from the next hearing of the suit or from the notice regarding the non-service of summons given by the Court to the plaintiff or his counsel” shall be substituted.-(9-6-1959).

[Orissa]Substitute the following for the existing rule 5:

“5. Dismissal of suit where plaintiff, after summons returned unserved, fails to file necessary requisites for fresh summons. (1) where after summons have been issued to the defendant, or to one of similar defendants, and returned unserved, the plaintiff fails to file necessary requisites for the issue of a fresh summons within the period fixed by the Court it shall make an order that the suit be dismissed as against such defendant, and

(2) in such a case the plaintiff may (subject to the law of limitation) bring a fresh suit. “- (3-5-1968).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]
  1. Procedure when only plaintiff appears. – (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then—
[(a)]When summons duly served.—if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.

(b) When summons not duly served.—if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time.—if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiffs’ default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

  1. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. – Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance.
STATE AMENDMENTS 6

 

High Court Amendments-[Patna].-In Rule 6(1)(c) delete the words “and shall direct notice of such day to be given to the defendant” and substitute a full stop for the comma, after the words “fixed by Court”.-(6-5-1947).

[Rajasthan].-Substitute the words “the Court may make an order that the suit shall be heard ex parte” for “the Court may proceed ex parte”.-(30-6-1956).

High Court Amendment-[Rajasthan].-Substitute the following for rule 7:

“7. Where the Court has adjourned the hearing of the suit after making an order that it be heard ex parte and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, the Court may upon such terms as it directs as to costs or otherwise, set aside the order for the hearing of the suit ex parte and hear the defendant in answer to the suit as if he had appeared on the day fixed for his appearance.”-(30-6-1956).

  1. Procedure where defendant only appears. – Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
  2. Decree against plaintiff by default bars fresh suit. – (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Assam].-Same as that of Calcutta.

[Calcutta].-Re-number sub-rule (2) as sub-rule (3) and insert therein after the words “notice of the application” the words “with a copy thereof (or concise statement as the case maybe)”.

Insert the following as sub-rule (2) before sub-rule (3) as so re-numbered:

“The plaintiff shall, for service on the opposite parties, present along with his application under this rule either

(i) as many copies thereof on plain paper as there are opposite parties, or

(ii) if the Court by reason of the length of the application or the number of opposite parties or for any other sufficient reason grants permission in this behalf, a like number of concise statements.”

[Delhi].-Same as that of Punjab.

[Gujarat].-Same as that of Madras-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-The following shall be added as sub-rule (3):

“(3) The provisions of section 5 of the Indian Limitation Act, 1908, shall apply to applications under this rule.”

[Punjab].-To rule 9(1), the following proviso shall be added:

“Provided that the plaintiff shall not be precluded from bringing another suit for redemption of a mortgage, although a former suit may have been dismissed for default.”

(ii) Add as sub-rule (3) the following:

“(3) The provisions of section 5 of the Indian Limitation Act, 1908, shall apply to applications under sub-rule (1).”

  1. Procedure in case of non-attendance of one or more of several plaintiffs. – Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.
  2. Procedure in case of non-attendance of one or more of several defendants. – Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.
  3. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person. -Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do no appear.

Setting Aside Decrees Ex Parte

  1. Setting aside decree ex parte against defendant. – In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim] [Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]
STATE AMENDMENTS 6
  1. No decree to be set aside without notice to opposite party. – No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.
STATE AMENDMENTS 6

 

High Court Amendments-[Assam].-Same as that of Calcutta.

[Calcutta].-Cancel the word “thereof” in rule 14, Order 9, and substitute therefor the following words:-“together with the copy thereof (or concise statement, as the case may be).”

Order 9, Rule 15

[Bombay].-In Order IX, after the existing rule 14, add the following rule with marginal note as new rule 15 and its marginal note:

“15. Application of the provisions of this Order to appeals.-In the application of this Order to appeals, so far as may be, the word ‘plaintiff’ shall be held to include an appellant, the word ‘defendant’, a respondent, and the word ‘suit’ an appeal.”-(1-10-1983).

[Gujarat].-Same as that of Bombay-(17-8-1961).

[Karnataka].-Add the following as rule 15:

“15. The provisions of section 5 of the Indian Limitation Act, 1963, shall apply to an application made under sub-rule (1) of rule 9 or rule 13.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

Order 10

EXAMINATION OF PARTIES BY THE COURT

  1. Ascertainment whether allegations in pleadings are admitted or denied. – At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.

[2. Oral examination of party, or companion of party. — (1) At the first hearing of the suit, the Court—

(a) shall, with a view to elucidating matters in controversy in the suit examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit; and

(b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied.

(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied.

(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.]

  1. Substance of examination to be written. – The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record.
  2. Consequence of refusal or inability of pleader to answer. – (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

Order 11

DISCOVERY AND INSPECTION

  1. Discovery by interrogatories. – In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose :

Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

  1. Particular interrogatories to be submitted. – On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.
  2. Costs of interrogatories. – In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the cost occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.
  3. Form of interrogatories. . – Interrogatories shall be in Form No. 2 in Appendix C, with such variations as circumstances may require.
  4. Corporations. – Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.
  5. Objections to interrogatories by answer. – Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, [or on the ground of privilege or any other ground], may be taken in the affidavit in answer.
  6. Setting aside and striking out interrogatories. – Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories.
  7. Affidavit in answer, filing. – Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the Court may allow.
  8. Form of affidavit in answer. – An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with such variations as circumstances may require.
  9. No exception to be taken. – No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court.
  10. Order to answer or answer further. – Where any person interrogated omits to answer, or answer insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva voice examination, as the Court may direct.
  11. Application for discovery of documents. – Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit :

Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

  1. Affidavit of documents. – The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.
  2. Production of documents. – It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
  3. Inspection of documents referred to in pleadings or affidavits. – Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document [or who has entered any document in any list annexed to his pleadings]or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse with the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit.
  4. Notice to produce. – Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require.
  5. Time for inspection when notice given. – The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C, with such variations as circumstances may require.
  6. Order for inspection. – (1) Where the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit :

Provided that the order shall not be made when and so far as the Court shall be of opinion that, it is not necessary either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

  1. Verified copies. – (1) Where inspection of any business books is applied for, the Court may , if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations :

Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege [unless the document relates to matters of State.]

(3) The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether anyone or more specific documents, to be specified in the application, is or are, or has or have at an time been, in his possession or power, and , if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time and, in his possession or power the document or documents specified in the application, and that they relate to the matters in questions in the suit, or to some of them.

  1. Premature discovery. – Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.
  2. Non-compliance with order for discovery. – [(1)]Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and [an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.]
[(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.]
  1. Using answers to interrogatories at trial. – Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer :

Provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, it may direct them to be put in.

  1. Order to apply to minors. – This Order shall apply to minor plaintiffs and defendants, and to the next friends and guardians for the suit of the persons under disability.
STATE AMENDMENTS 6

 

High Court Amendment-Rules 24,25 and 26-[Karnataka].-Add the following rules after rule 23:

“24. If where inspection has been ordered out of Court or is to be given out of Court, it is found that a satisfactory inspection cannot be obtained, or if it is shown that the documents are being or are likely to be tampered with, an application may be made to Court for an order for the deposit and inspection of the documents in Court. Such application shall be supported by affidavit. Notice of such application shall be given to the party affected thereby and orders passed only after hearing both sides, if they appear on the date fixed for hearing in the notice, or on any other date to which the hearing of the same may be adjourned thereafter.

25. A defendant upon whom summons to appear and answer the plaint has been served, shall on entering appearance before filing his written statement be entitled alongwith his pleader, if any, to inspect all documents produced with the plaint and lying in the custody of the Court.

26. A plaintiff as well as every defendant on whom summons has been served and who has entered appearance shall be entitled alongwith his pleader, if any, to inspect all documents produced into Court by any party to the suit.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

Order 12

ADMISSION

  1. Notice of admission of case. – Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
  2. Notice to admit documents. – Either party may call upon the other party [to admit, within ][seven][days from the date of service of the notice any document,]saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In rule 2 of Order XII

(i) insert the words “without sufficient cause” after the words “neglect to admit”;

(ii) substitute the words “such special” for the word “the” occurring after the words “after such notice”;

(iii) insert a comma and after that the words “as may be fixed by the Court not exceeding fifty rupees for each document” after the words “any such document”; and

(iv) delete the comma and the words “unless the Court otherwise directs” and the semicolon thereafter occurring after the words “whatever the result of the suit may be”.-(1-6-1957).

[Patna].-At the end of rule 2, add the following clause:-“The Court may penal costs in case of wrongful or unreasonable refusal to admit documents irrespective of the result of the litigation.”-(26-7-1972).

[2A. Document to be deemed to be admitted if not divided after service of notice to admit documents.—(1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability :

Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.

(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.]

  1. Form of notice. – A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.

[3A. Power of Court to record admission. – Notwithstanding that no notice to admit documents has been given under rule 2, the Court, may at any stage of the proceeding before it, of its own motion, call upon any party to admit any document and shall in such a case, record whether the party admits or refuses or neglects to admit such document.]

  1. Notice to admit acts. – Any party, may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts, mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs:

Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice:

[***]
  1. Form of admissions. – A notice to admit facts shall be in Form No. 10 in Appendix C, and admissions of facts shall be in Form No. 11 in Appendix C, with such variations as circumstances may require.

[6. Judgment on admissions. — (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.]

  1. Affidavit of signature. – An affidavit of the pleader or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if evidence thereof is required.
  2. Notice to produce documents. – Notice to produce documents shall be in Form No. 12 in Appendix C, with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time it was served.
  3. Costs. – If a notice to admit or produce specifies documents which are not necessary, the costs occasioned thereby, shall be borne by the party giving such notice.

Order 13

PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

  1. Original documents to be produced at or before the settlement of issues.-(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed alongwith plaint or written statement.

(2) The Court shall receive the documents so produced :

Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

(3) Nothing in sub-rule(1) shall apply to documents-

(a) produced for the cross-examination of the witnesses of the other party; or

(b) handed over to a witness merely to refresh his memory.

STATE AMENDMENTS 6

 

High Court Amendments-[Patna].-In rule 1, after the words, “at the first hearing of the suit”, add “or where issues are framed, on the day when issues are framed, or within such further time as the Court may permit”.

[Punjab, Haryana and Chandigarh].-Substitute sub-rule (1) as under:

“The parties or their pleaders shall produce at the first hearing of the suit all the documentary evidence of every description in their possession or power, either in original or photostat copy thereof, on which they intend to rely and which has not already been filed in Court, and all documents which the Court has ordered to be produced. “-(1-5-1975).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]
  1. Effect of non-production of documents. – [(1)]No documentary evidence in the possession or power of any party which should have been, but has not been produced in accordance with the requirements of rule

1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.

[(2)] Nothing in sub-rule (1) shall apply to documents, —

(a) produced for the cross-examination of the witness of the other party, or

(b) handed over to a witness merely to refresh his memory.]

  1. Rejection of irrelevant or inadmissible documents. – The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
  2. Endorsements on documents admitted in evidence. – (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which as been admitted in evidence in the suit the following particulars, namely :—

(a) the number and title of the suit,

(b) the name of the person producing the document,

(c) the date on which it was produced, and

(d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge.

(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge.

STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order XIII, rule 4, substitute a colon for the full stop at the end of sub-rule (1) and add thereafter the following proviso:

“Provided that in proceedings in the Bombay City Civil Court, the endorsement may be signed or initialled by such officer as the Principal Judge may authorise in this behalf.”-(1-10-1983).

[Patna].-In sub-rules (1) and (2) after the word “Judge” add the following:

“or, in the case of a High Court, by an officer in Court under the order of the Judge or one of the judges.”-(5-2-1971).

[Punjab and Haryana].-At the end of rule 4, Order XIII, add the following proviso:-

“Provided that where the Court is satisfied that the document, not endorsed in the manner laid down in the above rule, was in fact, admitted in evidence, it shall treat the document as having been properly admitted in evidence unless non-compliance with this rule has resulted in miscarriage of justice.”-(28-5-1974).

  1. Endorsements on copies of admitted entries in books, accounts and records. – (1) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891 ( 18 of 1891) where a document admitted in evidence in the suit is an entry in a letter-book or a shop-book or a or other account in current use, the party on whose behalf the book or account is produced may furnish a copy of the entry.

(2) Where such a document is an entry in a public record produced from a public office or by a public officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced, the Court may require a copy of the entry to be furnished—

(a) where the record, book or account is produced on behalf of a party, then by that party, or

(b) where the record, book or account is produced in obedience to an order of the Court acting of its own motion, then by either or any party.

(3) Where a copy of an entry is furnished under the foregoing provisions of this rule, the Court shall, after accusing the copy to be examined, compared and certified in manner mentioned in rule 17 of Order VII, mark the entry and cause the book, account or record in which it occurs to be returned to the person producing it.

STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order XIII, rule 5, substitute a colon for the full stop at the end of sub-rule (3) and add thereafter the following proviso:

“Provided that where the entry referred to in this rule is in a language other than English or the language of the Court, the provision contained in the proviso to sub-rule (2) of rule 17 of Order VII shall apply mutatis mutandis to such an entry.”-(1-10-1983).

[Gujarat].-Same as that of Bombay but omit the words “English or”.-(17-8-1961).

  1. Endorsements on documents rejected as inadmissible in evidence. – Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b), and (c) of rule 4, sub-rule (1), together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge.
STATE AMENDMENTS 6

 

High Court Amendment-[Bombay].-In Order XIII, rule 6, substitute a colon for the full stop at the end of the rule and add thereafter the following proviso: “Provided that in proceedings filed in the Bombay City Civil Court the endorsement may be signed by such officer as the Principal Judge may authorise in this behalf.”-(1-10-1983).
  1. Recording of admitted and return or rejected documents. – (1) Every document which has been admitted in evidence or a copy thereof where a copy has been substituted for the original under rule 5, shall form part of the record of the suit.

(2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order XIII, rule 7, after the existing sub-rule (2), add the following subrule with marginal note as new sub-rule (3) and its marginal note:

“(3) Documents in language other than English or Court language, or in script other than Devanagari.-Every document produced in evidence which is not written in the Court language or in English shall be accompanied by a correct translation into English or the Court language, and every document which is written in the Court language, in a script other than Devanagari shall be accompanied by a correct translation into Devanagari script. If the document is admitted in evidence the opposite party shall either admit the correctness of the translation or the transliteration or submit his own translation or transliteration of the document. “-(1-10-1983).

[Kerala].-Same as that of Madras.-(9-6-1959).

[Madhya Pradesh].-The following shall be added as sub-rule (3):

“(3) Every document produced in evidence, which is not written in the Court language or in English shall be accompanied by a correct translation into English; and every document which is written in the Court language but in a script other than Devanagari shall be accompanied by a correct transliteration into Devanagari script. If the document is admitted in evidence the opposite party shall either admit the correctness of the translation or transliteration or submit his own translation or transliteration of the document.”-(16-9-1960).

[Madras].-Add the following proviso to Order 13, rule 7(2):

“Provided that no document shall be returned which by force of the decree has become wholly void or useless.”

  1. Court may order any document to be impounded. – Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court think fit.
  2. Return of admitted documents. – (1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,—

(a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and

(b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of :

[Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor—

(a) delivers to the proper officer for being substituted for the original,—

(i) in the case of a party to the suit, a certified copy, and

(ii) in the case of any other person, an ordinary copy which has been examined, compared and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and

(b) undertakes to produce the original, if required to do so :]

Provided also, that no document shall be returned with, by force of the decree, has become wholly void or useless.

(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order XIII, for the existing rule 9 and its marginal note, substitute the tollowing as rule 9 an marginal note:

“9. Return of admitted documents.-(1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,

(a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and

(b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of:

Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor

(a) delivers to the proper officer for being substituted for the original,-

(i) in the case of a party to the suit, a certified copy, and

(ii) in the case of any other person, an ordinary copy, which has been examined, compared and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and

(b) undertakes to produce the original, if required to do so:

Provided also that a copy of the decree and of the judgment filed with the memorandum of appeal under Order XLI, rule 1, may be returned after the appeal has been disposed of by the Court:

Provided also that no document shall be returned which, by force of the decree, has become wholly void or useless.

(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.”-(1-10-1983).

[Delhi].-Same as that of Punjab.

[Gujarat].-Insert rule 9(2) after re-numbering the existing sub-rule (2) as sub-rule (3):-

“(2) Where the document has been produced by a person who is not a party to the suit, the Court may order and at the request of the person applying for the return of the document shall order the party at whose instance the document was produced to pay the cost of preparing certified copy.”

Between the first and second proviso to sub-rule (1) of rule 9, the following proviso be inserted:

“Provided also that a copy of the decree and of the judgment filed with the memorandum of appeal under Order XLI, rule 1, may be returned after the appeal has been disposed of by the Court.”-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Add the following sub-rules to rule 9:

“(3) Every application for return of a document under the first proviso to sub-rule (1) shall be verified in the manner prescribed for verification of plaints and shall set forth facts justifying the immediate return of the original.

(4) Same as Madras.

(5) Same as Madras.- (R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madhya Pradesh].-Insert the following as sub-rule (2) of rule 9 and renumber the present sub-rule (2) as sub-rule (3):

“(2) Where the document has been produced by a person who is not a party to the suit, the Court, may order and, at the request of the person applying for the return of the document, shall order the party at whose instance the documents was produced to pay the cost of preparing a certified copy.”-(16-9-1960).

[Madras].-The following sub-rules shall be inserted after sub-rule (2), namely:

“(3) Every application for return of a document under the first proviso to sub-rule (1) shall be made by a verified petition and shall set forth facts justifying the immediate return of the original.

(4) The Court may make such order as it thinks fit for the cost of any or all the parties to any application under sub-rule (1). The Court may further direct that any costs incurred in complying with or paid on application under sub-rule (1) or incurred in complying with the provisions of rule 5 of this Order, shall be included as costs in the cause.

(5) Subject to the provisions of rule 8 above, where a document is produced by a person who is not a party to the suit and such person applies for the return of the document as hereinbefore provided and undertakes to produce it whenever required to do so, the Court shall, except for reasons to be recorded by it in writing, require the party on whose behalf the document was produced, to substitute with the least possible delay, a certified copy of the original, and shall thereupon cause the original document to be returned to the applicant and may further make such order as to costs and charges in this behalf as it thinks fit. If the copy is not so provided within the time fixed by the Court, the original document shall be returned to the applicant without further delay.”

[Patna].-Add the following as sub-rule (1-A) in rule 9, Order 13:

“(1-A) Where a document is produced by a person who is not a party in the proceeding, the Court may require the party on whose behalf the document is produced to substitute a certified copy for the original as hereinbefore provided.”

[Punjab, Haryana and Chandigarh].-Rule 9(1)-Add the following proviso as the third proviso:

“Provided further that the cost of such certified copy shall be recoverable as a fine from the party at whose instance the original document has been produced.”

  1. Court may send for papers from its own records or from other Courts. – (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other suit or proceedings, and inspect the same.

(2) Every application made under this rule (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.

(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit.

  1. Provisions as to documents applied to material objects. – The provisions therein contained as to documents shall, so far as may be, apply to all other material objects producible as evidence.
STATE AMENDMENTS 6

 

High Court Amendments-Rules 12 and 13-[Allahabad].-Insert the following as rules 12 and 13 to Order 13: “12. Every document not written in the Court vernacular or in English, which is produced (a) with a plaint, or (b) at the first hearing, or (c) at any other time tendered in evidence in any suit, appeal or proceeding, shall be accompanied by a correct translation of the document into the Court vernacular. If any such document is written in the Court vernacular but in characters other than the ordinary Persian or Nagri characters in use, it shall be accompanied by a correct transliteration of its contents into the Persian or Nagri character.-(22-5-1915).

The person making the translation or transliteration shall give his name and address and verify that the translation or transliteration is correct. In case of a document written in a script or language not known to the translator or to the person making the transliteration,the person who reads out the original document for the benefit of the translator or the person making the transliteration shall also verify the translation and transliteration by giving his name and address and stating that he has correctly read out the original document. “-(10-12-1932).

“13. When a document included in the list, prescribed by rule 1, has been admitted in evidence, the Court shall, in addition to making the endorsement prescribed in rule 4(1), mark such document with serial figures in the case of documents admitted as evidence for a plaintiff, and with serial letters in the case of documents admitted as evidence for a defendant, and shall initial every such serial number or letter. When there are two or more parties defendants, the documents of the first party defendant may be marked A-1, A-2, A-3, etc., and those of the second party B-1, B-2, B-3, etc. When a number of documents of the same nature is admitted, as for example, a series of receipts for rent, the whole series shall bear one figure or capital letter or letters and a small figure or small letter shall be added to distinguish each paper of the series.”-(22-5-1915 and 11-4-1936).

Rule 12-[Karnataka].-Add the following as rule 12:”12. Where any document not written in the language of the Court is produced either with the plaint or with the written statement or at the first hearing or is at any other time tendered in evidence in any suit the Court may require that it shall be accompanied by a correct translation of the document into the language of the Court. Such translation shall be made either by the translator or interpreter of the Court, if any, or by any other competent person, and in the latter case the translation shall be verified by an affidavit of the person making the same declaring that he is acquainted with the character and language of the document and with the language of the Court and that the translation is true and correct to the best of his knowledge.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

Rule 12-[Orissa].-Insert the following as a new rule 12 to Order XIII:

“12. Every document not written in Oriya or English, which is produced: (a) with a plaint, or (b) at the first hearing, or (c) at any other time tendered in evidence in any suit, appeal or proceeding, shall be accompanied by a correct translation of the document into English. The person making the translation shall give his name and address and verify that the translation is correct. If the document is admitted in evidence the opposite party shall either admit the correctness of the translation or submit his own translation of the document.”-(29-12-1961).

Order 14

SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON

  1. Framing of issues. – (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party denied by the other shall form the subject of distinct issue.

(4) Issues are of two kinds :

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.

[2. Court to pronounce judgment on all issues. — (1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to—

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]

  1. Materials from which issues may be framed. – The Court may frame the issues from all or any of the following materials :—

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents by either party.

  1. Court may examine witnesses or documents before framing issues. – Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.

[5. Power to amend and strike out, issues. – (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.]

  1. Questions of fact or law may by agreement be stated in form of issues. – Where the parties to a suit are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter into an agreement in writing that upon the finding of the Court in the affirmative or the negative of such issue,—

(a) a sum of money specified in the agreement or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some right or subject some liability specified in the agreement;

(b) some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct; or

(c) one or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute.

  1. Court, if satisfied that agreement was executed in good faith, may pronounce judgment. – Where the Court is satisfied, after making such inquiry as it deems proper,—

(a) that the agreement was duly executed by the parties;

(b) that they have a substantial interest in the decision of such question as aforesaid, and

(c) that the same is fit to be tried and decided, it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by the Court, and shall, upon the finding or decision on such issue, pronounce judgment according to the terms of the agreement, and, upon the judgment so pronounced a decree shall follow

Order 15

DISPOSAL OF THE SUIT AT THE FIRST HEARING

  1. Parties not at issue. – Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment.
  2. One of several defendants not at issue. – [(1)]Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.
[(2) Wherever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced.]
  1. Parties at issue. – (1) Where the parties are at issue on some question of law or of fact, and issues have been frame by the Court as herein before provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and , if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit :

Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.

(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.

  1. Failure to produce evidence. – Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies, the Court may at once pronounce judgment, or any, if it thinks fit, after framing and recording issues, adjourn the suit for production of such evidence as may be necessary for its decision upon such issues.
STATE AMENDMENTS 6

 

Uttar Pradesh.— In its application to the State of Uttar Pradesh add the following rule 5 after rule 4.

“5. Striking off defence for failure to deposit admitted rent, etc.— (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent. per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence.

Explanation 1.— The expression “first hearing” means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned.

Explanation 2.— The expression “entire amount admitted by him to be due” means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor’s account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Explanation 3.— (1) The expression “monthly amount due” means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor’s account.

(2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.

(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff.

Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:

Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.” – [U.P. Act (57 of 1976) amended vide U.P. Govt. Gazzette dated 3.10.1981].

[Uttar Pradesh].-In its application to the State of Uttar Pradesh add the following ru?:.5:

“5. Striking off defence for failure to deposit admitted rent, etc.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent. per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence.

Explanation 1. -The expression “first hearing” means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned.

Explanation 2.-The expression “entire amount admitted by him to be due” means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor’s account *[and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed byhim] and the amount, if any, deposited in any Court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Explanation 3. -(l) The expression “monthly amount due” means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor’s account.

(2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.

(3) The amount deposited under this rule may at any time be withdrawn by theplaintiff:

Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:

Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.”-U.P. Act (57 of 1976) (1-1-1977) and *(w.e.f. 3-10-1981).

Order XV-A

High Court Amendment-[Bombay].-Insert the following as Order XV-A before Order XVI:

“ORDER XV-A

STRIKING OFF DEFENCE IN A SUIT BY A LESSOR

*[(1) In any suit by a lessor or a licensor against a lessee or a licensee, as the case may be, for his eviction with or without the arrears of rent or licence fee and future mesne profits from him, the defendant shall deposit such amount as the Court may direct on account of arrears up to the date of the order (within such time as the Court may fix) and thereafter continue to deposit in each succeeding month the rent or licence fee claimed in the suit as the Court may direct. The defendant shall, unless otherwise directed, continue to deposit such amount till the decision of the suit.

In the event of any default in making the deposits, as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off the defence.]

(2) Before passing an order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence.

*[(3) The amount deposited under this rule shall be paid to the plaintiff lessor or licensor or his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it shall not also be treated as a waiver of notice of termination.

Explanation.-The suit for eviction shall include suit for mandatory injunction seeking removal of licensee from the premises for the purpose of this rule.]-(1-10-1983 and *11-1-1990).

Order 16

SUMMONING AND ATTENDANCE OF WITNESSES

[1. List of witnesses and summons to witnesses. — (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such part shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or

[1A. Production of witnesses without summons—. A subject to the provisions of sub-rule (3) of rule 1, and party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.]
STATE AMENDMENTS 6

 

High Court Amendment-[Gujarat].-In Order XVI, add the following rule as rule 1-B:

“1-B. (1) The Court may, on the application of any party for a summons for the attendance of any person, permit the service of such summons to be effected by such party.

(2) When the Court has directed service of summons by the party applying for thesame and such service is not effected, the Court may, if it is satisfied that reasonable diligence has been used by such party to effect such service, permit service to be effected by an officer of the Court.”-(17-8-1961).

  1. Expenses of witnesses to be paid into Court on applying for summons. – (1) The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day’s attendance.

(2) Experts—In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.

(3) Scale of expenses.—Where the Court is subordinate to High Court, regard shall be had, in fixing the scale of such expenses to a any rules made in that behalf.

[(4)]Expenses to be directly paid to witnesses.—Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent.]
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order XVI, rule 2, substitute a colon for the full stop appearing at the endof sub-rule (1) and add thereafter the following proviso:

“Provided that where Government or a public officer being a party to a suit or proceeding as such public officer supported by Government in the litigation, applies for a summons to any public officer to whom the Civil Service Regulations apply to give evidence of facts which have come to his knowledge or of matters with which he has to deal as a public officer, or to produce any document from public records, the Government or the aforesaid officer shall not be required to pay any sum of money on account of the travelling and other expenses of such witness.”-(1-10-1983).

[Calcutta].-Cancel clauses (1) and (2) and substitute therefor the following:

“(1) The Court shall fix in respect of each summons such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the persons summoned, in passing to and from the Court in which he is required to attend, and for one day’s attendance.

(2) In fixing such an amount the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Gujarat].-Same as that of Bombay-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Kerala].-Sub-rule (4)-Same as that of Madras-(9-6-1959).

[Madhya Pradesh].-Add the following as an exception to sub-rule (I):-

“Exception.-When applying for a summons for any of its own officers, Government and State Railway administrations will be exempt from the operation of sub-rule (1).”-(16-9-1960).

[Madras].-Add clause (4):-“Where the summons is served on the witnesses by the party directly, the expenses mentioned in clause (1) shall be paid to the witnesses by the party or his agent.”-(1-11-1951).

[Orissa].-Same as that of Patna.

[Patna].-Add the following proviso to Order XVI, rule 2(1):

“Provided that the Government shall not be required to pay any expenses into Court under this rule when it is the party applying for the summons, and the person to be summoned is an officer serving under Government, who is summoned to give evidence of facts which have come to his knowledge, or of matters with which he has to deal, in his public capacity.”-(13-2-1952).

[Punjab].-Add the following as an exception to rule 2(1):

“Exception.-When applying for a summons for any of its own officers, Government will be exempt from the operation of clause (1).”-(1-11-1966).

  1. Tender of expenses to witness. – The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally.
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order XVI, rule 3, substitute a colon for the full stop appearing at the endof rule 3 and add thereafter the following proviso:

“Provided that where the witness is a public officer to whom the Civil Service Regulations apply and is summoned to give evidence of facts which have come to his noticeor of facts which he has had to deal, in his official capacity, or to produce a document from public records, the sum payable by the party obtaining the summons on account of his travelling and other expenses shall not be tendered to him. Such officer shall, however, be required to produce a certificate duly signed by the Head of his office showing the rates of travelling and other allowances admissible to him as for a journey on tour.”-(1-10-1983).

[Calcutta].-Substitute the following for rule 3:

“3. The sum so fixed shall be tendered to the person summoned, at the time of serving of the summons, if it can be served personally:

Provided-

(i) that where the person summoned is a servant of any State Government whose pay exceeds Rs. 10 per mensem or whose headquarters are situated more than five miles from the Court, and he has been summoned to appear as a witness in his official capacity in a civil case to which Government is a party, the sum so fixed shall be credited to the Treasury;

(ii) that where the person summoned is a finger-print expert of the Criminal Investigation Department and he is summoned to give evidence in private cases the sum so fixed, other than his travelling allowance, shall be credited to the Treasury;

(iii) that where the person summoned is the Government Examiner of questioned documents or his assistant and is summoned to give evidence or his opinion is sought in private cases the sum so fixed be credited to the Treasury;

(iv) that where the person summoned is a servant of the Central Government or a State Railway or any other Commercial Department of Government and he is summoned to give evidence in his public capacity in a civil case, whether Government is or is not a party, the sum so fixed shall be credited in the Treasury to the Government or the State Railway, as the case maybe, to which the employee belongs; and

(v) that where the person summoned is a State Railway employee and is summoned to give evidence in his private capacity in a civil Court in Assam, the sum so fixed shall be credited to the Railway to which he belongs.”-(8-3-1948).

[Delhi].Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Gujarat].-Proviso-Same as Bombay except that the last sentence in the proviso has been omitted.-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Kerala].-In rule 3, the following shall be added as para (2), namely:

“In the case of employees of the Central Government or the State Government or Railway Administration, sums paid into Court as subsistence allowance or compensation shall be credited in the Treasury to the credit of the Central Government or the State Government or the Railway Administration, as the case may be.”-(9-6-1959).

[Madhya Pradesh].-For rule 3, substitute the following:

“3. (1) The sum so paid into Court shall, except in case of a Government servant or a State Railway employee, be tendered to the person summoned, at the time of serving the summons, if it can be served personally.

(2) Where a party other than Government in a suit requests the Court to summon a Government servant or a Railway employee as a witness or to produce official documents, the party shall deposit with the Court a sum, which in the opinion of the Court, will be sufficient to defray the travelling and other allowances of the Government servant or the Railway employee, as the case may be, as for a journey on tour and out of the sum so deposited the Court shall pay to the Government servant or the Railway employee concerned, the amount of travelling and other allowances admissible to him as for a journey on tour.”-(16-9-1960).

[Madras].-The following shall be added as a separate paragraph to rule 3, namely:-

“In the case of employees of the Central Government or a State Railway sum paid into Court as subsistence allowance or compensation shall be credited in the Treasury to the credit of the Central Government or State Railway as the case may be.”

[Orissa].-Same as that of Patna (except for the letter and figure “Rs. 10” substitute “Rs. 200).”-(25-5-1984).

[Patna].-Add the following as proviso to rule 3 of Order 16:

“Provided that when the person summoned is an officer of Government, who has been summoned to give evidence in a case to which Government is a party, of facts which have come to his knowledge, or of matters which he has had to deal, in his public capacity, then

(i) if the officer’s salary does not exceed Rs. 10 a month, the Court shall, at the time of the service of the summons, make payment to him of his expenses as determined by rule 2 and recover the amount from the Treasury;

(ii) if the officer’s salary exceeds Rs. 10 a month, and the Court is situated not more than five miles from his headquarters, the Court may, at its discretion on his appearance, pay him the actual travelling expenses incurred;

(iii) if the officer’s salary exceeds Rs. 10 a month and the Court is situated more than five miles from his headquarters, no payment shall be made to him by the Court. In i such cases any expenses paid into Court under rule 2 shall be credited to Government.”

[Punjab].-For rule 3 substitute the following:

“3. Tender of expenses to witness.- (1) The sum paid into a Court shall, except in the case of a Government servant, be tendered to the person summoned, at the time of serving the summons, if it can be served personally.

(2) When the person summoned is a Government servants the sum so paid into Court shall be credited to Government.

Exception (1).-In cases in which Government servants have to give evidence at a Court situate not more than five miles from their headquarters, actual travelling expenses incurred by them may, when the Court considers it necessary, be paid to them.

Exception (2).-A Government servant, whose salary does not exceed Rs. 10 per mensem, may receive his expenses from the Court.”

[Rajasthan].-Substitute for rule 3 the following:

“The sum so paid into Court may, and if so required by the person summoned, c._ll be tendered to him at the time of serving the summons, if it can be served personally.”-(24-7-1954).

Order 16, Rule 3-A

[Bombay].-In Order XVI, after the existing rule 3 (with the proviso last added thereto) add the following rule with marginal note as new rule 3-A and its marginal note:

“3-A. Special provision for public servants summoned as witnessses in suits in which the Government is not a party.-(1) Notwithstanding anything contained in the foregoing rules, in all suits or other proceedings to which the Government is not a party, where a servant of the Central Government or a railway employee is summoned to give evidence and/or to produce documents in his official capacity, the Court shall direct the party applying for summons to deposit such sum of money as will, in the opinion of the Court be sufficient to defray the travelling and other expenses of the officer concerned as for a journey on tow; and on the deposit of such sum, the Court shall direct the summons to be issued and, out of the sum so deposited or out of any further sum which the Court may subsequently direct the party applying for summons to deposit, the Court shall, on the appearance before the Court of the officer summoned, pay him the amount of travelling and other expenses admissible to him as for a journey on tour under the rules applicable to his service.

(2) The officer appearing before the Court in accordance with sub-rule (1) shall produce a certificate duly signed by the head of his office, showing the rates of travelling and other allowances admissible to him as for a journey on tour, and the amount payable to him by the Court shall be computed on the basis of rates specified in such certificate.”-(1-10-1983).

[Gujarat].-Same as Bombay except that for the words “official capacity” the words “public capacity” have been substituted.-(17-8-1961 and 16-4-1970).

  1. Procedure where insufficient sum paid in. – (1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

(2) Expenses of witnesses detained more than one day.—Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence, or may other order such levy and discharge such person as aforesaid.

STATE AMENDMENTS 6

 

High Court Amendments-[Calcutta].-Cancel clause (1) and substitute therefor the following: “(1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum so fixed is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned without requiring him to give evidence, or may both order such levy and discharge such person as aforesaid.” [Delhi].-Same as that of Punjab.[Gauhati].-Same as that of Calcutta. [Himachal Pradesh].-Same as that of Punjab. [Madhya Pradesh].-In rule 4, insert the following between the words “summoned” and ,as appears” in sub-rule (1):”or, when such person is a Government servant or a State Railway employee, to be paid into Court.”-(16-9-1960). [Punjab].-After the word “summoned” where it first occurs in rule 4(1) insert:-“or, when such person is a Government servant, to be paid into Court.
  1. Time, place and purpose of attendance to be specified in summons. – Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy.
  2. Summons to produce document. – Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
  3. Power to require persons present in Court to give evidence or produce document. – Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.

[7A. Summons given to party for service — (1) The Court may, on the application of any party for the issue of a summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service.

(2) The service of such summons shall be effected by or on behalf of such party by delivering or tendering to the witness personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court.

(3) The provisions of rules 16 and 18 of Order V shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.

(4) If such summons, when tendered, is refused or if the person served refuses to sign and acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.

(5) Where a summons is served by a party under this rule, the party shall not be required to pay the fees otherwise chargeable for the service of summons.]

  1. Summons how served. – Every summons [under this Order, not being a summons delivered to a party for service under rule 7A,]shall be served as nearly as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply in the case of all summonses served under this rule.
  2. Time for serving summons. – Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.
  3. Procedure whose witness fails to comply with summons. – [(1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court—

(a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or

(b) may, if the certificate of the serving officer has been so verified. examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.]

(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.

(3) In 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.

STATE AMENDMENTS 6
  1. If witness appears attachment may be withdrawn. – Where at any time after the attachment of his property, such person appears and satisfies the Court—

(a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service, and

(b) where he has failed to attend at the time and place named in a proclamation issued under the last proceeding rule, that he had no notice of such proclamation in time to attend, the Court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit.

  1. Procedure if witness fails to appear. – [(1)]The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to the attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs to such attachment, together with the amount of the said fine, if any:

Provided that, if the person whose attendance is required pays into Court the Costs and fine aforesaid, the Court shall order the property to be released from attachment.

[(2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule, the Court may impose fine under sub-rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.]
  1. 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.
  2. Court may of its own accord summon as witnesses strangers to suit.. – Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [to examine any person, including a party to the suit]and not called as witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.
  3. Duty of persons summoned give evidence or produce document. – Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit shall attend at the time an place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced, at such time and place.
  4. 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.

STATE AMENDMENTS 6

 

High Court Amendments-[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Punjab].-Add the following:

“(3) In the absence of the presiding officer the powers conferred by sub-rule (2) may be exercised by the Senior Subordinate Judge of the first class exercising jurisdiction at the headquarters of the district, or by any Judge or Court-official nominated by him for the purpose:

Provided that a Court-official nominated for the purpose, shall not order a person, who fails to furnish such security as may be required by sub-rule (2), to be detained in prison, but shall refer the case immediately to the presiding officer on his return.”-(23-1-1940).

  1. Application of rules 10 to 13. – The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person who having attended in compliance with a summons departs, without lawful excuse, in contravention of rule 16.
  2. Procedure where witness apprehended cannot give evidence or produce document. – Where any person arrested under a warrant is brought before the Court in custody and cannot, owing to the absence of the parties or any of them , give the evidence or produce the document which he has been summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, on such bail or security being given, may release him, and, in default of his giving such bail or security, any order him to be detained in the civil prison.
  3. No witness to be ordered to attend in person unless resident within certain limits. – No one shall be ordered to attend in person to give evidence unless he resides—

(a) within the local limits of the Court’s ordinary original jurisdiction, or

(b) without such limits but at a place less than [one hundred] or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place were the Court is situate) less than [five hundred kilometers]distance from the Court-house :

[Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.]
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In Order 16, rule 19 (b):

(i) Insert the words “or private conveyance run for hire” between the words “public conveyance” and “for five-sixths”, and

(ii) Substitute the word “three” for the word “two”.-(4-4-1959).

[Punjab].-Add the following proviso to rule 19 (b):

“Provided that any Court situate in the State of Punjab may require the personal attendance of any witness residing in the Punjab or Delhi State.”-(4-3-1955).

  1. Consequence of refusal of party to give evidence when called on by Court. – Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
  2. Rules as to witnesses to apply to parties summoned. – Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so for as they are applicable.
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Calcutta].-Substitute the following:”21. (1) When any party to a suit is required by any other party thereto to give evidence, or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.

(2) When a party to a suit gives evidence on his own behalf, the Court may, in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing.”

[Gauhati].-Same as that of Calcutta.

[Karnataka].-Same as that of Madras-(R.O.C. 2526/1959, dated 19-2-1967). [Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-Substitute the following for rule 21:

“21. Rules in case of parties appearing as witnesses.-(1) When any party to a suit is required by any other party thereto to give evidence, or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.

(2) When a party to a suit gives evidence on his own behalf, the Court may, in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing.”

Rules 22 and 23-[Allahabad].-Add the following to Order 16 as rules 22 and 23:-

“22. (1) Save as provided in this rule and in rule 2, the Court shall allow witnesses reasonable actual travelling expenses. Other expenses to be allowed to them shall be on the following scale, namely:

(a) in the case of witnesses of the class of cultivators, labourers and persons, including Government servants of corresponding rank-rupee one per day;

(b) in the case of witnesses of a better class, such as bhumidars and sirdars, traders, pleaders and persons including Government servants, of corresponding rank-rupee one and fifty naye paise to rupees three per day;

(c) in the case of witnesses of a superior rank including Government servants-from rupees three and fifty naye paise to rupees six per day:

Provided that where a Government servant is summoned to produce official documents or to give evidence of facts which came to his knowledge in the discharge of his public duties, he shall be paid travelling and other expenses at the rates admissible to him as for journeys on tour in accordance with the travelling allowance rules applicable to him.-(14-3-1953).

(2) If a witness demands any sum excess of in what has been paid to him, such sum shall be allowed if he satisfies the Court that he has actually and necessarily incurred the additional expense.-(22-5-1915).

Illustration

A post office or railway employee summoned to give evidence is entitled to demandfrom the party, on whose behalf or at whose instance he is summoned, the travelling and other expenses allowed to witnesses of the class or rank to which he belongs, and in addition the sum for which he is liable as payment to the substitute officiating during his absence from duty. The sum so payable in respect of the substitute will be certified by the official superior of the witness on a slip which the witness will present to the Court from which the summons was issued.-(22-5-1915 and 25-4-1936).

(3) If a witness be detained for a longer period than one day the expenses of his detention shall be allowed at such rate, not usually exceeding that payable under clause (i) of this rule, as may seem to the Court to be reasonable and proper:Provided that the Court may, for reasons stated in writing, allow expenses on a higher scale than that hereinbefore prescribed.-(22-5-1915).

23. In cases to which Government is a party, Government servants, whose salary exceeds Rs. 10 per mensem and all police constables whatever their salary may be who are summoned to give evidence in their official capacity at a Court situated more than five miles from their headquarters, shall be given a certificate of attendance by the Court in lieu of travelling and other expenses”.-(7-2-1920).

[ORDER 16A

ATTENDANCE OF WITNESSES CONFINED OR DETAINED IN PRISONS]

  1. Definitions. – In this Order,—

(a) “detained” includes detained under any law providing for preventive detention;

(b) “prison” includes—

(i) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail; and

(ii) any reformatory, borstal institution or other institution of a like nature.

  1. Power to require attendance of prisoners to give evidence. – Where it appears to a Court that the evidence of a person confined or detained in a prison within the State is material in a suit, the Court may make an order requiring the officer in charge of the prison to produce that person before the Court to give evidence :

Provided that, if the distance from the prison to the Court-house is more than twenty-five kilometres, no such order shall be made unless the Court is satisfied that the examination of such person on commission will not be adequate.

  1. Expenses to be paid into Court. – (1) Before making any order under rule 2, the Court shall require the party at whose instance or for whose benefit the order is to be issued, to pay into Court such sum of money as appears to the Court to be sufficient to defray the expenses of the execution of the order, including the traveling and other expenses of the escort provided for the witness.

(2) Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rule made by the High Court in that behalf.

  1. Power of State Government to exclude certain persons from the operation of rule 2. – (1) The State Government may, at any time, having regard to the matters specified in sub-rule (2) by general or special order, direct that nay person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under rule 2, whether before or after the date of the order made by the State Government, shall have effect in respect of such person or class of persons.

(2) Before making an order under sub-rule (1), the State Government shall have regard to the following matters, namely :—

(a) the nature of the offence for which, or the grounds on which, the person or class of persons have been ordered to be confined or detained in prison;

(b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison; and

(c) the public interest, generally.

  1. Officer in charge of prison to abstain from carrying out order in certain cases. – Where the person in respect of whom an order is made under rule 2 —

(a) is certified by the medical officer attached to the prison as unfit to be removed from the prison by reason of sickness or infirmity; or

(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or

(c) is in custody for a period which would expire before the expiration of the time required for comply with the order and for taking him back to the prison in which he is confined or detained ; or

(d) is a person to whom an order made by the State Government under rule 4 applies,the officer in charge of the prison shall abstain from carrying out the Court’s order and shall send to the Court a statement of reason for so abstaining.

  1. Prisoner to be brought to Court in custody. -In any other case, the officer in charge of the prison shall, upon delivery of the Court’s order, cause the person named therein to be taken to the Court so as to be present at the time mentioned in such order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison in which he is confined or detained.
  2. Power to issue commission for examination of witness in prison. -(1) Where it appears to the Court that the evidence of a person confined or detained in a pison, whether within the State or elsewhere in India, is material in a suit but the attendance of such person cannot be secured under the preceding provisions of this order, the Court may issue a commission for the examination of that person in the prison in which he is confined or detained.

(2) The provisions of Order XXVI shall, so far may be, apply in relation to the examination on commission of such person in prison as they apply in relation to the examination on commission of any other person.

Order 17

ADJOURNMENTS

  1. Court may grant time and adjourn hearing. -[(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.]

(2) Costs of adjournment.—In every such case the Court shall fix a day for the further hearing of the suit, and [shall make such order as to costs occasioned by the adjournment or such higher costs as the court deems fit]:

[Provided that,—

(a) When the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time.

(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-inchief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.]

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Add the following proviso:

“Provided further that no such adjournment shall be granted for the purpose ofcalling a witness not previously summoned or named, nor shall any adjournment be utilised by any party for such purpose, unless the Judge has made an order in writing under the proviso to Order 16, rule 1.” -(24-7-1926).

[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Punjab].-(i) To rule 1, add the following as sub-rule (3):

“(3) Where sufficient cause is not shown for the grant of an adjournment under sub-rule (1), the Court shall proceed with the suit forthwith.”

(ii) To rule 1(1) before the word “the Court” add the words “subject to the provisions of Order 23, rule 3”.-(H.C. Notification No. 211, dated 21-7-1937).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]
  1. Procedure if parties fail to appear on day fixed,. – Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
[Explanation.—Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.]
STATE AMENDMENTS 6
  1. Court may proceed notwithstanding either party fails to produce evidence, etc.. – Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,—

(a) if the parties are present, proceed to decide the suit forthwith, or

(b) if the parties are, or any of them is, absent, proceed under rule 2].

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Put a comma after the first word “where” sert thereafter the words “in a case to which rule 2 does not apply”.-(17-1-1953).

[Andhra Pradesh].-At the end of rule 3 add the following proviso:

“Provided that in a case where there is default under this rule as well as default of appearance under rule 2, the Court will proceed under rule 2.”-(27-4-1961).

[Madhya Pradesh].-The following proviso shall be added to Order 17, rule 3:-

“Provided that in a case where there is default under this rule as well as default of appearance under rule 2, the Court will proceed under rule 2.”-(27-8-1976).

Order 18

HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

  1. Right to begin. – The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
  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.

[***]
STATE AMENDMENTS 6

 

(High Court Amendments-[Allahabad].-For the present rule 2, substitute the following:

“2. (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case, indicating the relevancy of each of the documents produced by him, and the nature of the oral evidence which he proposes to adduce and shall then call his witnesses in support of the issues which he is bound to prove.

(2) The other party shall then state his case in the manner aforesaid and produce his evidence (if any).”-(20-6-1936).

[Andhra Pradesh].-Same as that of Madras.

[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Same as that of Madras-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-In Order XVIII, in rule 2, after sub-rule (3) the following Explanation shall be inserted, namely:

“Explanation.-Nothing in this rule shall affect the discretion of the Court to direct or permit the examination of any witness at any stage of the suit for reasons to be recorded.”-(9-6-1959).

[Madhya Pradesh].-Add the following as sub-rule (4) to rule 2 :

“(4) Notwithstanding anything contained in this rule, the Court may order that the production of evidence or the address to the Court may be in any order, which it may deem fit.”- (16-9-1960).

[Madras].-Add the following at the end of rule 2:

“Explanation.-Nothing in this rule shall affect the jurisdiction of the Court, for reasons to be recorded in writing, to direct any party to examine any witness at any stage.”

[Orissa].-Insert the following at the end of rule 2 of Order 18:” Explanation.-Nothing in this rule shall affect the jurisdiction of the Court to direct any party to examine any witness at any stage, for reasons to be recorded by the Court in writing.”- (7-5-1954).

[Punjab].-At the end of rule 2, insert the following

“Explanation I.-Nothing in this rule shall affect the jurisdiction of the Court, of its own accord or on the application of any party for reasons to be recorded in writing, to direct any party to examine any witness at any stage.

Explanation II.-The expression “witness” in Explanation I shall include any party as his own witness”.-(1-1 1-1966).

[Rajasthan].-Insert the following as sub-rule (4) to rule 2:

“(4) Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined: provided that the Court may on an application made in this behalf and for reasons to be recorded, permit him to appear as his own witness at a later stage.”-(25-7-1957).

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999/2002 Amendment Acts.]
  1. Evidence where several issues. – Where there are several issues, the burden of proving some of which lies on the party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.
STATE AMENDMENTS 6

 

High Court Amendment-[Allahabad].-For the present rule, substitute the following:

“3. (1) Where there are several issues the burden of proving some of which lies on the other party, the party beginning may, at his option, either state his case in the manner aforesaid and produce his evidence on those issues or reserve the statement of his case and the production of his evidence on those issues by way of answer to the evidence produced

(2) After both parties have produced their evidence, the party begining may address the Court on the whole case; the other party may then address the Court on the whole case; and the party begining may reply generally on the whole case, provided that in doing so he shall not, without the leave of the Court, raise questions which should have been raised in the opening of address.”-(20.6.1936)

[3A . Party to appear before other witnesses. — Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded permits him to appear as his own witness at a later stage.]

[4. Recording of evidence.-(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it:

Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit:

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.

(8) The provisions of rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of suchcommission under this rule.]

STATE AMENDMENTS 6

 

High Court Amendment-[Rajasthan].-Insert the following words at theco mencement of rule 4 of Order 18:-“Subject to the provisions of rule 1 of Order 16.”5-7-1957).

[N.B.-This High Court Amendment relates to the provisions as existed before the 2002Amendment Act.]

[5. How evidence shall be taken in appealable cases. —In cases in which an appeal is allowed, the evidence of each witness shall be,—

(a) taken down in the language of the Court,—

(i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or

(ii) from the dictation of the Judge directly on a typewriter, or

(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge.]

  1. When deposition to be interpreted. — Where the evidence is taken down in language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given.
  2. Evidence under Section 138. — Evidence taken down under section 138 shall be in the form prescribed by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule.
  3. Memorandum when evidence not taken down by Judge. — Where the evidence is not taken down in writing by the Judge, [or from his dictation in the open Court, or recorded mechanically in his presence,]he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.
STATE AMENDMENTS 6

 

High Court Amendments-(Allahabad].-In Order 18, rule 8:

(a) Insert the words “or from his dictation” after the words “in writing by the Judge”.

(b) Substitute the words “by the Judge or typed to his dictation, shall be signed byhim,” for the words “and signed by the Judge”.-(19-5-1956).

[Bombay].-In Order XVIII for rule 8, substitute the following:

“8. Memorandum when evidence not taken down by Judge.-Where the evidence is not taken down in writing by the Judge, he shall be bound as the examination of each witness proceeds to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written or dictated and signed by the Judge and shall form part of the record.

Exception.-However, to matters outside Greater Bombay, the State of Goa and the Union Territories of Daman and L)iu and Dadra and Nagar Haveli and from which there is no first appeal to the High Court the depositions given by the witnesses shall be recorded only in Marathi or in English where the witness deposes in English. In such matter it is not necessary to maintain memorandum as mentioned in the rule. “-(31-12-1987).

[Calcutta].-Omit rule 8-(6-7-1967).

[Punjab].-Same as that of Allahabad-(10-12-1974).

[9. When evidence may be taken in English. — (1) Where English is not the language of the Court, but all the parties to the suit who appear in person, and the pleaders of such of the parties as appear by pleaders, do not object to having such evidence as is given in English, being taken down in English, the Judge may so take it down or cause it to be taken down.

(2) Where evidence is not given in English but all the parties who appear in person, and the pleaders of such of the parties as appear by pleaders, do not object to having such evidence being taken down in English, the Judge may take down, or cause to be taken down, such evidence in English.]

  1. Any particular question and answer may be taken down. – the Court may, of its own motion or on the application of any party or his pleader, take down any particular question and answer, or any objection to any question, if there appears to be any special reason for so doing.
STATE AMENDMENTS 6

 

High Court Amendment-[Calcutta (Andaman and Nicobar Islands) ].-After the -ds “take down” add a comma and thereafter the words “or cause to be taken down from his dictation in open Court, in the language of the Court or in English”.-(6-7-1967).
  1. Questions objected to and allowed by Court. — Where any question put to a witness is objected to by a party or his pleader, and the Court allows the same to be put, the Judge shall take down the question, the answer, the objection and the name of the person making it, together with the decision of the Court thereon.
STATE AMENDMENTS 6

 

High Court Amendment-[Calcutta (Andaman and Nicobar Islands)].-“After the rds “take down” add a comma and thereafter the words “or cause to be taken down from his dictation in open Court, in the language of the Court or in English”.-(6-7-1967).
  1. Remarks on demeanour of witnesses. – The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.
STATE AMENDMENTS 6

 

High Court Amendment-[Calcutta (Andaman and Nicobar Islands)].-Add the following at the end of the rule:-“or cause the same to be recorded under his dictation in opgficourt, in the language of the Court or in English.”-(6-7-1967).

[13. Memorandum of evidence in unappealable cases. — In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record.]

STATE AMENDMENTS 6

 

High Court Amendment-[Bombay].-In Order XVIII for rule 13, substitute the following:-

“13. Memorandum of evidence in unappealable cases.-In cases in which an appeal is notallowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record. However, such memorandum outside Greater Bombay, the State of Goa and the Union Territories of Daman and Diu and Dadra and Nagar Haveli shall be in Marathi or in English wherever the witnesses depose in English.”-(31-12-1987).

  1. Judge unable to make such memorandum to record reasons of his liability.-[Omitted by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), section 69 (w.e.f. 1.2.1977).]
  2. Power to deal with evidence taken before another Judge. — (1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.

(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24.]

  1. Power to examine witness immediately. — (1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner herein before provided.

(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.

(3) The evidence so taken shall be read over to the witness, and if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit.

  1. Court may recall and examine witness. – The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.]

17A . Production of evidence not previously known or which could not be produced despite due diligence. — [Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 27(w.e.f. 1.7.2002).]

  1. Power of Court to inspect. – The Court may at any stage of a suit inspect any property or thing concerning which any question may arise [and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit.]
STATE AMENDMENTS 6

 

High Court Amendment.-[Madras].-The following shall be added at the end of rule 18:-

“As such as may be, the Court shall record a memorandum of any relevant fact observed at such inspection.Such memorandum shall form part of the record of the cas.”-(28.1.1959).

[19. Power to get statements recorded on commission.-Notwithstanding anything contained in these rules, the Court may, instead of examining witnesses in open Court, direct their statements to be recorded on commission under rule 4-A of Order XXVI.]

STATE AMENDMENTS 6

 

Order 18, Rule 19

HIgh Court Amendments-[Allahabad].-Add the following as rule 19:”19. (1) The Judge shall record in his own hand in English *[or Hindi] all orderspassed on applications, other than orders of a purely routine character.

(2) The Judge shall record in his own hand in English *[or Hindi] all admissions and denials of documents, and the **[Judges notes] shall show how all documents tendered in evidence have been dealt with from the date of presentation down to the final order admitting them in evidence or rejecting them.

(3) The Judge shall record the issues in his own hand in English *[or Hindi], and the issues shall be signed by the Judge and shall form part of the **[Judges notes].”-(17-3-1923), *(Added w.e.f. 22-10-1994) and **(substituted for “English proceedings” w.e.f. 22-10-1994).

Explanation-“Judges notes” means the notes maintained by the Judge in his own hand of the day-to-day proceedings.-(22-10-1994).

[Rajasthan].-Add the following as rule 19:

“19. Power to get statements recorded on commission.-Notwithstanding anything contained in these rules, the Court may instead of examining witnesses in open Court, direct their statements to be recorded on Commission under rule 4-A of Order 26.”-(1-12-1973).

[N.B.-These State Amendments relate to the provisions as existed before the 1999 Amendment Act. The Amendments made by the Rajasthan High Court have been incorporated in the Central Act by the 1999 Amendment Act.]

Order 19

AFFIDAVITS

  1. Power to order any point to be proved by affidavit. – Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable :

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

STATE AMENDMENTS 6

 

Uttar Pradesh.— For the existing proviso, substitute the following:—

“Provided that if it appears to the Court, whether at the instance of either party or otherwise and whether before or after the filing of such affidavit, that the production of such witness for cross-examination is necessary and his attendance can be procured, the Court shall order the attendance of such witness, whereupon the witness may be examined, cross-examined and re-examined.”.-[U.P. Act (57 of 1976)].

Madhya Pradesh.— Insert the following rule, after rule 1:—

“1-A. Proof of fact by affidavit in certain cases.— Notwithstanding anything contrary to rule 1, the Court shall, in a suit or proceeding referred to in sub-rule 3-B of Order 1 and whether or not any proceeding under the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 are pending before the Competent Authority appointed under that Act, call upon the parties to prove any particular fact or facts as it may direct, by affidavit, unless the Court looking to the nature and complexity of the suit or proceeding and for reasons to be recorded in writing deems it just and expedient to dispense with the proof of a fact or facts by affidavits.”.-[M.P. Act 29 of 1984].

High Court Amendment-[Allahabad].-In its application to the State of Uttar Pradesh, insert the following rule, after rule 1:

“1-A. Power to permit ex parte evidence on affidavit.-Where the case proceeds ex parte, the Court may permit the evidence of the plaintiff to be given on affidavit.”-(w.e.f. 3-10-1981).

High Court Amendment-[Allahabad.]-In its application to the State of Uttar Pradesh, insert the following rule, after rule 1

“1-A. Power to permit ex parte evidence on affidavit.-Where the case proceeds ex parte the Court may permit the evidence of the plaintiff to be given on affidavit.”-(w.e.f. 3-10-1981]

  1. Power to order attendance of deponent for cross-examination. – (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.

  1. Matters to which affidavits shall be confined. – (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:

Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hear say or argumentative matter, or copies of or extracts from document, shall (unless the Court otherwise directs) be paid by the party filing the same.

STATE AMENDMENTS 6

 

Order 19, Rules 4 to 15

High Court Amendment-(Allahabad).-Add the following rules 4 to 15 to Order 19:-

“4. Affidavits shall be entitled, “In the Court of… at… (naming such Court).” If the affidavit be in support of, or in opposition to an application respecting any case in the Court, it shall also be entitled in such case. If there be no such case, it shall be entitled. In the matter of the petition of.-(22-5-1915).

5. Affidavits shall be divided into paragraphs, and every paragraph shall be numbered consecutively and, as nearly as may be, shall be confined to a distinct portion of the subject.-(22-5-1915).

6. Every person making any affidavit shall be described therein in such manner as shall serve to identify him clearly; and where necessary for this purpose, it shall contain the full name, the name of his father, of his caste or religious persuasion, his rank or degree in life, his profession, calling, occupation or trade, and the true place of his residence.-(22-5-1915).

7. Unless it be otherwise provided, an affidavit may be made by any person having cognizance of the facts deposed to. Two or more persons may join in an affidavit; each shall depose separately to those facts which are within his knowledge, and such facts shall be stated in separate paragraphs.-(22-5-1915).

8. When the declarant in any affidavit speaks to any fact within his own knowledge, he must do so directly and positively, using the words “I affirm” or “I make oath and say”.-(22-5-1915).

9. Except in interlocutory proceedings, affidavits shall strictly be confined to such facts as the declarant is able of his own knowledge to prove. In interlocutory proceedings, when the particular fact is not within the declarant’s own knowledge, but is stated from information obtained from others, the declarant shall use the expression “I am informed”, and, “if such be the case” and verily believe it to be true”; and shall state the name and address of, and sufficiently describe for the purposes of identification, the person or persons from whom he received such information. When the application or the opposition thereto rests on facts disclosed in documents or copies of documents produced from any Court of justice or other source, the declarant shall state what is the source from which they were produced, and his information and belief as to the truth of the facts disclosed in such documents.-(22-5-1915).

10. When any place is referred to in an affidavit, it shall be correctly described. When in an affidavit, any person is referred to, such person, the correct name and address of such person, and such further description as may be sufficient for the purpose of the identification of such person, shall be given in the affidavit.-(22-5-1915).

11. Every person making an affidavit for use in a civil Court, shall, if not personally known to the person before whom the affidavit is made, be identified to that person by someone known to him, and the person before whom the affidavit is made shall state at the foot of the affidavit the name address and description of him by whom the identification was made as well as the time and place of such identification. -(22-5-1915).

11-A. Such identification may be made by a person:

(a) personally acquainted with the person to be identified; or

(b) satisfied, from papers in that person’s possession or otherwise, of his identity:

Provided that in case (b) the person so identifying shall sign on the petition or affidavit a declaration in the following form, after there has been affixed to such declaration in his presence the thumb impression of the person so identified.

FORM

I (name, address and description), declare that the person verifying this petition (or making this affidavit) and alleging himself to be A. B. has satisfied me, (here state by what means, e.g., from papers in his possession or otherwise) that he is A.B.-(18-2-1928).

12. No verification of a petition and no affidavit purporting to have been made by a pardanashin woman who has not appeared unveiled before the person before whom the verification or affidavit was made, shall be used unless she has been identified in the manner already specified and unless such petition or affidavit be accompanied by an affidavit of identification of such woman made at the time by the person who identified her.-(22-5-1915).

13. The person before whom any affidavit is about to be made shall, before the same is made, ask the person proposing to make such affidavit if he has read the affidavit and understands the contents thereof, and if the person proposing to make such affidavit states that he has not read the affidavit or appears not to understand the contents thereof, or appears to be illiterate, the person before whom the affidavit is about to be made shall read and explain, or cause some other competent person to read and explain in his presence, the affidavit to the person proposing to make the same, and when the person before whom the affidavit is about to be made is thus satisfied that the person proposing to make such affidavit understands the contents thereof, the affidavit may be made.-(22-5-1915).

14. The person before whom an affidavit is made, shall certify at the foot of the affidavit the fact of making of the affidavit before him and the time and place when and where it was made, and shall for the purpose of identification mark and initial any exhibits referred to in the affidavit.-(22-5-1915).

15. If it be found necessary to correct any clerical error in any affidavit such correction may be made in the presence of the person before whom the affidavit is about to be made, and before, but not after, the affidavit is made. Every correction so made shall be initialled by the person before whom the affidavit is made, and shall be made in such manner as not to render it impossible or difficult to read the original word or words, figure or figures, in respect of which the correction may have been made.-(22-5-1915).

[ORDER 20]

JUDGMENT AND DECREE

[1. Judgment when pronounced. —][(1) The Court, after the case has been shall pronounce judgment in open Court either at once or, as soon thereafter as may be practicable, on some future day; and when the judgment is to be pronounced on some future day,the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleader:

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within fifteen days from the date on which the hearing of the case was concluded but, where it is not practicable so to do, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond thirty days from the date on which the hearing of the case was concluded, adduce notice of the day so fixed shall be given to the parties or their pleader :] [(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessarty for the Court to read out the whole judgment ] [***].

[(3) The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is specilly empowered by the High Court in this behalf:

Provided that, where the judgment is pronounced by dictation in open Court, the transcript of the judgment so pronounced shall, after making such correction therein as ma be necessary, be signed by the Judge, bear the date on which it was pronounceda, and form a part of the record.]

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order 20, rule 1(3) delete the words “if the Judge is specially empowered by the High Court in this behalf”.-(1-10-1983).

[Karnataka].-Renumber rule 1 as rule 1 (1) and add the following as sub-rule (2):-“(2) The judgment may be pronounced by dictation to a shorthand writer in open Court, where the Presiding Judge has been specially empowered in that behalf by the High Court. Where the Presiding Judge is not so empowered, the judgment shall be reduced to writing before it is pronounced.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Rule 1 shall be re-numbered as sub-rule (1) thereof and the following shall be inserted as sub-rule (2), namely:-“(2) The judgment may be pronounced by dictation to a shorthand writer in open Court.”-(9-6-1959).

[Madras].-The following was substituted for rule 1:-“(1) The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or on some future day, of which due notice shall be given to the parties or their pleaders.

(2) The judgment may be pronounced by dictation to a shorthand writer in open Court, where the Presiding Judge has been specially empowered in that behalf by the High Court.”

[N.B.-These High Court Amendments relate to the provisions as existed before the 1999/2002 Amendment Acts.]
  1. Power to pronounce judgment written by judge’s predecessor. – [A Judge shall]pronounce a judgment written, but not pronounced, by his predecessor.
  2. Judgment to be signed.— The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added, to save as provided by section 152 or on review.
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Gujarat].-In Order 20, rule 3, for full stop, appearing at the end of the rule, substitute a colon and add the following:-“Provided that where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall after making such corrections therein as may be necessary be signed by the Judge and shall bear the date of its pronouncement, and when the judgment is once so signed by the Judge it shall not afterwards be altered or added to save as provided by section 152 or on review.”-(16-3-1972).

[Kamataka].-Delete rule 3 and substitute the following:-“3. The judgment shall bear the date on which it is pronounced and shall be signed by the Judge and when once signed shall not afterwards be altered or added to, save as provided by section 152 of the Code or upon review, provided also that where the Judge pronounces his judgment by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge.”-(R.O.C. No. 2526/ 1959, dated 9-2-1967).

[Kerala].-Same as that of Madras except that for the words “provided also that, where the Judge pronounces his judgment by dictation,” the words “provided that where the judgment is pronounced by dictation” are substituted.-(9-6-1959).

[Madras].-For rule 3, substitute the following:-“3. Judgment to be signed, transcript of shorthand.-The judgment shall bear the date on which it is pronounced and shall be signed by the Judge and when once signed shall not afterwards be altered or added to, save asprovided by section 152 or on review: provided also that where the Presiding Judge is specifically empowered by the High Court to pronounce his judgment by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the judge.”

[Rajasthan].-In Order XX, the existing rule 3 shall be renumbered as sub-rule (1) of that rule, and after sub-rule (1) as so re-numbered the following sub-rules shall be inserted:–

“(2) Where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the judge and shall bear the date of its pronouncement.

(3) In cases where judgment is not written by the Judge in his own hand, and dictated and taken down verbatim by another person, each page of the judgment shall be initialled by the Judge.”-(Notification dated 23-12-1964).

  1. Judgments of Small Cause Courts. — (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.]

(2) Judgments of other Courts.—Judgments of other Courts contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

  1. Court to state its decision on each issue. — In suits in which issue, have been framed, the Court shall state its finding or decision, with the reasons therefore, upon separate issue, unless the finding upon any one or more of the issue is sufficient for the suit.

[5A . Court to inform parties as to where an appeal lies in cases where parties are not represented by pleaders. — Except where both the parties are represented by pleaders, the Court shall, when it pronounces its judgment in a case subject to appeal, inform the parties present in Court as to the Court to which an appeal lies and the period of limitation for the filing of such appeal and place on record the information so given to the parties.]

  1. Contents of decree.-(1) The decree shall agree with the judgment; it shall contain the number of the suit, the [names and descriptions of the parties, their registered addresses,]and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to bepaid.At that the costs payable to one party by the other

(3) The Court may direct that the costs payable to one party by the other,shall be set off against any sum which is admitted or found to be due from the former to the latter.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order XX, rule 6, for the existing sub-rule (1) and its marginal note,substitute the following as sub-rule (1) and marginal note:

“6. Contents of decree.-(1) The decree shall agree with the judgment; it shall contain the date of presentation of the plaint, the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.”-(1-10-1983).

[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Delete rule 6 and substitute the following: “6. (1) The decree shall agree with the judgment; it shall contain the number of the suit, names and descriptions, of the parties, their respective addresses for service as originally set out in their pleadings or where they have been subsequently changed in accordance with rule 14 of Order VI of this Code, such modified addresses, the particulars of the claim and shall specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.

(4) In all cases in which an element of champerty or maintenance is proved, the Court may provide in the final decree for costs on a special scale approximating to the actual expenses reasonably incurred by the defendant.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras (a)-(9-6-1959).

[Madras].-(a) In rule 6 in sub-rule (1) after the words “descriptions of the parties” the word “their addresses for service”, shall be inserted.

(b) After sub-rule (2) the following be inserted, as sub-rule (2-A):

“(2-A) In all cases in which an element of champerty or maintenance is proved, the Court may provide in the final decree for costs on a special scale approximating to the actual expenses reasonably incurred by the defendant.”

[Punjab, Haryana and Chandigarh].-(i) Substitute the following for rule 1, sub-rule (1):

“(1) The decree shall agree with the judgment, it shall contain the number of the suit, the names and descriptions of the parties, their correct and latest addresses (which shall be filed by the parties at or before the final arguments) and particulars of the claim and shall specify clearly the relief granted or other determination of the suit.”-(11-4-1975).

(ii) After sub-rule (1), add the following:

“(1-A) In addition to particulars mentioned in clause (1), the decree shall contain the addresses of the plaintiff and the defendant as given in Order VII, rule 19, and Order VIII, rule 11 or as subsequently alter under Order VII, rule 24, and Order VIII, rule 12, respectively. “-(10-2-1937).

[6-A. Preparation of decree.-(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.

(2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.

STATE AMENDMENTS 6

 

High Court Amendment-[Kerala].-In sub-rule (2) of rule 6-A of Order 20, for the words “the reasons for the delay”, substitute “the reasons for the delay and the valuation of the suit or proceeding and the Court-fee thereon.”-(w.e.f. 9-2-1988). [N.B.-This High Court Amendments relate to the provisions as existed before the 1999 Amendment Act.]

[6-B. Copies of judgments when to be made available.-Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on pa ment of such charges as may be specified in the rule made by the High Court.]

  1. Date of decree. – The decree shall bear the day on which the judgment was pronounced, and when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.
STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order XX, rule 7, substitute a colon for the full stop appearing at the end of the rule and add thereafter the following proviso:

“Provided that in proceedings taken in the Bombay City Civil Court the decree shall bear date the day on which the judgment was pronounced and it shall be engrossed in the office of the Registrar and be signed by him and sealed with the seal of the Court.”-(1-10-1983).

[Kerala].-To rule 7, the following proviso shall be added, namely:

“Provided that the decrees of the High Court may be signed by the officer empowered in that behalf.”-(9-6-1959).

Order 20, Rule 7-A

[Allahabad].-Add the following after rule 7: “7-A. Formal order.-A Court, other than a Court subordinate to the District Court exercising insolvency jurisdiction, passing an order under section 144 or an order against which an appeal is allowed by section 104 or rule 1 of Order 43, or an order in any case, against which an appeal is allowed by law, shall, if a party applies for a copy of formal order or the Court so directs, draw up a formal order embodying its adjudication and the memorandum of costs incurred by the parties.”-(3-10-1981).

  1. Procedure where Judge has vacated office before signing decree. – Where a Judge has vacated office after pronouncing judgment but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate.
  2. Decree for recovery of immovable property. – Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers.
  3. Decree for delivery of movable property. – Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be head.
  4. Decree may direct payment by instalments. – (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason [incorporate in the decree after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that]payment of the amount decreed shall be postponed or shall be made by installments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.

(2) Order, after decree, for payment by instalments.—After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Madhya Pradesh].-Substitute “and after notice to the decree-holder” for “and with the consent of the decree-holder” occurring in sub-rule (2).-(16-9-1960).

[Madras].-Substitute the following for rule 11:

“11. Decree may direct payment by instalments.-(1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that the payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which money is payable.

(2) After the passing of any such decree, the Court may, on the application of the judgment-debtor and after notice to the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit”.

[Orissa].-Same as that of Madhya Pradesh-(7-5-1954).

  1. Decree for possession and BImesne profits. – (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree—

(a) for the possession of the property;

[(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;

(ba) for the mesne profits or directing an inquiry as to mesne profits;]

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until—

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree, whichever event first occurs.

(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].In Order XX, for the existing rule 12 and its marginal note, substitute the following as rule 12 and marginal note:

“12. Decree for possession and mesne profits.-(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree

(a) for the possession of the property;

(b) for the rent or mesne profits which have accrued on the property during the period prior to the institution of the suit, or directing an enquiry as to such rent or mesne profits;

until

(c) directing an inquiry as to rent or mesne profits from the institution of the suit

(i) the delivery of possession to the decree-holder, or

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court.

(2) Where an inquiry is directed under clause (b) or clause (c) or sub-rule (1) above, a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.”-(1-10-1983).

[Karnataka].-Same as that of Madras except that for the words “the final decree” the words “a final decree” are substituted.-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-Add the following to Order 20, rule 12:

“(3) Where an Appellate Court directs such an inquiry, it may direct the Court of first instance to make the inquiry, and in every case the Court of first instance may of its own accord, and shall whenever moved to do so by the decree-holder inquire and pass the final decree.”

[12-A. Decree for specific performance of contract for the sale or lease of immovable property.-Where a decree for the specific performance of a contract for the sale or lease of immovable property orders that the purchase-money or other sum be paid by te purchaser or lessee, it shall specify the period within which the payment shall be made.]

  1. Decree in administration suit. – (1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.

(2) In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit, is pending with respect to the estates of persons adjudged or declared insolvent, and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.

  1. Decree in pre-emption suit. – (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall—

(a) specify a day on or before which the purchase-money shall be so paid, and

(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decrees against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accused from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.

(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,—

(a) if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would but for such default, have taken effect; and

(b) if and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emption shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.

STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order XX, rule 14, substitute a colon for the full stop appearing at the end of clause (b) of sub-rule (1) and add thereafter the following proviso:

“Provided that if there are crops standing on the property, possession of the property shall not be delivered to the plaintiff until such crops have been reaped. The plaintiff shall, however, be entitled to simple interest not exceeding 6 per cent. per annum at the discretionof the Court on the amount deposited by him in Court in respect of the period between the date of payment into Court by him of the purchase money and the costs (if any) and the date on which delivery of possession to him by the defendant takes place.”-(1-10-1983).

[Karnataka].-Add the following proviso to rule 14(1)(b):

“Provided that if there are crops standing on the property, the Court may postpone the delivery of property to the plaintiff till after the crops have been reaped and direct that the plaintiff be paid by the defendant simple interest at such rate as may be fixed not exceeding 6 per cent. per annum on the amount deposited by the plaintiff in Court in respect of the period between the date of deposit into Court of the purchase money and costs, if any, and the date to which delivery of possession has been postponed.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

  1. Decree in suit for dissolution of partnership. – Where a suit is for the dissolution of partnership, or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.
  2. Decree in suit for account between principal and agent. – In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not herein before provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass preliminary decree directing such accounts to be taken as it thinks fit.
  3. Special directions as to accounts. – The Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken or vouched and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised.
  4. Decree in suit for partition of property or separate possession of a share therein. – Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,—

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the right of the several parties interested in the property and giving such further directions as may be required.

STATE AMENDMENTS 6

 

High Court Amendment-[Kerala]: For rule 18, the following rule shall be substituted, namely: “18. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, the Court may, if the partition or separation cannot heconveniently 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. “=(9-6-1959).
  1. Decree when set-off or counter-claims is allowed. – (1) Where the defendant has been allowed a set-off [or counter-claim]against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

(2) Appeal from decree relating to set-off or counter-claim.—Any decree passed in a suit in which a set-off [or counter-claim] is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if not set-off [or counter-claim] had been claimed.

(3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII or otherwise.

STATE AMENDMENTS 6

 

High Court Amendment-[Allahabad].-In sub-rule (1), substitute a comma for the full stop at the end; and add the following: “but no decree shall be passed against the plaintiff unless the claim to set-off was within limitation on the date on which the written statement was presented.”-(21-3-1936).
  1. Certified copies of judgment and decree to be furnished. – Certified copies of the judgment and decree shall be furnished to the parties on application to the Court, and at their expense.
STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order XX, for the existing rule 20 and its marginal note, substitute the following as rule 20 and marginal note:

“20. Certified copies of judgment and decree to be furnished.-(1) Certified copies of the judgment and decree shall be furnished to the parties on application to the Court and at their expense.

(2) The application may be made by the party himself or by his recognised agent or by his pleader and may also be sent by post. Whenever such application is sent by post the same shall be sent by registered post pre-paid for acknowledgment. When the application is sent by post, it shall be deemed to have been made on the date of posting if the application is made by registered post, but only on the date of its receipt by the office of the Court in case when it is sent by post other than registered post.”-(1-10-1983).

[Madhya Pradesh].-Substitute the following for rule 20:

“20. Certified copies of judgment and decree shall be furnished to the parties on application, and at their expense.-Applications for copies may be presented in person or by an agent or a pleader or sent by post to the head copyist of the office at the place where the record from which the copies are applied for, will eventually be deposited for safe custody. When copies from a record in the temporary custody of a Court at a station where there is no record room are required, applications may be presented in person or by an agent or a pleader to the Senior Judge at that station:

Provided that the Judge shall neither comply with applications received by post nor send copies by post.”-(16-9-1960).

Order 20, Rule 21

High Court Amendment-[Allahabad].-Add the following to Order 20, rule 21:

“21. (1) Every decree and order as defined in section 2, other than a decree or order of a Court of Small Causes or of a Court in the exercise of the jurisdiction of a Court of Small Causes, shall be drawn up in the Court vernacular, or in English, if the Court so orders. As soon as such decree or order has been drawn up, and before it is signed, the Munsarim shall cause a notice to be pasted on the notice board stating that the decree or order has been drawn up, and that any party or the pleader of any party may, within six working days from the date of such notice, peruse the draft decree or order and may sign it, or may file with the Munsarim an objection to it on the ground that there is in the judgment a verbal error or some accidental defect not affecting a material part of the case, or that such decree or order is at variance with the judgment or contains some clerical or arithmetical error. Such objection shall state clearly, what is the error, defect or variance alleged, and shall be signed and dated by the person making it.-(22-5-1915 and 1-11-1941).

(2) If any such objection be filed on or before the date specified in the notice, the Munsarim shall enter the case in the earliest weekly list practicable, and shall, on the date fixed, put up the objection together with the record before the Judge who pronounced the judgment, or, if such Judge has ceased to be the Judge of the Court, before the Judge then presiding.-(22-5-1915).

(3) If no objection has been filed on or before the date specified in the notice, or if an objection has been filed and disallowed, the Munsarim shall date the decree as of the day on which the judgment was pronounced and shall lay it before the Judge for signature in accordance with the provisions of rules 7 and 8.-(22-5-1915).

(4) If an objection has been duly filed and has been allowed, the correction or alteration directed by the Judge shall be made. Every such correction or alteration in the judgment shall be made by the Judge in his own handwriting. A decree amended in accordance with the correction or alteration directed by the Judge shall be drawn up, and the Munsarim shall date the decree as of the day on which the judgment was pronounced -and shall lay it before the Judge for signature in accordance with the provisions of rules 7 and 8.-(22-5-1915).

(5) When the Judge signs the decree, he shall make an autograph note stating the date-on which the decree was signed.”-(22-5-1915).

[ORDER 20A

COSTS]

  1. Provisions relating to certain items. – Without prejudice to the generality of the provisions of this Code relating to costs, the Court may award costs in respect of,—

(a) expenditure incurred for the giving of any notice required to be given by law before the institution of the suit;

(b) expenditure incurred on any notice which, though not required to be given by law, has been given by any party to the suit to any other party before the institution of the suit;

(c) expenditure incurred on the typing, writing or printing of pleadings filed by any party;

(d) charges paid by a party for inspection of the records of the Court for the purposes of the suit;

(e) expenditure incurred by a party for producing witnesses, even though not summoned through Court, and

(f) in the case of appeals, charges incurred by a party for obtaining any copies of judgments and decrees which are required to be filed along with the memorandum of appeal.

STATE AMENDMENTS 6

 

High Court Amendment-[Madras].-In Order 20-A, in rule 1, after the entry (f), add following entry: “(g) In the matter of preparation of pleadings or affidavits for being presented in Court, charges be fixed at 75 paise for every page and 25 paise for every page for the original and copy, respectively.”-(7-5-1986).
  1. Costs to be awarded in accordance with the rules made by High Court. – The award of costs under this rule shall be in accordance with such rules as the High Court may make in that behalf.]

Order 21

EXECUTION OF DECREES AND ORDERS

[1. Modes of paying money under decree. — (1) All money, payable under a decree shall be paid as follows, namely :—

(a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or

(b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or

(c) otherwise, as the Court which made the decree, directs.

(2) Where any payment is made under clause (a) or clause (c) of sub rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgement due.

(3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule

(1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely : —

(a) the number of the original suit;

(b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;

(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;

(d) the number of the execution case of the Court, where such case is pending; and

(e) the name and address of the payer.

(4) On any amount paid under clause (a) or clause (c) of sub-rule (1) interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2).

(5) On any amount paid under clause (b) of sub-rule (1) interest, if any, shall cease to run from the date of such payment :

Provided that, where the decree-holder refuses to accept the postal order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be.]

STATE AMENDMENTS 6

 

High Court Amendment-[Orissa].-In Order 21, rule 1, insert the words or order” after the word “decree”, wherever they occur.-(14-5-1984).
  1. Payment out of Court to decree-holder. – (1) Where any money payable under a decree of any kind is paid out of Court. [or decree of any kind is otherwise adjusted]in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor [or any person who has become surety for the judgment-debtor] also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decreeholder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court record the same accordingly.

[(2A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless. 

(a) the payment is made in the manner provided in rule 1; or

(b) the payment or adjustment is proved by documentary evidence; or

(c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of rule 1, on before the Court.] [(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.]

Courts Executing Decrees

STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order XXI, for the existing sub-rule (2) of rule 2, substitute the following:

“(2) The judgment-debtor or any person who has become surety for judgment-debtor may also inform the Court by an application in writing supported by an affidavit of such payment or adjustment and apply to the Court to issue a notice to the decree-holder to show cause on a date to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.”-(1-10-1983).

[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Orissa].-Same as that of Patna.

[Patna].-(i) In sub-rule (2) for the words “and if, after service of such notice”, substitute the following:-“and where certification has been made by an endorsement of such payment or adjustment by the decree-holder or by any person authorised by him in that behalf upon the process issued by the Court, the Court shall issue such notice of its own motion. If after service of the notice”;

(ii) Delete the existing sub-rule (3) of rule 2.-(5-4-1961).

[Punjab].-Omit sub-rule (3).

  1. Lands situate in more than one jurisdiction. – Where immovable property forms one estate or tenure situate within the local limits of jurisdiction of two or more Court, any one of such Courts may attach and sell the entire estate or tenure.
  2. Transfer to Court of Small Causes. – Where a decree has been passed in a suit of which the value as set forth in the plaint did not exceed two thousand rupees and which, as regards its subject-matter, is not excepted by the law for the time being in force from the cognizance of either a Presidency or a Provincial Court of Small Causes, and the Court which passed it wishes it to be executed in Calcutta, Madras [or Bombay], such Court may send to the Court of Small Causes in Calcutta, Madras [or Bombay], as the case may be, the copies and certificates mentioned in rule 6; and such Court of Small Causes shall thereupon execute the decree as if it had been passed by itself.
STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order XXI, for the existing rule 4 and its marginal note, substitute the following as rule 4 and marginal note:

“4. Transfer to Court of Small Causes.-(1) Where a decree has been passed in a suit of which the value as set forth in the plaint did not exceed two thousand rupees and which, as regards, its subject-matter, is not expected by the law for the time being in force from the cognizance of either a Presidency or a Provincial Small Causes Court and the Court which passed it wishes it to be executed in Calcutta or Madras, such Court may send to the Court of Small Causes in Calcutta or Madras, as the case may be, the copies and certificates mentioned in rule 6; and such Court of Small Causes shall thereupon execute the decree as if it had been passed by itself.

(2) A decree in a suit of the nature described in sub-rule (1) but in which the value as set forth in the plaint did not exceed ten thousand rupees may be sent for execution to and be executed by the Presidency Court of Small Causes at Bombay in the manner prescribed in sub-rule (1).”-(1-10-1983).

[Gujarat].-Same as that of Bombay except in sub-rule (2) for “ten thousand” substitute “three thousand”.-(17-8-1961).

[5. Mode of transfer. — Where a decree is to be sent for execution to another Court, the Court which passed such decree shall send the decree directly to such other Court whether or not such Court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction.]

  1. 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.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Rule 6 to be re-numbered as rule 6(1) and the following sub-rule (2) to be added:

“(2) Such copies and certificates may, at the request of the decree-holder, be handed over to him or to such person as he appoints, in a sealed cover to be taken to the Court to which they are to be sent.”-(24-7-1926).

[Karnataka].-For modification of the Rule in relation to Small Cause Court, Mysore, see Mysore Small Cause Courts Act, 1964 (Mys. Act 11 of 1964).

[Orissa].-Same as that of Patna.

[Patna].-In rule 6, insert the following words after the word “decree” in clause (a):-

“and a copy of the suit register relating to the suit in which the decree was passed and a memorandum showing the costs allowed to the decree-holder subsequent to the passing of the decree.”

Order 21, Rule 6-A

[Madras].-After rule 6, the following rule shall be inserted:

“Rule 6-A.-A copy of the judgment bearing the formulae executoire, sent by a Court in the Union Territory of Pondicherry, shall be deemed to be a decree and to comply with the requirements of rule 6:

Provided that notwithstanding anything contained in rule 2, where any question as to the satisfaction of (or) the discharge, in whole or in part, of such a decree arises, the Court executing the decree shall decide it.”-(15-3-1967).

  1. Court receiving copies of decree, etc. to file same without proof. – The Court to which a decree is so sent shall cause such copes and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.
  2. Execution of decree or order by Court to which it is sent. – Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such or be transferred for execution to any subordinate Court of competent jurisdiction.
  3. Execution of High Court of decree transferred by other Court. – Where the Court to which the decree is sent for execution is a High Court, the decree shall be executed by such Court in the same manner as if it had been passed by such Court in exercise of its ordinary original civil jurisdiction.

Application For Execution

  1. Application for execution. – Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.
STATE AMENDMENTS 6

 

High Court Amendment-(Kerala].-Rule 9 shall be omitted.-(9-6-1959).

High Court Amendments-[Delhi].-Same as that of Punjab.

[Himachal Pradesh].- Same as that of Punjab.

[Punjab].-Add the following proviso to rule 10:

“Provided that if the judgment-debtor has left the jurisdiction of the Court which passed the decree, or of the Court to which the decree has been sent, the holder of the decree may apply to the Court within whose jurisdiction the judgment-debtor is, or to the officer appointed in this behalf, to order immediate execution on the production of the decree and of an affidavit of non-satisfaction by the holder of the decree pending the receipt of an order of transfer under section 39.”

  1. Oral application. – (1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court.

(2) Written application.—Save as otherwise provided by sub-rule(1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely—

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree;

(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;

(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;

(h) the amount of the costs (if any) awarded;

(i) the name of the person against whom execution of the decree is sought; and

(j) the mode in which the assistance of the Court is required whether—

(i) by the delivery of any property specifically decreed;

[(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;]

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) otherwise, as the nature of the relief granted may require.

(3) The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-(1) Substitute for clause (f) of sub-rule (2):-

“(f) The date of the last application, if any” and

(2) Add the following proviso to sub-rule (2):

“Provided that when the applicant files with his application a certified copy of the decree, the particulars specified in clauses (b), (c) and (h) need not be given in the application.”-(24-7-1926).

(3) Add the following as sub-rule (4):

“Where a decree for money is sought to be executed under sub-rule (2) by the arrest and detention in prison of the judgment-debtor, the application shall also state on which of the grounds mentioned in the proviso to section 51, detention is claimed.”-(19-5-1956).

[Andhra Pradesh].-Same as that of Madras.

[Karnataka].-(1) In rule 11, sub-rule (2), insert the following as clause (ff) after clause (f) and before clause (g):

“(ff) whether the decree-holder has transferred any part of his interest in the decree and, if so, the date of the transfer and the names and addresses of the parties to the transfer;”

(2) At the end of clause (j) of sub-rule (2) of rule 11, add the following:

“In an execution petition praying for relief by way of attachment of a decree of the nature specified in sub-rule (1) of rule 53 of this Order, there shall not be included any other relief mentioned in this clause.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-In rule 11, in sub-rule (2):

(i) after clause 0, the following clause shall be inserted, namely:

“(ff) whether the original decree-holder has transferred any part of his interest in the decree, and if so, the date of the transfer and the name and address of the parties to the transfer.”

(ii) for clause (~), the following shall be substituted, namely:

“(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 anyproperty;

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) otherwise, as the nature of the relief granted may require.

In an execution petition praying for relief by way of attachment of a decree of the nature specified in sub-rule (1) of rule 53 of this Order, there shall not be included any other relief mentioned in this clause.”-(9-6-1959).

[Madhya Pradesh].-After sub-clause (v) of clause (j) of sub-rule (2) of rule 11, insert the following proviso:

“Provided that, when the applicant files with his application a certified copy of the decree, the particulars specified in clauses (b), (c) and (h)• need not be given in the application.”-(16-9-1960).

[Madras].-(a) Insert the following new clause:

“(a) whether the original decree-holder has transferred any part-of his interest in the decree, and if so, the date of the transfer and the name and address of the parties to the transfer.”

(b) Add the following to sub-rule (2) (j):

“In an execution petition praying for relief by way of attachment of a decree of the nature specified in sub-rule (1) of rule 53 of this Order, there shall not be included any other relief mentioned in this clause.”

(c) Add the following proviso at the end of sub-rule (2):

“Provided that when the applicant files with his application a certified copy of the decree, the particulars specified in clauses (b), (c) and (h) need not be given in the application.”

[Patna].-(a) Add the following as sub-rule (1-A) of rule 11:

“(1-A) Where an order has been made under section 39 for the transfer of a decree for the payment of money for execution to a Court, within the local limits of the jurisdiction of which the judgment-debtor resides, such Court may, on the production by the decree-holder of a certified copy of the decree and an affidavit of non-satisfaction, forthwith order immediate execution of the decree by the arrest of the judgment-debtor.”

(b) Substitute the words and figures “sub-rules (1).and (1-A)” for the words and figure “sub-rule (1)” in line 1 of sub-rule (2) of rule 11.

(c) Delete clauses (a), (b), (c), (d), (/) and (h) of sub-rule (2) of rule 11.-(5-4-1961).

[11A . Application for arrest to state grounds. — Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.]

  1. Application for attachment of movable property not in judgment-debtor’s possession. – Where an application is made for the attachment of any movable property belonging to a judgment-debtor in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.
  2. 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 such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and

(b) a specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

  1. Power to require certified extract from Collector’s register in certain cases. – Where an application is made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing any transferable interest in, the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.
STATE AMENDMENTS 6

 

High Court Amendment-[Kerala].-(i) In rule 14, for the marginal note the following shall be substituted: “Power to require certified extracts from the Registers of Revenue Accounts”. (ii) For the words “in the office of the Collector” in the rule, the words “in the Revenue Accounts “shall be substituted.-(9-5-1959).
  1. Application for execution by joint decree-holders. – (1) Where a decree has been passed jointly in favour of more persons than one, any one or more such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where of them has died, for the benefit of the survivors and the legal representatives of the deceased.

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.

  1. Application for execution by transferee of decree. – Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree in transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed if, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder :

Provided also that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution :

Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.

[Explanation.—Nothing in this rule shall affect the provisions of section 146, and a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.]
STATE AMENDMENTS 6

 

High Court Amendments-[Bombay].-In Order XXI, for the existing rule 16 and its marginal note, substitute the following as rule 16 and marginal note:

“16. Application for execution by transferee of decree.-Where a decree or if a decree has been passed jointly in favour of two or more persons the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it, or to the Court to which it has been sent for execution, and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:

Provided that, where the decree or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution:

Provided further that where the transferee Court holds the assignment proved, it shall forthwith communicate its decision in that behalf to the Court which passed the decree, and the latter Court shall make an entry in the Register of Suits indicating that the assignment has been held to be proved:

Provided also that, where the decree for the payment of money against two or more persons has been transferred to one of them it shall not be executed against tJ others.

Explanation I.– In an application under this rule, any payment of money made undera decree, or any adjustment in whole or in part of the decree arrived at to the satisfaction of the decree-holder, which payment or adjustment has not been certified or recorded by the Court under rule 2 of this Order, shall not be recognised by the Court entertaining the application.

Explanation II.-Nothing in this rule shall affect the provisions of section 146, and a transferee of rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.”-(1-10-1983).

[Calcutta].-In the first proviso to rule 16, cancel the words “and the decree shall not be executed until the Court has heard their objections (if any) to its execution” and substitute therefor the following words:

“and until the Court has heard their objections (if any) the decree shall not be executed provided that if, with the application for execution, an affidavit by the transferor admitting the transfer or an instrument of transfer duly registered be filed, the Court may proceed with the execution of the decree pending the hearing of such objections.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Himachal Pradesh].-Same as that of Punjab.

[Madhya Pradesh].-In rule 16, after the words “which passed it”, insert the words “or to any Court to which it has been sent for execution”.-(16-9-1960).

[Orissa].-Same as that of Patna-(26-7-1958).

[Patna].-In rule 16

(1) Add the words “or to the Court to which the decree has been sent for execution, as the case may be” after the words “to the Court which passed it”;

(2) Delete the words “and the judgment-debtor” from the first proviso and in the second proviso after the word “transferor” insert the words “unless an affidavit of the transferor admitting the transfer is filed with the application” and substitute the word “his” for the word “their” and the word “objection” for the word “objections”.

[Punjab, Haryana and Chandigarh].-In the first proviso the words “and the judgement-debtor” which were deleted are reinstated and the word “their” is substituted for the word “his”; the first proviso as now it stands is the same as that in the Central Code.

  1. Procedure on receiving application for execution of decree. – (1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirement’s of rules 11 to 14 as may be applicable to the case have been complied with; and if, they have not been complied with, [the Court shall allow]the defect to be remedied then and there or within a time to be fixed by it.
[(1-A) If the defect is not so remedied, the Court shall reject the application:

Provided that where, in the Court, there is some inaccuracy as to the amount referred to in clauses (g) and

(h) of sub-rule (2) of rule 11, the Court, instead of rejecting the application, decide provisonally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for the amount so provisionally decided.]

(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

(3) Every amendment made under this rule shall be signed or initialled by the Judge.

(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application:

Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Between the words “been complied with” and “the Court may”, insert the words “and if the decree-holder fails to remedy the defect within a time to be fixed by the Court”.-(24-7-1926).

[Andhra Pradesh].-Same as that of Madras.

[Calcutta].-Cancel the words “the Court may reject the application or may allow the defect to be remedied then and there, or within a time to be fixed by it” and substitute therefor the following words:

“the Court shall allow the defect to be remedied then and there, or within a time to be fixed by it. If the defect is not remedied within the time fixed, the Court may reject the application.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Same as that of Madras-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-In sub-rule (1), for the words “or may allow the defect to be remedied then and there or”, substitute the words “if the defect is not remedied.”-(9-6-1959).

[Madhya Pradesh].-In sub-rule (1), substitute “the Court may allow the defect to be remedied then and there, or may fix a time within which it should be remedied and, in case the decree-holder fails to remedy the defect within such time the Court may reject the application”, for “the Court may reject the application, or may allow thedefect to be remedied then and there or within a time to be fixed by it.”-(16-9-1960).

[Madras].-(1) In sub-rule (1) for the words “or may allow the defect to be remedied then and there or”, substitute the words “if the defect is not remedied”.

(2) Add the following proviso at the end of the rule:

“Provided that where an execution application is returned on account of inaccuracy in the particulars required under rule 11(2)(g), the endorsement of return shall state what in the opinion of the returning officer is the correct amount.”-(13-10-1936).

[Patna].-In rule 17(1) substitute the following for the words “the Court may reject the application, etc.” at the end of the sub-rule:

“The Court shall allow the defect to be remedied then and there or within a time to be fixed by it, and, if the decree-holder fails to remedy the defect within such time, the Court may reject the application.”

[Punjab].-For the words “the Court may reject… to be fixed by it” in sub-rule (1) substitute the following words:

“the Court shall fix a time within which the defect snail be remedied, and if it is not remedied within such time, the Court may reject the application.”-(1-11-1966).

Order 21, Rule 17-A

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Karnataka].-Same as that of Madras except for the omission of the words”or order” in both the places where they occur.-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras.

[Madras].-Add the following after rule 17 (4):

“17-A. Where an application is made to a Court for the execution of a decree or order passed against defendant in respect of whom service of summons has been dispensed with under rule 31 of Order 5, the Court shall ordinarily direct stay of the execution of the decree or order against such defendant till the expiry of a period of one year after cessation of hostilities with the State in whose territory such defendant was resident:

Provided that the Court may, if it considers that the interests of justice so require order execution on such terms as to security or otherwise as it thinks fit.”-(29-3-1945).

  1. Execution in case of cross-decrees. – (1) Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court, then—

(a) if the two sums are equal, satisfaction shall be entered upon both decrees; and

(b) if the two sums are unequal execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum.

(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.

(3) This rule shall not be deemed to apply unless—

(a) the decree holder in one of the suits which the decrees have been made is the judgment-debtor in the other and each party files the same character in both suits; and

(b) the sums due under the decrees are definite.

(4) The holder of a decree passed against several persons jointly and severally my treat is as a cross-decree in relation to a decree against him singly in favour of one or more of such persons.

Illustrations

(a) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.

(b) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtain a decree for Rs. 1,000 1,000 against B. C cannot treat his decree as a cross-decree under this rule.

(c) A obtains a decree against B for Rs. 1,000 C, who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000 B cannot treat C’s decree as a cross-decree under this rule.

(d) A, B, C, D and E are jointly and severely liable for Rs. 1,000 under a decree obtained by F. A obtains a decree for Rs. 1,000 against F singly and applies for execution to the Court in which the joint-decree is being executed. F may treat his joint-decree as cross-decree under this rule.

STATE AMENDMENTS 6

 

High Court Amendment-[Madhya Pradesh].-Substitute the following for the existing rule 18:

“18. (1) Where decree-holders apply to a Court for execution of cross-decrees in separate suits between the same parties for the payment of two sums of money passed and capable of execution at the same time by such Court, then

(a) if the two sums are equal, satisfaction shall be entered upon both decrees;

(b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on decree for the smaller sum:

Provided that

(i) each party fills the same character in both suits, and

(ii) the sums due under the decree are definite.

(2) This rule shall be deemed to apply where either applicant is an assignee of one of the decrees as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself:

Provided that

(i) where the decrees were passed between the same parties, each party fills the same character in each suit; and

(ii) where the decrees were not passed between the same parties, the decree-holder in one of the suits is the judgment-debtor in the other suit and fills the same character in both suits; and

(iii) the sums due under the decrees are definite.

(3) The holder of a decree passed against several persons jointly and severally may treat it as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons.”-(16-9-1960).

  1. Execution in case of cross-claims under same decree. – Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then—

(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and

(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.

  1. Cross-decrees and cross-claims in mortgage-suits. – The provisions contained in rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge.
  2. Simultaneous execution. – The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.
  3. Notice to show cause against execution in certain cases. – (1) Where an application for execution is made,—

(a) more than [two years] after the date of the decree, or

(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A, [or] [(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent,]

91 the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him :

Provided that no such notice shall be necessary in consequence of more than [two years] having elapsed between the date of the decree and the application for execution if the application is made within [two years] from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-(i) Omit clause (a) of sub-rule (1) and delete the words beginning from “in consequence of more than one year” to “made on any previous application for execution, or” from the proviso.

(ii) Omit the letter and the brackets “(b)”.-(1-6-1957).

(iii) To sub-rule (2) of this rule, add the following proviso:

“Provided that no order for the execution of a decree shall be invalid by reason of the omission to issue a notice under this rule, unless the judgment-debtor has sustained substantial injury by reason of such omission.”-(24-7-1926).

[Andhra Pradesh].-Same as that of Madras.

[Calcutta].-Add the following as sub-rule (3) to rule 22, Order 21:

“(3) Omission to issue a notice in a case where notice is required under sub-rule (1), or to record reasons in a case where notice is dispensed with under sub-rule (2), shall not affect the jurisdiction of the Court in executing the decree.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Gujarat].-For “one year”, substitute “two years” wherever they occur.-(17-8-1.961).

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Delete rule 22 and substitute the following:-

“22. (1) Where an application for execution is made

(a) more than two years after the date of the decree, or

(b) against the legal representative of a party to the decree, or

(c) where the party to the decree has been declared insolvent, against the Assignee or Receiver in Insolvency, or

(d) for the execution of a decree filed under the provisions of section 44-A of this Code, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution, if theapplication is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2) Where from the particulars mentioned in the application in compliance with rule 11(2) (ff) of this Order or otherwise the Court has information that the decree-holder has transferred any part of his interest in the decree, the Court shall issue notice of the application to all parties to such transfer, other than the petitioner, where he is a party to the transfer.

(3) Nothing in the foregoing sub-rules shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice hereby prescribed, if for reasons to be recorded in writing the Court considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice:

Provided that no order for the execution of a decree shall be invalid owing to the omission of the Court to issue a notice as required by sub-rule (1) or to record its reasons where notice is dispensed with under sub-rule (3), unless the judgment-debtor has sustained substantial injury as a result of such omission.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madhya Pradesh].-To sub-rule (2), add the following proviso:

“Provided that no order for the execution of a decree shall be invalid by reason of the omission to issue a notice under this rule, unless the judgment-debtor has sustained substantial injury by reason of such omission.”-(16-9-1960).

[Madras].-For rule 22, the following rule shall be substituted, namely:

“22. Notice to show cause against execution in certain cases.-(1) Where an application for execution is made

(a) more than (two years) after the date of the decree; or

(b) against the legal representative of a party to the decree (or where an application is made for execution of a decree filed under the provisions of section 44-A); or

(c) where the party to the decree has been declared insolvent, against the Assignee or Receiver in Insolvency, the Court executing the decree shall issue a notice to the person against whom execution is applied for, requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution, if the application is made within two years, from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(1-A) Where from the particulars mentioned in the application in compliance with rule 11 (2) (ff) supra or otherwise the Court has information that the original decree-holder has transferred any part of his interest in the decree, the Court shall issue notice of the application to all parties to such transfer, other than the petitioner, where.he is a party to the transfer.

(2) Nothing in sub-rule (1) 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:

Provided that no order for execution of a decree shall be invalid owing to the omission of the Court to record its reasons unless the judgment-debtor has sustained, substantial injury as a result of such omission.”-(5-9-1968).

[Orissa].-Same as that of Patna.

[Patna].-For sub-rule (1) of rule 22, substitute the following sub-rule:

“Where an application for execution is made in writing under rule 11(2), the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.”

Add the following as sub-rule (3):

“(3) Proceedings held in execution of decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under sub-rule (1) or to record reasons where such notice is dispensed with under sub-rule (2) unless the judgment-debtor has sustained injury, thereby.”-(9-5-1947).

[Punjab and Haryana].-In rule 22, the words “two years” shall be substituted for the words “one year” wherever they occur.

Add the following proviso at the end of the rule:

“Failure to record such reasons shall be considered an irregularity not amounting to a defect in jurisdiction.”

[22A . Sale not to be set aside on the death of the judgment-debtor before the sale but after the service of the proclamation of sale. — Where any property is sold in execution of a decree, the sale shall not be set aside merely by reason of the death of the judgment-debtor between the date of issue of the proclamation of sale and the date of the sale notwithstanding the failure of the decree-holder to substitute the legal representative of such deceased judgment-debtor, but, in case of such failure, the Court may set aside the sale if it is satisfied that the legal representative of the deceased judgment-debtor has been prejudiced by the sale.]

  1. Procedure after issue of notice. – (1) Where the person to whom notice is issued under [rule 22]does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed the Court shall order the decree to be executed.

(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.

Process For Execution

  1. Process for execution. – (1) When the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

(2) Every such process shall bear date the day on which it is issued, and shall be signed by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.

[(3)In every such process, a day shall be specified on or before which it shall be executed and a day shall also be specified on or before which it shall be returned to the Court, but no process shall be deemed to be void if no day for its return is specified therein.]
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Substitute the following for sub-rule (3):

“(3) In every such process, a day shall be specified on or before which it shall be executed and a day shall be specified on or before which it shall be returned to Court.”

[Bombay].-In Order XXI, for rule 24, substitute the following:

“24. Process for execution.-(1) When the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

.(2) Every such process shall bear date, the day on which it is issued and shall be signed by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed:

Provided that a Civil Judge, Senior Division, may, in his special jurisdiction, send the process to another Court in the same district for execution by the proper officer in that Court.

(3) In every such process a day shall be specified on or before which it shall be executed and day shall also be specified on or before which it shall be returned to the Court, but no process shall be deemed to be void, if no day for its return is specified therein.”-(1-10-1983).

[Gujarat].-The following proviso be added to rule 24(2):

“Provided that a Civil Judge, Senior Division, may, in exercise of his special jurisdiction, send a process to another subordinate Court in the same district for execution by the proper officer in that Court.”-(17-8-1961).

  1. Endorsement on process. – (1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason of the delay, or, if it is executed, the reason why it was not executed, and shall return the process with such endorsement to the Court.

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court shall examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In sub-rule (2), for the words “shall examine him”, substitute the words “may examine him personally or upon affidavit”.-(7-9-1918).

[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In rule 25, substitute a colon for the full stop appearing at the end of sub-rule (2) and add thereafter the following proviso:

“Provided that an examination of the officer entrusted with the execution of a process by the Nazir or the Deputy Nazir under the general or special orders of the Court shall be deemed to be sufficient compliance with the requirements of this rule.”-(1-10-1983).

[Gujarat].-Same as that of Bombay but without the words “or the Deputy Nazir”.-(17-8-1961).

[Karnataka].-(1) Substitute the following for sub-rule (2):

“(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court may on its own motion and shall upon an application by the petitioner in the execution application examine the officer touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability and shall record the result. Such examination of the process server as well as of witnesses summoned under this rule shall be made after notice to the petitioner in execution application or his pleader.”

(2) Add the following as sub-rule (3):

“(3) Where in the case of a decree for the payment of money the process is not executed owing to the decree having been satisfied, such officer shall also obtain an endorsement on the process to that effect signed by the decree-holder and attested by two respectable witnesses who can identify the decree-holder. On receipt of the process with an endorsement so signed and attested, the Court shall issue notice to the decree-holder to show cause, on a day to be fixed by the Court, why such satisfaction should not be recorded as certified and if after service of such notice the decree-holder fails to show such cause the Court shall record the same accordingly. A record of satisfaction under the provisions of this sub-rule shall have the same effect as one made under the provisions of sub-rule (2) of rule 2 of this Order.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-(1) Substitute the following for sub-rule (2):

“(2) Where in the case of a decree for the payment of money the process is not executed owing to the decree having been satisfied, such officer shall also obtain an endorsement on the process to that effect signed by the decree-holder and attested by two respectable witnesses who can identify the decree-holder.”

(2) Add the following as sub-rule (3):

“(3) Where the endorsement of such officer is to the effect that he is unable to execute the process, the Court shall examine him or cause him to be examined by, any other Court, touching his alleged inability, and may, if it thinks fit, summon and examine witnes-ses as to such inability, and shall record the result:

Provided that an examination of the officer entrusted with the execution of a process by the Nazir or the Deputy Nazir under the general or special orders of the Court shall be deemed to be sufficient compliance with the requirements of this clause.

Where the inability to execute the process is stated to be due to the satisfaction of the decree and such satisfaction has been endorsed on the process as mentioned in sub-rule (2) above, the Court shall issue notice to the decree-holder to show cause on a day to be fixed by the Court, why such satisfaction should not be recorded as certified, and if after service ofsuch notice the decree-holder fails to show cause why the satisfaction should not be recorded as certified the Court shall record the same accordingly.

A record of satisfaction under the provisions of this sub-rule shall have the same effect as one under the provisions of Order 21, rule 2, sub-rule (2).”

Stay Of Execution

  1. When Court may stay execution. – (1) the Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto.

(2) Where the property or person of the judgment-debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.

(3) Power to require security from, or impose conditions upon, judgment-debtor—Before making an order to stay execution, or for the restitution of property or the discharge of the judgment-debtor, [the Court shall require] such security from, or impose such conditions upon, the judgment-debtor as it thinks fit.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-For “may” in sub-rule (3), read “shall, unless good cause to the contrary is shown”.-(24-7-1926).

[Calcutta].-In sub-rule (3), rule 26, Order 21, cancel the words “the Court may require such security from, or impose such conditions upon the judgment-debtor as it thinks fit”, and substitute therefor the following words:

“the Court shall require security from the judgment-debtor unless sufficient cause is shown to the contrary”.

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Himachal Pradesh].-Same as that of Punjab.

[Madhya Pradesh].-Same as that of Allahabad-(16-9-1960).

[Patna].- In sub-rule (3), for the words “the Court may”, suostitute the words “the Court shall, unless sufficient cause is shown to the contrary”.

[Punjab].-Same as that of Patna.

  1. 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.
  2. 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.
  3. 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 [or of a decree which is being executed by such Court], on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided :
[Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.]
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-(i) Insert the words “or any person whose interests are affected by the decree, or by any order made in execution thereof” after the words “was passed” and before the words “the Court may”.

(ii) Delete the words “on such terms as to security or otherwise” occurring in the rule;

(iii) Substitute “if” for “as” before “it thinks fit”; and

(iv) Add the following as proviso

“Provided that in all cases where execution of the decree is stayed under this rule the Court shall require the person seeking such stay to furnish such security as it may deem fit.”-(1-6-1957).

[Karnataka].-Delete rule 29 and substitute the following:

“29. Where a suit is pending in any Court against the holder of a decree of such Court instituted by the person against whom the said decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay the execution of the decree until the pending suit has been decided.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

Mode Of Execution

  1. Decree for payment of money. – Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In sub-rules (2) and (3), wherever the words “six months” occur, substitute “three months or such extended time as the Court may, for good cause direct”.-(24-7-1926).
  1. Decree for specific movable property. – (1) Where the decree is for any specific movable, or for any share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.

(2) Where any attachment under sub-rule (1) has remained in force for [three months] if the judgmentdebtor 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 [three months] from the date of attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.

STATE AMENDMENTS 6

 

[Andhra Pradesh].-Same as that of Madras.

[Calcutta].-In Order 21, sub-rules (2) and (3), substitute the words “three months” for the words “six months”.

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Same as that of Madras.

[Kerala].-Same as that of Madras-(9-6-1959).

[Madhya Pradesh].-In sub-rules (2) and (3) of rule 31, for the words “six months” wherever they occur, substitute the words “three months or such further time as the Court may, in any special case, for good cause shown, direct”.-(16-9-1960).

[Madras].-In rule 31:

(i) in sub-rules (2) and (3), for the words “six months”, the words “three months” shall be substituted.

(ii) after sub-rule (3), the following sub-rule shall be inserted, namely:

“(4) The Court may on application extend the period of three months mentioned in sub-rules (2) and (3) to such period not exceeding six months on the whole as it may thinks fit.”

[Orissa].-Same as that of Patna.

[Patna].-In sub-rules (2) and (3) of rule 31, for the words “six months”, substitute “three months”, and add the following as sub-rule (4):

“(4) The Court may, for sufficient cause, extend the period of three months mentioned in sub-rules (2) and (3) to such period, not exceeding six months on the whole, as it may think fit.”

[Punjab and Haryana].-(i) In sub-rule (2), for the word “six” substitute the word “three”.

(ii) Add the following proviso after sub-rule (2):

“Provided that the Court may, in any special case, according to the special circumstances thereof, extend the period beyond three months; but it shall in no case exceed six months in all”.

(iii) In sub-rule (3), for the words “six months” substitute the following words:-

“three months or such other period as may have been prescribed by the Court”.

  1. Decree for specific performance for restitution of conjugal rights, or for an injunction. – (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunctions been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for [six months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation s it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or here, at the end of [six months] from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

[Explanation.-For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunction.]
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Delhi].-Same as that of Punjab.

[Himachal Pradesh].-Same as that of Punjab.

[Kerala].-Same as that of Madras-(9-6-1959).

[Madhya Pradesh].-In rule 32:

(a) in sub rule (3)

(i) for the words “one year” substitute the words “three months”;

(ii) after the word “application” insert the words “and the Court may also, for good cause shown, extend the time for the attachment remaining in force for a period not exceeding one year”; and

(b) in sub-rule (4), for the words “one year” substitute the words “three months or such further time as may have been fixed by the Court under sub-rule (3)”.-(16-9-1960).

[Madras].-Substitute the following for sub-rules (3) and (4):

“(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for three months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. The Court may, on application, extend the period of three months mentioned herein to such period not exceeding one year on the whole as it may think fit.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing it which he is bound to pay, or where, at the end of three months from the date of the attachment or of such extended period which the Court may order under sub-rule (3), no application to have the property sold has been made or if made has been refused, the attachment shall cease.”

[Patna].-In sub-rule (3), for the words “one year”, substitute “for three months or for such further period not exceeding on year in the whole as may on sufficient cause shown be fixed by the Court.”

[Punjab and Haryana].-In sub-rule (3), for the words “one year” substitute the words “three months”, and add the following proviso to sub-rule (3):

“Provided that the Court may for sufficient reasons, on the application of the judgment-debtor, extend the period beyond three months; but it shall in no case exceed one year in all.”-(11-11-1966).

In sub-rule (4), for the words “one year” substitute the words “three months or such other period as may have been prescribed by the Court”.

  1. Discretion of Court in executing decrees for restitution of conjugl rights. – (1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree [agaisnt a husband]for the restitution of conjugal rights or at any time afterwards, may order that the decree [shall be executed in the manner provided in this rule].

(2) Where the Court has made an order under sub-rule (1) [***], it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.

(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporilay suspend the same as to the whole or any part of the money so ordered to be paid, and again review the same, either wholly or in part as it may think just.

(4) Any money ordered to be paid under this rule may be recovered as though it were payble under a decree for the payment of money.

  1. Decree for executin of document, or endoresment of negotiable instrument. – (1) Where a decree is for the execution of a document or for the endorsement for a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endoresement in accordance with the terms of the decree and delvier the same to the Court.

(2) The Court shall thereupon cause the draft to beserved on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Cout fixes in this behalf.

(3) Where the judgment-debtor object tot he 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 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 endorese the same.

[(6) (a) Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the court as may be authorised in this behalf by the Court, shall cause the document to be registered in accordance with such law.

(b) Where the registration of the doucment is not so required, but the decree-holder desires it to be registered, the Court may make such order as it thinks fit.

(c) Where the Court makes any order for the registration of any document, it may make such order as it thinkgs fit as to the expenses of registration.]

  1. Decree for immovable property. – (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delviered 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 afixing a copy of the warrant in some conspicuous place on the property and proclamining the beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.

STATE AMENDMENTS 6

 

High Court Amendments-[Himachal Pradesh].-To sub-rule (1), proviso be added as under:-“Provided that before issuing a warrant for delivery of possession of immovable property, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.”-(23-4-1988).

[Madras].-In Order 21 in the First Schedule of the Code of Civil Procedure, 1908-

(1) After sub-rule (3) of rule 35, the following sub-rule shall be added, namely:

“(4) Where delivery of possession of a house is to be given and it is found to be locked, orders of Court shall be taken for breaking open the lock and for delivery of possession of the same to the decree-holder.

If it is found at the time of delivery that there are movables in the house to which the decree-holder has no claim and the judgment-debtor is absent, or if present, does notimmediately remove the same, the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value, in the presence of respectable person on the spot, have the same attested by them and leave the movables in the custody of the decree-holder after taking a bond from him for keeping the articles in safe custody pending orders of Court for disposal of the same.

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

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

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

  1. Decree for delivery of immovable property when in occupancy of tenant. – Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinguish 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

  1. Discretionary power to permit judgment debtor to show cause against detention in prison. – (1)Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:

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 th decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Substitute “may” for “shall” and omit the proviso.-(1-6-1957).

[Patna].-In sub-rule (1), substitute the word “may” for the word “shall” occurring after the words “the Court” and before the word “instead”.-(5-4-1961).

  1. 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.
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Karnataka].-At the end of rule 38 convert the full stop into a colon and add the following:

“or unless satisfaction of the decree be endorsed by the decree-holder on the warrant in the manner provided in sub-rule (3) of rule 25 of this Order.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-In rule 38, for the full stop at the end of the rule a comma shall be substituted and the words “or unless satisfaction of the decree be endorsed by the decree-holder on the warrant in the manner provided in rule 25(2) above” shall be added.

  1. Subsistence allowance. – (1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder 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 seales fixed under section 57, or, where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs.

(3) The monthly allowance fixed by the Court shall be supplied by the party on whose application the judgment-debtor has been arrested by monthly payments in advance before the first day of each month.

(4) The first payment shall be made to the proper officer of the Court for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison, and the subsequent payments (if any) shall be made to the officer in charge of the civil prison.

(5) Sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison shall be deemed to be costs in the suit :

Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In sub-rule (5) delete the words “in the civil prison” occurring at two places.-(24-7-1926).

[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order XXI for rule 39 and its marginal note, substitute the following as rule 39 and marginal note:

“39. Subsistence allowance.-(1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court and for the cost of conveyance of the judgment-debtor from the place of his arrest to the Court-house.

(2) Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court shall fix for his subsistence such monthly allowance as he may be entitled according to the scales fixed under 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) Such sum (if any) as the Judge thinks sufficient for the subsistence and costs of conveyance of the judgment-debtor for his journey from the Court-house to the civil prison and from the civil prison on his release, to his usual place of residence, together with the first of the payments in advance under sub-rule (3) for such portion of the current month as remains unexpired, shall be paid to the proper officer of the Court before the judgment-debtor is committed to the civil prison, and the subsequent payment (if any) shall be paid to the officer in charge of the civil prison.

(5) Sums disbursed under this rule by the decree-holder for the subsistence and the cost of conveyance (if any) of the judgment-debtor shall be deemed to be cost in the suit :

Provided that the judgment-debtor shall not be detained in the civil prison or arrestedon account of any sum so disbursed.”-(1-10-1983).

[Calcutta].-Delete the words “in the Civil Prison” in sub-rule (5).

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Gujarat].-Same as that of Bombay-(17-8-1961).

[Himachal Pradesh].-Same as that of Calcutta.

[Karnataka].-Sub-rules (4) and (5) are the same as those of Bombay.-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Sub-rules (4) and (5) are the same as those of Madhya Pradesh.-(9-6-1959).

[Madhya Pradesh].-(a) Delete the full stop at the end of sub-rule (1) and add the. following.

“and for the cost of conveyance of the judgment-debtor from the place of his arrest to the Court-house.”

(b) Substitute the following as sub-rules (4) and (5) in place of the corresponding existing sub-rules:

“(4) Such sum (if any) as the Judge thinks sufficient for the subsistence and cost of conveyance of the judgment-debtor for his journey from the Court-house to the civil prison and from the civil prison, on his release, to his usual place of residence together with the first of the payments in advance under sub-rule (3) of such portion of the current month as remains unexpired, shall be paid to the proper officer of the Court before the judgment-debtor is committed to the civil prison and the subsequent payments (if any) shall be paid to the officer in charge of the civil prison.

(5) Sums disbursed under this rule by the decree-holder for the subsistence and the costs of the conveyance (if any), of the judgment-debtor shall be deemed to be costs in the suit.”-(16-9-1960).

[Madras].-(1) Substitute the following for sub-rule (1):

“(1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court and for the payment of the charges of conveyance of the judgment-debtor *[and of the amin or process-server who executes the warrant of arrest] by bus, train or otherwise whichever is available from the place of arrest to the Court-house.”-(4-1-1967 and *16-9-1970).

(2) Sub-rules (4) and (5) are the same as those of Madhya Pradesh.

[Orissa].-Same as that of Patna.

[Patna].-In sub-rule (5) of rule 39, delete the words “In the civil prison” in the first place where they occur.

[Punjab].-Same as that of Calcutta.

[40. Proceedings on appearance of judement-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 the Code, make an order for the detention of the judgment-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:

Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.

(4) A judgment-debtor released under this rule may be re-arrested.

(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.]

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as in Madras except for the omission in sub-rule (6) of the words at the end of that sub-rule beginning with “and the Judge signing the warrant”.

[Bombay].-In Order XXI, rule 40, after the existing sub-rule (5), add the following as new sub-rules (6), (7) and (8):

“(6) When a judgment-debtor is ordered to be detained in the custody of an officer of a Court under sub-rule (2) or the proviso to sub-rule (3) above, the Court may direct the decree-holder to deposit such amount as, having regard to the specified or probable length of detention, will provide:

(a) for the subsistence of the judgment-debtor at the rate to which he is entitled under the scale fixed under section 57, and

(b) for the payment to the officer of the Court in whose custody the judgment-debtor is placed or such fees (including lodging charges) in respect thereof as the Court may by order fix:

Provided:-

(i) that the subsistence allowance and the fees payable to the officer of the Court shall not be recovered for more than one month at a time, and

(ii) that the Court may from time to time require the decree-holder to deposit such further sums as it deems necessary.

(7) If a decree-holder fails to deposit any sum as required under sub-rule (6) above, the Court may disallow the application and direct the release of the judgment-debtor.

(8) Sums disbursed by the decree-holder under sub-rule (6) shall be deemed to be costs in the-suit:

Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed.”-(1-10-1983).

[Gujarat].-Sub-rules (6) and (7) added to rule 40 are the same as those of Madhya Pradesh.-(17-8-1961).

[Karnataka].-To rule 40, add the following as sub-rules (6) and (7):

“(6) During the temporary absence of the Judge who issued the warrant under rule 37, the warrant of committal may be signed by any other Judge of the same Court or by any Judicial Officer superior in rank who has jurisdiction over the same locality, or where the arrest is made on a warrant issued by the District Judge, the warrant of committal may be signed by any Judge empowered in writing by the District Judge in this behalf.

(7) No judgment-debtor shall be committed to the civil prison or brought before the Court from the custody to which he has been committed pending the consideration of any of the matters mentioned in sub-rule (1) unless and until the decree-holder pays into Court such sum as the Judge may think sufficient to meet the travelling and subsistence expenses of the judgment-debtor and the escort.

The provisions of sub-rule (5) of rule 39 shall apply to such payments.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as in Madras except for the substitution of the word “Munsif” for the words “District Munsif” in sub-rule (6).-(9-6-1959).

[Madhya Pradesh].-In Order 21, rule 40, the following shall be inserted as sub-rules (6), (7) and (8) below sub-rule (5), namely:

“(6) When a judgment-debtor is ordered to be detained in the custody of an officer of the Court under sub-rule (2) or the proviso to sub-rule (3) above, the Court may direct the decree-holder to deposit such amount as, having regard to the specified or probable length of detention, will provide

(a) for the subsistence of the judgment-debtor at the rate to which he is entitled under the scales fixed under section 57;

(b) for the payment to the officer of the Court in whose custody the judgment-debtor is placed of such fees (including lodging charges) in respect thereof as the Court may by order fix:

Provided (i) that the subsistence allowance and the fees payable to the officer of the Court shall not be recovered for more than one month at a time, and

(ii) that the Court may from time to time require the decree-holder to deposit such further sums as it deems necessary.

(7) If a decree-holder fails to deposit any sum as required under sub-rule (6) above, the Court may disallow the application and direct the release of the judgment-debtor.

(8) Sums disbursed by the decree-holder under sub-rule (6) shall be deemed to be costs in the suit:

Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed.”-(16-9-1960).

[Madras].-(1) For old sub-rule (6) substitute the following:

“(6) During the temporary absence of the Judge who issued the warrant under rule 37 or 38, the warrant of committal may be signed by any other Judge of the same Court or by any Judicial Officer superior in rank who has jurisdiction over the same locality, or, where the arrest is made on a warrant issued by the District Judge, the warrant of committal may be signed by any Subordinate Judge or District Munsif, empowered in writing by the District Judge in this behalf and the Judge signing the warrant of committal in the above cases shall also have the same powers as the Judge who issued the warrant in respect of passing such orders as may be appropriate under sub-rules (1), (3) and (5) of this rule.”-(17-3-1954).

(2) Add the following sub-rule:

“(7) No judgment-debtor shall be committed to the civil prison or brought before the Court from the custody to which he has been committed pending the consideration of any of the matters mentioned in sub-rule (1) unless and until the decree-holder pays into Court such sum as the judge may think sufficient to meet the travelling and subsistence expenses of the judgment-debtor and the escort.

Sub-rule (5) of rule 39 shall apply to such payments.”-(5-9-1968).

Attachment Of Property

  1. Examination of judgment-debtor as to his property. – [(1)]Where a decree is for the payment of money the decree-holder may apply to the Court for an order that—

(a) The judgment-debtor, or

(b) [where the judgment-debtor is a corporation], any officer thereof, or

(c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents.

[(2) Where a decree for the payment of money has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree-holder and without prejudice to its power under sub-rule (1), by order require the judgment-debtor or where the judgment-debtor is a corporation, any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor.

(3) In case of disobedience of any order made under sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release.]

  1. Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined. – Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.
  2. Attachment of movable property, other than agricultural produce, in possession of judgment-debtor. 

Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof:

Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Calcutta].-For rule 43, substitute the following:

“43. Where the property to be attached is movable property other than agricultural produce in the possession of the judgment-debtor, the attachment shall be made by actual seizure, at the identification of the decree-holder or his agent, and save as otherwise prescribed, the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof:

Provided that, when the property seized does not, in the opinion of the attaching officer exceed twenty rupees in value or is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value the attaching officer may sell it at once.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Gujarat].-Same as that of Madhya Pradesh-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-For rule 43, substitute the following:

“43. (1) Where the property to be attached is movable property other than agricultural produce in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of 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 expenses of keeping it in custody are likely to exceed its value, the attaching officer may sell it at once; and

Provided also that, when the property attached consists of live-stock, or other articles which cannot conveniently be removed and the attaching officer does not act under the first proviso to this rule, he may, at the instance of the judgment-debtor or of the decree-holder or of any person claiming to be interested in such property leave it in the village or place where it has been attached,

(a) in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in the prescribed form with one or more sureties for its production when. called for; or

(b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided and remuneration of the officer for a period of 15 days at such rate as may from time to time be fixed by the High Court be paid in advance.

(2) Whenever an attachment made under the provisions of this rule ceases for any of-the reasons specified in rule 55 or rule 57 or rule 60 of this Order, the Court may order the restitution of the attached property to the person in whose possession it was before attachment.”-(9-2-1967).

[Kerala].-For rule 43, the following rule shall be substituted, namely:

43. Attachment of movable property other than agricultural produce in possession of judgment-debtor.-(1) Where the property to be attached is movable property, other than agricultural produce in the possession of the judgment-debtor, the attachments 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, and;

Provided also, that, when the property attached consists of live-stock, agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the first proviso to this rule, he may, at the instance of the judgment-debtor or of the decree-holder or of any person claiming to be interested in such property leave it in the village or place where it has been attached.

(a) in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in Form No. 15-A of Appendix E to this Schedule with one or more sufficient sureties for its production when called for; or

(b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided and the remuneration of the officer for a period of 15 days at such rate as may from time to time be fixed by the High Court be paid in advance.

(2) Whenever an attachment made under the provisions of this rule ceases for any of the reasons specified in rule 55 or rule 57 or rule 60 of this Order, the Court may order the restitution of the attached property to the person in whose possession it was before attachment.

(3) When attached property is kept in the village or place where it is attached.-Whenever attached property is kept in the village or place where it is attached, the attaching officer shall forthwith report the fact to the Court and shall with his report forward a list of the properties seized.

(4) Procedure when attached property is neither sold nor kept in the village of or place where it is attached.-If attached property is not sold under the first proviso to rule 43 or retained in the village or place where it is attached under the second proviso to that rule, it shall be brought to the Court-house and delivered to the proper officer of the Court.

(5) Where attached property kept in the village, etc., is live-stock.-Whenever attached property kept in the village or place where it is attached is live-stock, the person at whose instance it is so retained shall provide for its maintenance, and„if he fails to do so and if it is in charge of an officer of the Court, it shall be removed to the Court-house.

Nothing in this rule shall prevent the judgment-debtor or any person claiming to be interested in such live-stock from making such arrangements for feeding the same as may not be inconsistent with its safe custody.

(6) Direction for sums expended by attaching officer.-The Court may direct that any sums which have been expended by the attaching officer or are payable to him if not duly deposited or paid, be recovered from the proceeds of property, if sold, or be paid by the person declared entitled to delivery before he receives the same. The Court may also orderthat any sums deposited or paid under these rules be recovered as costs of the attachment from any party to the proceedings.”-(9-6-1959).

[Madhya Pradesh].-Substitute the following for the existing rule 43:

“43. Attachment of movable property other than agricultural produce in possession of judgment-debtor.-(1) Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor the attachment shall be made by actual seizure and the attaching officer shall keep the property in his own custody or in the custody of any of his subordinates and shall be responsible for the due custody thereof:

Provided that, when the property seized is subject to speedy and natural decay or when the expense of keeping it in custody is likely to exceed its value the attaching officer may sell it at once; and

Provided also that when the property attached consists of live-stock, agricultural implements or other articles which cannot be conveniently removed, and the attaching officer does not act under the first proviso to this rule, he may, at the instance of the judgment-debtor or of the decree-holder or any person claiming to be interested in such property, leave it in the village or at the place where it has been attached

(a) in the charge of the judgment-debtor, or of the station pound-keeper, if any, or

(b) in the charge of the decree-holder, or of the person claiming to be interested in such property or of such respectable person as will undertake to keep such property, on his entering into a bond with one or more sureties in an amount not less than the value of the property, that he will take proper care of such property and produce it when called for.

(2) The attaching officer shall make a list of the property attached and shall obtain thereto the acknowledgment of the person in whose custody the property is left, and if possible, of the parties to the suit, and of at least one respectable person in attestation of the correctness of the list. If the property attached includes both live-stock and other articles, separate list of the live-stock shall similarly be prepared and attested.”-(16-9-1960).

[Madras].-For Order 21, rule 43, substitute the following rules, viz.

“43. (1) Where the property to be attached is movable property other than agricultural produce in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of 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; and

Provided also that, when the property attached consists of live-stock, agricultural implements or other articles, which cannot conveniently be removed and the attaching officer does not act under the first proviso to this rule, he may, at the instance of the judgment-debtor or of the decree-holder or of any person claiming to be interested in such property leave it in the village or place where it has been attached

(a) in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in the Form No. 15-A of Appendix E to this Schedule with one or more sufficient sureties for its production when called for; or

(b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided and the remuneration of the officer for a period of 15 days at such rate as may from time to time be fixed by the High Court be paid in advance.

(2) Whenever an attachment made under the provisions of this rule ceases for any of the reasons specified in rule 55 or rule 57 or rule 60 of this Order, the Court may order the restitution of the attached property to the person in whose possession it was before attachment. “-(5-9-1958).

[Orissa].-Same as that of Patna.

[Patna].-Substitute the following for rule 43:

“43. Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure and the attaching officer shall be responsible for the due custody thereof:

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.”-(18-10-1933).

[Punjab].-The rule 43 was renumbered as sub-rule (1) thereof and the following further proviso and sub-rules (2) and (3) were added:

“and provided also that, when the property attached consists of live-stock, agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the first proviso to the rule, he may at the instance of the judgment-debtor or of the decree-holder, or of any person claiming to be interested in such property leave it in the village or place where it has been attached

(a) in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in the Form No. 15-A of Appendix E to this Schedule with one or more sufficient sureties for its production when called for, or

(b) in the charge of an officer of the Court if a suitable place for its safe custody be provided, and the remuneration of the officer for a period of fifteen days at such rate as may from time to time be fixed by the High Court be paid in advance, or

(c) in the charge of a village lambardar or such other respectable person as will undertake to keep such property, subject to the orders of the Court, if such person enters into a bond in Form No. 15-B of Appendix E with one or more sureties for its production.

(2) Whenever an attachment made under the provisions of this rule ceases for any of the reasons specified in rule 55, 57 or 60 of this Order, the Court may order the restitution of the attached property to the person in whose possession it was before attachment.

(3) When property is made over to a custodian under sub-clause (a) or (c) of clause (1), the schedule of property annexed to the bond shall be drawn up by the attaching officer, in triplicate and dated and signed by

(a) the custodian and his sureties,

(b) the officer of the Court who made the attachment,

(c) the person whose property is attached and made over,

(d) two respectable witnesses,

Once copy will be transmitted to the Court by the attaching officer and placed on the record of the proceedings under which the attachment has been ordered, one copy will be made over to the person whose property is attached and one copy will be made over to to custodian.”

[Note.-Additional Form Nos. 15-A and 15-B have been inserted, See Appendix E.1

[Rajasthan].-Same as that of Punjab, except for that in clause (c) of the second proviso to sub-rule (1), the word “Patwari” is substituted for the word “lambardar”.-(Notification, dated 23-12-1964 and 11-3-1965).

[43A . Custody of movable property. — (1) Where the property attached consists of live-stock, agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to rule 43, he may, at the instance of the judgment-debtor or of the decreeholder or of any other person claiming to be interested in such property, leave it in the village or place where it has been attached, in the custody of any respectable person (hereinafter referred to as the “custodian”).

(2) If the custodian fails, after due notice, to produce such property at the place named by the Court before the officer deputed for the purpose or to restore it to the person in whose favour restoration is ordered by the Court, or if the property, though so produced or restored, is not in the same condition as it was when it was entrusted to him,—

(a) the custodian shall be liable to pay compensation to the decree-holder, judgment-debtor or any other person who is found to be entitled to the restoration thereof, for any loss or damage cause by his default; and

(b) such liability may be enforced—

(i) at the instance of the decree-holder, as if the custodian were a surety under section 145;

(ii) at the instance of the judgment-debtor or such other person, on an application in execution; and

(c) any order determining such liability shall be appealable as a decree.]

STATE AMENDMENTS 6

 

High Court Amendments-Rules 43-A and 43-B-[Andhra Pradesh].-Same as those of Madras.

[Bombay].-In Order XXI, after the existing rule 43-A, insert the following rule with marginal note as new rule. 43-B and its marginal note:

“43-B. Attachment of live-stock.-(1) When an application is made for the attachment of live-stock the Court may demand, in advance in cash at rates to be fixed half-yearly or oftener, if necessary, by the Courts with the sanction of the District Judge, the amount requisite for the maintenance of the live-stock from the probable time of attachment to the probable time of sale, or may, at its discretion, make successive demands for portions of such period. The rates shall include cost of feeding, tending and conveyance, and all other charges requisite for the maintenance and custody of the live-stock.

(2) If the live-stock be entrusted to any person other than the judgment-debtor, the amount paid by the decree-holder for the maintenance of the live-stock or a part thereof, may, at the discretion of the Court, be paid to the custodian of the live-stock for their maintenance. The produce, such as milk, eggs, etc., if any, may either be sold as promptly as possible for the benefit of the judgment-debtor or may, at the discretion of the Court, be set off against the costs of maintenance of the live-stock.”-(1-10-1983).

[Delhi].-Same as that of Punjab.

Rule 43-A (1)-[Gujarat].-Same as that of Madhya Pradesh-(17-8-1961).

Rules 43-A to 43-D-[Himachal Pradesh].-Same as that of Punjab.

Rules 43-A and•43-B-[Karnataka].-Same as those of Madras-(R.O.C. No. 2526/1959, dated 9-2-1967).

Rule 43-A-[Madhya Pradesh].

“43-A. Attachment of live-stock.-(1) When an application is made for the attachment of live-stock the Court may demand, in advance in cash at rates to be fixed half-yearly or oftener, if necessary, by the Courts with the sanction of the District Judge, the amount requisite for the maintenance of the live-stock from the probable time of attachment to the probable time of sale, or may, at its discretion, make successive demands for portions of such period. The rates shall include cost of feeding, tending and conveyance and all other charges requisite for the maintenance and custody of the live-stock.

(2) If the live-stock be entrusted to any person other than the judgment-debtor, the amount paid by the decree-holder for the maintenance of the cattle or a part thereof may, at the discretion of the Court, be paid to the custodian of the live-stock for their maintenance. The produce, such as milk, eggs, etc., if any, may either be sold, as promptly as-possible for the benefit of the judgment-debtor or may, at the discretion of the Court, be set-off against the cost of maintenance of the live-stock.”-(16-9-1960).

Rules 43-A and 43-B-[Madras].-Insert the following as rules 43-A and 43-B:

“43-A. (1) Whenever attached property is kept in the village or place where it is attached, the attaching officer shall forthwith report the fact to the Court, and shall with his report forward a list of the property seized.

(2) If attached property is not sold under the first proviso to rule 43 or retained in the village or place where it is attached under the second proviso to that rule, it shall be brought to the Court-house and delivered to the proper officer of the Court.

43-B. (1) Whenever attached property kept in the village or place where it is attached is live-stock, the person at whose instance it is so retained shall provide for its maintenance, and, if he fails to do so and if it is in charge of an officer of the Court, it shall be removed to the Court-house.

Nothing in this rule shall prevent the judgment-debtor or any person claiming to be interested in such stock from making such arrangements for feeding the same as may not beinconsistent with its safe custody.

(2) The Court may direct that any sums which have been expended by the attaching officer or are payable to him, if not duly deposited or paid, be recovered from the proceeds of the property, if sold or be.paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums’deposited or paid under these rules be recovered as costs of the attachment from any party to the proceedings.”-(5-9-1968).

[Note.-An additional Form, being Form No. 15-A has been inserted in Appendix E.]

Rule 43-A-[Orissa].-Same as that of Patna.

[Patna].-Insert the following as rule 43-A below rule 43.in Order 2.1:

“43-A. (1)-The attaching officer shall, in suitable cases, keep the attached property in. the village or locality either

(a) in his own custody in any suitable place provided by the judgment-debtor, or in his absence by any adult member of his family who is present, on his own premises or. elsewhere;

(b) in the case of live-stock, and provided the decree-holder furnishes the necessary funds in the local pound, if a pound has been established in or near the village, in which case the pound-keeper wilt be responsible for the property to the attaching -officer, and shall receive the same rates for accommodation and maintenance thereof as are paid in respect of impounded cattle of the same description, or such less rate as may be agreed upon;

(c) in the custody of a respectable surety, provided the decree-holder furnishes the cost of maintenance and other costs, if any.

(2) If in the opinion of the attaching officer the attached property cannot be kept, in the village or locality, through lack of a suitable place, or satisfactory surety, or through failure of the decree-holder to provide necessary funds, or for any other reason, the attaching officer shall remove the property to the Court at the decree-holder’s expense. In the event of the decree-holder failing to provide the necessary funds the attachment shall be withdrawn.

(3) Whenever attached property is kept in the village or locality as aforesaid the officer shall forthwith report the fact to the Court, and shall with his report forward an accurate list of property seized, such that the Court may thereon at once issue the proclamation of sale prescribed by rule 66.

(4) If the debtor shall give his consent in w_;ting to sale of the property without awaiting the expiry of the term prescribed in rule 68, the officer shall receive the same and forward it without delay to the Court for its orders.

(5) When the property is removed to the Court it shall be kept by the Nazir on his own sole responsibility in such place as may be approved by the Court. If the property cannot, from its nature or bulk, be conveniently kept on the Court premises, or in the personal custody of the Nazir, he may, subject to the approval by the Court, make such arrangement for its safe custody under his own supervision as may be most convenient and economical, and the Court may fix the remuneration to be allowed to the persons, not being officers, of the Court, in whose custody the property is kept.

(6) When property remains in the village or locality where it is attached and any person other than the judgment-debtor shall claim the same, or any part of it, the attaching officer shall nevertheless unless the decree-holder desires to withdraw the attachment of the property so claimed, maintain the attachment, and shall direct the claimant to prefer his claim to the Court.

(7)(a) If the decree-holder shall withdraw an attachment or shall be withdrawn, under sub-rule (2) or sub-rule (9), the attaching officer shall inform the debtor, or in his absence any adult member of his family, that the property is at his disposal.

(b) In the absence of any person to take charge of it, or in case the officer shall have had notice of claim by a person other than the judgment-debtor, the officer shall, if the property has been moved from the premises in which it was seized, replace it where it was found at the time of seizure.

(8) Whenever live-stock is kept in the village or locality where it has been attached, the judgment-debtor shall be at liberty to undertake the due feeding and tending of it under the supervision of the attaching officer; but the latter shall, if required by the decree-holder and on his paying for the same at the rate to be fixed by the District Judge, and subject to the other orders of the Court under whose orders the attachment is made, engage the services of as many persons as may be necessary, for the safe custody of it.

(9) In the event of the judgment-debtor failing to feed the attached live-stock in accordance with sub-rule (8), the officer shall call upon the decree-holder to pay forthwith for feeding the same. In the event of his failure to do so, the officer shall proceed as provided in sub-rule (2), and shall report the matter to the Court without delay.

(10) When attached live-stock is brought to Court, the Nazir shall be responsible for the safe custody and proper feeding of it so long as the attachment continues.

(11) If a pound has been established in or near the place where the Court is held, the Nazir shall be at liberty to place in it such attached live-stock as can be properly kept there, in which case the pound-keeper will be responsible for the property to the Nazir and shall receive the same rates for accommodation and maintenance thereof, as are paid in respect of impounded cattle of the same description, or such less rate as may be agreed upon.

(12) If there be no pound available, or, if in the opinion of the Court, it be inconvenient to lodge the attached live-stock in the pound, the Nazir may keep it in his ownpremises or he may entrust it to any person selected by himself and approved by the Court. The Nazir will in all cases remain responsible for the custody of the property.

(13) Each Court shall, from time to time, fix the rates to be allowed, for the custody and maintenance of the various descriptions of live-stock with reference to seasons and local circumstances. The District Judge may make any alterations he deems fit in the rates prescribed by Courts subordinate to him. Where there are two or more Courts in the same place, the rates shall be the same for each Court.”-(18-10-1933).

Rules 43-A to 43-D-[Punjab].-Insert the following as rules 43-A, 43-B, 43-C and 43-D:

“43-A. (1) Whenever attached property is kept in the village or place where it is attached, the attaching officer shall forthwith report the fact to the Court and shall with his report forward a list of the property seized.

(2) If attached property is not sold under the first proviso to rule 43 or retained in the village or place where it is attached under the second proviso to that rule, it shall be brought to the Court-house and delivered to the proper officer of the Court.

(3) A custodian appointed under the second proviso to rule 43 may at any time terminate his responsibilities by giving notice to the Court of his desire to be relieved of his trust and delivering to the proper officer of the Court the property made over to him.

(4) When any property is taken back from a custodian, he shall be granted a receipt for the same.

43-B. (1) Whenever attached property kept in the village or place where it is attached is live-stock, the person at whose instance it is retained shall provide for its maintenance and, if he fails to do so and it is in charge of an officer of the Court, it shall be removed to the Court-house.

Nothing in this rule shall prevent the judgment-debtor or any person claiming to be interested in such stock, from making such arrangements for feeding the same as may not be inconsistent with its safe custody.

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

43-C. When an application is made for the attachment of live-stock or other movable property, the decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for 15 days. If within three clear days, before the expiry of any such period of 15 days the amount of such costs for such further period as the Court may direct be not paid into Court, the Court, on receiving a report thereof from the proper officer, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

43-D. Any person who has undertaken to keep attached property under rule 43(1)(c) shall be liable to be proceeded against as a surety under section 145 of the Code and shall be liable to pay in execution proceedings the value of any such property wilfully lost by him.”-(1-11-1966).

  1. Attachment of agricultural produce. – Where the property to be attached is agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment,—

(a) where such produce is a growing crop, on the land on which such crop has grown, or

(b) where such produce has been cut or gathered, on the threshing floor or place for treading out grain or the like or fodder-stack on or in which it is deposited, and another copy on the outer door or on some other conspicuous part of the house in which the judgmentdebtor 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.

STATE AMENDMENTS 6

 

High Court Amendments-[Calcutta].-Insert the words “at the identification of the decree-holder or his agent” after the words “attachment shall be made” in rule 44.-(25-9-1941).

[Gauhati].-Same as that of Calcutta.

Order 21, Rule 44-A

High Court Amendments-[Bombay].-In Order 21, after the existing rule 44, insert the following rule with marginal note as new rule 44-A and its marginal note:

“44-A. Copy of the warrant of attachment to be sent to the Collector where agricultural produce is attached.-Where the property to be attached is agricultural produce, a copy of the warrant or the order of attachment shall be sent by post to the office of the Collector of the District in which the land is situate.”-(1-10-1983).

[Gujarat].-Same as that of Bombay- (17-8-1961).

  1. Provisions as to agricultural produce under attachment. – (1) Where agricultural produce is attached, the Court shall make such arrangements for the custody thereof as it may deem sufficient and, for the purpose of enabling the Court to make such arrangements, every application for the attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered.

(2) Subject to such conditions as may be imposed by the Court in this behalf either in the order of attachment or in any subsequent order, the judgment-debtor may tend, cut, gather and store the produce and do any other act necessary for maturing or preserving it; and if the judgment-debtor fails to do all or any of such acts, the decree-holder may, with the permission of the Court and subject to the like conditions, do all or any of them either by himself or by any person appointed by him in this behalf and the costs incurred by the decree-holder shall be recoverable from the judgment-debtor as if they were included in, or formed part of, the decree.

(3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil.

(4) Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be fit to be cut or gathered, the Court may suspend the execution of the order for such time as it thinks fit, and may, in its discretion, make a further order prohibiting the removal of the crop pending the execution of the order of attachment.

(5) A growing crop which from its nature does not admit of being stored shall not be attached under the rule at any time less than twenty days before the time at which it is likely to be fit to be cut or gathered.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order 21, rule 45, for the existing sub-rule (1), and its marginal notesubstitute the following as sub-rule (1) and marginal note:

“(1) Provisions as to agricultural produce under attachment.-Where agricultural produce is attached the Court shall make such arrangement for the custody thereof as it may deem sufficient and, for the purpose of enabling the Court to make such arrangements, every application for the attachment of growing crop shall specify the time at which it is likely to be fit to be cut or gathered, and the applicant shall deposit in Court at the time of the application such sum as the Court shall deem sufficient to defray the cost of watching and tending the crop till such time.”-(1-10-1983).

[Calcutta].-Add the following to sub-rule (1):

“and the applicant shall deposit in Court such sum as the Court shall require in order to defray the cost of watching or tending the crop till such time.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Gujarat].-Same as that of Bombay-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Same as that of Madras-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-In rule 45 for the full stop at the end of sub-rule (i) a semicolon shall be substituted and the words “and the applicant shall deposit in Court within a date to be fixed by Court, such sum as the Court may deem sufficient to defray the cost of watching and tending the crop till such time” shall be added.

[Orissa].-Same as that of Patna.

[Patna].-Add to sub-rule (1) of rule 45 after deleting the full stop at the end of the sub-rule:

“and the applicant shall pay into Court such sums as he may from time to time be required by the Court to pay in order to defray the cost of such arrangements.”

[Punjab].-Add the following to sub-rule (1) of rule 45:

“and with every such application such charges as may be necessary for the custody of the crop up to the time at which it is likely to be fit to be cut or gathered shall be paid to the Court.”

  1. Attachment of debt, share and other property not in possession of Judgment-debtor . – (1) In the case of—

(a) a debt not secured by a negotiable instrument,

(b) a share in the capital of a corporation,

(c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting,—

(i) in the case of the debt, the credit or from recovering the debt and the debtor from making payment thereof until the further order of the Court;

(ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;

(iii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.

(2) A copy of such order shall be affixed on some conspicuous part of the court-house, and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation and, in the case of the other movable property (except as aforesaid), to the person in possession of the same.

(3) A debtor prohibited under clause (i) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.

[46A. Notice to garnishee. — (1) The Court may in the case of a debt (other than a debt secured by a mortgage or a charge) which has been attached under rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt, calling upon him either to pay into Court the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause why he should not do so.

(2) An application under sub-rule (l) shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent, the garnishee is indebted to the judgment-debtor.

(3) Where the garnishee pays in the Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of the execution, the Court may direct that the amount may be paid to the decree-holder towards satisfaction of the decree and costs of the execution.

46B . Order against garnishee. – Where the garnishee does not forthwith pay into Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, and does not appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice, and on such order, execution may issue as though such order were a decree against him.

46C . Trial of disputed questions. – Where the garnishee disputes liability, the Court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit, and upon the determination of such issue shall make such order or orders as it deems fit:

Provided that if the debt in respect of which the application under rule 46A is made is in respect of a sum of money beyond the pecuniary jurisdiction of the Court, the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate, and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge shall deal with it in the same manner as if the case had been originally instituted in that Court.

46D . Procedure where debt belongs to third person. – Where it is suggested or appears to be probable that the debt belongs to some third person, or that any third person has a lien or charge on, or other interest in such debt, the Court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt and prove the same.

46E . Order as regards third person. – After hearing such third person and any person or persons who any subsequently be ordered to appear, or where such third or other person or persons do not appear when so ordered, the Court may make such order as is hereinbefore provided, or such other order or orders upon such terms, if any, with respect to the lien, charge or interest, as the case may be, of such third or other person or persons as it may deem fit and proper.

46F . Payment by garnishee to be valid discharge. – Payment made by the garnishee on notice under rule 46A or under any such order as aforesaid shall be a valid discharge to him as against the judgment-debtor and any other person ordered to appear as aforesaid for the amount paid or levied, although the decree in execution of which the application under rule 46A was made, or the order passed in the proceedings on such application may be set aside or reversed.

46G . Costs. – The costs of any application made under rule 46A and of any proceeding arising therefrom or incidental thereto shall be in the discretion of the Court.

46H . Appeals. – An order made under rule 46B, rule 46C or rule 46E shall be appealable as a decree.

46I . Application to negotiable instruments. – The provisions of rule 46A to 46H (both inclusive) shall, so far as may be, apply in relation to negotiable instruments attached under rule 51 as they apply in relation to debts.]

STATE AMENDMENTS 6

 

High Court Amendments-Rules 46-A to 46-1-[Andhra Pradesh].-Same as those of Madras-(5-1-1961).

[Bombay].-In Order XXI, for the existing rules 46-A to 46-I, substitute the following rules:

“46-A. Payment of debt or amount under negotiable instrument or delivery of movable property in Court, etc. in the hands of garnishee.-(1) Upon the application of the decree-holder, the Court may in the case of,

(1) any debt (other than a debt secured by a mortgage or a charge or a negotiable instrument) of which the Civil Courts are not precluded from adjudicating upon by any law for the time being in force and which has been attached under rule 46 of this Order; or

(2) any movable property not in possession of the judgment-debtor which has been attached under rule 46 of this Order; or

(3) any negotiable instrument which has been attached under rule 51 of this Order;or

(4) any movable property of the nature referred to in (1) to (3) above in the custody of any public officer other than officer of any Court, which has been attached under rule 52 of the Order, issue notice to any person liable to pay to the judgment-debtor such debt or the amount due under such negotiable instrument or liable to deliver such movable property or to account or it to the judgment-debtor (hereafter referred to as “the garnishee”) calling upon him within the period specified in the notice either to pay into Court the said debt or amount payable under the said negotiable instrument or deliver into Court the said movable property, as the case may be, or so much thereof as may be sufficient to satisfy the decree ororder and the cost of execution or to appear before the Court and show cause why he should not be ordered to do so.

The notice shall be served on the garnishee and, if the Court so directs on the judgment-debtor also. The notice shall be served eight clear days before the returnable date thereof:

Provided that, subject to the proviso to rule 46-C, if by any law for the time being in force, the jurisdiction to adjudicate upon the debt or claim relating to the negotiable instrument or movable property in respect of which the application aforesaid is made is conferred on a Civil Court other than the execution Court, the Court shall send the execution case to the District Court to which the said Court is subordinate and thereupon the District Court shall transfer the case to the competent Court and on such transfer the Court to which the case is transferred will deal with it in the same manner as if it had been originally instituted in that Court.

Explanation.-When the District Court itself is the competent Court it may deal with the case in the same manner as if it had been originally instituted in that Court.

(2) Such application shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent the Garnishee is indebted to the judgment-debtor or that the property belongs to the judgment-debtor.

46-B. Order against garnishee.-Where the garnishee does not within the time specified in the notice or within such time as the Court may allow to pay into Court the said debt or the amount payable under the said negotiable instrument or does not deliver into Court the said property or so much of the debt or amount or property as is sufficient to satisfy the decree or order and the cost of the execution or does not appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice or pass such other order as it may deem fit.

46-C. Determination of disputed questions.-If the garnishee disputes his liability, the Court instead of making such order may order that any issue or question necessary for determining his liability be tried as though it were an issue in a suit; and upon the determination of such issue shall pass such order upon the notice as it may think fit:

Provided that if the amount of the debt or the amount payable under the negotiable instrument or the value of the property in respect of which the application aforesaid is made exceeds the pecuniary jurisdiction of the Court, the Court shall send the execution case to the District Court to which the said Court is subordinate and thereupon the District Court or any other competent Court to which it may be transferred by the District Court will deal with it in the same manner as if it had been originally instituted in that Court.

46-D. Discharge of garnishee.-If the garnishee appears in answer to the garnishee notice shows cause to the satisfaction of the Court, the notice shall be dismissed and upon such dismissal the attachment ordered under rule 46, 51 or 52 of this Order shall stand raised and the prohibitory order, if any, shall stand discharged.

46-E. Adjudication of claims by third party.-Whenever in the course of proceedings against the garnishee it is alleged or appears to the Court to be probable that some person other than the judgment-debtor is or claims to be entitled to the debt attached or the amount payable under the negotiable instrument or the property attached or claims to have a charge or lien upon or interest in such debt or amount or property the Court may order such third person to appear before it and state the nature of his claim with particulars thereof, and, if necessary, prove the same.

46-F. Claim of third person to be tried as in a suit.-After hearing such third person and any other person who may subsequently be ordered to appear, or in case of such third person or other person not appearing when ordered, the Court may pass such order as is provided under rule 46-B, 46-C or 46-D or such other order or orders upon such terms, if any, with respect to the lien or charge or interest if any of such third or other person as it may deem fit and proper including an order that any question or issue necessary fordetermining the validity of the claim of the third or other person be tried as though it were an issue in a suit.

46-G. Execution of order under rules 46-B, 46-C and 46-F.-(a) An order made by the Court under rule 46-B, 46-C or 46-F against the garnishee shall be executable as if it were a decree of the Court in favour of the decree-holder.

(b) When money or negotiable instrument or property is received in Court as a result of an order under rule 46-B, 46-C or 46-F above, the money shall not be paid and further steps in execution in respect of the negotiable instrument or property shall not be taken till the time for filing an appeal against the said order is over and where an appeal is filed, till further orders of the Appellate Court.

46-H. Discharge of garnishee’s liability.-Any payment or delivery made by a garnishee in compliance with a garnishee notice or order made against him under rule 46-B, 46-C or 46-F of this Order or any money or property realised in execution of an order under these Rules shall be a valid discharge of the garnishee’s liability to the judgment-debtor and to any other person or persons ordered to appear under rule 46-E or 46-F of this order for the amount paid or levied or property delivered or property realised in execution, although the decree in execution of which the application under rule 46-A was made, or the order passed in the proceedings on such application may be set aside or reversed.

46-I. Garnishee proceeding against a firm.-Where a debt due by a firm to the judgment-debtor has been attached it may be proceeded against under rules 46-A to 46-H of this Order in the same manner as in the case of an ordinary garnishee, and provisions of Order XXX of this Code shall, so far as applicable apply to such proceedings although one or more partners of such firm may be resident outside the jurisdiction of the Court:

Provided that any person having the control or management of the partnership business or any partner of the firm who is within the jurisdiction of the Court is served with garnishee notice. An appearance by any partner pursuant to such notice shall be sufficient appearance by the firm.

46-J. Costs.-The costs of any application made under rule 46-A of this order and of any proceedings arising therefrom or incidental thereto shall be in the discretion of the Court.

46-K. Appeal against order made under rules 46-B, 46-C, 46-F and 46-G.-Any order made under rule 46-B, 46-C, 46-F or 46-G of this Order shall be appealable as a decree.”-(1-10-1983 and 20-4-1989).

[Calcutta].-Add the following after rule 46:

“46-A. The Court may in case of a debt other than a debt, secured by a mortgage or a charge or by a negotiable instrument, which has been attached under rule 46 or 51 of this Order, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt calling upon him either to pay into Court the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause why he should not do so:

Provided that if the debt in respect of which the application aforesaid is made is in respect of a sum of money beyond the pecuniary jurisdiction of the Court, the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate, and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge will deal with it in the same manner as if the case has been originally instituted in that Court.

Such application shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent the garnishee is indebted to the judgment-debtor.

46-B. Where the garnishee does not forthwith pay into Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the r ecree and the costs of execution or does not appear and show cause in answer to the notice, the Court mayorder the garnishee to comply with the terms of such notice, and on such order execution may issue as though such order were a decree against him.

46-C. Where the garnishee disputes liability, the Court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit, and upon the determination of such issue shall make such order or orders upon the parties as may seem just.

46-D. Where it is suggested or appears to be probable that the debt belongs to some third person or that any third person has a lien or charge on, or other interest in, such debt, the Court may order such third person to appear and state the nature and particulars of his claim (if. any) to such debt and prove the same.

46-E. After hearing such third person and any person or persons who may subsequently be ordered to appear, or where such third or other person or persons do not appear when so ordered, the Court may make such order as is hereinbefore provided, or such other order or orders upon such terms, if any, with respect to the lien, charge or interest, if any, of such third or other persons as may seem fit and proper.

46-F. Payment made by the garnishee on a notice under rule 46-A or under any such order as aforesaid shall be valid discharge to him as against the judgment-debtor and any other person ordered to appear as aforesaid, for the amount paid or levied although such judgment may be set aside or reversed.

46-G. The costs of any application made under rule 46-A and of any proceeding arising therefrom or incidental thereto, shall be in the discretion of the Court.

46-H. An order made under rule 46-B or 46-C or 46-E shall be appealable as a decree.” Rules 46-A to 46-H-[Gauhati].-Same as those of Calcutta.

[Gujarat].-Same as those of Bombay except that in rule 46-H the figures and letter “46-B” are omitted.-(17-8-1961).

[Karnataka].-Same as those of Madras-(R.O.C. No. 2526/1959, dated 9-2-1967).

Rules 46-A to 46-I-[Kerala].-After rule 46, the following rules shall be inserted, namely:

“46-A. Procedure when debt or any movable property not in possession ofjudgment-debtor.-The Court may, in the case of any debt due to the judgment-debtor (other than debt secured by a mortgage or a charge or by negotiable instrument), or any movable property in which he has an interest, but not in his possession, which has been attached under rule 46 of this Order, upon the application of the attaching creditor, issue notice to any person liable to pay such debt or deliver an account for such movable property (such person to be hereinafter called the’garnishee’) calling upon him either to pay or deliver into Court the debt due from or the property deliverable by him to such judgment-debtor, or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause why he should not do so. Such application shall be supported by an affidavit verifying the fact alleging and stating that in the belief of the deponent the garnishee is indebted to the judgment-debtor:

Provided that if the debt or property in respect of which the application aforesaid is made is of value beyond the pecuniary jurisdiction of the Court, the execution case shall be sent to the District Court to which the said Court is subordinate and thereupon the District Court shall deal with it in the same manner as if the case had been originally instituted in that Court.

46-B. Procedure when garnishee does not forthwith pay the amount.-Where the garnishee does not forthwith or within such time as the Court may allow, pay or deliver into Court the amount due from him or the property deliverable by him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, or does not appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice, and on such order being made, execution may issue as though such order were a decree against him.

46-C. Procedure where garnishee disputes his liability.-Where the garnishee disputes his liability the Court may order that any issue or question necessary for the determination of the liability shall be tried as if it were an issue in a suit and upon determination of such issue shall make such order as may seem just:

Provided that where the garnishee admits his liability but disputes its extent and the decree-holder does not seek to recover from the garnishee any sum in excess of what he admits is due from him the Court shall not be bound to decide the dispute and may direct the garnishee to pay such sum or so much thereof as is sufficient to satisfy the decree and the costs of the execution proceedings.

46-D. Procedure when debt or property belongs to a third person.-Where in any proceeding under these rules it is alleged or appears to the Court to be probable that the debt or property attached or sought to be attached belongs to some third person or that any third person has a lien or charge upon or an interest in it, the Court, may order such third person to appear and state the nature and particulars of his claim, if any, to such debt or property and prove the same.

46-E. Order to be made on hearing such persons.-After hearing such third person and any other person who may subsequently be ordered to appear, or in the case of such third or other person not appearing when ordered, the Court may pass such order as is hereinbefore provided or make such other order as it thinks fit, upon such terms, in all cases with respect to the lien, charge or interest, if any, of such third or other persons as may seem fit and proper.

46-F. Payment or delivery under order to be a valid discharge.-Payment or delivery made by the garnishee on a notice under rule 46-A or under any such order as aforesaid shall be a valid discharge to him as against the judgment-debtor, and any other person ordered to appear as aforesaid, for the amount paid, delivered or realised although such order or the judgment may be set aside or reversed.

46-G. Procedure re: debt owing from a firm.-Debts owing from a firm carrying on business within the jurisdiction of the Court may be proceeded against under rules 46-A to 46-E of this Order, although one or more members of such firm may be resident outside the jurisdiction :

Provided that if any person having the control or management of the partnership business or any member of the firm within the jurisdiction is served with the garnishee notice, an appearance by any member pursuant to such notice shall be sufficient appearance by the firm.

46-H. Costs to be in the discretion of the Court.-The cost of any application made under rule 46-A and of any proceeding arising therefrom or incidental thereto or any order made thereon shall be in the discretion of the Court.

46-I. Orders appealable.-An order made under rule 46-B, 46-C or 46-E, shall have the same force as a decree and shall be appealable as such.”-(9-6-1959).

[Madras].-Add the following rules:

“46-A. The Court may in the case of any debt due to the judgment-debtor (other than a debt secured by a mortgage or a charge or a debt recoverable only in a Revenue Court, or a debt on a negotiable instrument the amount of which exceeds the pecuniary jurisdiction of the Court) which has been attached under Order 21, rule 46, and in the case of a negotiable instrument which has been attached under Order 21, rule 51, upon the application of the decree-holder, issue notice to the person liable to pay such debt (hereinafter called the garnishee) calling upon him to appear before the Court and show cause why he should not pay the debt due from him to such judgment-debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution.

46-B. If the garnishee does not appear or show cause in answer to the notice issued under rule 46-A, or if he does not dispute his liability or its extent, the Court may direct the garnishee within such time as it may allow to pay into Court the debt or the amount dueunder the negotiable instrument as the case may be or so much thereof as may be sufficient to satisfy the decree and the costs of the execution proceedings.

46-C. If the garnishee disputes his liability or, its extent, the Court may decide the dispute and thereafter direct the garnishee within such time as it may allow to pay into Court such sum as it has found to be due from him or so much thereof as may be sufficient to satisfy the decree and the costs of the execution proceedings:Provided that where the garnishee admits his liability but disputes its extent and the decree-holder does not seek to recover from the garnishee any sum in excess of what he admits is due from him, the Court shall not be bound to decide the dispute and may direct the garnishee to pay such sum or so much thereof as is sufficient to satisfy the decree and the costs of the execution proceedings.

46-D. If the garnishee alleges that the debt belongs to some third person or that a third person has a lien, or charge or other interest, upon or in it, the Court may order such third person to be served with notice to appear and state the nature and particulars of his claim.

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

46-F. Any payment made by the garnishee in pursuance of or in execution of an order under these rules shall be a valid discharge to him as against the judgment-debtor or any other person ordered to appear as aforesaid, for the amount paid, or realized although such order or judgment may be set aside, or reversed.

46-G. If at any stage of the proceedings under rules 46-A to 46-F the Court considers that the matter is too complicated to be dealt with under the above said provisions, it may drop the proceedings leaving the other rights and remedies of the parties unaffected.

46-H. The costs of any application made under the foregoing rules and of any proceedings arising from or incidental to such application, shall be in the discretion of the Court.

46-I. An order passed by the Court determining the liability of a garnishee or directing payment by him under rules 46-B, 46-C and 46-E shall be executed as if it were a decree and shall be appealable as such.”-(10-8-1955).

[Orissa].-Same as those of Patna.

[Patna].-See rules 63-A to 63-H added by the Patna High Court.

  1. Attachment of share in movables. – Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.
  2. Attachment of salary or allowances of servant of the Government or railway company or local authority. 

(1) Where the property to be attached is the salary or allowances of a [servant of the Government] or of a servant of a railway company or local authority [or of a servant of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act, or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)] the Court, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and, upon notice of the order to such officer as the appropriate Government may be notification in the Official Gazette appoint [in this behalf,—

(a) where such salary or allowances are to be disbursed within the local limits to which this Code for the time being extends, the officer or other person whose duty it is to disburse the same shall withhold and remits to the Court the amount due under the order, or the monthly instalments, as the case may be;

(b) where such salary or allowances are to be disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to the disbursed shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time, to be disbursed by the aggregate of the amounts from time to time remitted to the Courts.]

(2) Where the attachable proportion of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the[appropriate Government] in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.

[(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule

(2) shall, without further notice or other process, bind the appropriate Government or the railway company or local authority or corporation or Government company, as the case may be, while the judgment-debtor is within the local limits to which this Code for the time being extends and while he is beyond those limits, if he is in receipt of any salary or allowances payable out of the Consolidated Fund of India or the consolidated Fund of the State or the funds of a railway company or local authority or corporation or Government Company in India; and the appropriate Government or the railway company or local authority or corporation or Government company, as the case may be, shall be liable for any sum paid in contravention of the rule.] [Explanation.—In this rule, “appropriate Government” means,—

(i) as respects any person in the service of the Central Government, or any servant of a railway administration or of a cantonment authority or of the port authority of a major port, or any servant of a corporation engaged in any trade or industry which is established by Central Act, or any servant of a Government company in which any part of the share capital is held by the Central Government or by more than one State Governments or partly by the Central Government and partly by one or more State Governments, the Central Government;

(ii) as respects any other servant of the Government, or a servant of any other local or other authority, or any servant of a corporation engaged in any trade or industry which is established by a Provincial or State Act, or a servant of any other Government company, the State Government.]

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Madras].-Substitute a comma for the period at the end of the last sentence of sub-rule(1) and add the following at the end of sub-rule (1):

“such amount or instalment being calculated to the nearest anna by fractions of an anna of six pies and over being considered as one anna and omitting amounts less than six pies. “-(5-9-1968).

[48A. Attachment of salary or allowances of private employees.— (1) Where the property to be attached is the salary or allowances of an employee other than an employee to whom rule 48 applies, the Court, where the disbursing officer of the employee is within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and upon notice of the order to such disbursing officer, such disbursing officer shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be.

(2) Where the attachable portion of such salary or allowances is already being withheld or remitted to the Court in pursuance of a previous and unsatisfied order of attachment, the disbursing officer shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.

(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2), shall, without further notice or other process, bind the employer while the judgment-debtors is within the local limits to which this Code for the time being extents and while he is beyond those-limits, if he is in receipt of salary or allowances payable out of the funds of an employer in any part of India; and the employer shall be liable for any sum paid in contravention of this rule.]

  1. Attachment of partnership property. – (1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.

(2) The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property, and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the degreeholder by such partner, or as the circumstances of the case may require.

(3) The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same.

(4) Every application for an order under sub-rule (2) shall be served on the judgment-debtor and on his partners or such of them as are within [India].

(5) Every application made by any partner of the judgment-debtor under sub-rule (3) shall be served on the decree-holder and on the judgment-debtor, and on such of the other partners as do not join in the application and as are within [India].

(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners and all orders made on such application shall be similarly served.

  1. 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 30 or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;

(c) against any person who has been individually served as a partner with a summons and has failed to appear:

Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of [section 30 of the Indial Partnership Act, 1932 (9 of 1932)].

(2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.

(3) Where the liability of any person has been tried and determined under sub-rule (2) the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(4) Save as against any property of the partnership, a decree against a firm shall not lease, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.

[(5) Nothing in this rule shall apply to a decree passed against a Hindu Undivided Family by virtue of the provision of rule 10 of Order XXX.]
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In sub-rule (2), add the words:

“or to which the decree is transferred for execution” after the words “Court which passed the decree.”-(1-6-1957).

[Orissa].-Same as that of Patna.

[Patna].-In sub-rule (2) of rule 50 add the words “or to the Court to which it is sent for execution” after the words “passed the decree” and before the words “for leave”.

  1. Attachment of negotiable instruments. – Where the property is a negotiable instrument not deposited in a Court, not in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Substitute the following for rule 51, namely:

“51. Where any property has been attached in execution of a decree and the Court for any reason passes an order dismissing the execution application the attachment shall, in the absence of any order passed by the Court, be deemed to subsist for a period of fifteen days after the dismissal of the application for execution and no fresh attachment of the e.._ Ze property shall be necessary if a fresh application for execution is made within such period of fifteen days. If no such application is made, the attachment shall case:

Provided that in the case of movable property the attachment shall not be continued after an order dismissing the execution application has been passed unless the decree-holder has given his consent in writing and therein deposit with the Court on his behalf a sum of money sufficient to meet the expenses of the attachment during the extended period. “-(1-7-1957).

  1. Attachment of property in custody of Court or public officer. – Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued:

Provided that, where such property is in the custody of a Court, any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Karnataka].-Add the following proviso at the end of rule 52:

“Provided further that where the Court whose attachment is determined to be prior in point of time receives or realises such property, the receipt or realisation shall be deemed to be on behalf of all the Courts in which there have been attachments of such property in execution of money decrees prior to the receipt of such assets.

Priority of attachment for the purpose of this rule shall be determined on the same principles as in the case of attachment of property not in the custody of any Court.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Madras].-Add the following as proviso (it) and renumber the existing proviso as (i):-

“(ii) Provided further that, where Court whose attachment is determined to be prior receives or realizes such property, the receipt or realization shall be deemed to be on behalf of all the Courts in which there have been attachments of such property in execution of money decrees prior to the receipt of such assets.

Explanation.-Priority of attachment in the case of attachment of property in the custody of Court shall be determined on the same principles as in the case of attachment of property not in the custody of Court.”

  1. Attachment of decrees. – (1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made,—

(a) if the decrees were passed by the same Court, then by order of such Court, and

(b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until—

(i) the Court which passed the decree sought to be executed cancels the notice, or

[(ii) (a) the holder of the decree sought to be executed, or

(b) his judgment-debtor with the previous consent in writing of such decree-holder, or with the permission of the attaching Court, applies to the Court receiving such notice to execute the attached decree.]

(2) Where a Court makes an order under clause (a) of sub-rule (1), or receives an application under subhead (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceeds to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

(3) The holder of a decree sought to be executed by the attachment of another of decree the nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to executive such attached decree in any manner lawful for the holder thereof.

(4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1) the attachment shall be made by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court, also by sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.

(5) The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.

(6) On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgmentdebtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order [with knowledge thereof or] after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-(a) In clause (b) of sub-rule (1) and in sub-rule (4), add “and to any other Court to which the decree has been transferred for execution” after the words “such other Court”.

(b) In sub-rule (6), for the words “after receipt of notice thereof” read “after receipt of notice, or with the knowledge thereof”.-(24-7-1926).

[Andhra Pradesh].-Same as that of Madras.

[Bombay].-(i) In Order XXI, for the existing sub-rule (1)(b), substitute the following:-

“(b) if the decree sought to be attached was passed by another Court, then by the issue, to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court and to any other Court to which the decree has been transferred, for execution to stay the execution of its decree unless and until

(i) the Court which passed the decree sought to be executed cancels the notice, or

(ii) (a) the holder of the decree sought to be executed, or

(b) his judgment-debtor with the previous consent in writing of such decree-holder, or with the permission of the attaching Court, applies to the Court receiving such notice to execute the attached decree;”

(ii) Substitute the following sub-rule (4) for the existing sub-rule (4) of rule 53 in Order XXI:

“(4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1), the attachment shall be made, by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court also by sending to such other Court and to any other Court to which the decree has been transferred for execution a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.”-(1-10-1983).

[Calcutta].-In sub-rule (1)(b), rule 53, after the words “to such other Court” insert the words “and to any Court to which it has been transferred for execution”; also insert therein the words “or Courts” after the words “requesting such other Court”.

In sub-rule (1)(b)(ii), cancel the words “to execute its own decree” and substitute therefor the words “to execute the attached decree with the consent of the said decree-holder expressed in writing or the permission of the attaching Court”.

In sub-rule (4), insert after the words “by sending to such other Court”, the words “and to any Court to which it has been transferred for execution”.

In sub-rule (6), substitute the words “in contravention of the said order with knowledge thereof” for the words “in contravention of such order after the receipt of notice thereof “.

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Same as that of Madras-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Madhya Pradesh].-Substitute

(a) “to such other Court and to any other Court to which the decree has been transferred for execution” for the word “to such other Court” occurring in clause (b) of sub-rule (1) and in sub-rule (4); and

(b) the following as sub-clause (ii) of clause (b) of sub-rule (1) in place of the existing sub-clause:

” (ii) the holder of the decree sought to be executed or his judgment-debtor with the consent of the said decree-holder expressed in writing or with the permission of the attaching Court applies to the Court receiving such notice to execute the attached decree.”-(16-9-1960).

[Madras].-(i) Substitute the following for sub-rule (1)(b)(ii):

“(ii) the holder of the decree sought to be executed or his judgment-debtor if he has obtained the consent in writing of the decree-holder or the permission of the attaching Court, applies to the Court receiving such notice to execute the attached decree.”

(ii) Add the following as sub-rule (1)(c) to rule 53 of Order 21:

“(c) If the decree sought to be attached has been sent for execution to another Court, the Court which passed the decree shall send a copy of the said notice to the former Court, and thereupon the provisions of clause (b) shall apply in the same manner as if the former Court had passed the decree and the said notice had been sent to it by the Court which issued it.”

[Patna].-Substitute the following for rule 53(1)(b):

“(b) If the decree sought to be attached was passed by another Court, then by the issue to such other Court (or to the Court to which the decree may have been transferred for execution) of a notice by the Court before which the application has been made requesting such other Court (or the Court to which the decree may have been transferred for execution, as the case may be) to stay the execution of the decree sought to be attached unless and until

(i) the Court which has issued the notice shall cancel the same, or

(ii) the holder of the decree sought to be executed, or his judgment-debtor, with the consent of the said decree-holder expressed in writing or the permission of the attaching Court, applies to such other Court (or to the Court to which the decree may have been transferred for execution) to execute the attached decree.”

[Punjab].-(1) Add the following words under sub-rule (1)(b) after the words “to such other Court”:

“and to the Court to which it has been transferred for execution”.

(2) In sub-rule (1)(b)(ii) substitute the words “the attached” for the words “its own”; and insert the following words between the words “executed or” and “his judgment-debtor”:

“with the consent of the said decree-holder expressed in writing or with the permission of the attaching Court.”

(3) In sub-rule (6), substitute the words “with the knowledge” for the words “after receipt of notice”.-(7-4-1932).

  1. 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.
[(1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.]

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government in the office of the Collector of the district in which the land is situate [and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.]

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-(1) At the end of sub-rule (2) substitute a comma for the full stop and thereafter add the following:

“and, where the property, whether paying revenue to Government or otherwise, is situate within cantonment limits, in the office of the Local Cantonment Board and of the Military Estates Officer concerned.”-(27-9-1941).

(2) Substitute the following for sub-rule (3):

“3. The attachment shall be deemed to have been made against transferee without consideration from the judgment-debtor from the date on which they respectively had knowledge of the order of attachment, and as against all other persons from the date or which they respectively had knowledge of the order of attachment or the date on which the order was duly proclaimed under sub-rule (2) whichever is earlier.”-(5-2-1983).

[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In Order XXI, for rule 54 and its marginal note, substitute the following as rule 54 and the marginal note:

“54. (1) Attachment of immovable property.-Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge, such order shall take effect, where there is no consideration for such transfer or charge, from the date of such order, and where there is consideration for such transfer or charge, from the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred or charged.

(1-A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.

(2) Copies of the order shall also be forwarded to the Collector with a request that appropriate entries showing the attachment levied on the property may be caused to be made in the revenue records, city survey records, or village panchayat records as may be required in the particular case.

(3) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate, and also, where the property is situate within cantonment limits, in the office of the Local Cantonment Board and the Military Estates Officer concerned and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.”-(1-10-1983).

[Calcutta].-(1) Add the following to sub-rule (2):

“and also, where the property is situated within cantonment limits, in the office of the Local Cantonment Board and the Military Estates Officer concerned.”

(2) Add the following as sub-rule (3):

“(3) Such order shall take effect, where there is no consideration for such transfer or charge from the date of the order, and where there is consideration for such transfer or charge, from the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred or charged, or from the date when the order is proclaimed under sub-rule (2) whichever is earlier.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Gujarat].-(1) The following shall be added to sub-rule (1) of rule 54:

“Such order shall take effect, where there is no consideration for such transfer or charge, from the date of such order, and where there is consideration for such transfer orcharge, from the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred or charged.”

(2) Substitute a comma for the full stop at the end of rule 54(2) and add the following thereafter:

“and also, where the property is situate within cantonment limits, in the office of the Local Cantonment Board and the Military Estates Officer concerned.”-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-In sub-rule (2) of rule 54 convert the full stop into a comma and add the words “and where the property is situated within the limits of a Municipality or other local authority also in the principal office of the said Municipality or the local authority.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-(i) For sub-rule (2), the following sub-rule shall be substituted, namely:

“(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode and a copy of the order shall be affixed on a conspicuous part of the property and thereupon, a conspicuous part of the Court-house and also in the village office or, in case there is no such office, in the Taluk office of the place in which the land is situate and where the property is situated within the limits of a Municipality or Panchayat, in the office of the Municipality or Panchayat within the limits of which the property is situate.”

(ii) after sub-rule (2) the following sub-rule shall be inserted, namely:

“(3) The attachment shall be deemed to have taken as against transferees without consideration from the judgment-debtor from the date of the order of attachment and as against all other persons from the date on which they respectively had knowledge of the order of attachment or the date on which the order was duly proclaimed under sub-rvle (2) whichever is the earlier.”-(9-6-1959).

[Madhya Pradesh].-(1) Delete the full stop at the end of sub-rule (2) and add the following words:

“and also where the property is situate within cantonment limits, in the office of the Local Cantonment Board and the Military Estates Officer concerned.”

(2) After sub-rule (2) of rule 54, insert the following sub-rule:

“(3) The order shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the property and against all other transferees from the judgment-debtor from the date on which such order is made.”-(16-9-1960).

[Madras].-(a) Substitute the following for sub-rule (2):

“(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the property and on a conspicuous part of the Court-house. Where the property is land paying revenue to the Government, a copy of the order shall be similarly affixed in the office of the Revenue Divisional Officer of the area where the land is situated. Where the property is situated within cantonment limits the order shall be similarly affixed in the office of the Local Cantonment Board and the Military Estates Officer concerned, and where the property is situated within the limits of a Municipality, in the office of the Municipality within the limits of which the property is situated.”

(b) Add the following as sub-rule (3):

“(3) The order of attachment shall be deemed to have been made as against transferees without consideration from the judgment-debtor from the date of the order of attachment, and as against all other persons from the date on which they respectively had knowledge of the order of attachment, or the date on which the order was duly proclaimed under sub-rule (2), whichever is earlier.”-(5-9-1968).

[Orissa].-Same as that of Patna.

[Patna].-Same as Madhya Pradesh.

[Punjab].-(1) At the end of sub-rule (2) of rule 54, substitute semicolon for full stop and add:

“Where the property is land situated in a cantonment, copies of the order shall also be forwarded to the Cantonment Board and to the Military Estates Officer in whose area that cantonment is situated.”

(2) The following was added as sub-rule (3) for rule 54:

“(3) The order shall take effect, as against persons claiming under a gratuitous transfer from the judgment-debtor, from the date of the order of attachment, and as against others from the time they had knowledge of the passing of the order of attachment or from the date of the proclamation, whichever is earlier.”

  1. Removal of attachment after satisfaction of decree. – Where—

(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or

(b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or

(c) the decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Substitute the following for rule 55:

“55. (1) Notice shall be sent to the sale officer executing a decree of all applications for rateable distribution of assets made under section 73(1) in respect of the property of the same judgment-debtor by persons other than the holder of the decree for execution of which the original order was passed.

(2) Where

(a) the amount decreed [which shall include the amount of any decree passed against the same judgment-debtor, notice of which has been sent to the sale officer under sub-section (1)] with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or

(b) satisfaction of the decree [including any decree passed against the same judgment-debtor, notice of which has been sent to the sale officer under sub-section (1)] is otherwise made through the Court or certified to the Court, or

(c) the decree [including any decree passed against the same judgment-debtor, notice of which has been sent to the sale officer under sub-section (1)] is set aside or reversed, the attachment shall be deemed to be withdrawn and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.”-(1-6-1918).

  1. Order for payment of coin or currency notes to party entitled under decree. – Where the property attached is current coin or currency notes, the Court may, at any time during the continuance of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree to receive the same.

[57. Determination of attachment. — (1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease.

(2) If the Court omits to give such direction, the attachment shall be deemed to have ceased.]

[Adjudication of claims and objections]

STATE AMENDMENTS 6

 

High Court Amendment-[Bombay].-For rule 57, substitute the following:

“57. Determination of attachment.-Where any property has been attached in execution of a decree and the Court for any reason passes an order dismissing an execution application, the Court shall direct whether the attachment shall continue or cease. If the Court omits to make an order and if the order dismissing the execution application is appealable the attachment shall continue till expiry of the period prescribed for filing an appeal or where appeal has been filed, till such further periods as the appellate Court may direct”.-(1-10-1983).

  1. Adjudication of claims to, or objections to attachment of, property. – (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:

Provided that no such claim or objection shall be entertained—

(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or

(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,—

(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or

(b) disallow the claim or objection; or

(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or

(d) pass such order as in the circumstances of the case it deems fit.

(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claims or objection shall be conclusive.

STATE AMENDMENTS 6

 

Order 21, Rule 58-A

High Court Amendment-[Madras].-In Order 21, after rule 58, insert the following rule as rule 58-A:

“58-A. Order of attachment to be communicated to the Registering Officer.-Any order of attachment passed under rule 54 of this Order raising the attachment by removal, determination or release passed under rule 55, 57 or 58 of this Order, shall be communicated to the Registering Officer within local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is situate.”-(29-6-1987).

  1. Stay of sale. – Where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the Court may—

(a) if the property is movable, make an order postponing the sale pending the adjudication of the claim or objection, or

(b) if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or, that pending such adjudication, the property may be sold but the sale shall not be confirmed, and any such order may be made subject to such terms and conditions as to security or otherwise as the Court thinks fit.]

60 to 63. Omitted. – [Omitted by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), Section 72 (w.e.f. 1.2.1977).].

STATE AMENDMENTS 6

 

Order 21, Rules 63-A to 63-H

High Court Amendments-[Calcutta].-Add the following as rule 63-A:-

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

[Gauhati].-Same as that of Calcutta.

[Patna].-Add the following heading and rules below rule 63:

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

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

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

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

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

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

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

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

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

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

Sale Genrally

  1. Power to order property attached to be sold and proceeds to be paid to person entitled. – Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may see necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
STATE AMENDMENTS 6

 

High Court Amendments-[Madras].-In rule 64, after the words “Any Court executing a decree may” insert the following words, namely, “after notice to the decree-holder and judgment-debtor”.-(10-4-1963).

[Orissa].-For the words “attached by it” substitute the words “in respect of which it has made an order of attachment, whether before or after the decree”.-(25-5-1984).

[Patna].-(i) For the words “attached by it” substitute the words “in respect of which it has made an order of attachment”.

(ii) Insert the word “which is” between the words “and” and “liable”.

  1. 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.
STATE AMENDMENTS 6

 

High Court Amendment-[Madhya Pradesh].-In rule 65, the following sentence shall be added, namely:

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

  1. Proclamation of sales by public auction. – (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

(2) Such proclamation shall be draw up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible—

(a) the property to be sold [or, where a part of the property would be sufficient to satisfy the decree, such part];

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

(c) any incumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:

[Provided that where notice of the date for settling the terms of the proclamation has been given to the judgement-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:

Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate if any, given, by either or both of the parties.]

(3) Every application for an order for sale under this rule shall be 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.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-(1) Re-number the existing clause (e) to sub-rule (2) as (/) and add the following as clause (e):

“(e) the value of the property as stated (i) by the decree-holder, and (ii) by the judgment-debtor.”

(2) In sub-rule (1), for the word “made” substitute the words “drawn up.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-In rule 66, sub-rule (2), re-number clause (e) as clause (f) and insert the following as clause (e):

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

(2) In the same sub-rule, delete the word “and” occurring at the end of clause (d).-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as Andhra Pradesh (1).

[Madhya Pradesh].-Substitute a comma for the full-stop at the end of clause (e) of sub-rule (2), and add the following:

“including the decree-holder’s estimate of the approximate market price.”-(16-9-1960).

[Madras].-(i) in sub-rule (1), for the word “made” substitute the words “drawn up.”

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

“(2) The terms of such proclamation shall be settled in Court after notice to the decree-holder and judgment-debtor except in cases where notices have already been served under Order 21, rule 64, and such proclamation shall state the time and place of sale and specify as 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 part of an estate paying revenue to the Government;

(c) any encumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered;

(e) the value of the property as stated

(i) by the decree-holder; and

(ii) by the judgment-debtor; and

(f) 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.”-(10-4-1963).

[Patna].-Omit the words “shall be drawn up after notice to the decree-holder and the judgment-debtor and” from sub-rule (2) of rule 66, and add the following proviso after sub-clause (e) of sub-rule (2):

“Provided that no estimate of the value of the property, other than those, if any, made by the decree-holder and judgment-debtor respectively together with a statement that the Court does not vouch for the accuracy of either, shall be inserted in the sale proclamation.”

[Punjab].-Add the following words to clause (e) of sub-rule (2):

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

After sub-rule (2) of rule 66, add the following as sub-rule (3), and re-number the existing sub-rules (3) and (4) as (4) and (5) respectively :

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

  1. 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.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Karnataka].-Add the following as sub-rule (4) to rule 67:

“(4) Unless the Court so directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-In rule 67:

(i) for the marginal note the following shall be substituted:

“Mode of publishing the proclamation of sale” and the words “made and” in sub-rule (1) shall be omitted.

(ii) for sub-rule (3) the following sub-rule shall be substituted, namely:

“(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to publish the proclamation of sale separately for each lot, unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given.”

(iii) after sub-rule (3) the following sub-rule shall be inserted, namely:

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

[Orissa].-Same as that of Patna.

[Patna].-Add the following words at the end of sub-rule (1) of rule 67 after deleting the full stop at the end of the sub-rule:

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

  1. Time of sale. – Save in the case of property of the kind described in the proviso to rule 43, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least [fifteen days]in the case of immovable property, and of at least [seven days]in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the court-house of the Judge ordering the sale.
  2. Adjournment or stoppage of sale. – (1) The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment:

Provided that, where the sale is made in, or within the precincts of, the court-house, no such adjournment shall be made without the leave of the Court.

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

(3) Every sale be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the sale.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-For rule 69 (2), substitute the following:-

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

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

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

[Andhra Pradesh].-Substitute the following for sub-rule (2):

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

[Bombay].-In rule 69 for the existing sub-rule (1) and the marginal note, substitute the following as sub-rule (1) and marginal note [retaining sub-rules (2) and (3) as they are]:-

“69. Adjournment or stoppage of sale.-(1) The Court may, in its discretion, adjourn anysale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale to a specified day and hour, recording his reasons for such adjournment:

Provided that, where the sale is made in, or within the precincts of the Court-house, no such adjournment shall be made without the leave of the Court.”-(1-10-1983).

[Karnataka].-For sub-rule (2) of rule 69 substitute the following sub-rule:

“(2) Where a sale is adjourned under sub-rule (1) for a longer period than thirty days there shall be a fresh publication of the proclamation of sale in the manner prescribed by rule 67 unless the judgment-debtor consent to waive it.”-(9-2-1967).

[Kerala].-After sub-rule (2) the following shall be added, namely:

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

[Madras].-For sub-rule (2) of rule 69 substitute the following sub-rule-

“(2) Where a sale is adjourned under sub-rule (1) for a longer period than thirty days, there shall be fresh publication of the proclamation in the manner prescribed by rule 67, unless the judgment-debtor consents to waive it or the Court otherwise orders.”-(13-3-1963).

  1. [Saving of certain sales.]. – [Omitted by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), Section 14 (w.e.f. 1.1.1957).]
  2. Defaulting purchaser answerable for loss on re-sale. – Any deficiency of price which may happen on a re-sale by reason of the purchaser’s default, and all expenses attending such re-sale, shall be certified to the Court [***]by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.
  3. Decree holder not to bid for or buy property without permission. – (1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

(2) Where decree-holder purchases, amount of decree may be taken as payment—Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of section 73, be set off against one another, and the Court executing the decree small enter up satisfaction of the decree in whole or in part accordingly.

(3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder.

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In sub-rule (2) for the words “with such permission” read “the property sold” and re-number this sub-rule as rule 72 and delete sub-rules (1) and (3).-(24-7-1926).

[Patna].-(i) In rule 72(1) substitute the following for sub-rule (1):

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

(ii) In sub-rule (2) for the words “with such permission” substitute the words “the property”.

(iii) Substitute the following for sub-rule (3):

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

[72A . Mortgagee not to bid at sale without the leave of the Court. — (1) Notwithstanding anything contained in rule 72, a mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for or purchase the property.

(2) If leave to bid is granted to such mortgagee, then the Court shall fix a reserve price as regards the mortgagee, and unless the Court otherwise directs, the reserve price shall be—

(a) not less than the amount then due for principal, interest and costs in respect of the mortgage if the property is sold in one lot; and

(b) in the case of any property sold in lots, not less than such sum as shall appear to the Court to be properly attributable to each lot in relation to the amount then due for principal, interest and costs on the mortgage.

(3) In other respects, the provisions of sub-rules (2) and (3) of rule 72 shall apply in relation to purchase by the decree-holder under that rule.]

STATE AMENDMENTS 6

 

High Court Amendment–[Gujarat].-In Order 21, after the existing rule 72, insert the following rule with mafgirial note as new rule 72-A and its marginal note:

“72-A. Where leave is granted to the mortgagee to bid, a reserve price to be fixed by the Court.-If leave to bid is granted to the mortgagee of immovable property, a reserve price as regards him shall be fixed (unless the Court shall otherwise think fit) at a sum not less than the amount then due for principal, interest and costs in case the property is sold in one lot, and not less in respect of each lot (in case the property is sold in lots), than such figure as shall appear to be properly attributable to it in relation to the amount aforesaid.”-(17-8-1961).

  1. 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

  1. Sale of agricultural produce. – (1) Where the property to be sold is agricultural produce, the sale shall be held,—

(a) if such produce is a growing crop, on or near the land on which such crop has grown, or

(b) if such produce has been cut or gathered, at or near the threshing floor or place for treading out grain or the like or fodder-stack on or in which it is deposited:

Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the produce is thereby likely to sell to greater advantage.

(2) Where, on the produce being put up for sale,—

(a) a fair price, in the estimation of the person holding the sale, is not offered for it, and

(b) the owner of the produce or a person authorized to act in his behalf applies to have the sale postponed till next day or, if a market is held at the place of sale, the next market-day, the sale shall be postponed accordingly and shall be then completed, whatever price may be offered for the produce.

  1. 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.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-For the existing sub-rule (2), substitute the following as sub-rule (2):

“(2) Where the crop from its nature does not admit of being stored, or where it appears to the Court that the crop shall be sold to greater advantage in an unripe state, it may be sold before, it is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending and cutting or gathering it.”-(1-10-1983).

[Calcutta].-(a) Insert the following words in sub-rule (2), rule 75, Order 21, after the words “where the crop from its nature does not admit of being stored”

“or can be sold to greater advantage in an unripe state (e.g., as green wheat).”

(b) Cancel the word “and” between the words “tending” and “cutting” in sub-rule (2) and substitute therefor the word “or”.

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Himachal Pradesh].-Same as that of Punjab.

[Karnataka].-Delete rule 75 and substitute the following:

“75. (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, unless the Court decides to proceed under the provisions of sub-rule (2) of this rule the day of sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is stored.

(2) Where the crop from its nature does not admit of being stored, or can be sold to greater advantage in an unripe state, it may be sold before it is cut and gathered or in such unripe state, and the purchaser shall be entitled to enter on the land and do all that is necessary for the purpose of tending and cutting or gathering the said crop.”-(R.O.C. No. 2526/1959, dated 9-2-1967).

[Kerala].-Same as that of Madras-(9-6-1959).

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

[Madras].-Substitute the following for the existing rule:

“75. (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, unless the Court decides to proceed under the provisions of sub-rule (2) hereunder, 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, or can be sold to greater advantage in an unripe state, it may be sold before it is cut and gathered or in such unripe state and the purchaser shall be entitled to enter, on the land, and do all that is necessary for the purpose of tending and cutting or gathering it.”

[Patna].-Substitute the following for rule 75:

“75. Where the property to be sold is a growing crop which can be sold to greater advantage in an unripe or unreaped state, it may be sold unreaped, and the purchaser shallbe entitled to enter on the land to do all that is necessary for the purpose of tending and reaping it. In all other cases the day of sale shall be so fixed as to admit of the crop ripening and being reaped before the sale.”-(7-1-1936).

[Punjab].-In Order 21, rule 75, sub-rule (2) after the word “stored” add the words “or can be sold to greater advantage in an unripe state”.

  1. 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.
  2. 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 coowner, and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

  1. 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.
  2. 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 judgmentdebtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.

(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share in a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, of prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.

  1. 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.

  1. 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

  1. What Courts may order sales. – Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.
  2. Postponement of sale to enable judgment-debtor to raise amount of decree. – (1)Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may, on his application, postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.

(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 64, to make the proposed mortgage, lease or sale:

Provided that all moneys payable under such mortgage, lease or sale shall be paid, not to the judgmentdebtor, but, save in so far as a decree-holder is entitled to set-off such money under the provisions of rule 72, into Court:

Provided also that not mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.

(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.

  1. Deposit by purchaser and re-sale on default. – (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent, on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72, the Court may dispense with the requirements of this rule.

STATE AMENDMENTS 6

 

High Court Amendment-[Allahabad].-Add at the end of sub-rule (2):

“The Court shall not dispense with the requirements of this rule in a case in which there is an application for rateable distribution of assets.”-(17-1-1953).

  1. 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.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-For the existing rule 85, substitute the following rule and marginal note:

“85. Time for payment in full of purchase money.-The full amount of purchase money payable, together with the amount required for the general stamp paper for the certificate under rule 94, shall be paid by the purchaser into Court before the Court closes on the 15th day from the date of the sale of the property:

Provided that, in respect of the purchase-money, the purchaser shall have the advantage of any set-off to which he maybe entitled under rule 72:

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

Explanation.-When an amount is tendered in Court on any day after 1.00 P.M. but is not accepted by the Court and is paid into Court on the next working day between 11.00 A.M. and 1.00 P.M., the payment shall be deemed to have been made on the day on which the tender is made”.-(1-10-1983). ‘ .

[Kerala].-For rule 85 of Order XXI the following shall be substituted, namely:

“85. Time for payment in full of purchase money.-The full amount of purchase-money payable together with the amount required for the general stamp paper for the certificate under rule 94 shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the date of the sale of the property:

Provided that, in respect of the purchase-money, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.”-(1-1-1966).

[Madhya Pradesh].-Add the following Explanation:

“Explanation.-When an amount is tendered on any day after 1 P.M. but paid into Court on the next working day between 11 A.M. and 1. P.M., the payment shall be deemed to have been made on the day on which the tender is made.”-(16-9-1960).

[Madras].-Substitute the following for the existing rule:

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

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

Order 21, Rule 85-A

High Court Amendment-[Gujarat].-In Order XXI, after the existing rule 85, insert the following rule with marginal note as new rule 85-A and its marginal note:

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

  1. 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 our to any part of the sum for which it may subsequently be sold.
  2. Notification on re-sale. – Every re-sale of immovable, property, in default of payment of the purchasemoney within the period allowed for such payment, shall be made after the issue of fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.
STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Bombay].-In rule 87, for the words “of the purchase money” substitute the words “ofthe amounts mentioned in rule 85”.-(1-10-1983).

[Kerala].-Same as that of Madras-(9-6-1959).

[Madras].-For the words “of the purchase-money” substitute the words “of the amounts mentioned in rule 85”.

  1. Bid of co-sharer to have preference. – Where the property sold is a share of undivided immovable property and two or more persons, or whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.
  2. Application to set aside sale on deposit. – (1) Where immovable property has been sold in execution of a degree, [any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person,]may apply to have the sale set aside on his deposition in Court,—

(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and

(b) for payment, to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not unless he withdraws his application, be entitled to make or prosecute an application under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

STATE AMENDMENTS 6

 

High Court Amendments-[Andhra Pradesh].-Same as that of Madras.

[Karnataka].-(i) In sub-rule (1), clause (h) for the words “such proclamation:….. decreeholder” substitute “that proclamation of sale, have been paid or deposited towards satisfaction of the decree.”

(ii) Add proviso as in Madras.

[Kerala].-(i) In clause (b) for “date of such proclamation” read “date of the proclamation”;

(ii) Insert the following provisos after clause (b):

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

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

[Madras].-In sub-rule (1), for the words “any person, either owning… before such sale” substitute the words “the judgment-debtor or any person deriving title from the judgment-debtor or any person holding an interest in the property”.

At the end of sub-rule (1), insert the following proviso:

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

[90. Application to set aside sale on ground of irregularity or fraud. — (1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conduction it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Explanation.—There mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.]

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-(1) Rule 90 has been re-numbered as sub-rule (1) and the following has been substituted for the proviso, namely:

“Provided that no application to set aside a sale shall be entertained

(a) upon any ground which could have been taken by the applicant on or before the date on which the sale proclamation was drawn up; and

(b) unless the applicant deposits such amount not exceeding twelve and half per, cent. of the sum realized by the sale or furnishes such security as the Court may, in its discretion fix, except when the Court for reasons to be recorded dispenses with the requirements of this clause:

Provided further that no sale shall be set aside on the 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.”

(2) The following has been added as sub-rule (2):

“(2) Where such application is rejected, the Court may award such costs to the decree-holder or the auction-purchaser or both as it may deem fit and such costs shall be the first charge upon the security referred to in clause (b) of the proviso, if any.”-(1-6-1957).

[Andhra Pradesh].-Same as that of Madras.

[Calcutta].-Add the following to sub-rule (1):

“or on the ground of failure to issue notice to him as required by rule 22 of this Order.”

Cancel the proviso and substitute as follows:

“Provided (i) that no sale shall be set aside on the ground of such irregularity, fraud or failure unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity, fraud or failure, (ii) that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up of the proclamation or any person in whose presence proclamation was drawn up, unless objection was made by him at the time in respect of the defect relied upon.”

[Delhi].-Same as that of Punjab.

[Gauhati].-Same as that of Calcutta.

[Gujarat].-Add the following as additional proviso to sub-rule (1) of rule 90:-

“Provided also that no such application for setting aside the sale shall be entertained without the leave of the Court upon any ground which could have been, but was not put forward by the applicant before the commencement of the sale.”-(17-8-1961).

[Himachal Pradesh].-Same as that of Punjab.

[Madhya Pradesh].-After the proviso to sub-rule (1) of rule 90, insert the following further proviso:

“Provided also that no such application for setting aside the sale shall be entertained upon any ground which could have been, but was not put forward by the applicant before the commencement of the sale.”-(16-9-1960).

[Madras].-After the first paragraph and before the present proviso to the rule, insert the following:

“Provided that the Court may, after giving notice to the applicant, call upon him before admitting the application, either to furnish security to the satisfaction of the Court for an amount equal to that mentioned in the sale warrant or to that realised by the sale, whichever is less, or to deposit such amount in Court:

Provided also that the security furnished or the deposit made as aforesaid shall, be liable to be proceeded against only to the extent of the deficit on a re-sale of the property already brought to sale.”

In the present proviso after the word “Provided” insert the word “further”.

[Orissa].-(i) Substitute for the clause (b) of proviso to rule 90:

“(b) unless the applicant deposits such amount not exceeding twelve and half per cent. of the sum realised by the sale or such other security as the .Court may in its discretion fix, unless the Court, for the reasons to be recorded, dispenses with the deposit.”

(ii) Add the following as sub-rule (4):

“(4) In case the application is unsuccessful the costs of the opposite party shall be a first charge upon the deposit referred to in proviso (i)(b), if any.”-(14-5-1984).

[Patna].-(1) Substitute the following for the proviso to Rule 90 (1):

“(i) provided that no application to set aside a sale shall be admitted

(a) upon any ground which could have been, but was not put forward by the applicant before the sale was concluded, and

(b) unless the applicant deposits such amount not exceeding 12-1/2 per cent of the sum realised by the sale or such other security as the Court may in its discretion fix, unless the Court, for reasons to be recorded dispenses with the deposit.

(ii) Provided further that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.”

(2) And add the following as sub-rule (2):

“(2) In case the application is unsuccessful the costs of the opposite party shall be a first charge upon the deposit referred to in proviso (i)(b), if any.”

[Punjab].-Add the following proviso:

“Provided further that no such sale shall be set aside on any ground which the applicant could have put forward before the sale was conducted.”

  1. 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.
STATE AMENDMENTS 6

 

Order 21, Rule 91-A

High Court Amendment-[Gujarat].-In Order 21, after the existing rule 91, insert the following rule with marginal note as new rule 91-A and its marginal note:

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

  1. Sale when to become absolute or be set aside. – (1) When no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:
[Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.]

(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within [sixty days] from the date of sale, [or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

[Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.] (3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

[(4) Where a third party challenges the judgment-debtor’s title by filing a suit against the auctionpurchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court directs, be revived at the stage at which the sale was ordered.]

STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-In rule 92(1) after the words “the Court shall make” add “subject to the provisions of rule 58(2)”.-(24-7-1926).

[Andhra Pradesh].-Same as that of Madras.

[Bombay].-Add the following proviso at the end of sub-rule (1) of rule 92:

“Provided that before confirming the sale the Court shall satisfy itself that the amount paid under rule 85 for the purchase of general stamp paper for the certificate under rule 94 is sufficient for the purpose in accordance with the rate in force at the time of the confirmation and may, notwithstanding anything contained in rule 86, give the purchaser such time as it thinks fit for making good any deficiency.”-(1-10-1983).

[Kerala].-(i) In sub-rule (2) after the word “thirty days from the date of sale” insert the following:

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

(ii) In sub-rule (2) of rule 92, for the s ords “thirty days”, substitute “sixty days”.-(w.e.f. 9-2-1988).

[Madhya Pradesh].-In sub-rule (1) of rule 92, after the word “make” insert the words “subject to the provisions of rule 58(2)”.-(16-9-1960).

[Madras].-For sub-rule (2) substitute the following:

“(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, (and in case where the amount deposited has been diminished owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court) the Court shall make an order setting aside the sale.”

[Patna].-Same as that of Allahabad.

[N.B.-These High Court Amendments relate to the provisions as existed before the 2002 Amendment Act.]
  1. 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.
  2. Certificate to purchaser. – Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale of is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.
STATE AMENDMENTS 6

 

High Court Amendments-[Allahabad].-Re-number the existing rule 94 as sub-rule (1) thereof and the following as sub-rule (2) after the re-numbered rule:

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

[Bombay].-For the existing rule 94 and its marginal note, substitute the following as rule 94 and marginal note:

“94. Certificate to purchaser.-Where a sale of immovable property has become absolute, the Court shall grant certificate specifying the property sold, the amount of the purchase-money 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.”-(1-10-1983).

[Madhya Pradesh].-In rule 94 add a comma after the word “sold” and insert the words “the amount of the purchase-money” between the word “sold” and the word “and”.-(18-9-1960).

[Orissa].-Same as that of Patna.

[Patna].-(i) After the words “has become absolute” insert the words “the auction-purchaser shall file the sale certificate stamp within fifteen days from the date of the confirmation of sale and”.

(ii) At the end of the rule add “If the necessary stamp for the sale certificate is not filed within the prescribed period the sale may, if the Court thinks fit, be set aside”.

  1. Delivery of property in occupancy of judgment-debtor. – Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order to delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.
STATE AMENDMENTS 6

 

High Court Amendment-[Madras].-Rule 95 shall be re-numbered as sub-rule (1) thereof that rule, and to the rule as so re-numbered, the following sub-rule shall be added, namely:

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

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

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

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

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

  1. 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.
STATE AMENDMENTS 6

 

Order 21, Rule 96-A

High Court Amendment-[Allahabad].-Insert the following as rule 96-A:

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

(2) The provisions of rules 64 to 103 of this Order shall apply mutatis mutandis to a transfer other than sale made under this rule except that the Court may in its discretion dispense with the necessity of such transfer being made after issuing a proclamation or of the transfer being conducted by an officer of the Court or by public auction or after issuing a proclamation.”-(5-1-1960).

Resistance To Delivery Of Possession To Decree-Holder Or Purchaser

  1. Resistance or obstruction to possession of immovable property. – (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
[(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.]

[98. Orders after adjudication. — (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),—

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

STATE AMENDMENTS 6

 

High Court Amendment-[Patna].-Add the following as sub-rule (3) to rule 97:

“(3) The provisions of section 5 of the Indian Limitation Act, 1908, shall apply to the applications under this rule.”

(b) pass such other order as, in the circumstances of the case, it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.]

STATE AMENDMENTS 6

 

High Court Amendment-[Bombay].-Substitute the following sub-rule (2), for the existing sub-rule (2) of rule 98 in Order XXI:

“(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly or severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.”-(1-10-1983).

High Court Amendment-[Bombay]. – Add the following proviso to rule 100:-“Where it is determined that the application is made by person to whom the judgmentdebtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above.”-(1-10-1983).

[99. Dispossession by decree-holder or purchaser. – (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.]

  1. Order to be passed upon application complaining of dispossession. – Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,—

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.]

STATE AMENDMENTS 6

 

High Court Amendment-[Bombay].-Add the following proviso to rule 101 of Order XXI:

“Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdirtion the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court.”(1-10-1983).

[101. Question to be determined. – All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.]

STATE AMENDMENTS 6

 

High Court Amendment-[Bombay].-Delete rule 102.-(1-10-1983).

[102. Rules not applicable to transferee BIpendent lite. – Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Explanation.—In this rule, “transfer” includes a transfer by operation of law.]

[103. Orders to be treated as decrees. – Where any application has been adjudicated upon under rule 98 or rule 100 the other made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]

[104. Order under rule 101 or rule 103 to be subject to the result or pending suit. — Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.

  1. Hearing of application. – (1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.

Explanation.—An application referred to in sub-rule (1) includes a claim or objection made under rule 58.

STATE AMENDMENTS 6

 

High Court Amendment-[Madras].-(i) In sub-rule (3) insert the following proviso, namely:

“Provided that an application may be admitted after the said period of thirty days if the applicant satisfies the Court that he had sufficient cause for not making the application within such period.”

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

“The provisions of section 5 of the Limitation Act, 1908, shall apply to applications under sub-rule (1).”

  1. Setting aside order passed BIex parte, etc.. – (1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

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

(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.]

STATE AMENDMENTS 6

 

Order 21, Rules 106-A to 140

High Court Amendment-[Allahabad].-Add the following rules to Order 21:-

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

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

*106-C. When the property which it is sought to bring to sale is immovable property within the definition of the same contained in the law for the time being in force relating to the registration of documents, the decree-holder shall file with his application for an order for sale a certificate from the Sub-Registrar within whose sub-district such proper}’ is situated, showing that the Sub-Registrar has searched his Book Nos. I and II and their indices for the twelve years preceding the mortgage or attachment, as the case may be, and stating the encumbrances, if any, which he has found on the property.-(22-7-1918 and 5-6-1937).

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

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

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

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

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

109. The certificate of the Sub-Registrar and the report of the Collector shall be open to the inspection of the parties or their pleaders, free of charge, between the time of the receipt by the Court and the declaration of the result of the enquiry.

No fees are payable in respect of the report by Collector.

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

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