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CPC – Order XXXI to Schedule V

CPC – Order XXXI to Schedule V

ORDER XXXI
SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS (THE FIRST SCHEDULE)
ORDER XXXII
SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND (THE FIRST SCHEDULE)
ORDER XXXIIA
SUITS RELATING TO MATTERS CONCERNING THE FAMILY (THE FIRST SCHEDULE)
ORDER XXXIII
SUITS BY INDIGENT PERSONS (THE FIRST SCHEDULE)
ORDER XXXIV
SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY (THE FIRST SCHEDULE)
ORDER XXXV
INTERPLEADER (THE FIRST SCHEDULE)
ORDER XXXVI
SPECIAL CASE (THE FIRST SCHEDULE)
ORDER XXXVII
SUMMARY PROCEDURE (THE FIRST SCHEDULE)
ORDER XXXVIII
ARREST AND ATTACHMENT BEFORE JUDGMENT (THE FIRST SCHEDULE)
ORDER XXXIX
TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS (THE FIRST SCHEDULE)
ORDER XL
APPOINTMENT OF RECEIVERS (THE FIRST SCHEDULE)
ORDER XLI
APPEALS FROM ORIGINAL DECREES (THE FIRST SCHEDULE)
ORDER XLII
APPEALS FROM APPELLATE DECREES (THE FIRST SCHEDULE)
ORDER XLIII
APPEALS FROM ORDERS (THE FIRST SCHEDULE)
ORDER XLIV
APPEALS BY INDIGENT PERSONS (THE FIRST SCHEDULE)
ORDER XLV
APPEALS TO THE SUPREME COURT (THE FIRST SCHEDULE)
ORDER XLVI
REFERENCE (THE FIRST SCHEDULE)
ORDER XLVII
REVIEW (THE FIRST SCHEDULE)
ORDER XLVIII
MISCELLANEOUS (THE FIRST SCHEDULE)
ORDER XLIX
CHARTERED HIGH COURTS (THE FIRST SCHEDULE)
ORDER L
PROVINCIAL SMALL CAUSE COURTS (THE FIRST SCHEDULE)
ORDER LI
PRESIDENCY SMALL CAUSE COURTS (THE FIRST SCHEDULE)
APPENDIX A
APPENDIX A
APPENDIX B
APPENDIX B
APPENDIX C
APPENDIX C
APPENDIX D
APPENDIX D
APPENDIX E
APPENDIX E

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

1 . Representation of beneficiaries in suits concerning property vested in trustees, etc.— In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee; executor or Administator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.

2 . Joinder of trustee, executors and administrators— Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them:

Provided that the executors who have not proved their testator’s will, and trustees, executors and administrators outside India need not be made parties.

3 . Husband of married executrix not to join— Unless the Court directs otherwise, the husband of a married trustee, administratrix or executrix shall not as such be a party to a suit by or against her.

ORDER XXXII

SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

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

[326]Explanation—In this Order, “minor” means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]

2 . Where suit is instituted without next friend, plaint to be taken off the file— (1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.

[327][2A . Security to be furnished by next friend when so ordered— (1) Where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for the reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant.

  • Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government.
  • The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished.]

3 . Guardian for the suit to be appointed by Court for minor defendant— (1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

  • An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
  • Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
  • Order shall be made on any application under this rule except upon notice to any [328]*** to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, [329][upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian] of the minor, or, where there is [330][no father, mother or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
[331][(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]

(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.

[332][3A . Decree against minor to be set aside unless prejudice has been caused to his interests— (1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reasons of such adverse interest of the next friend of guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.]

4 . Who may act as next friend or be appointed guardian for the suit— (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

  • Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.
  • No person shall without his consent [333][in writing] be appointed guardian for the suit.
  • Where there is no other person fit and willing to act as guardian for the suit, for Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested [334][or out of the property of the minor], and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.

5 . Representation of minor by next friend or guardian for the suit— (1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit.

(2) Every order made in a suit or on any application, before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged, and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.

6 . Receipt by next friend or guardian for the suit of property under decree for minor— (1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either—

  • by way of compromise before decree or order, or
  • under a decree or order in favour of the minor.

(2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property, the Court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application:

[335][Provided that the Court may, for reasons to be recorded, dispense with such security while granting leave to the next friend or guardian for the suit to receive money or other movable property under a decree or order, where such next friend or guardian—

  • is the manager of a Hindu undivided family and the decree or order relates to the property or business of the family; or
  • is the parent of the minor.]

7 . Agreement or compromise by next friend or guardian for the suit— (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

[336][(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend of the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor:

Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.]

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

8 . Retirement of next friend— (1) Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred.

(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

9 . Removal of next friend— (1)Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor’s interest will be properly protected by him, or where he does not do his duty, or during the pendency of the suit, ceases to reside within India or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.

(2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf, and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of the next friend, the Court shall remove that next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit.

10 . Stay of proceedings on removal, etc., of next friend— (1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.

(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.

11 . Retirement, removal or death of guardian for the suit— (1) Where the guardian for the suit desire to retire or does not do his duty, or where there sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.

(2) Where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place.

12 . Course to be followed by minor plaintiff or applicant on attaining majority— (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.

  • Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.
  • The title of the suit or application shall in such case be corrected so as to read henceforth thus:

“A.B., late a minor, by C.D., his next friend, but now having attained majority.”

  • Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.
  • Any application under this rule may be made ex parte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.

13 . Where minor co-plaintiff attaining, majority desires to repudiate suit— (1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.

(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant.

  • The costs of all parties of such application, and of all or any proceedings therefore had in the suit, shall be paid by such persons as the Court directs.
  • Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.

14 . Unreasonable or improper suit— (1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the Court, upon being satisfied of such unreasonableness or impropriety, grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.

[337][15 . Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind— Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, or protecting their interest when suing or being sued.] [338] [16 . Savings— (1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing or being sued in the name of his State, or being sued by the direction of the Central Government in the name of an agent or in any other name.

(2) Nothing contained in this Order shall construed as affecting or in any way derogating from the provisions of any local law for the time being in force relating to suits by or against minors or by against lunatics or other persons of unsound mind.]

Order XXXII A ins. by Sec. 80 by Act No. 104 of 1976 (w.e.f. 1977).

[339][ORDER XXXIIA-SUITS RELATING TO MATTERS CONCERNING THE FAMILY

1 . Application of the Order— (1) The provision of this Order shall apply to suits or proceedings relating to matters concerning the family.

(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely:—

  • a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;
  • a suit or proceeding for a declaration as to legitimacy of any person;
  • a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;
  • a suit or proceeding for maintenance;
  • a suit or proceeding as to the validity or effect of an adoption;
  • a suit or proceeding, instituted by a member of the family relating to wills, intestacy and succession;
  • a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.

(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding.

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

3 . Duty of Court to make efforts for settlement— (1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

  • If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.
  • The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.

4 . Assistance of welfare expert— In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 or this Order.

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

6 . “Family”—meaning of— For the purposes of this Order, each of the following shall be treated as constituting a family, namely:—

(a) (i) a man and his wife living together,

  • any child or children, being issue or theirs; or of such man or such wife,
  • any child or children being maintained by such man or wife;
  • a man not having a wife or not living together with his wife, any child or children, being issue of his, and any child or children being maintained by him;
  • a woman not having a husband or not living together with her husband, any child or children being issue of hers, and any child or children being maintained by her;
  • a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or her; and
  • any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or clause (d) of this rule.

Explanation—For the avoidance of doubts, it is hereby declared that the provisions of rule 6 shall be without any prejudice to the concept of “family” in any personal law or in any other law for the time being in force.]

ORDER XXXIII- [340] [SUITS BY INDIGENT PERSONS]

1 . Suits may be instituted by indigent person— Subject to the following provisions, any suit may be instituted by an [341] [indigent person.] [342] [Explanation I—A person is an indigent person,—

  • if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or
  • where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

Explanation II—Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation II—Where the plaintiff sued in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.] [343][1A . Inquiry into the means of an indigent person— Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the Court, unless the Court otherwise directs, and the Court may adopt the report of such officer as its own finding or may itself make an inquiry into the question.]

2 . Contents of application— Every application for permission to sue as an [344][indigent person] shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

3 . Presentation of application— Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person:

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

4 . Examination of applicant— (1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.

(2) If presented agent, Court may order applicant to be examined by commission—Where the application is presented by an agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken.

5 . Rejection of application— The Court shall reject an application for permission to sue as [346][an indigent person]—

  • where it is not framed and presented in the manner prescribed by rules 2 and 3, or
  • where the applicant is not an [347][indigent persons], or
  • where he has, within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as [348][an indigent person]:
[349] [Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person,] or

  • where his allegations do not show a cause of action, or
  • where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter, [350][or]
[351] [(f) where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or

(g) where any other person has entered into an agreement with him to finance the litigation.]

6 . Notice of day for receiving evidence of applicant’s indigency— Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten day’s clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the application may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof.

7 . Procedure at hearing— (1) On the day so fixed or as soon thereafter as may be convenient the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a full record of their evidence.

[352] [(1A) The examination of the witnesses under sub-rule (1) shall be confined to the matters specified in clause (b), clause (c) and clause (e) of rule 5 but the examination of the applicant or his agent may relate to any of the matters specified in rule 5.]
  • The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court [353][under rule 6 or under this rule], the applicant is or is not subject to any of the prohibitions specified in rule 5.
  • The Court shall then either allow or refuse to allow the applicant to sue as [354] [an indigent person].

8 . Procedure if application admitted— Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee [355][or fees payable for service of process] in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

9 . Withdrawal of permission to sue as an indigent person— The Court may, on the application of the defendant, or of the Government pleader, of which seven days’ clear notice in writing has been given to the plaintiff, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn—

  • if he is guilty of vexatious or improper conduct in the course of the suit;
  • if it appears that his means are such that he ought not to continue to sue as [356] [an indigent person]; or
  • if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interested in such subject-matter.
[357][9A . Court to assign a pleader to an unrepresented indigent person— (1) Where a person, who is permitted to sue as an indigent person, is not represented by a pleader, the Court may, if the circumstances of the case so require, assign a pleader to him.

(2) The High Court may, with the previous approval of the State Government, make rules providing for—

  • the mode of selecting pleaders to be assigned under sub-rule (1);
  • the facilities to be provided to such pleaders by the Court;
  • any other matter which is required to be or may be provided by the rules for giving effect to the provisions of sub-rule (1).]

10 . Costs were indigent person succeeds— Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an [358][indigent person]; such amount shall be recoverable by the State Government any party order by the decree to pay the same and shall be a first charge on the subject-matter of the suit.

11 . Procedure where indigent person fails— Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed,—

  • because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service [359][or to present copies of the plaint or concise statement], or
  • because the plaintiff does not appear when the suit is called on for hearing,

the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an [360][indigent person].

11A . Procedure where indigent persons suit abates— Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the Court shall order that amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an [361][indigent person] shall be recoverable by the State Government from the estate of the deceased plaintiff.]

12 . State Government may apply for payment of court-fees— The State Government shall have the right at any time to apply to the Court to make an order for the payment of court-fees under rule 10, rule 11 or rule 11A.

13 . State Government to be deemed a party— All matters arising between the State Government and any party to the suit under rule 10, rule 11 rule 11A or rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of section 47.

14 . Recovery of amount of court-fees.— Where an order is made under rule 10, rule 11 or rule 11A, the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.

15 . Refusal to allow applicant to sue as indigent person to bar subsequent application of like nature— An order refusing to allow the applicant top sue as [362] [indigent person] shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right; [363][Provided that the plaint shall be rejected if he does not pay, either at the time of the institution of the suit or within such time thereafter as the Court may allow,] the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as an [364][indigent person.] [365][15A . Grant of time for payment of court-fee— Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred to in[1]**** rule 15 with in that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.]

16 . Costs— The costs of an application for permission to sue as an [366][indigent person] and of an inquiry into indigency shall be costs in the suit.

[367][17 . Defence by an indigent person— Any defendant, who desire to plead a set-off or counter-claim, may be allowed to set up such claim as an indigent person, and the rules contained in this Order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint.

18 . Power of Government to provide for free legal services to indigent persons— (1) Subject to the provisions of this Order, the Central or State Government may make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons.

(2) The High Court may, with previous approval of the State Government, make rules for carrying out the supplementary provisions made by the Central or State Government for providing free legal services to indigent persons referred to in sub-rule (1), and such rules may include the nature and extent of such legal services, the conditions under which they may be made available, the matters in respect of which, and the agencies through which, such services may be rendered.]

ORDER XXXIV-SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

1 . Parties to suits for foreclosure sale and redemption— Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

Explanation—A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgage need not be joined in a suit to redeem a subsequent mortgage.

2 . Preliminary decree in foreclosure suit— (1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree—

(a) ordering that an account be taken of what was due to the plaintiff at the date of such decree for—

  • principal and interest on the mortgage,
  • the costs of suit, if any, awarded to him, and
  • other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon; or
  • declaring the mount so due at that date, and
  • directing—

(i) that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the plaintiff shall deliver up to the defendant, or to such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at his cost free from the mortgage and from all

incumbrances created by the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title, by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property; and

(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay, within such time as the Court may fix the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled to apply for a final decree debarring the defendant from all right to redeem the property.

  • The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
  • Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or subrogated to the rights, of any such mortgagees are joined as parties, the preliminary decree shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10 as the case may be, of Appendix D with such variations as the circumstances of the case may require.

3 . Final decree in foreclosure suit— (1) Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 2, the Court shall, on application made by the defendant in this behalf, pass a final decree—

  • ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary—
  • ordering him to re-transfer at the cost or the defendant the mortgaged property as directed in the said decree,

and also, if necesssary—

(c) ordering him to put the defendant in possession of the property.

  • Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in his behalf, pass a final decree declaring that the defendant and all persons claiming through or under him or debarred from all right to redeem the mortgaged property and also, if necessary ordering the defendant to put the plaintiff in possession of the property.
  • On the passing of a final decree under sub-rule (2), all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.

4 . Preliminary decree in suit for sale— (1) In a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (i) of sub-rule (1) of rule 2, and further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same.

  • The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
  • Power to decree sale in foreclosure suit—In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the Court may, at the instance of any party to the suit or of any other person interested in all mortgage-security or the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.
  • Where, in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from, or subrogated to the rights of, any such mortgagees are joined as parties, the

preliminary decree referred to in sub-rule (1) shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No. 11, as the case may be, of Appendix D with such variations as the circumstances of the case may require.

5 . Final decree in suit for sale— (1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass final or, if such decree has passed, an order—

  • ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and if necessary—
  • ordering him to transfer the mortgaged property as directed in the said decree,

and, also, if necessary—

(c) ordering him to put the defendant in possession of the property.

(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent, of the amount of the purchase-money paid into Court by the purchaser.

Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of rule 4.

6 . Recovery of balance due on mortgage in suit for sale— Where the net proceeds of any sale held under [368][rule 5] are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.

7 . Preliminary decree is redemption suit— (1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree—

(a) ordering that an account be taken of what was due to the defendant at the date of such decree for—

  • principal and interest on the mortgage,
  • the costs of suit, if any, awarded to him, and
  • other costs, charges and expenses properly incurred by him up to the date, in respect of his mortgage-security, together with interest thereon; or
  • declaring the amount so at that date; and
  • directing—
  • that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses and provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary put the plaintiff in possession of the property; and
  • that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount

adjudged due in respect of subsequent costs, charges expenses and interest, the defendant shall be entitled to apply for a final decree—

  • in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgage property be, sold, or
  • in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure of sale, as the case may be, extend due in respect of subsequent costs, charges, expenses and interest.

8 . Final decree in redemption suit— (1) Where, final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the Court shall, on application made under by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order—

  • ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary,—
  • ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree,

and also, if necessary,—

(c) ordering him to put the plaintiff in possession of the property.

(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff in addition to the amount mentioned is sub-rule (1), deposits in the Court for payment to the purchaser a sum equal to five per cent, of the amount of the purchase-money paid into by the purchaser.

Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent, thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the defendant in this behalf,—

  • in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or
  • in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.

8A . Recovery of balance due on mortgage in suit for redemption— Where the net proceeds of any sale held under [369][rule 8] are found insufficient to pay the amount due to the defendant, the Court, [370][on application by him in execution], may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance.

9 . Decree where nothing is found due or where mortgagee has been overpaid— Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff and amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.

10 . Costs of mortgagee subsequent to decree— In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the

suit and other costs, charges and exepenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment:

[371][Provided that where the mortgagor, before or at the time of the institution of the suit, tenders or deposits the amount due on the mortgage, or such amount as is not substantially deficient in the opinion of the Court, he shall not be ordered to pay the costs of the suit to the mortgagee and the mortgagor shall be entitled to recover his own costs of the suit from the mortgagee, unless the Court, for reasons to be recorded, otherwise directs.] [372][10A . Power of Court to direct mortgagee to pay BImesne profits— Where in a suit for foreclosure, the mortgagor has, before or at the time of the institution of the suit, tendered or deposited the sum on the mortgage, or such sum as is not substantially deficient in the opinion of the Court, the Court shall direct the mortgagee to pay to the mortgagor mesne profits for the period beginning with the institution of the suit.]

11 . Payment of interest— In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:—

(a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage—

(i) on the principal amount found or declared due on the mortgage,—at the rate payable on the principal, or, where such rate at the Court deems reasonable and,

(iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgagee-security up to the date of the preliminary decree and added to the mortgage-money,—at the rate agreed between the parties, or, failing such rate, at such rate not exceeding six per cent, per annum as the Court deems reasonable; and

(b) subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at the such rate as the Court deems reasonable.

12 . Sale of property subject to prior mortgage— Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same, giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.

13 . Application of proceeds— (1) Such proceeds shall be brought into Court and applied as follows:—

first, in payment of all expenses incident to the sale or properly incurred in any attempted sale;

secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage, and of costs properly incurred in connection therewith;

thirdly, in payment of all interest due on account of the mortgage is consequence whereof the sale was directed, and of the costs of the suit in which the decree directing the sale was made;

fourthly, in payment of the principal money due on account of that mortgage; and

lastly, the residue (if any) shall be paid to the person proving himself to be interested in the property sold, or if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt.

(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882 (4 of 1882).

14 . Suit for sale necessary for bringing mortgaged property to sale— (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, rule 2.

(2) Nothing in sub-rule (1) shall apply to any territories to which the Transfer of Property Act, 1882 (4 of 1882), has not been extended.

15 . Mortgages by the deposit of title deeds and charges— [373][(1)] All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the Transfer of Property Act, 1882 (4 of 1882);

[374] [(2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree.]

ORDER XXXV- INTERPLEADER

1 . Plaint in interpleader-suit— In every suit of interpleader the plaint shall, in addition to the other statements necessary for plaints, state—

  • that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;
  • the claims made by the defendants severally; and
  • that there is no collusion between the plaintiff and any of the defendants.

2 . Payment of thing claimed into Court— Where the thing claimed is capable of being paid into Court or placed in the custody of the Court, the plaintiff may be required to so pay or place it before the he can be entitled to any order in the suit.

3 . Procedure where defendant is suing plaintiff— Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect the subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being informed by the Court in which the interpleader-suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but if, and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader-suit.

4 . Procedure at first hearing— (1) At the first hearing the Court may—

  • declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or
  • if it thinks that justice or convenience so require, retain all parties until the final disposal of the suit.
  • Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed.
  • Where the admissions of the parties do not enable the Court so to adjudicate, it may direct—
  • that an issue or issues between the parties be framed and tried, and
  • that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner.

5 . Agents and tenants may not institute interpleader suits— Nothing in the Order shall be deemed to enable agents to sue their principles, or tenants to sue their landlords, for the purpose of compelling them to interplead with any person other than persons making claim through such principals or landlords.

Illustrations

  • A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.
  • A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C’s debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute in interpleader-suit against A and C.

6 . Charge for plaintiff’s costs— Where the suit is properly instituted the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

ORDER XXXVI-SPECIAL CASE

1 . Power to state case for Court’s opinion— (1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question,—

  • a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them; or
  • some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or
  • one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

(2) Every case stated under this rule shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised thereby.

2 . Where value of subject-matter must be stated— Where the agreement is for the delivery of any property; or for the doing, or the refraining from doing, any particular act, the estimated value of the property to be delivered, or to which the act specified has reference, shall be stated in the agreement.

3 . Agreement to be filed and registered as suit— (1) The agreeement if framed in accordance with the rules hereinbefore contained, may be filed [375][with an application] in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.

(2)[376] [The application] when so filed, shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of them as defendant or defendants; and notice shall be given to all the parties to the agreement, other than the party or parties by whom [377][the application was presented.]

4 . Parties to be subject to Court’s jurisdiction— Where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained therein.

5 . Hearing and disposal of case— (1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suit so far as the same are applicable.

(2) Where the Court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit—

  • that the agreement was duly executed by them,
  • that they have a bona fide interest in the question stated therein, and
  • that the same is fit to be decided,

it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.

[378] [6 . No appeal from a decree passed under rule 5— No appeal shall lie from a decree passed under rule 5.]

ORDER XXXVII-SUMMARY PROCEDURE

[379][1 . Courts and classes of suits to which the Order is to apply— (1) This Order shall apply to the following Court, namely:—

  • High Courts, City Civil Courts and Courts of Small Causes; and
  • other Courts;

Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1) the Order applies to the following classes of suits, namely:—

  • suits upon bills of exchange, hundies and promissory notes;
  • 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 written contract, 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 liquidated demand only.]
[380][2 . Institution of summary suits— (1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,—

  • a specific averment to the effect that the suit is filed under this Order;
  • that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint;
  • the following inscription, immediately below the number of the suit in the title of the suit, namely:— “(Under Order XXXVII of the Code of Civil Procedure, 1907).”
  • the summons of the suit shall be in Form No. 4 in Appendix B or in such other form as may, from time to time, be prescribed.
  • The defendant shall not defend the suit referred to in sub- rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.]
[381][3 . Procedure for the appearance of defendant— (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

  • Unless otherwise order, all summonses, notices and other judicial processes, required to be served on the defendant, shall deemed to have been duly served on him if they are left at the address given by him for such service.
  • On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff’s pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by pre-said letter directed to the address of the plaintiff’s pleader or of the plaintiff, as the case may be.
  • If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B for such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.
  • The defendant may, at any time within ten days from service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,—

  • if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or
  • if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security with the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or judge, the plaintiff shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, execute the delay of the defendant in entering an appearance or in applying for leave to defend the suit.]

4 . Power to set aside decree— After decree for the Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.

5 . Power to order bill, etc., to be deposited with officer of Court— In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.

6 . Recovery of cost of noting non-acceptance of dishonoured bill or note— The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.

7 . Procedure in suits— Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.

ORDER XXXVIII-ARREST AND ATTACHMENT BEFORE JUDGMENT

Arrest before judgment

1 . Where defendant may be called upon to furnish security for appearance— Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,—

(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him—

(i) has absconded or left the local limits of the jurisdiction of the Court, or

(ii) is about to abscond or leave the local limits of the jurisdiction of the Court his property or any part thereof, or

(b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security, for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer enstrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

2 . Security— (1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have paid by the defendant under the provison to the last preceding rule.

(2) Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.

3 . Procedure on application by surety to be discharged— (1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.

  • On such application being made, the Court shall summon the defendant to appear or, if it thinks fit may issue a warrant for his arrest in the first instance.
  • On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.

4 . Procedure where defendant fails to furnish security or find fresh security— Where the defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied:

Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees:

Provided also that no person shall be detained in prison under this rule after he has complied with such order.

Attachment before judgment

5 . Where defendant may be called upon to furnish security for production of property— (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,—

  • is about to dispose of the whole or any part of his property, or
  • is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

  • The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.
  • The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
[382] [(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void.]

6 . Attachment where cause not shown or security not furnished— (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.

(2) Where the defendant shows such cause of furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.

7 . Mode of making attachment— Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

[383][8 . Adjudication of claim to property attached before judgment— Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudicated of claims to property attached in execution of a decree for the payment of money.]

9 . Removal of attachment when security furnished or suit dismissed— Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed.

10 . Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale— Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

11 . Property attached before judgment not to be re-attached in execution of decree— Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon a application for execution of such decree to apply for a re-attachment of the property.

[384][11A . Provisions applicable to attachment— (1) The provisions of this Code applicable to an attachment made in execution of a decree shall so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.]

12 . Agricultural produce not attachable before judgment— Nothing in this Order shall be deemed to authorize the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.

13 . Small Cause Court not to attach immovable property— Nothing in this Order shall be deemed to empower any Court of Small Causes to make order for the attachment of immovable property.

ORDER XXXIX-TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary injunctions

1 . Cases in which temporary injunction may be granted— Where in any suit it is proved by affidavit or otherwise—

(a)that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in a execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [385][defrauding] his creditors,

[386] [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]

the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [387][or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

2 . Injunction to restrain repetition or continuance of breach— (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

[388][* * * * ]

STATE AMENDMENTS

Madhya Pradesh.— In Order 39, rule 2, in sub-rule (2), insert the following proviso:—

“Provided that no such injunction shall be granted—

  • where no perpetual injunction could be granted in view of the provisions of section 38 and section 41 of the Specific Relief Act, 1963 (47 of 1963); or
  • to stay, the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismmissal, removable or otherwise termination of service of, or taking charge from, any person appointed to public service and post in connection with the affairs of the State including any employee of any company or Corporation owned or controlled by the State Government; or
  • to stay, any disciplinary proceeding, pending or intended

or, the effect of any adverse entry against any, person appointed to public service and post in connection with the affairs of the State including any employee of the company owned or controlled by the State Government; or

  • to restrain any election; or
  • to restrain any auction intended to be made or, to restrain the effect of any auction made by the Government; or to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished; and any order for injuction granted in contravention of these provisions shall be void.”
[M.P. Act 29 of 1984].

Uttar Pradesh.— In rule 2, sub-rule (2), interest the following proviso:—

“Provided that no such injunction shall be granted—

  • where no perpetual injunction could be granted in view of the provisions of section 38 and section 41 of the Specific Relief Act, 1963 (47 of 1963), or
  • to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government, or
  • to stay any disciplinary proceeding pending or intended, or, the effect of any adverse entry, against any employee of the Government, or
  • to affect the internal management or affairs of any educational institution including a University, or a Society, or
  • to restrain any election, or
  • to restrain, any auction intended to be made or, the effect of any auction made, by the Government unless adequate security is furnished, or
  • to stay the proceedings of the recovery of any dues recoverable as land revenue unless adequate security is furnished, or
  • in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being inforce;

and any order for injunction granted in contravention of these provisions shall be void”.

[U.P. Act 57 of 1976 amended by Notification dated 3.10.1981].

[389][2A . Consequence of disobedience or breach of injunction— (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not execeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]

3 . Before granting injunction, Court to direct notice to opposite party— The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

[390] [Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant—

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with—

  • a copy of the affidavit filed in support of the application;
  • a copy of the plaint; and
  • copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.] [391][3A . Court to dispose of application for injunction within thirty days.— Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty day from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.]

4 . Order for injunction may be discharged, varied or set aside— Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:

[392] [Provided that if in an application for temporary injunction or in any affidavit support such application a part has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused under hardship to that party.]

STATE AMENDMENTS

Madhya Pradesh.— In Rule 4:—

  • after the words “by the Court”, inserted the words “for reasons to be recorded, either on its own motion or”; and
  • at the end, add the following proviso:—

“Provided also that if at any stage of the suit it appears to the Court that the party in whose favour the order of injunction exists is delaying the proceedings or is otherwise abusing the process of Court, it shall set aside the order of injunction.”

[M.P. Act 29 of 1984].

Uttar Pradesh.— Same as that of Madhya Pradesh except for the word “delaying” substitute “dilating” in the proviso.

[U.P. Act 57 of 1976].

5 . Injunction to corporation binding on its officer— An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.

Interlocutory orders

6 . Power to order interim sale— The Court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property being the subject-matter of such suit or attached before judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold at once.

7 . Detention, preservation, inspection, etc., of subject-matter of suit — (1) the Court may, on the application of any party to a suit, and on such terms as it thinks fit,—

  • make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit or, as to which any question may arise therein;
  • for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and
  • for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expendient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to person authorized to enter under this rule.

8 . Application for such orders to be after notice— (1) An application by the plaintiff for an order under rule 6 or rule may be made[393]****at any time after institution of the suit.

(2) An application by the defendant for a like order may be made[394]***at any time after appearance.

[395] [(3) Before making an order under rule 6 or rule 7 on an application made for the purpose, the Court shall except where it appears that the object of making such order would be defeated by the delay, direct notice thereof to be given to the opposite party.]

9 . When party may be put in immediate possession of land the subject-matter of suit— Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a suit, if the party in possession of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be put in immediate possession of the land or tenure;

and the Court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the Court orders, in any adjustment of accounts which may be directed in the decree passed in the suit.

10 . Deposit of money, etc. in Court— Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.

ORDER XL- APPOINTMENT OF RECEIVERS

1 . Appointment of receivers— (1) Where it appears to the Court to be just and convenient, the Court may by order—

  • appointment a receiver of any property, whether before or after decree;
  • remove any person from the possession or custody of the property;
  • commit the same to the possession, custody or management of the receiver; and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such those powers as the Court thinks fit.

(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

2 . Remuneration— The Court may be general or special order fix the amount to be paid as remuneration for the services of the receiver.

3 . Duties— Every receiver so appointed shall—

  • furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property;
  • submit his accounts at such periods and in such form as the Court directs;
  • pay the amount due from him as the Court directs; and
  • be responsible for any loss occasioned to the property by his wilful default or gross negligence.

4 . Enforcement of receiver’s duties— Where a receiver—

  • fails to submit his accounts at such periods and in such form as the Court directs, or
  • fails to pay the amount due from him as the Court directs, or
  • occasions loss to the property by his wilful default or gross negligence,

the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from his or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

5 . When Collector may be appointed receiver— Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector appoint him to be receiver of such property.

ORDER XLI-APPEALS FROM ORIGINAL DECREES

1 . Form of appeal. What to accompany memorandum— (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded:

[396] [Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court dispense with the filing of more than one copy of the judgment.]

(2) Contents of memorandum—The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

[397] [(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]

2 . Grounds which may be taken in appeal— The appellant shall not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

3 . Rejection or amendment of memorandum— (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.

  • Where the Court rejects any memorandum, it shall record the reasons for such rejection.
  • Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.
[398][3A . Application for condonation of delay— (1) When a appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

  • If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
  • Where an application has been made under sub-rule (1) the Court shall not made an order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.]

4 . One of several plaintiff or defendants may obtain reversal of whole decree where it proceeds on ground common to all— Where there are more plaintiff or more defendants then one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

Stay of proceedings and of execution

5 . Stay by Appellate Court— (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

[399] [Explanation—An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execuiton or any order to the contrary, be acted upon by the Court of first instance.]
  • Stay by Court which passed the decree—Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
  • No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied—
  • that substantial loss may result to the party applying for stay of execution unless the order is made;
  • that the application has been made without unreasonable delay; and
  • that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

(4) [400][Subject to the provisions of sub-rule (3)], the Court may make an ex parte order for stay of execution pending the hearing of the application.

[401] [(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.]

6 . Security in case of order for execution of decree appealed from— (1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property

which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.

(2) Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment- debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.

7 . No security to be required from the Government or a public officer in certain cases. Rep. by the A.O. 1937.]

8 . Exercise of powers in appeal from order made in execution of decree— The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.

Procedure on admission of appeal

9 . Registry of memorandum of appeal— (1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose.

(2) Register of Appeals—Such book shall be called the Register of Appeals.

10 . Appellate Court may require appellant to furnish security for costs— (1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both:

Where appellant resides out of India—Provided that the Court shall demand such security in all cases in which the appellant is residing out of India, and is not possessed of any sufficient immovable property within India other than the property (if any) to which the appeal relates.

(2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.

11 . Power to dismiss appeal without sending notice to Lower Court— (1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

  • If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
  • The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
[402] [(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.] [403][11A . Time within which hearing under rule 11 should be concluded— Every appeal shall be heard under rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.]

12 . Day for hearing appeal— (1) Unless the Appellate Court dismisses the appeal under rule 11, it should fix a day for hearing the appeal.

(2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day.

13 . Appellate Court to give notice to Court whose decree appealed from— (1) Where the appeal is not dismissed under rule 11, the Appellate Court shall send notice of the appeal to the Court from whose decree the appeal is preferred.

  • Transmission of papers to Appellate Court—Where the appeal is from the decree of a Court, the records of which are not deposited in the Appellate Court, the Court receiving such notice shall send with all practicable despatch all material papers in the suit, or such papers as may be specially called for by the Appellate Court.
  • Copies of exhibits in Court whose decree appealed from—Either party may apply in writing to the Court from whose decree the appeal is preferred, specifying any of the papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of, and given to, the applicant.

14 . Publication and service of notice of day for hearing appeal— (1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

(2) Appellate Court may itself cause notice to be served—Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.

[404] [(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.

  • Notwithstanding anything to the contrary contained in sub- rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.
  • Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.]

15 . Contents of notice— The notice to the respondent shall declare that, if he does not appear in the Appellate Court on the day so fixed, the appeal will be heard ex parte.

Procedure on hearing

16 . Right to begin— (1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall he heard in support of the appeal.

(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal and in such case the appellant shall be entitled to reply.

17 . Dismissal of appeal for appellants default— (1) Where on the day fixed, or on any other day which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

[405] [Explanation—Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]

(2) Hearing appeal BIex parteB—Where the appellant appears and the respondent does not appear the appeal shall be heard ex parte,

18 . Dismissal of appeal where notice not served in consequence of appellant’s failure to deposit costs— Where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the costs of serving the notice [406][or, if the notice is returned unserved, and it is found that the notice to the respondent has not been issued in consequence of the failure of the appellant to deposit, within any subsequent period fixed, the sum required to defray the cost of any further attempt to serve the notice,] the Court may make an order that the appeal be dismissed:

Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing.

19 . Re-admission of appeal dismissed for default— Where an appeal is dismissed under rule 11, sub-rule

(2) or rule 17 or rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was

called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

20 . Power to adjourn hearing and direct persons appearing interested to be made respondents— [407][(1)] Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.

[408] [(2) No respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit.]

21 . Re-hearing on application of respondent against whom BIex parte decree made— Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellant Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.

22 . Upon hearing respondent may object to decree as if he had preferred a separate appeal— (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [409][but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

[410] [Explanation—A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]
  • Form of objection and provisions applicable thereto—Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
  • Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
  • Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
  • The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule.

23 . Remand of case by Appellate Court— Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

[411][23A . Remand in other cases— Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.]

24 . Where evidence on record sufficient, Appellate Court may determine case finally— Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the

Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which Appellate Court proceeds.

25 . Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from— Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [412][within such time as may be fixed by the Appellate Court or extended by it from time to time.]

26 . Finding and evidence to be put on record. Objections to finding— (1) Such evidence and findings shall form part of the record in the suit; and either party may within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.

(2) Determination of appeal—After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.

[413][26A . Order of remand to mention date of next hearing— Where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit.]

27 . Production of additional evidence in Appellate Court— (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if—

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

[414] [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

28 . Mode of taking additional evidence— Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

29 . Points to be defined and recorded— Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

Judgment in appeal

30 . Judgment when and where pronounced— [415][(1)] The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.

[416] [(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment in pronounced.]

31 . Contents, date and signature of judgment— The judgment of the Appellate Court shall be in writing and shall state—

  • the points for determination;
  • the decision thereon;
  • the reasons for the decision; and
  • where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

32 . What judgment may direct— The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.

33 . Power of Court of Appeal— The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstandng that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [417][and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:

[418] [Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.]

Illustration

A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals, and A and Y are respondents. The Appellate Court decides in favour of X. If has power to pass a decree against Y.

34 . Dessent to be recorded— Where the appeal is heard by more judges that one, any judge dissenting from the judgment of the court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.

Decree in appeal

35 . Date and contents of decree— (1) The decree of the Appellate Court shall bear date the day of which the judgment was pronounced.

  • The decree shall contain the number of the appeal, the names and descriptions of the appellant and respondent, and a clear specification of the relief granted or other adjudication made.
  • The decree shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be paid.
  • The decree shall be signed and dated by the Judge or Judges who passed it:

Judge dissenting from judgment need not sign decree—Provided that where there are more Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree.

36 . Copies of judgment and decree to be furnished to parties— Certified copies of the judment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense.

37 . Certified copy of decree to be sent to Court whose decree appealed from— A copy of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit, and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.

ORDER XLII-APPEALS FROM APPELLATE DECREES

1 . Procedure— The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

[419][2 . Power of Court to direct that the appeal be heard on the question formulated by it— At the time of making an order under rule 11 or Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100 and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appelant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.

3 . Application of rule 14 of Order XLI— Reference in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.]

ORDER XLIII-APPEALS FROM ORDERS

1 . Appeal from orders— An appeal shall lie from the following orders under the provisions of section 104, namely:—

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [420][except where the procedure specified in rule 10A of Order VII has been followed];

[421]*****

  • an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
  • an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte
[422]*****

(f) an order under rule 21 of Order XI;

[423]*****

  • an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
  • an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
[424] [(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.]
  • an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
  • an order under rule 10 of Order XXII giving or refusing to give leave;
[425]*****

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

[426] [(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:] [427]*****

  • orders in interpleader-suits under rule, rule 4 or rule 6 or Order XXXV;
  • an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
  • an order under rule 1, rule 2 [428][rule 2A], rule 4 or rule 10 of Order XXXIX;
  • an order under rule 1 or rule 4 of Order XL;
  • an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order rule 23 [429][or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

[430]*****

(w) an order under rule 4 of Order XLVII granting an application for review.

[431][1A . Right to challenge non-appealable orders in appeal against decree— (1) Where any order is made under this Code against a party and there upon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

2 . Procedure— The rules of Order XLI shall apply, so far as may be, to appeals from orders.

ORDER XLIV-[432][APPEALS BY INDIGENT PERSONS]

1 . Who may appeal [433][as an indigent person]— (1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an [434][indigent person], subject, in all matters, including the presentation of such application, to the provisions relating to suits by [435][indigent person], in so far as those provisions are applicable.

Proviso omitted by Act No. 66 of 1956, s. 14.

[436]* * * * *

[437][2 . Grant of time for payment of court-fee— Where an application is rejected under rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court or extended by it from time to time; and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee has been paid in the first instance.

3 . Inquiry as to whether applicant is an indigent person— (1) Where an applicant, referred to in rule 1, was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from; but if the Government pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of the Court.

(2) Where the applicant, referred to in rule 11, is alleged to have become an indigent person since the date of the decree appealed from, the inquiry into the question whether or not he is an indigent person shall be made by the Appellate Court or, under the orders of the Appellate Court, by an officer of that Court unless the Appellate Court considers it necessary in the circumstances of the case that the inquiry should be held by the Court from whose decision the appeal is preferred.]

ORDER XLV- APPEALS TO THE SUPREME COURT

1 . “Decree” defined— In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2 . Application to Court whose complained of— [438][(1)] Whoever desires to appeal the Supreme Court shall apply by petition to the Court whose decree is complained of.

[439] [(2) Every petition under sub-rule (1) shall be heard as expeditiously as possible and endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1).]

STATE AMENDMENTS

Uttar Pradesh.— In its application to the State of Uttar Pradesh, in rule 2 after sub-rule (2) the following sub-rule be inserted, namely:—

“(3) Notwithstanding anything contained in sub-rule (1), whoever desires to appeal to the Supreme Court, may apply orally to the Court whose decree is to be complained of, immediately before or after the pronouncement of the judgment by the Court, for a certificate contemplated in sub-rule (1) of rule 3, and the Court may either grant or refuse the certificate, or direct the applicant to file petition as required by sub-rule (1):

Provided that if an oral application is entertained and rejected, no written petition under sub-rule (1) shall lie.”

[U.P. Act 57 of 1976].

3 . Certificate as to value or fitness—[440][(1) Every petition shall state the grounds of appeal and pray for a certificate—

  • that the case involves a substantial question of law of general importance, and
  • that in the opinion of the Court the said question needs to be decided by the Supreme Court.]

(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted.

4 . [Consolidation of suits.] Rep. by the Code of civil Procedure (Amendment) Act,1973 (49 of 1973) s. 4 (w.e.f. 1-2- 1977).

5 . [Remission of dispute to Court of first instance.] Rep. by s. 4, ibid, (w.e.f. 1-2-1977).

6 . Effect of refusal of certificate— Where such certificate is refused, the petition shall be dismissed.

7 . Security and deposit required on grant of certificate— (1) Where the certificate is granted, the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow; from the date of the decree complained of, or within six weeks from the date of the grant of the certificate whichever is the later date,—

  • furnish security in cash or in Government securities for the costs of the respondent, and
  • deposit the amount required to defray the expense of translating, transcribing indexing printing, and transmitting to the Supreme Court a correct copy of the whole record of the suit, except—
  • formal documents directed to be excluded by any Rule of the Supreme Court in force for the time being;
  • papers which the parties agree to exclude;
  • accounts, or portions of accounts, which the officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included; and
  • such other documents as the High Court may direct to be excluded:

Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished:

Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security.

8 . Admission of appeal and procedure thereon— Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall—

  • declare the appeal admitted,
  • give notice thereof to the respondent,
  • transmit to the Supreme Court under the seal of the Court a correct copy of the said record, except as aforesaid, and
  • give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore and paying the reasonable expenses incurred in preparing them.

9 . Revocation of acceptance of security— At any time before the admission of the appeal the Court may, upon cause shown, revoke the acceptance of any such security, and make further directions thereon.

9A . Power to dispense with notices in case of deceased parties— Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:

Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct.

10 . Power to order further security or payment— Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to the Supreme Court such security appears inadequate,

or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid,

the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within except as aforesaid.

11 . Effect of failure to comply with order— Where the appellant fails to comply with such order, the proceedings shall be stayed,

and the appeal shall not proceed without an order in this behalf of the Supreme Court

and in the meantime execution of the decree appealed from shall not be stayed.

12 . Refund of balance deposit— When the copy of the record, except as aforesaid, has been transmitted to the Supreme Court, the appellant may obtain a refund of the balance (if any) of the amount which he had deposited under rule 7.

13 . Powers of Court pending appeal— (1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the court,—

  • impound any movable property in dispute or any part thereof, or
  • allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which the Supreme Court may make on the appeal, or
  • stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or
  • place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.

14 . Increase of security found inadequate— (1) Where at any time during the pendency of the appeal the security furnished by either party appears inadequate, the Court may, on the application of the other party, require further security.

(2) In default of such further security being furnished as required by the Court,—

  • if the original security was furnished by the appellant, the Court may, on the application of the respondent, execute the decree, appealed from as if the appellant had furnished no such security;
  • if the original security was furnished by the respondent, the Court shall, so far as may be practicable stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respectiong the subject-matter of the appeal as it thinks fit.

15 . Procedure to enforce orders of the Supreme Court— (1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Courts, was preferred.

(2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.

(4) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.

16 . Appeal from order relating to execution— The orders made by the Court which executes the decree or order of the Supreme Court, relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees.

  1. [Appeals to Federal Court]. Rep. by the Federal Court, 1941 (21 of 1941), s. 2

ORDER XLVI-REFERENCE

1 . Reference of question to High Court— Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.

2 . Court may pass decree contingent upon decision of High Court— The Court may either stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an order contingent upon the decision of the High Court on the point referred;

But no decree or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference.

3 . Judgment of High Court to be transmitted and case disposed of accordingly— The High Court, after hearing the parties if they appear and desire to be heard, shall decide the point so referred, and shall transmit a copy of its judgment, under the signature of the Registrar, to the Court by which the reference was made; and such Court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.

4 . Costs of reference to High Court— The costs (is any) consequent on a reference for the decision of the High Court shall be costs in the case.

4A . Reference to high Court under proviso to section 113— The provisions of rules 2, 3 and 4 shall apply to any reference by the Court under the proviso to section 113 as they apply to a reference under rule 1.

5 . Power to alter, etc., decree of Court making reference— Where a case is referred to the High Court under rule 1 or under the proviso to section 113, the High Court may return the case for amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose, and make such order as it thinks fit.

6 . Power to refer to High Court questions as to jurisdiction in small causes— (1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the Court either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit.

7 . Power to District Court to submit for revision proceeding had under mistake as to jurisdiction in small causes— (1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous.

  • On receiving the record and statement the High Court may make such order in the case as it thinks fit.
  • With respect to any proceeding subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such order as in the circumstance appears to it to be just and proper.
  • A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this rule.

ORDER XLVII- REVIEW

1 . Application for review of judgment— (1) Any person considering himself aggrieved—

  • by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
  • by a decree or order from which no appeal is allowed, or
  • by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

[441] [Explanation—The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]

2 . [To whom applications for review may be made.] Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 14.

3 . Form of applications for review— The provisions as to the form of preferring appeals shall apply mutatis mutandis, to applications for review.

4 . Application where rejected— (1) Where it appear to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) Application where granted—Where the Court is of opinion that the application for review should be granted, it shall grant the same:

Provided that—

  • no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and
  • no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

5 . Application for review in Court consisting of two or more judges— Where the Judge or Judges, or any one of the judges, who passed the decree or made the order a review of which is applied for, continues or continued attached to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.

6 . Application where rejected— (1) Where the application for a review is heard by more than one judge and the Court is equally divided, the application shall be rejected.

(2) Where there is a majority, the decision shall be according to the opinion of the majority.

7 . Order of rejection not appealable. Objections to order granting application— [442][(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.]

  • Where the application has been rejected in consequence of the failure of the applicant to appear, he my apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.
  • No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.

8 . Registry of application granted, and order for re-hearing— When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.

9 . Bar of certain application— No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.

ORDER XLVIII-MISCELLANEOUS

1 . Process to be served at expense of party issuing— (1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.

(2) Costs of service—The court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued.

2 . Orders and notices how served— All orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons.

3 . Use of forms in appendices.— The forms given in the appendices, with such variation as the circumstances or each case may require, shall be used for the purpose therein mentioned.

ORDER XLIX-CHARTERED HIGH COURTS

1 . Who may serve processes of High Court— Notice to produce documents, summonses to witnesses, and every other judicial process, issued in the exercise of the original civil jurisdiction of the High Court, and of its matrimonial, testamentary and intestate jurisdictions, except summonses to defendants, writs of execution and notices to respondents may be served by the attorneys in the suits, or by persons employed by them, or by such other persons as the High Court, by any rule or order, directs.

2 . Saving in respect of Chartered High Courts— Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in force at the commencement of this Code for the the taking of evidence or the recording of judgments and orders by a Chartered High Court.

3 . Application of rules— The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:—

  • rule 10 and rule 11, clauses (b) and (c), of Order VII;
  • rule 3 of order X;
  • rule 2 of Order XVI;
  • rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII;
  • rules 1 to 8 of Order XX; and
  • rule 7 of Order XXXIII (so far as relates to the making of a memorandum);

and rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction. Order L

PROVINCIAL SMALL CAUSE COURTS

1 . Provincial Small Cause Courts— The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say—

(a) so much of this Schedule as relates to—

(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits; (ii) the execution of decrees against immovable property or the interest of a partner in partnership property; (iii) the settlement of issues; and

(b) the following rules and orders:— Order II, rule 1 (frame of suit);

Order X, rule 3 (record of examination of parties);

Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment; Order XVIII, rules 5 to 12 (evidence);

Orders XLI to XLV (appeals);

Order XLVII, rules 2, 3, 5, 6, 7 (review); Order LI.

STATE AMENDMENTS

Uttar Pradesh.— In its application to the State of Uttar Pradesh in rule 1, in clause (b) after the words “provides for pronouncement at once of judgment” add “and rule 5”.

[U.P. Act 30 of 1974].

ORDER LI- PRESIDENCY SMALL CAUSE COURTS

1 . Presidency Small Cause Courts— Save as provided in rules 22 and 23 of Order V, rules 4 and 7 of Order XXI, and rule 4 of Order XXVI, and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), this Schedule shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.

APPENDIX A

PLEADINGS

(1) TITLES OF SUITS

In the Court of

A.B. (add description and residence) Plaintiff

against

C.D. (add descritption and residence) Defendant

(2) DESCRIPTION OF PARTIES IN PARTICULAR CASES

[The Union of Inida or the State of , as the case may be.]

The Advocate General of

The Collector of

The State of

The A.B. Company, Limited having its registered office at

A.B., a public officer of the C.D. Company.

A.B. (add description and residence), on behalf of himself and all other creditors of C.D.,

late of (add description and residence).

A.B. (add description and residence), on behalf of himself and all other holders of debentures issued by the Company Limited

The Official Receiver

A.B., a minor (add description and residence), by C.D. [or by the Court of Wards], his next friend.

A.B. (add description and residence), a person of unsound mind [or of weak mind], by C.D. his next friend

A.B., a firm carrying on business in partnership at

A.B. (add description and residence), by his constituted attorney C.D. (add description and residence)

A.B. (add description and residence), shebait of Thakur

A.B. (add description and residence), executor of C.D., deceased.

A.B. (add description and residence), heir of C.D., deceased.

(3) PLAINTS

No. 1

Money Lent

(Title)

A.B., the above-named plaintiff, states as follows :

  1. On the . . . . . . . . . . . . . . . . day of 19 . . . . . . ., . . . . . . . . . . . . . . . . he lent the defendant rupees repayable on the . . . . . . . . . . . . . . . .day of . . . . . . . . . . . . . . . .
  1. The defendant has not paid the same, except . . . . . . . . . . . . . . . .rupees paid on the . . . . . . . day of . . . . .

. . . . . . . . . . .19 . . . . . . . .

[If the plaintiff claims exemption from any law of limitation, say :]
  1. The plaintiff was a minor [or insane] from the . . . . . . . . . . . . . . . . day of till . . . . . . . . . the . . . . . . . . . . . . .

. . .day of . . . . . . . . . . . . . . . .

  1. [Facts showing when the cause of action arose and that the Court has jurisdiction.]
  1. The value of the subject-matter of the suit for the purpose of jurisdiction is . . . . . . . . . . . . . . . .rupees and for the prupose of court-fees is . . . . . . . . . . . . . . . .rupees.
  1. The plaintiff claims . . . . . . . . . . . . . . . .rupees, with interest at . . . . . . . . . . . . . . . .per cent. from the . . . . .

. . . . . . . . . . .day of . . . . . . . . . . . . . . . .19 . . . . . . . .

No. 2

Money Overpaid

(Title)

A.B., the above named plaintiff, states as follows :—

  1. On the . . . . . . day of. . . . 19. . . the plaintiff agreed to buy and the defendant agreed to sell . . . . bars of silver at. . . . annas per tola of fine silver.
  1. The plaintiff procured the said bars to be assayed by E.F., who was paid by the defendant for such assay, and E.F. declared each of the bars to contain 1,500 tolas of fine silver, and the plaintiff accordingly paid the defendant. . . rupees.
  1. Each of the said bars contained only 1,200 tolas of fine silver, of which fact the plaintiff was ignorant when he made the payment.
  1. The defendant has not repaid the sum so overpaid.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 3

Goods Sold at a Fixed Price and Delivered

(Title)

  1. B., the above-named plaintiff states as follows :—
  1. On the . . . . . . day of. . . . . . . . .19. . . . . ., E.F. sold and delivered to the defendant [one hundred barrels of flour, or the goods mentioned in the schedule hereto annexed, or sundry goods.]
  1. The defendant promised to pay . . . . . . rupees for the said goods on delivery [or or the . . . . . . day of . . . .

. . , some day before the plaint was filed].

  1. He has not paid the same.
  1. F. died on the . . . . . . day of 19. . . . . By his last will he appointed his brother, the plaintiff his executor. [As in paras 4 and 5 of Form No. 1.]
  • The plaintiff as executor of E.F. claims [Relief Claimed]. No. 4

Goods Sold at a Reasonable Price and Delivered (Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of. . . . . . . 19. . . , plaintiff sold and delivered to the defendant [sundry articles of house-furniture], but no express agreement was made as to the price.
  1. The goods were reasonably worth . . . . rupees.
  1. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and relief claimed.]

No. 5

Goods Made at Dependent’s Request, and not Accepted

(Title)

  1. B., the above-named plaintiff, states as follows:-
  1. On the . . . . . . day of . . . . . . 19. . . , E.F. agreed with the plaintiff that the plaintiff should make for him [six tables and fifty chairs] and that E.F. should pay for the goods on delivery . . . . . . . . . . . . . . . . rupees.
  1. The plaintiff made the goods, and on the . . . . . . day of . . . . . . 19. . . , offered to deliver them to E.F., and has ever since been ready and willing so to do.
  1. E.F. has not accepted the goods or paid for them.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 6

Deficiency Upon a Re-sale [Goods Sold at Auction]

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . ., the plaintiff put up at auction sundry [goods], subject to the condition that all goods not paid for and removed by the purchaser within [ten days] after the sale should be re-sold by auction on his account, of which condition the defendant had notice.
  1. The defendant purchased [one crate of crockery] at the auction at the price of . . . . . . rupees.
  1. The plaintiff was ready and willing to deliver the goods to the defendant on the date of the sale and for [ten days] after.
  1. The defendant did not take away the goods purchased by him, nor pay for them within [ten days] after the sale, nor afterwards.
  1. On the . . . . . . day of . . . . . . 19. . . ., the plaintiff re-sold the [crate of crockery], on account of the defendant, by public auction, for . . . . rupees.
  1. The expenses attendant upon such re-sale amounted to . . . . . . rupees.
  1. The defendant has not paid the deficiency thus arising, amounting to rupees.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 7

Services at a Reasonable Rate

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. Between the . . . . . . day of . . . . . . 19. . . , and the . . . . . . day of 19. . . at . . . . . . , plaintiff [executed sundry drawings, designs and diagrams] for the defendant, at his request; but no express agreement was made as to the sum to be paid for such services.
  1. The services were reasonably worth . . . . . . rupees.
  1. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 8

Services and Materials at a Reasonable Cost

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19 . . . , at . . . ., the plaintiff built a house [known as No. . . . ., in. . . .], and furnished the materials therefor, for the defendant, at his request, but no express agreement was made as to the amount to be paid for such work and materials.
  1. The work done and materials supplied were reasonably worth . . . . . . rupees.
  1. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]. No. 9

Use and Occupation (Title)

A.B., the above-named plaintiff, executor of the will of X. Y., deceased, states as follows:-

  1. That the defendant occupied the [house No. . . .., street], by permission of the said X. Y., from the . . . . . .

day of. . . 19 . . . , until the day of . . . . . . 19 . . . , and no agreement was made as to payment for the use of the said premises.

  1. That the use of the said premises for the said period was reasonably worth . . . rupees.
  1. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1.]
  1. The plaintiff as executor of X. Y., claims (Relief claimed]. No. 10

On an Award (Title)

  1. B., the above-named, plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19 . . . , the plaintiff and defendant, having a difference between them concerning [a demand of the plaintiff for the price of ten barrels of oil which the defendant refused to pay]. agreed in writing to submit the difference to the arbitration of E.F. and G.H. and the original document is annexed hereto.
  1. On the . . . . . . day of . . . . . . 19. . . , the arbitrators awarded that the defendant should [pay the plaintiff . . .

rupees].

  1. The defendant has not paid the money.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 11

On a Foreign Judgment

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , at . . . , in the State [or Kingdom] of the . . . . . . Court of that State [or Kingdom,] in a suit therein pending between the plaintiff and the defendant, duly adjudged that the defendant should pay to the plaintiff . . . . . . . . .rupees, with interest from the said date.
  1. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 12

Against Surety for Payment of Rent

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day . . . . . . 19. . . , E.F. hired from the plaintiff for the term of . . . . . . years, the [house No. .

. . . . . , . . . . . . street], at the annual rent of . . . . . . rupees, payable [monthly].

  1. The defendant agreed, in consideration of the letting of the premises to E.F. to guarantee the punctual payment of the rent.
  1. The rent for the month of . . . . . . 19. . . , amounting to . . . . . . rupees, has not been paid.
[If, by the terms of the agreement, notice is required to be given to the surety, add:-]
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff gave notice to the defendant of the non-payment of the rent, and demanded payment thereof.
  1. The defendant has not paid the same.
[As in paras 4 and 5 of Form No. 1, and relief claimed.]

No. 13

Breach of Agreement to Purchase Land

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed.
[Or, on the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant and that the defendant should purchase from the plaintiff forty bighas of land in the village of. . . .for. . . rupees.]
  1. On the . . . . . . . . . . . . . . . .. . . day of . . . . . . . . . . 19. . . , the plaintiff, being then the absolute owner of the property [land the same being free from all incumbrances, as was made to appear to the defendant], tendered to the defendant a sufficient instrument of transfer of the same [or, was ready and willing, and is still ready and willing, and offered, to transfer the same to the defendant by a sufficient instrument] on the payment by the defendant of the sun agreed upon.
  1. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.].

No. 14

Not Delivering Goods Sold

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff on the. . . ..day of. . . 19. . . , and that the plaintiff should pay therefor . . . . . . rupees on delivery.
  1. On the [said] day the plaintiff was ready and willing, and offered, to pay the defendant the said sum upon delivery of the goods.
  1. The defendant has not delivered the goods, and the plaintiff has been deprived of the profits which would have accrued to him from such delivery.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 15

Wrongful Dismissal

(Title)

  1. B., the above-named plaintiff, states as follows:-
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant mutually agreed that the plaintiff should serve the defendant as [an accountant, or in the capacity of foreman, or as the case may be], and that the defendant should employ the plaintiff as such for the term of [one year] and pay him for his services . . . . . .

rupees [monthly].

  1. On the . . . . . . day of . . . . . . 19. . . . , the plaintiff entered upon the service of the defendant and has ever since been, and still is, ready and willing to continue in such service during the remainder of the said year whereof the defendant always has had notice.
  1. On the . . . . . . day of . . . . . . 19. . . , the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, or to pay him for his services.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 16

Breach of Contract to Serve

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at an [annual] salary of . . . rupees, and that the defendant should serve the plaintiff as [an artist] for the term of [one year].
  1. The plaintiff has always been ready and willing to perform his part of the agreement and on the day of . . . .

. . 19. . . , offered so to do.

  1. The defendant (entered upon) the service of the plaintiff on the above-mentioned day, but afterwards, on the. . . .day of. . . 19. . . , he refused to serve the plaintiff as aforesaid.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.].

No. 17

Against a Builder for Defective Workmanship

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed. [or State the tenor of the contract.]
  1. The plaintiff duly performed all the conditions of the agreement on his part.]
  1. The defendant [built the house referred to in the agreement in a bad and unworkmanlike manner]. [As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 18

On a Bond for the Fidelity of a Clerk (Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff took E.F. into his employment as a clerk.
  1. In consideration thereof, on the . . . . . . day of . . . . . . 19. . . , the defendant agreed with the plaintiff that if E.F., should not faithfully perform his duties as a clerk to the plaintiff, or should fail to account to the plaintiff for all monies, evidences of debt or other property received by him for the use of the plaintiff, the defendant would pay to the plaintiff whatever loss he might sustain by reason thereof, not exceeding . . . . . . . . . . .

rupees.

[Or, 2. In consideration thereof, the defendant by his bond of the same date bound himself to pay the plaintiff the penal sum of . . . . . . rupees, subject to the condition that if E.F. should faithfully perform his duties as clerk and cashier to the plaintiff and should justly account to the plaintiff for all monies, evidences of debt or other property which should be at any time held by him in trust for the plaintiff, the bond should be void.] [Or, 2 In consideration thereof, on the same date the defendant executed a bond in favour of the plaintiff, and the original document is hereto annexed.]
  1. Between the . . . . . . day of . . . . . . 19. . . , and the . . . . . . day of 19. . . , E.F. received money and other property, amounting to the value of . . . . . . rupees, for the use of the plaintiff, for which sum he has not accounted to him, and the same still remains due and unpaid.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 19

By Tenant against Landlord, with Special Damage

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the defendant, by a registered instrument, let to the plaintiff [the house No. . . . . . . Street] for the term of . . . . . . years, contracting with the plaintiff that he, the plaintiff, and his legal representatives should quietly enjoy possession thereof for the said term.
  1. All conditions were fulfilled and all things happened necessary to entitle the plaintiff to maintain this suit.
  1. On the . . . . . . day of . . . . . . 19. . . , during the said term, E.F., who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom, and still withhold the possession thereof from him.
  1. The plaintiff was thereby [prevented from continuing the business of a tailor at the said place, was compelled to expend . . . . . . rupees in moving, and lost the custom of G.H. and I.J. by such removal].
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 20

On an Agreement of Indemnity

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant, being partners in trade under the style of A.B, and C.D., dissolved the partnership, and mutually agreed that the defendant should take and keep all the partnership property, pay all debts of the firm and indemnify the plaintiff against all claims that might be made upon him on account of any indebtedness of the firm.
  1. The plaintiff duly performed all the conditions of the agreement on his part.
  1. On the . . . . . . day of . . . . . . 19. . . , [a judgment was recovered against the plaintiff and defendant by E.F., in the High Court of Judicature at . . . . . . , upon a debt due from the firm to E.F. and on the day of 19. .

. ,] the plaintiff paid . . . . . . rupees [in satisfaction of the same].

  1. The defendant has not paid the same to the plaintiff.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 21

Procuring Property by Fraud

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day . . . . . . 19. . . , the defendant, for the purpose of inducing the plaintiff to sell him certain goods, represented to the plaintiff that [he, the defendant, was solvent, and worth . . . . . . . . . . rupees over all his liabilities].
  1. The plaintiff was thereby induced to sell [and deliver] to the defendant, [dry goods] of the value of . . . . . . .

. . . rupees.

  1. The said representations were false [or state the particular falsehoods] and were then known by the defendant to be so.
  1. The defendant has not paid for the goods. [Or, if the goods were not delivered.] The plaintiff, in preparing and shipping the goods and procuring their restoration, expended. . . . . rupees.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 22

Fraudulently Procuring Credit to be given to another Person

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the defendant represented to the plaintiff that E.F., was solvent and in good credit, and worth . . . . . . rupees over all his liabilities [or that E.F. then held a responsible situation and was in good circumstances, and might safely be trusted with goods on credit].
  1. The plaintiff was thereby induced to sell to E.F. (rice) of the value of . . . . . . rupees [on months credit].
  1. The said representations were false and were then known by the defendant to be so, and were made by him with intent to deceive and defraud the plaintiff [or to deceive and injure the plaintiff].
  1. F. [did not pay for the said goods at the expiration of the credit aforesaid, [or] has not paid for the said rice, and the plaintiff has wholly lost the same.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 23

Polluting the Water under the Plaintiff’s Land

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. The plaintiff is, and at all the time hereinafter mentioned was, possessed of certain land called . . . . . . . . . .

and situate in . . . . . . and of a well therein, and of water in the well, and was entitled to the use and benefit of the well and of the water therein, and to have certain springs and streams of water which flowed and ran into the well to supply the same to flow or run without being fouled or polluted.

  1. On the . . . . . . day of . . . . . . 19. . . , the defendant wrongfully fouled and polluted and well and the water therein and the springs and streams of water which flowed into the well.
  1. In consequence the water in the well became impure and unfit for domestic and other necessary purposes, and the plaintiff and his family are deprived of the use and benefit of the well and water.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 24

Carrying on a Noxious Manufacture

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain lands called . . . ., situate in . . . . . . . . . . .
  1. Ever since the . . . . . . day of . . . . . . 19. . . , the defendant has wrongfully caused to issue from certain smelting works carried on by the defendant large quantities of offensive and unwholesome smoke and other vapours and noxious matter, which spread themselves over and upon the said lands, and corrupted the air, and settled on the surface of the lands.
  1. Thereby the trees, hedges, herbage and crops of the plaintiff growing on the lands were damaged and deteriorated in value, and the cattle and live-stock of the plaintiff on the lands became unhealthy, and many of them were poisoned and died.
  1. The plaintiff was unable to graze the lands with cattle and sheep as he otherwise might have done, and was obliged to remove his cattle, sheep and farming-stock therefrom, and has been prevented from having so beneficial and healthy a use and occupation of the lands as he otherwise would have had.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 25

Obstructing a Right of Way

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. The plaintiff is, and at the time hereinafter mentioned was, possessed of [a house in the village of . . . . . . ].
  1. He was entitled to a right of way from the [house] over a certain field to a public highway and back again from the highway over the field to the house, for himself and his servants [with vehicles, or or foot] at all times of the year.
  1. On the . . . . . . day of . . . . . . 19. . . , defendant wrongfully obstructed the said way, so that the plaintiff could not pass [with vehicles, or or food, or in any manner] along the way [and has ever since wrongfully obstructed the same].
  1. (State special damage, if any.)
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 26

Obstructing a Highway

(Title)

  1. The defendant wrongfully dug a trench and heaped up earth and stones in the public highway leading from

. . . . . . to . . . . . . so as to obstruct it.

  1. Thereby the plaintiff, while lawfully passing along the said highway, fell over the said earth and stones, [or into the said trench] and broke his arm, and suffered great pain, and was prevented from attending to his business for a long time, and incurred expense for medical attendance.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.] No. 27

Diverting a Water-course (Title)

  1. B., the above-named plaintiff, states as follows:—
  1. The plaintiff is, and at the time hereinafter mentioned was, possessed of a mill situated on a [stream] known as the . . . . . . , in the village of . . . . . . , district of . . . . . . .
  1. By reason of such possession the plaintiff was entitled to the flow of the stream for working the mill.
  1. On the . . . . . . day of . . . . . . 19. . . , the defendant, by cutting the bank of the stream, wrongfully divered the water thereof, so that less water ran into the plaintiff’s mill.
  1. By reason thereof the plaintiff has been unable to grind more than sacks per day, whereas, before the said diversion of water, he was able to grind . . . . . . sacks per day.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 28

Obstructing a Right to Use Water for Irrigation

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. Plaintiff is, and was at the time hereinafter mentioned, possessed of certain lands situate, etc., and entitled to take and use a portion of the water of a certain stream for irrigating the said lands.
  1. On the . . . . . . day of . . . . . . 19. . . , the defendant prevented the plaintiff from taking and using the said portion of the said water as aforesaid, by wrongfully obstructing and diverting the said stream.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 29

Injuries Caused by Negligence on a Railroad

(Title)

  1. B., the above-named plaintiff, states as follows :—
  1. On the . . . . . . day . . . . . . 19. . . , the defendants were common carriers of passengers by railway between . . . . . . and . . . . . .
  1. On that day the plaintiff was a passenger in one of the carriages of the defendants on the said railway.
  1. While he was such passenger, at . . . . . . [or near the station of. . . . . . or . . . .. between the stations of. . .

..and. . . .], a collision occurred on the said railway caused by the negligence and unskilfulness of the defendants’ servants, whereby the plaintiff was much injured [having his leg broken, his head cut, etc., and state the special damage, if any, as], and incurred expense for medical attendance and is permanently disabled from carrying on his former business as [a salesman].

[As in paras 4 and 5 of Form No. 1, and Relief claimed.] [Or thus:- 2. On that day the defendants by their servants so negligently and unskillfully drove and managed an engine and a train of carriages attached thereto upon and along the defendant’s railway which the plaintiff was then lawfully crossing, that the said engine and train were driven and struck against the plaintiff, whereby, etc., as in para 3.]

No. 30

Injuries Caused by Negligent Driving

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. The plaintiff is a shoemaker, carrying on business at . . . . . . . The defendant is a merchant of. . . . . . . . . . .

. . .. . .

  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff was walking southward along Chowringhee, in the City of Calcutta, at about 3 o’clock in the afternoon. He was obliged to cross Middleton Street, which is a street running into Chowringhee at right angles. While he was crossing this street, and just before he could reach the foot pavement on the further side thereof, a carriage of the defendant’s, drawn by two horses under the charge and control of the defendant’s servants, was negligently, suddenly and without any warning turned at a rapid and dangerous pace out of Middleton Street into Chowringhee. The pole of the carriage struck the plaintiff and knocked him down, and he was much trampled by the horses.
  1. By the blow and fall and trampling the plaintiff’s left arm was broken and he was bruised and injured on the side and back, as well as internally, and in consequence thereof the plaintiff was for four months ill and in suffering and unable to attend to his business, and incurred heavy medical and other expenses, and sustained great loss of business and profits.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 31

For Malicious Prosecution

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . . .day of . . . . . . . .19. . . , the defendant obtained a warrant of arrest from . . . . . . . . . . [a magistrate of the said city, or as the case may be] on a charge of . . . . . . , and the plaintiff was arrested thereon, and imprisoned for . . . . . . [days, or hours, and gave bail in the sum of . . . . . . rupees to obtain his release].
  1. In so doing the defendant acted maliciously and without reasonable or probable cause.
  1. On the . . . . . . day of . . . . . . 19. . . ., the Magistrate dismissed the complaint of the defendant and acquitted the plaintiff.
  1. Many persons, whose names are unknown to the plaintiff, hearing of the arrest, and supposing the plaintiff to be a criminal, have ceased to do business with him; or in consequence of the said arrest, the plaintiff lost his situation as clerk to one E.F., or in consequence the plaintiff suffered plain of body and mind, and was prevented from transacting his business, and was injured in his credit, and incurred expense in obtaining his release from the said imprisonment and in defending himself against the said complaint.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 32

Movables Wrongfully Detained

(Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19 . . . , plaintiff owned [or state facts showing a right to the possession] the goods mentioned in the schedule hereto annexed [or describe the goods.] the estimated value of which is . . .

. . . rupees.

  1. From that day until the commencement of this suit the defendant has detained the same from the plaintiff.
  1. Before the commencement of the suit, to wit, on the . . . . . . day of . . . . . . 19. . . , the plaintiff demanded the same from the defendant, but he refused to deliver them.
[As in paras 4 and 5 of Form No. 1] 6. The plaintiff claims—

  • delivery of the said goods, or . . . . . . rupees, in case delivery cannot be had;
  • . . . . . . rupees compensation for the detention thereof.

The Schedule

No. 33

Against a Fraudulent Purchaser and his Transferee with Notice (Title)

  1. B., the above-named plaintiff, states as follows:—
  1. On the . . . . . . day of . . . . . . 19. . . , the defendant C.D., for the purpose of including the plaintiff to sell him certain goods, represented to the plaintiff that [he was solvent, and worth . . . . . . rupees over all his liabilities].
  1. The plaintiff was thereby induced to sell and deliver to C.D. [one hundred boxes of tea], the estimated value of which is . . . . . . rupees.
  1. The said representations were false, and were then known by C.D. to be so [or at the time of making the said representations, C. D. was insolvent, and knew himself to be so].
  1. D. afterwards transferred the said goods to the defendant E.F. without consideration [or who had notice of the falsity of the representation].
[As in paras 4 and 5 of Form No.1] 7. The plaintiff claims—

  • delivery of the said goods, or . . . . . . rupees, in case delivery cannot be had;
  • . . . . . . rupees compensation for the detention thereof.

No. 34

Rescission of a Contract on the Ground of Mistake (Title)

A.B., the above-named plaintiff, states as follows:—

  1. On the . . . . . . day of . . . . . . 19. . . , the defendant represented to the plaintiff that a certain piece of ground belonging to the defendant, situated at . . . . . ., contained [ten bighas].
  1. The plaintiff was thereby induced to purchase the same at the price of . . . . . . rupees in the belief that the said representation was true, and signed an agreement, of which the original is hereto annexed. But the land has not been transferred to him.
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff paid the defendant rupees as part of the purchase-money.
  1. That the said piece of ground contained in fact only [five bighas].
[As in paras 4 and 5 of Form No. 1] 7. The plaintiff claims—

  • . . . . . . rupees, with interest from the . . . . . . . . day of . . . . . . 19. . . ;
  • that the said agreement be delivered up and cancelled.

No. 35

An Injunction Restraining Waste (Title)

A.B., the above-named plaintiff, states as follows:—

  1. The plaintiff is the absolute owner of [describe the property].
  1. The defendant is in possession of the same under a lease from the plaintiff.
  1. The defendant has [cut down a number of valuable trees, and threatens to cut down many more for the purpose of sale] without the consent of the plaintiff.
[As in paras 4 and 5 of Form No. 1]
  1. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further waste on the said premises.
[Pecuniary compensation may also be claimed.]

No. 36

Injunction Restraining Nuisance

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute owner of [the house No. . . . . . . . .

, Street, Calcutta].

  1. The defendant is, and at all the said times was, the absolute owner of . . . . . . . . [a plot of ground in the same street . . . . . . ].
  1. On the . . . . . . day of . . . . . . 19. . . , the defendant erected upon his said plot a slaughter-house, and still maintains the same; and from that day until the present time has continually caused cattle to be brought and killed there [and has caused the blood and offal to be thrown into the street opposite the said house of the plaintiff].
[4. In consequence the plaintiff has been compelled to abandon the said house, and has been unable to rent the same.] [As in paras 4 and 5 of Form No. 1]
  1. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further nuisance.

No. 37

Public Nuisance

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. The defendant has wrongly heaped up earth and stones on a public road known as . . . . . . Street at . . . . .

. . . . . .so as to obstruct the passage of the public along the same and threatens and intends, unless restrained from so doing, to continue and repeat the said wrongful act.

[443] [*2. The plaintiff has obtained the leave of the Court for the institution of this suit.

[As in paras 4 and 5 of Form No. 1]
  1. The plaintiff claims—
  • a declaration that the defendant is not entitled to obstruct the passage of the public along the said public road;
  • an injunction restraining the defendant from obstructing the passage of the public along the said public road and directing the defendant to remove the earth and stones wrongfully heaped up as aforesaid.

Not applicable where suit is instituted by the Advocate-General.] No. 38

Injunction against the Diversion of a Water-course (Title)

A.B., the above-named plaintiff, states as follows:— [As in Form No. 27.]

The plaintiff claims that the defendant be restrained by injunction from diverting the water as aforesaid. No. 39

Restoration of Movable Property Threatened with Destruction and for an Injuction

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. Plaintiff is, and at all times hereinafter mentioned was, the owner of [a portrait of his grandfaterher which was executed by an eminent painter], and of which no duplicate exists [or state any facts showing that the property is of a kind that cannot be replaced by money].
  1. On the . . . . . . day of . . . . . . 19. . . , he deposited the same for safe-keeping with the defendant.
  1. On the . . . . . . day of . . . . . . 19. . . , he demanded the same from the defendant and offered to pay all reasonable charges for the storage of the same.
  1. The defendant refuses to deliver the same to the plaintiff and threatens to conceal, dispose of, cut or injure the same if required to deliver it up.
  1. No pecuniary compensation would be an adequate compensation to the plaintiff for the loss of the [painting];
[As in paras 4 and 5 of Form No. 1]
  1. The plaintiff claims—
  • that the defendant be restrained by injunction from disposing of, injuring or concealing the said [painting];
  • That he be compelled to deliver the same to the plaintiff.

No. 40

Interpleader

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. Before the date of the claims hereinafter mentioned G.H. deposited with the plaintiff [describe the property] for [safe-keeping].
  1. The defendant C.D. claims the same [under an alleged assignment thereof to him from G.H.].
  1. The defendant E.F. also claims the same [under an order of G.H. transferring the same to him.]
  1. The plaintiff is ignorant of the respective rights of the defendants.
  1. He has no claim upon the said property other than for charges and costs, and is ready and willing to deliver it to such persons as the Court shall direct.
  1. The suit is not brought by collusion with either of the defendants.
[As in paras 4 and 5 of Form No. 1] 9. The plaintiff claims—

(1) that the defendants be restrained, by injunction, from taking any proceedings against the plaintiff in relation thereto;

(20 that they be required to interplead together concerning their claims to the said property; [(3) that some person be authorised to receive the said property pending such litigation;]

(4) that upon delivering the same to such [person] the plaintiff be discharged from all liability to either of the defendants in relation thereto.

No. 41

Administration by Creditor on Behalf of Himself and all Other Creditors

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. F., late of . . . . . . , was at the time of his death, and his estate still is, indebted to the plaintiff in the sum of. . . . [here insert nature of debt and security, if any].
  1. F., died on or about the day of. . . . . . . By his last will, dated the . . . . . . day of . . . . . . he appointed C.D. his executor [or devised his estate in trust, etc., or died intenstate, as the case may be.]
  1. The will was proved by C.D. [or] letters of administration were granted, etc.].
  1. The defendant has possessed himself of the movable [and immovable, or the proceeds of the immovable property of E.F., and has not paid the plaintiff his debt.
[As in paras 4 and 5 of Form No. 1]
  1. The plaintiff claims that an account may be taken of the movable [and immovable] property of E.F., deceased, and that the same may be administered under the decree of the Court.

No. 42

Administration by Specific Legatee

(Title)

[Alter Form No. 41 thus] [Omit paragraph 1 and commence paragraph 2] E.F., late of . . . . . . , died on or about the . . . . . . day of . . . .

. . . By his last will, dated the . . . . . . day of . . . . . . he appointed C.D., his executor, and bequeathed to the plaintiff [here state the specific legacy]. For paragraph 4 substitute—

The defendant is in possession of the movable property of E.F., and, amongst other things, of the said [here name the subject of the specific bequest].

For the Commencement of paragraph 7 substitute—

The plaintiff claims that the defendant may be ordered to deliver to him the said [here name the subject of the specific bequest]. or that, etc.

No. 43

Administration by Pecuniary Legatee

(Title)

[Alter Form No. 41 thus] [Omit paragraph 1 and substitute for paragraph 2] E.F., late of . . . . . . , died on or about the . . . . . . day of . .

. . . . .By his last will, dated the . . . . . . day of . . . . . . he appointed C.D. his executor, and bequeathed to the plaintiff a legacy of . . . . . . rupees.

In paragraph 4 substitute “legacy” for “debt”

Another form.

(Title)

E.F., the above-named plaintiff, states as follows:—

  1. A.B. of K. in the . . . . . . died on the . . . . . . day of . . . . . . . By his last will, dated the . . . . . . day of . . . . . .

, he appointed the defendant and M. N. [who died in the testator’s lifetime] his executors, and bequeathed his property, whether movable or immovable, to his executors in trust, to pay the rents and income thereof to the plaintiff for his life; and after his decease, and in default of his having a son who should attain twenty-one, or a daughter who should attain that age or marry, upon trust as to his immovable property for the person who would be the testator’s heir-at-law, and as to his movable property for the persons who would be the testator’s next-of-kin if he had died intestate at the time of the death of the plaintiff and such failure of his issue as aforesaid.

  1. The will was proved by the defendant on the. . . . . . day of. . . . The plaintiff has not been married.
  1. The testator was at his death entitled to movable and immovable property; the defendant entered into the receipt of the rents of the immovable property and got in the movable property; he has sold some part of the immovable property.
[As in paras 4 and 5 of Form No. 1.]
  1. The plaintiff claims—
  • to have the movable and immovable property of A.B. administered in this Court, and for that purpose to have all proper directions given and accounts taken;
  • such further or other relief as the nature of the case may require.

No. 44

Execution of Trusts

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. He is one of the trustees under an instrument of settlement bearing date on or about the . . . . . . day of . . .

. . . made upon the marriage of E.F. and G.H., the father and mother of the defendant [or an instrument of transfer of the estate and effects of E.F. for the benefit C.D., the defendant, and the other creditors of E.F.].

  1. B. has taken upon himself the burden of the said trust, and is in possession of [or of the proceeds of] the movable and immovable property transferred by the said instrument.
  1. D. claims to be entitled to a beneficial interest under the instrument.
[As in paras 4 and 5 of Form. No. 1.]
  1. The plaintiff is desirous to account for all the rents and profits of the said immovable property [and the proceeds of the sale of the said, or of part of the said, immovable property, or movable, or the proceeds of the sale of, or of part of, the said movable property, or the profits accruing to the plaintiff as such trustee in the execution of the said trust]; and he prays that the Court will take the accounts of the said trust, and also that the whole of the said trust estate may be administered in the Court for the benefit of C.D., the defendant, and all other persons who may be interested in such administration, in the presence of C.D. and such other persons so interested as the Court may direct, or that C.D. may show good cause to the contrary.
[N.B.—Where the suit is by a beneficiary, the plaint may be modelled mutatis mutandis on the plaint by a legatee.]

No. 45

Foreclosure or Sale

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. The plaintiff is mortgagee of lands belonging to the defendant.
  1. The following are the particular of the mortgage:—
  • (date);
  • (names of mortgagor and mortgagee);
  • (sum secured);
  • (rate of interest);
  • (property subject to mortgage);
  • (amount now due);

(g) (if the plaintiff’s title is derivative, state shortly the transfers or devolution under which he claims).

(If the plaintiff is mortgagee in possession add).

  1. The plaintiff took possession of the mortgaged property on the . . . . . . day of . . . . . . and is ready to account as mortgagee in possession from that time.
[As in paras 4 and 5 of Form No. 1.]
  1. The plaintiff claims—
  • payment, or in default [sale or] foreclosure [and possession]; [Where Order 34, rule 6, applies.]
  • in case the proceeds of the sale are found to be insufficient to pay the amount due to the plaintiff then that liberty be reserved to the plaintiff to apply for . . . . . . [2][an order for the balance].

No. 46 Redemption (Title)

A.B., the above-named plaintiff, states as follows:—

  1. The plaintiff is mortgagor of lands of which the defendant is mortgagee.
  1. The following are the particulars of the mortgage:-

(a) (date);

(b) (names of mortgagor and mortgagee);

(c) (sum secured);

(d) (rate of interest);

(e) (property subject to mortgage);

(f) (If the plaintiff’s title is derivative, state shortly the transfers or devolution under which he claims). (If the defendant is mortgagee in possession, add)

  1. The defendant has taken possession [or has received the rents] of the mortgaged property.
[As in paras 4 and 5 of Form No. 1.]
  1. The plaintiff claims to redeem the said property and to have the same reconveyed to him [and to have possession thereof]. [444][together with mesne profits].

No. 47

Specific Performance (No. 1)

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. By an agreement dated the . . . . . . day of . . . . . . and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and referred to, for the sum of . . . . . . . . . .

rupees.

  1. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
  1. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.
[As in paras 4 and 5 of Form No. 1.]
  1. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit.

No. 48

Specific Performance (No. 2)

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed.

The defendant was absolutely entitled to the immovable property described in the agreement.

  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff Tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.
  1. On the . . . . . . day of . . . . . . 19. . . , the plaintiff again demanded such transfer. [Or the defendant refused to transfer the same to the plaintiff.]
  1. The defendant has not executed any instrument of transfer.
  1. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant.
[As in paras 4 and 5 of Form No. 1]
  1. The plaintiff claims—
  • that the defendant transfers the said property to the plaintiff by a sufficient instrument [following the terms of the agreement];
  • . . . . . . rupees compensation for withholding the same.

No. 49

Partnership

(Title)

A.B., the above-named plaintiff, states as follows:—

  1. He and C.D., the defendant, have been for . . . . . . years [or months] past carrying on business together under articles of partnership in writing [or under a deed, or under a verbal agreement].
  1. Several disputes and differences have arisen between the plaintiff and defendant as such partners whereby it has become impossible to carry on the business in partnership with advantage to the partners, [Or the defendant has committed the following breaches of the partnership articles:—

(1)

(2)

(3) . . . . . . .] [As in paras 4 and 5 of Form No. 1.]

  1. The plaintiff claims—
  • dissolution of the partnership;
  • that accounts be taken;
  • that a receiver be appointed.

(N.B.—In suits for the winding-up of any partnership, omits the claim for dissolution; and instead insert a paragraph stating the facts of the partnership having been dissolved.)

(4) WRITTEN STATEMENTS

General defences

Denial—The defendant denies that (set out facts).

The defendant does not admit that (set out facts).

The defendant admits that . . . . . . but says that

The defendant denies that he is a partner in the defendant firm of

Protest—The defendant denies that he made the contract alleged or any contract with the plaintiff.

The defendant denies that he contracted with the plaintiff as alleged or at all.

The defendant admits assets but not the plaintiff’s claim.

The defendant denies that the plaintiff sold to him the goods mentioned in the plaint or any of them.

Limitation—The suit is barred by article . . . . . . or article . . . . . . . . .of the second schedule to the [445][Indian Limitation Act, 1877 (15 of 1877)].

Jurisdiction—The Court has no jurisdiction to hear the suit on the ground that (set forth the grounds.)

On the . . . . . . day of . . . . . . a diamond ring was delivered by the defendant to and accepted by the plaintiff in discharge of the alleged cause of action.

Insolvency—The defendant has been adjudged an insolvent.

The plaintiff before the institution of the suit was adjudged an insolvent and the right to sue vested in the receiver.

Minority—The defendant was a minor at the time of making the alleged contract.

Payment into Court—The defendant as to the whole claim (or as to Rs. . . . . . . part of the money claimed, or as the case may be) has paid into Court Rs. . . . . . . and says that this sum is enough to satisfy the plaintiff’s claim (or the part aforesaid).

Performance remitted—The performance of the promise alleged was remitted on the (date).

Rescission—The contract was rescinded by agreement between the plaintiff and defendant.

Res judicata—The plaintiff’s claim is barred by the decree in suit (give the reference).

Estoppel—The plaintiff is estopped from denying the truth of (insert statement as to which estoppel is claimed) because (here state the facts relied on as creating the estoppel.)

Ground of defence subsequent to institution of suit—Since the institution of the suit, that is to say, on the. . .

.. day of. . . . . . (set out facts.)

No. 1

Defence in Suits for Goods Sold and Delivered

  1. The defendant did not order the goods.
  1. The goods were not delivered to the defendant.
  1. The price was not Rs.
[or]
  1. Except as to Rs. . . . . . . , same as 2.
  1. The defendant [or A.B., the defendant’s agent] satisfied the claim by payment before suit to the plaintiff [or to C.D., the plaintiff’s agent] on the . . . . . . day of . . . . . . 19. . .
  1. The defendant satisfied the claim by payment after suit to the plaintiff on the . . . . . . day of 19. . . .

No. 2

Defence in Suits on Bonds

  1. The bond is not the defendant’s bond.
  1. The defendant made payment to the plaintiff on the day according to the condition of the bond.
  1. The defendant made payment to the plaintiff after the day named and before suit of the principal and interest mentioned in the bond.

No. 3

Defence In Suits On Guarantees

  1. The principal satisfied the claim by payment before suit.
  1. The defendant was released by the plaintiff giving time to the principal debtor in pursuance of a binding agreement.

No. 4

Defence In Any Suit For Debt

  1. As to Rs. 200 of the money claimed, the defendant is entitled to set off for goods sold and delivered by the defendant to the plaintiff.

Particulars are as follows:- Rs.

1907 January 25th 150

1907 February 1st 50

Total 200

  1. As to the whole [or as to Rs. . . ., part of the money claimed] the defendant made tender before suit of Rs.

. . . . and has paid the same into Court.

No. 5

Defence In Suits For Injuries Caused By Negligent Driving

  1. The defendant denies that the carriage mentioned in the plaint was the defendant’s carriage, and that it was under the charge or control of the defendant’s servants. The carriage belonged to. . . . of . . . . . . . . .

.Street, Calcutta, livery stable keepers employed by the defendant to supply him with carriages and horses; and the person under whose charge and control the said carriage was, was the servant of the said.

  1. The defendant does not admit that the said carriage was turned out of Middleton Street either negligently, suddenly or without warning, or at a rapid or dangerous pace.
  1. The defendant says the plaintiff might and could, by the exercise of reasonable care and diligence, have seen the said carriage approaching him, and avoided any collision with it.
  1. The defendant does not admit the statements contained in the third paragraph of the plaint.

No. 6

Defence In All Suits For Wrongs

  1. Denial of the several acts [or matters] complained of.

No. 7

Defence In Suits For Detention Of Goods

  1. The goods were not the property of the plaintiff.
  1. The goods were detained for a lien to which the defendant was entitled. Particulars are as follows:-

1907, May 3rd, To carriage of the goods claimed from Delhi to Calcutta:-

  • maunds at Rs. 2 per maund. . . .Rs. 90. No. 8

Defence In Suits For Infringement Of Copyright

  1. The plainiff is not the author [assignee, etc.]
  1. The book was not registered.
  1. The defendant did not infringe. No. 9

Defence In Suits For Infringement Of Trade Mark

  1. The trade mark is not the plaintiff’s
  1. The alleged trade mark is not a trade mark.
  1. The defendant did not infringe. No. 10

Defence In Suits Relating To Nuisances

  1. The plaintiff’s lights are not ancient [or deny his other alleged prescriptive rights.]
  1. The plaintiff’s lights will not be materially interfered with by the defendant’s buildings.
  1. The defendant denies that he or his servants pollute the water [or do what is complained of].
[If the defendant claims the right by prescription or otherwise to do what is complained of, he must say so, and must state the grounds of the claim, i.e., whether by prescription, grant or what.]
  1. The plaintiff has been guilty of laches of which the following are particulars:— 1870. Plaintiff’s mill began to work.
  1. Plaintiff came into possession.
  1. First complaint.
  1. As to the plaintiff’s claim for damages the defendant will rely on the above grounds of the defence, and says that the acts complained of have not produced any damage to the plaintiff [If other grounds are relied on, they must be stated, e.g., limitation as to past damage.]

No. 11

Defence To Suit For Foreclosure

  1. The defendant did not execute the mortagage.
  1. The mortgage was not transferred to the plaintiff (if more than one transfer is alleged, say which is denied).
  1. The suit is barred by article . . . . . . of the second scheduled to the [446][Indian Limitation Act, 1877 (15 of 1877).]
  1. The following payments have been made, viz.:—

(Insert date) Rs. 1,000

(Insert date) Rs. 500

  1. The plaintiff took possession on the . . . . of. . . .., and has received the rents ever since.
  1. The plaintiff released the debt on the. . . of. . .
  1. The defendant transferred all his interest to A.B. by a document dated.

No. 12

Defence To Suit For Redemption

  1. The plaintiff’s right to redeem is barred by article . . . of the second schedule to the [447][Indian Limitation Act, 1877 (15 of 1877).]
  1. The plaintiff transferred all interest in the property to A.B.
  1. The defendant, by a document dated the . . . day of . . . . transferred all his interest in the mortgage-debt and property comprised in the mortgage to A.B.
  1. The defendant never too possession of the mortgaged property, or received the rents thereof.

(If the defendant admits possession for a time only, he should state the time and deny possession beyond what he admits.)

No. 13

Defence To Suit For Specific Performance

  1. The defendant did not enter into the agreement.
  1. B. was not the agent of the defendant (if alleged by plaintiff).
  1. The plaintiff has not performed the following conditions—(Conditions).
  1. The defendant did not—(alleged acts of part performance).
  1. The plaintiff’s title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matter—(State why).
  1. The agreement is uncertain in the following respects—(State them).
  1. (or) The plaintiff has been guilty of delay.
  1. (or) The plaintiff has been guilty of fraud (or misrepresentation).
  1. (or) The agreement is unfair.
  1. (or) The agreement was entered into by mistake.
  1. The following are particulars of (7), (8), (9), (10) (or as the case may be).
  1. The agreement was rescinded under Conditions of Sale, No. 11 (or by mutual agreement).

(In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the agreement or the alleged breaches, or show whatever other ground of defence he intends to rely on, e.g., the [448][Indian Limitation Act,] accord and satisfaction, release, fraud, etc.)

No. 14

Defence In Administration Suit By Pecuniary Legatee

  1. B.’s will contained a charge of debts; he died insolvent; he was entitled at his death to some immovable property which the defendant sold and which produced the net sum of Rs. . . . . . . . . . , and the testator had some movable property which the defendant got in, and which produced the net sum of Rs. . . . . . . . . .
  1. The defendant applied the whole of the said sums and the sum of Rs. . . . . . . . . . which the defendant received from rents of the immovable property in the payment of the funeral and testamentary expenses and some of the debts of the testator.
  1. The defendant made up his accounts and sent a copy thereof to the plaintiff on the . . . . . . . . day of . . . . .

. . .19 . . . , and offered to plaintiff free access to the vouchers to verify such accounts, but he declined to avail himself of the defendant’s offer.

  1. The defendant submits that the plaintiff ought to pay the cost of this suit.

No. 15

Probate Of Will In Solemn Form

  1. The said will and codicil of the deceased were not duly executed according to the provisions of the [449][Indian Succession Act, 1865 (10 of 1865)] [or of the [450]Hindu Wills Act, 1870 (21 of 1870)].
  1. The deceased at the time the said will and codicil respectively purport to have been executed, was not of sound mind, memory and understanding.
  1. The execution of the said will and codicil was obtained by the undue influence of the plaintiff [and others acting with him whose names are at present unknown to the defendant].
  1. The execution of the said will and codicil was obtained by the fraud of the plaintiff, such fraud so far as is within the defendant’s present knowledge, being [state the nature of the fraud].
  1. The deceased at the time of the execution of the said will and codicil did not know and approve the contents thereof [or of the contents of the residuary clause in the said will, as the case may be].
  1. The deceased made his true last will, dated the 1st January, 1873, and thereby appointed the defendant sole executor thereof.

The defendant claims—

  • that the Court will pronounce against the said will and codicil propounded by the plaintiff;
  • that the Court will decree probate of the will of the deceased, dated the 1st January, 1873, in solemn form of law.

No. 16

Particulars (O. 6, R. 5.)

(Title of suit)

Particulars.—The following are the particulars of (here state the matters in respect of which particulars have been ordered) delivered pursuant to the order of the . . . . . . . . . of

(Here set out the particulars ordered in paragraphs if necessary.)

APPENDIX B

PROCESS

No. 1

Summons For Disposal Of Suit (O. 5, R. 1, 5.)

(Title)

To

[Name, description and place of residence.]

Whereas

has instituted a suit against you for . . . . . . . . . you are hereby summoned to appear in this Court in person or by a pleader duly instructed (and able to answer all material questions relating to the suit, or who shall be accompanied by some person, able to answer all such questions, on the . . . . . . . . . day of . . . . . . . . . 19 . . .

. . ., at . . . . . . o’clock in the . . . . . . . . . noon, to answer the claim; and as the day fixed for your appearance is appointed for the final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence.

Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, this . . . . . . . . . of . . . . . . . . . 19 . . . . .

Judge.

Notice.—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.

  1. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.

No. 2

Summons For Settlement Of Issues (O. 5, R. 1, 5.)

(Title)

To

[Name, description and place of residence.]

Whereas

has instituted a suit against you for . . . . . . . . . you are hereby summoned to appear in this Court in person, or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some persons able to answer all such questions, on the . . . . . day of . . . . . . . . . 19. . . . ., at . . . . . . . . . o’clock in the . . . . . . . . . noon, to answer the claim; [451][and further you are hereby directed to file on that day a written statement of your defence and to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counter-claim, and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counter-claim, you shall enter such documents in a list to be annexed to the written statement].

Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, this . . . . . . . day . . . . . . . . . 19….,

Judge.

Notice.—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call on the witness to produce, on applying to the Court and on depositing the necessary expenses.

  1. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.

No. 3

Summons To Appear In Person (O. 5, R. 3.)

(Title)

To

[Name, description and place of residence.]

Whereas

has instituted a suit against you for . . . . . . . . . you are hereby summoned to appear in this Court in person on the . . . . . . . . . day of . . . . . . . . . 19… at . . . . . . . . . o’clock in the . . . . . . . . . noon, to answer the claim;

and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence.

Take notice that, in default of your appearance of the day before mentioned, the suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . . . . 19 . . . .

Judge.

[452][No. 4

Summons in a Summary Suit

(Order XXXVII, Rule 2)

(Title)

To

[Name, description and place of residence.]

Whereas . . . . . . . . . has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs. . . . . . . . . . and interest, you are hereby summoned to cause and appearance to be entered for you, within ten days from the service hereof, in default hereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs. . . . . . . . . . and the sum of Rs. . . . . . . . . . for costs, together with such interest, if any, as the Court may order.

If you cause an appearance to be entered for you, the plaintiff will thereafter serve upon you a summons for judgment at a hearing of which you will be entitled to move the Court for leave to defend the suit.

Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19…

Judge.

[3][No. 4A

SUMMONS FOR JUDGMENT IN A SUMMARY SUIT

(Order XXXVII, Rule 3)

(Title)

In the . . . . . . . . . Court, at . . . . . . . . . suit No. . . . . . . . . . of 19…

XYZ . . . . . . . . . Plaintiff.

Versus

ABC . . . . . . . . . Defendant.

Upon reading the affidavit of the plaintiff the Court makes the following order, namely:—

Let all parties concerned attend the Court or Judge, as the case may be, on the . . . . . . . . . day of 19…, at …

o’clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs. . . . . . . . . . and for interest and costs.

Dated the . . . . . . . . . day of . . . . . . . . . 19…]

No. 5

Notice to Person who, the Court Considers, should be added as Co-Plaintiff

(O. 1, R. 10.)

(Title)

To

[Name, description and place of residence.]

Whereas . . . . . . . . . has instituted the above suit against . . . . . . . . . for . . . . . . . . . and whereas it appears necessary that you should be added as a plaintiff in the said suit in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved.

Take notice that you should on or before the . . . . . . . . . day of . . . . . . . . . 19…, signify to this Court whether you consent to be so added.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19…,

Judge.

No. 6

Summons to Legal Representative of a Deceased Defendant

(O. 22, R. 4.)

(Title)

To

Whereas the plaintiff . . . . . . . . . instituted a suit in this Court on the . . . . . . . . . day of . . . . . . . . . 19…, against the defendant . . . . . . . . . who has since deceased, and whereas the said plaintiff has made an application to this Court alleging that you are the legal representative of the said, deceased, and desiring that you be made the defendant in his stead;

You are hereby summoned to attend in this Court on the . . . . . . . . . day of . . . . . . . . . 19…, at . . . . . . . . .

a.m. to defend the said suit and, in default of your appearance on the day specified, the said suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19…,

Judge.

No. 7

Order for Transmission of Summons for Service in the Jurisdiction of another Court

(O. 5, R. 21.)

(Title)

Whereas it is stated that

defendant/witness in the above suit is at present residing in . . . . . . . . . : It is ordered that a summons returnable on the day of . . . . . . . . . 19…, be forwarded to the Court of . . . . . . . . . for service on the said defendant/witness with a duplicate of this proceeding.

The court-fee of . . . . . . . . . chargeable in respect to the summons has been realised in this Court in stamps.Dated . . . . . . . . . 19 . . .

Judge.

No. 8

Order for Transmission of Summons to be Served on a Prisoner

(O. 5, R. 25.)

(Title)

To

The Superintendent of the Jail at

Under the provisions of Order V, rule 24, of the Code of Civil Procedure, 1908, a summons in duplicate is herewith forwarded for service on the defendant . . . . . . . . . who is . . . . . . . . . a prisoner in jail. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.

Judge.

No. 9

Order for Transmission of Summons to be Served on a Public Servant or Soldier

(O. 5, RR. 27, 28.)

(Title)

To

Under the provisions of Order V, rule 27 (or 28, as the case may be), of the Code of Civil Procedure, 1908, a summons in duplicate is herewith forward for service on the defendant . . . . . . . . . who is stated to be serving under you. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.

Judge.

No. 10

To Accompany Returns of Summons of Another Court

(O. 5, R. 23.)

Read proceeding from the . . . . . . . . . forwarding . . . . . . . . . for service on in suit No. . . . . . . . . . of 19…, of that Court.

Read Serving Officer’s endorsement stating that the . . . . . . . . . and proof of the above having been duly taken by me on the oath of . . . . . . . . . and . . . . . . . . . it is ordered that the . . . . . . . . . be returned to the . . .

. . . . . . with a copy of this proceeding.

Judge.

Note.—This form will be applicable to process other than summons, the service of which may have to be effected in the same manner.

No. 11

Affidavit Of Process-service To Accompany Return Of A Summons Or Notice

(O. 5, R. 18.)

(Title)

The Affidavit of . . . . . . . . . . . ., son of . . . . . . . . . make oath/affirm

I . . . . . . . . .

and say as follows:-

(1) I am a process-server of this Court.

(2) On the . . . . . . . . . day of . . . . . . . . . 19… I received a summons/notice issued by the Court . . . . . . . . . in Suit No. . . . . . . . . . of 19…, in the said Court, dated the . . . . . . . . . day of . . . . . . . . . 19 . . . , for service on .

. . . . . . . .

(3) The said . . . . . . . . . was at the time personally known to me, and I served the said summons/notice on him/her on the . . . . . . . . . day of…19, at about . . . . . . . . . o’clock in the noon at . . . . . . . . . by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.

(a)

(b)

  • Here state whether the person served signed or refused to sign the process, and in whose presence.
  • Signature of process-server.

or,

(3) The said . . . . . . . . . . . . . . . . . . not being personally known to me . . . . . . . . . . . . . . . accompanied me to the said summons/notice on his/her on the . . . . . . . . . day of . . . . . . . . . 19 . . . , at about. . . . . . . . . . . . . . .

o’clock in the . . . . . . . . . . . . . noon at . . . . . . . . . . . . . . . by tendering a copy thereof to him/her and requiring his /her signature to the original summons/notice.

(a)

(b)

  • Here state whether the person served signed or refused to sign the process, and in whose presence.
  • Signature of process-server.

or,

(3) The said . . . . . . . . . . . . . . . and the house in which he ordinarily resides being personally known to me, I went to the said house, in . . . . . . . . . . . . . . . and thereon the . . . . . . . . . . . . . . . day of . . . . . . . . . 19…, at about . . . . . . . . . o’clock in the . . . . . . . . . noon, I did not find the said. . . . . . . . . . . .

(a)

(b)

  • Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rules 15 and 17.
  • Signature of process-server.

or,

(3) One . . . . . . . . . accompanied me to . . . . . . . . . and there pointed out to me which he said was the house in which . . . . . . . . . ordinarily resides. I did not find the said there.

(a)

(b)

  • Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rule 15 and 17.
  • Signature of process-server.

or

If substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of the order for substituted service.

Sworn/Affirmed by the said . . . . . . . . before me this. . . . day of . . . . . . . . . 19… before me this

Empowered under section 139 of the Code

of Civil Procedure, 1908, to administer the

oath to deponents.

No. 12

Notice To Defendant

(O. 9, R. 6.)

(Title)

To

[Name, description and place of residence.]

Whereas this day was fixed for the hearing of the above suit and a summons was issued to you and the plaintiff has appeared in this Court and you did not so appear, but from the return of the Nazir it has been proved to the satisfaction of the Court that the said summons was served on you but not in sufficient time to enable you to appear and answer on the day fixed in the said summons;

Notice is hereby given to you that the hearing of the suit is adjourned this day and that the day of . . . . . . . . .

19… is now fixed for the hearing of the same; in default of your appearance on the day last mentioned the suit will be heard and determined in your absence.

GIVEN under my hand and the seal of the Court, this . . . . . . . . . day . . . . . . . . . 19…

Judge.

No. 13

Summons To Witness

(O. 16, RR. 1, 5.)

(Title)

To

Whereas your attendance is required to . . . . . . . . . on behalf of the . . . . . . . . . in the above suit, you are hereby required [personally] to appear before this Court on the . . . . . . . . . day of . . . . . . . . . 19 . . . at . . . . . .

. . . o’clock in the forenoon, and to bring with you [or to send to this . . . . . . . . . Court].

A sum of Rs. . . . . . . . . . , being your travelling and other expenses and subsistence allowance for one day, is herewith sent. If you fail to comply with this order without lawful excuse, you will be subject to the consequences of non-attendance laid down in rule 12 of Order XVI of the Code of Civil Procedure, 1908.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19…

Judge.

Notice.—(1) If you are summoned only to produce a document and not to give evidence, you shall be deemed to have complied with the summons if you cause such document to be produced in this Court on the day and hour aforesaid.

(2) If you are detained beyond the day aforesaid, a sum of Rs. . . . . . . . . . will be tendered to you for each day’s attendance beyond the day specified.

No. 14

Proclamation Requiring Attendance Of Witness

(O. 16, R. 10)

(Title)

To

Whereas it appears from the examination on oath of the serving officer that the summons could not be served upon the witness in the manner prescribed by law: and whereas it appears that the evidence of the witness is material, and he absconds and keeps out of the way for the purpose of evading the service of the summons: This proclamation is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the . . . . . . . . .. . . . . . day of . . . . . . . . . . . . . .

. 19 . . . . . . . . . . at . . . . . . . . . o’clock in the forenoon and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.

Given under my hand and the seal of the Court, this . . . . . . . . . . . .. . . . . day of . . . . . . . 19. . . . . . .

Judge.

No. 15

Proclamation Requiring Attendance Of Witness

(O. 16, R. 10.)

(Title)

To

Whereas it appears from the examination on oath of the serving officer that the summons has been duly served upon the witness, and whereas it appears that the evidence of the witness is material and he has failed to attend in compliance with such summons: This proclamation is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the day of . . . . . . . . .. . . . . . 19 at .. . . . . . . . . . . . . . o’clock in the forenoon, and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.

Given under my hand and the seal of the Court. this . . . . . . . . . . . . . . . . . day of . . . . . . . . . 19 . . . . ..

Judge.

No. 16

Warrant Of Attachment Of Property Of Witness

(O. 16, R. 10.)

(Title)

To

The Bailiff of the Court.

Whereas the witness . . . . . . . . .

cited by . . . . . . . . . . . .

has not, after the expiration of the period limited in the proclamation issued for his attendance, appeared in Court; You are hereby directed to hold under attachment . . . . . . . . . property belonging to the said witness to the value of . . . . . . . . . and to submit a return, accompanied with an inventory thereof, within . . . . . . . . .

days.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . . . .. . . 19 . . . . . .

Judge.

No. 17

Warrant Of Arrest Of Witness

(O. 16, R. 10.)

(Title)

To

The Bailiff of the Court.

Whereas . . . . . . . . . has been duly served with a summons but has failed to attend (absconds and keeps out of the way for the purpose of avoiding service of a summons); You are hereby ordered to arrest and bring the said . . . . . . . . . before the Court.

188

You are further ordered to return this warrant on or before the . . . . . . . . . day of 19… with an endorsement certifying the day on and the manner in which it has been executed, or the reason why it has not been executed.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19…

Judge.

No. 18

Warrant Of Committal

(O. 16 R. 16.)

(Title)

To

The Officer in charge of the Jail at

Whereas the plaintiff (or defendant) in the above-named suit has made application to this Court that security

be taken for the appearance of . . . . . . . . . to . . . . . . . . . give evidence (or to produce a document), on the . .

. . . . . . . day of . . . . . . . . . 19…; and whereas the Court has called upon the said . . . . . . . . . to furnish such

security, which he has failed to do; This is to require you to receive the said….into your custody in the civil

prison and to produce him before this Court at . . . . . . . . . on the said day and on such other day or days as

may be hereafter ordered.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19…

Judge.

No. 19

Warrant Of Committal

(O. 16, R. 18.)

(Title)

To

The Officer in Charge of the Jail at

Whereas, whose attendance is required before this Court in the above-named case to give evidence (or to produce a document), has been arrested and brought before the Court in custody; and whereas owing to the

absence of the plaintiff (or defendant), the said . . . . . . . . . cannot give such evidence (or produce such
document); and whereas the Court has called upon the said . . . . . . . . . to give security for his appearance
on the . . . . .. . . . . . . . . day of . . . . . . . 19. . . , at . . . . . . . . . which he has failed to do; This is to require you
to receive the said… into your custody in the civil prison and to produce him before this Court at . . . . . . . . .
on the . . . . . . . . . day of . . . . . . . . . 19….

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19…

Judge.

Appendix C

DISCOVERY, INSPECTION AND ADMISSION

No. 1

Order for Delivery of Interrogatories

(O. 11, R. 1.)

In the Court of . . . . . . . . . Civil Suit No. . . . . . . . of . . . . . . . . . 19 . . . . . . . . .

A.B. . . . . Plaintiff,

against

  1. D. E. F. and G. H . . . . . . . . . Defendants.

Upon hearing . . . . . . . . . and upon reading the affidavit of . . . . . . . . . filed the . . . . . . . . . day of . . . 19 . . . . .

. . . . It is ordered that the . . . . . . . . . be at liberty to deliver to the . . . . . . . . . . . . . . . . . . .interrogatories in writing, and that the said . . . . . . . . . do answer the interrogatories as prescribed by Order XI, rule 8, and that the costs of this application be.

No. 2

Interrogatories

(O. 11, R. 4.)

(Title as in No. 1, supra.)

Interrogatories on behalf of the above-named [Plaintiff or defendant C.D.] for the examination of the above-named [defendants E.F. and G. H. or plaintiff].

  1. Did not, etc.
  1. Has not, etc. . . . . . . . . . etc., . . . . . . . . . etc., . . . . . . . . . etc.
[The defendant E. F. is required to answer the interrogatories numbered. . . . . . . . . .. ] [The defendant G.H. is required to answer the interrogatories numbered. . . . . . . . . . .]

No. 3

Answer To Interrogatories

(O. 11, R. 9.)

(Title as in No. 1, supra.)

The answer of the above-named defendant E.F., to the interrogations for his examination by the above-named plaintiff.

In answer to the said interrogatories, I, the above-named E.F., make oath and say as follow:—

1.

  1. Enter answers to interrogatories in paragraphs numbered consecutively.DJ0
  1. I object to answer the interrogatories numbered on the ground that [state grounds of objection]. No. 4

Order for Affidavit as to Documents (O. 11, R. 12.)

(Title as in No. 1, supra.)

Upon hearing . . . . . . . . . ; It is ordered that the . . . . do within . . . . . . . . . days from the date of this order, answer on affidavit stating which documents are or have been in his possession or power relating to the matter in question in this suit, and that the costs of this application be.

No. 5

Affidavit as to Documents

(O. 11, R. 13.)

(Title as in No. 1, supra.)

I, the above-named defendant C. D., make oath and say as follows:—

  1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.
  1. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection].
  1. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.
  1. The last-mentioned documents were last in my possession or power on [state when and what has become of them and in whose possession they now are].
  1. Accordingly to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter memorandum, paper or writing, or any copy of or extract from any such document, or any other documents whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto.

No. 6

Order to Produce Documents for Inspection

(O. 11, R. 14.)

(Title as in No. 1, supra).

Upon hearing . . . . . . . . . and upon reading the affidavit of . . . . . . . . . filed the day of . . . . . . . . . 19… It is ordered that the . . . . . . . . . do, at all reasonable times, on reasonable notice, produce at . . . . . . . . . situate at . . . . . . . . . , the following documents, namely, . . . . . . . . . , and that the . . . . . . . . . be at libery to inspect and persue the documents so produced, and to make notes of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the costs of this application be.

No. 7

Notice to Produce Documents

(O. 11. R. 16)

(Title as in No. 1, supra.)

Take notice that the [plaintiff or defendant] requires you to produce for his inspection the following documents referred to in your [plaint or written statement or affidavit, dated that . . . . . . . . . day of . . . . . . . . .

19…].

[Describe documents required.]
  1. Y., Pleader for the

To Z., Pleader for the.

No. 8

Notice to Inspect Documents

(O. 11, R. 17.)

(Title as in No. 1. supra.)

Take notice that you can inspect the documents mentioned in your notice of the . . . . . . . . . day of . . . . . . . . .

19… except the documents numbered in that notice] at [insert place of inspection] on Thursday next, . . . . . . .

. . . . . . the instant, between the hours of 12 and 4 o’clock.

Or, that the [plaintiff or defendant] objects to giving you inspection of documents mentioned in your notice of the . . . day of . . . . . . . . . 19… on the ground that [State the ground].

191

No. 9

Notice to Admit Documents

(O. 12, R. 3.)

(Title as in No. 1, supra.)

Take notice that the plaintiff [or defendant] in this suit proposes to adduce in evidence the several document hereunder specified, and that the same may be inspected by the defendant [or plaintiff] his pleader or agent, at . . . . . . . . . on . . . . . . . . . between the hours of . . . . . . . . . ; and the defendant [or plaintiff] is hereby required, within forty-eight hours from the … last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed or executed, as they purport respectively to have been; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered, respectively, saving all just exceptions to the admissibility of all such documents as evidence in this suit.

G.H., pleader [or agent] for plaintiff

[or defendant]

To E.F., pleader [or agent] for defendant [or plaintiff].

[Here describe the documents and specify as to each document whether it is original or a copy.]

No. 10

Notice to Admit Facts

(O. 12, R. 5.)

(Title as in No. 1, supra.)

Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff] to admit, for the purposes of this suit only, the several facts respectively hereunder specified; and the defendant [or plaintiff] is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this suit.

G.H. pleader [or agent] for plaintiff [or defendant].

To E.F., pleader [or agent] for defendant [or plaintiff].

The facts, the admission of which is required, are:—

  1. That M. died on the 1st January, 1890.
  1. That he died intestate.
  1. That N. was his only lawful son.
  1. That O. died on the 1st April, 1896.
  1. That O. was never married.

No. 11

Admission of Facts Pursuant to Notice

(O. 12, R. 5.)

(Title as in No. 1, supra.)

The defendant [or plaintiff] in this suit, for the purposes of this suit only, hereby admits the several facts respectively hereunder specified, subject to the qualifications or limitations, if any, hereunder specified, saving all-just exceptions to the admissibility of any such facts, or any of them, as evidence in this suit:

Provided that this admission is made for the purposes of this suit only, and is not an admission to be used against the defendant [or plaintiff] on any other occasion or by any one other than the plaintiff [or defendant or party requiring the admission].

E.F., pleader [or agent] for defendant

[or plaintiff]

To G.H., pleader [or agent] for plaintiff [or defendant].

Facts admitted

Qualification or limitation, if any, subject to which they are admitted

  1. That M. died on Ist January, 1890
  1. That he died intestate
  1. That N. was his lawful son
  1. That O. Died
  1. That O. was never married.

1.

2.

  1. But not that he was hid only lawfulo son .
  1. But not that he died on the Ist April, 1896.

No. 12

Notice to Produce (General Form) (O. 12, R. 8.)

(Title as in No. 1, supra)

Take notice that you are hereby required to produce and show to the Court at the first hearing of this suit all books, papers, letters, copies of letters and other writings and documents in your custody, possession of power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly.

G.H., pleader [or agent] for plaintiff [or defendant].

To E.F., pleader [or agent] for defendant [or plaintiff].

APPENDIX D

DECREES

No. 1

Decree in Original Suit

(O. 20, RR. 6, 7.)

(Title)

Claim for

This suit coming on this day for final disposal before . . . . . in the presence of . . . . . . . . . for the plaintiff and of . . . . . . . . . . . . for the defendant, it is ordered and decreed that . . . . . . . . . and that the sum of Rs. . . . . . .

. . . be paid by the . . . . . . . . . to the . . . . . . . . . on account of the costs of this suit, with interest thereon at the rate of . . . . . . . . . per cent, per annum from this date to date of realization.

Given under my hand and the seal of the Court, this . . . . . . . day of . . . . . . . . . 19…

Judge.

Costs of Suit

Plaintiff

Defendant

Rs.

A.

P.

Rs.

A.

P.

stamp for plaint

Do. For power

Do. Of exhibits

Pleader’s fee on Rs.

Subsistence for witnesses

Commission fee

Service of process

Total

Stamp for Power

Do.for petition

Pleader’s fee

Subsistence for witnesses

Service of process
Commissioner’s fee
Total
No. 2
Simple Money Decree
(Section 34)
(Title)
Claim for
This suit coming on this . . . . . . . . . day for final disposal before . . . . . . . . . in the presence of . . . . . for the
plaintiff and of . . . . . . . . . for the defendant; It is ordered that the . . . . . . . . do pay to the . . . .. . . the sum of
Rs. . . . . . . . . . with interest thereon at the rate of . . . . . . . . . per cent per annum from . . . . . . to the date of
realization of the said sum and do also pay Rs…. , the cost of this suit, with interest thereon at the rate of . . .
. . . . . . per cent per annum from this date to the date of realization.

Given under my hand and the seal of the Court, this . . . . . . . . . day . . . . of . . . . 19 . . .

Judge.

Costs of Suit

Plaintiff

Defendant

Rs.

A.

P.

Rs.

A.

P.

Stamp for plaint Do. For power Do. Of exhibits

Pleader’s fee on Rs. Subsistence for witnesses Commission

Serivce of process Total

Stamp for power Do. for petition Pleader’s fee

Subsistence for witnesses Service of process Commissioner’s fee

Total

No. 3

Preliminary Decree for Foreclosure

(Order XXXIV, Rule 2—Where accounts are directed to be taken.) (Title)

This suit coming on this . . . . . . . . . day, etc.; It is hereby ordered and decreed that it be referred to . . . . . . . .

. . . . as this Commissioner to take the accounts following:—

  • an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);
  • an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person might have been so received;
  • an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent, per annum);
  • an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.
  1. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
  1. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the . . . . day of. . . . . . . . . and that upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
  1. And it is hereby further ordered and decreed—
  • that the defendant do pay into Court on or before the. . . . . . . .day of . . . . . . . …, or any later date up to which time for payment may be extended by the Court, such sum as the Court shall fined due and the sum of Rs………..for the costs of the suit awarded to the plaintiff.
  • that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
  1. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff shall be at liberty to apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 3A

Preliminary Decree for Foreclosure

(Order XXXIV, Rule 2,—Where the Court declares the amount due.)

(Title)
This suit coming on this ………day, etc.; It is hereby declared that the amount due to the plaintiff on his
mortgage mentioned in the plaint calculated up to this ……..day of ……….is the sum of Rs ……….for principal,
the sum of Rs……for interest on the said principal, the sum of Rs….. for costs, charges and expenses (other

than the costs of the suit) properly incured by the plaintiff in respect of the mortgage-security, together with

interest thereon, and the sum of Rs. ……..for the costs of this suit awarded to the plaintiff, making in all sum

of Rs.

  1. And it is hereby ordered and decreed as follows:—
  • that the defendant do pay into Court on or before for…….day of……or any later date up to which time for payment may be extended by the Court of the said sum of Rs……;
  • that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
  1. And it is hereby further ordered and decreed that, in default if payment as aforesaid, the plaintiff may apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, of so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 4

Final Decree for Foreclosusre

(Order XXXIV, Rule 3.)

(Title)
Upon reading the preliminary decree in this suit on the…… day of ……and further orders (if any) dated
the……. day of ……and the application of the plaintiff dated the……. day of …….for a final decree and after

hearing the parties and it appearing that the payment directed by the said decree and orders had not been made by the defendant or any person on his behalf or any other person entitled to redeem the said mortgage;

It is hereby ordered and decreed that the defendant and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned; Words not required to be deleted.

[453][and (if the defendant be in possession of the said mortgaged property) that the defendant shall deliver to the plaintiff quiet and peaceable possession of the said mortgaged property].

  1. And it is hereby further declared that the whole of the liability whatsoever of the defendant up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.

No. 5

Preliminary Decree for Sale

(Order XXXIV, Rule 4—Where accounts are directed to be taken)

(Title)

This suit coming on this……day, etc,; It is hereby ordered and decree that it be referred to as the Commissioner to take the accounts following:—

(i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent, per annum or at such rate as the Court deems reasonable);

  • an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person night have been se received;
  • an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum);
  • an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.
  1. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii), together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
  1. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the…….day of……., and that upon report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
  1. And it is hereby further order and decreed—
  • that the defendant do pay into Court on or before the……day of…….or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs…….for the costs of the suit awarded to the plaintiff;
  • that on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
  1. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.
  1. And it is hereby further order and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
  1. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient or payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the

parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property.

No. 5A

Preliminary Decree for Sale

(Order XXXIV, Rule 4,—When the Court declares the amount date.)

(Title)

This suit coming on this. . . . . . . . . .day etc; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this. . . . . . . . . . . . .day of. . . . . . . . . .is the sum of Rs. . . .

. . . . . for principal, the sum of Rs. . . . . . . . . . . . for interest on the said principal, the sum of Rs. . . . . . . . . . .

. for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs. . . . . . . . . . . . for the costs of the suit awarded to the plaintiff, making in all the sum of Rs.

  1. And it is hereby ordered and decreed as follows:—
  • that the defendant do pay into Court on or before the. . . . . . . . . . . .day of. . . . . . . . . or any later date up to which time for payment may be extended by the Court, the said sum of Rs. . . . . . . . . .;
  • that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such cost, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so- required deliver up to the defendant quiet and peaceable possession of the said property.
  1. And it is hereby further ordered and decreed that, it default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged-property; and on such application being made, the mortgaged property or a sufficeint part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession of power relating to the mortgaged property.
  1. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction herefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to received the same.
  1. And it is hereby further ordered and decreed that, if the money realised by such sale such not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred buy any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 6

Final Decree for Sale

(Order XXXIV, Rule 5)

(Title)

Upon reading the preliminary decree passed in this suit on the. . . . . . . . . day of. . . . . . . . . and further orders (if any) dated the. . . . . . . . . .day of. . . . . . . . . .and the application of the plaintiff dated the. . . . . . . . . day of.

. . . . . . . . .for a final decreed and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the mortgage;

It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.

  1. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into the Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under the aforesaid preliminary decree and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the plaintiff for such costs of the suit including the costs of this application and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.

No. 7

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Foreclosure is Passed

(Order XXXIV, Rule 7.—Where accounts are directed to be taken.)

(Title)

This suit coming on this. . . . . . . . . day, etc.; It is hereby ordered and decreed that it be referred to as the Commissioner to take the account following:—

  • an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);
  • an account of the income of the mortgaged property received up to this date by the defendant or by any other person by order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received;
  • an account of all sums of money properly incurred by the defendant up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as it payable on the principal, or, failing both such rate, at nine per cent per annum);
  • an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the term of the mortgage-deed.
  1. It is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under caluse (iv) above, together with interest thereon, shall be adjusted against any sums paid by the defendant under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money, or, as the case may be, be debited in reduction of the amount due to the defendant on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
  1. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all conveninent despatch after making all just allowances on or before the. . . . . . . . . .day of. . . . . . . . . and that upon such report of the Commissioner being received, it shall be confirmed and countersigend, subject to

such modification as may be necessary after consideration of such objections as the parties to the suit may make.

  1. And it is hereby further ordered and decreed—
  • that the plaintiff to pay into Court on or before the. . . . . . . . . . . . day of. . . . . . . . . , or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs. . . . . . . . . . . . . . . .for the costs of the suit awarded to the defendant;
  • that, on such payment, and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over the the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
  1. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant shall be at liberty to apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherswise the Court may give such directions as it thinks fit.

Description of the mortgaged property

No. 7A

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Sale is Passed

(Order XXXIV, Rule 7.—Where accounts are directed to be taken.)

(Tile)

This suit coming on this . . . . . . . . . . . . .day, etc.; It is herby ordered and decreed that it be referred to . . . . .

. . . . . . . . . . as the Commissioner to take the accounts following:—

  • an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payble on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);
  • an account of the income of the mortgaged property received up to this date by the defendant or by any other person by the order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received;
  • an account of all sums of money property incurred by the defendant upto this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent per annum);
  • an account of any loss or damage caused to the mortgaged property before this date by any act or ommission of the defendant which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgaged-deed.
  1. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the defendant under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money, or, as the case may be, be debited in reduction of the amount due to the defendant on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
  1. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the. . . . . . . . . . . . . . . day of. . . . . . . . . . . .

.and that, upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.

  1. And it is hereby further ordered and decreed—

(i) that the plaintiff do pay into Court on or before the. . . . . . . . . .day. . . . . . . . . .of or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs. . . . . . . . . . . . . . . . . . for the costs of the suit awarded to the defendant;

(ii) that, or such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom the claims and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.

  1. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purpose of such sale the defendant shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.
  1. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the defendant in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to receive the same.
  1. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the defendant as aforesaid, the defendant shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the plaintiff for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 7B

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Foreclosure is Passed

(Order XXXIV, Rule 7.—Where the Court declares the amount due.)

(Title)

This suit coming on this. . . . . . . . . . . . . . . day, etc.; It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this. . . . . . . . . . . . . . day of. . . . . . . . . . .

. . . . is the sum of Rs. . . . . . . . . . . . . . . .for principal, the sum of Rs. . . . . . . . . . . . . . . .for interest on the said principal the sum of Rs. . . . . . . . . . . . . . . .for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of the mortgage-security together with interest thereon,

and the sum of Rs. . . . . . . . . . . . . . . .for the costs of the suit awarded to the defendant, making in all the sum of Rs.

  1. And it is hereby ordered and decreed as follows:—

(i) that the plaintiff do pay into Court on or before the . . . . . . . . . . . . . .day of. . . . . . . , or any later date up to which time for payment may be extended by the Court the said sum of Rs. . . . . . . . . . .;

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such cost of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom he claims, and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.

  1. And it is hereby further ordered and decrees that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 7C

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Sale is Passed

(Order XXXIV, rule 7.—Where the Court declares the amount due.)

(Title)

This suit coming on this. . . . . . . . . . . . . . . day, etc., It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this. . . . . . . . . . . . . . day of. . . . . . . . . . .

. . . . is the sum of Rs. . . . . . . . . . . . . . . .for principal, the sum of Rs. . . . . . . . . . . . . . . .for interest on the said principal, the sum of Rs. . . . . . . . . . . . . . . .for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of mortgage-security together with interest thereon, and the sum of Rs. . . . . . . . . . . . . . . .for the cost of this suit awarded to the defendant, making in all the sum of Rs.

  1. And it is hereby ordered and decreed as follows:—

(i) that the plaintiff do pay into Court on or before the. . . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . or any later date up to which time the payment may be extended by the Court the said sum of Rs. . . . . . . . . . . . . . . .;

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff or such person as he appoints, and the defendant shall, if so required, reconvey or re-transfer the said property to the plaintiff free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.

  1. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of

such sale the defendant shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.

  1. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payment of any amount which the Court may adjudge due to the defendant in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to the same.
  1. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for the payment in full of the amount payable to the defendant as aforesaid, the defendant shall be at liberty (where such remedy is open to him under the terms of the mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the plaintiff for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 7D

Final Decree for Foreclosure in a Redemption Suit on Default of Payment by Mortgagor

(Order XXXIV, Rule 8.)

(Title)

Upon reading the preliminary decree in this suit on the. . . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . and further orders (if any) dated the. . . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . , and the application of the defendant dated the. . . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . for a final decree and after hearing the parties, and it appearing that the payment as directed by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other person entitled to redeem the mortgage ;

It is hereby ordered and decreed that the plaintiff and all person claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned [454][and (if the plaintiff be in possession of the said mortgaged property) that the plaintiff shall deliver to the defendant quiet and peaceable possession of the said mortgaged property].

  1. And it is hereby further declared that the whole of the liability whatsoever of the plaintiff up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharge and extinguished.

No. 7E

Final Decree for Sale in a Redemption on Suit on Default of Payment by Mortgagor

(Order XXXIV, Rule 8)

(Title)

Upon reading the preliminary decree passed in this suit on the. . . . . . . . . .day of. . . . . . . . . . . . .and further order (if any) dated the. . . . . . . . . .day of. . . . . . . . . . . . ., and the application of the defendant dated the. . . .

. . . . . day of. . . . . . . . . .for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other person entitled to redeem the mortgage;

It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold and that for the purposes of such sale the defendant shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.

204

  1. And it is hereby ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under the aforesaid preliminary decree and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the defendant for such costs of this suit including the costs of this application and such costs, charges and expenses as may be payable under rule 10, together with the subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other person entitled to receive the same.

No. 7F

Final Decree in a Suit for Foreclosure, Sale or Redemption where the Mortgagor

Pays the Amount of the Decree

(Order XXXIV, Rules 3, 5 and 8)

(Title)

This suit coming on this. . . . . . . . . day for further consideration and it appearing that on the . . . . . . . . . . .

.day of. . . . . . . . . . . . .the mortgagor or. . . . . ., the same being a person entitled to redeem, has paid into Court all amounts due to the mortgagee under the preliminary decree dated the. . . . . . .day of. . . . . . .; It is hereby ordered and decreed that:—

  • the mortgagee do execute a deed of re-conveyance of the property in the aforesaid preliminary decree mentioned in favour of the mortgagor [455][or, as the case may be,. . . . . . . . . who has redeemed the property] or an acknowledgment of the payment of the amount due in his favour;
  • the mortgagee do bring into Court all documents in his possession and power relating to the mortgaged property in the suit.

And it is hereby further ordered and decreed that, upon the mortgagee executing the deed of re-conveyance or acknowledgment in the manner aforesaid,—

  • the said sum of Rs. . . . . . . . . . . . be paid out of Court to the mortgagee;
  • the said deeds and documents brought into the Court be delivered out of Court to the mortgagor [456][or the person making the payment] and the mortgagee do, when so required, concur in registering, at the cost of the mortgagor [457][or other person making the payment], the said deed of re-conveyance or the acknowledgment in the officer of the Sub-registrar of. . . . . . . . . ; and
  • [458][if the mortgagee, plaintiff or defendant, as the case may be, is in possession of the mortgaged property] that the mortgagee do forthwith deliver possession of the mortgaged property in the aforesaid preliminary decree mentioned to the mortgagor [459][or such person as aforesaid who has made the payment.]

No. 8

Decree against Mortgagor Personally for Balance after the Sale of the

Mortgaged Property

(Order XXXIV, Rules 6 and 8A)

(Title)

Upon reading the application of the mortgagee (the plaintiff or defendant, as the case may be) and reading the final decree passed in the suit on the. . . . . . .day of. . . . . . . . . and the Court being satisfied that the net proceeds of the sale held under the aforesaid final decree amounted to Rs. . . . . . . . . . . . . . . . . . . . and have been paid to the applicant out of the Court on the day of. . . . . . and that the balance now due to him under the aforesaid decree of Rs. . . . . . .;

And whereas it appears to the Court that the said sum is legally recoverable from the mortgagor (plaintiff or defendant, as the case may be) personally;

It is hereby ordered and decreed as follows:—

205

That the mortgagor (plaintiff or defendant, as the case may be) do pay to the mortgagee (defendant or plaintiff, as the case may be) the said sum of Rs. . . . . . with further interest at the rate of six per cent per annum from the. . . . . . .day of. . . . . . (the date of payment out of Court referred to above) up to the date of realisation of the said sum, and the costs of this application.

No. 9

Preliminary Decree for Foreclousre of Sale

[Plaintiff 1st Mortgagee,

vs.

Defendant No. 1 Mortgagor,

Defendant No. 2 2nd Mortgagee.]

(Order XXXIV, Rules 2 and 4)

(Title)

The suit coming on this . . . . . . . . . . . . . .. . . . . . . . . . . . day, etc; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this day of. . . . . . . . . . . . . is the sum of Rs. . . . . . for principal, the sum of Rs. . . .for interest on the said principal, the sum of Rs. . . . . . . . . .for costs, charges and expenses (other than the costs of the suit) incurred by the plaintiff in respect of the mortgage-security with interest thereon and the sum of Rs. . . . . . . . . . . .for the costs of this suit awarded to the plaintiff, making in all the sum of Rs. . . . . . .

(Similar declarations to be introduced with regard to the amount due to defendant No. 2 in respect of his mortgage if the mortgage-money due thereunder has become payable at the date of the suit.)

  1. It is further declared that the plaintiff is entitled to payment of the amount due to him in priority to defendant No. 2 [460][or (if there are several subsequent mortgagees) that the several parties hereto are entitle in the following order to the payment of the sums due to them respectively;—]
  1. And it is hereby ordered and decreed as follows:—

(i) (a) that defendants or one of them do pay into Court on or before the day of . . . . . . . . . or any later date up to which time for payment has been extended by the Court the said sum of Rs. . . . . . . . . .due to the plaintiff; and

(b) that defendant No. 1 do pay into Court on or before the day of. . . . . . or any later date up to which time for payment has been extended by the Court the said sum of Rs. . . . . . .due to defendant No. 2; and

(ii) that, on payment of the sum declared to be due to the plaintiff be defendant or either of them in the manner prescribed in clause (i)(a) and on payment thereafter before such date as the Court may fix and such expenses as may be payable under rule 10, together with such subsequent interest as may be payable shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and shall all such documents shall be delivered over to the defendant No. . . . . . (who has made the payment), or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgagee and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims, and also free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant No. . . .

(who has made the payment) quiet and peaceable possession of the said property.

(Similar declarations to be introduced, if defendant No. 1 pays the amount found or declared to be due to defendant No. 2 with such variations as may be necessary having regard to the nature of his mortgage.)

  1. And it is hereby further ordered and decreed that, in default of payment as aforesaid of the amount due to the plaintiff, the plaintiff shall be at liberty to apply to the Court for a final decree—

(i)[461] [in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is foreclosure and not sale] that the defendants jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property

described in the Schedule annexed hereto and shall, if so required, deliver to the plaintiff quiet and peaceable possession of the said property; or

  • [462][in the case of any other mortgage] that the mortgaged property or a sufficient part thereof shall be sold; and that for the purposes of such sale the plaintiff shall produce before Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and
  • [463][in the case where a sale is ordered under clause (4) (ii) above] that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may have been passed in this suit and in payment of the amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to defendant No. 2, and that if any balance be left, it shall be paid to the defendant No. 1 or other persons entitled to receive the same; and
  • that, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2 or both of them, as the case may be, shall be at liberty (when such remedy is open under the terms of their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amounts remaining due to them respectively.
  1. And it is hereby further ordered and decreed—

(a) that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in the payment of the said amount, defendant No. 2 shall be at liberty to apply to the Court to keep the plaintiff’s mortgage alive for his benefit and to apply for a final decree (in the same manner as the plaintiff might have done under clause 4 above)—

[464] [(i) that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to defendant No. 2 quiet and peaceable possession of the said property;] or

[465][(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property;] and

(b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff’s mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.

  1. And it is hereby further ordered and decreed [466][in the case where a sale is ordered under clause 5 above]—
  • that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount paid by defendant No. 2 in respect of the plaintiff’s mortgage and the costs of the suit in connection therewith and in payment of the amount which the Court may adjudge due in respect of subsequent interest on the said amount; and that the balance, if any, shall then be applied in payment of the amount adjudged due to defendant No. 2 in respect of his own mortgage under this decree and any further orders that may be passed and in payment of the amount which the Court may adjudge due in respect of such costs of this suit and such costs, charges and expenses as may be payable to defendant No. 2 under rule 10, together with such subsequent interest as may be payable under rule 1, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No. 1 or other persons entitled to receive the same; and
  • that, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of the plaintiff’s mortgage or defendant No. 2’s mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against No. 1 for the amount of the balance.

207

  1. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 10

Preliminary Decree for Redemption of Prior Mortgage and Foreclosure of Sale on

Subsequent Mortgage

[Plaintiff 1st Mortgagee,

vs

Defendant No. 1 Mortgagor

Defendant No. 2 2nd Mortgagee.]

(Order XXXIV, rules 2, 4 and 7)

(Title)

The suit coming on this. . . . . . day, etc; It is hereby declared that the amount due to defendant No. 2 on the mortgage mentioned in the plaint calculated up to this. . . . . . day of. . . . . . is the sum of Rs. . . . . . . . . for principal, the sum of Rs. . . . . . for interest on the said principal, the sum of Rs. . . . . . .for costs, charges and expenses (other than the costs of the suit) property incurred by defendant No. 2 in respect of the mortgage-security with interest thereon and the sum of Rs. . . for the costs of this suit awarded to defendant No. 2, making in all the sum of Rs.

(Similar declarations to be introduced with regard to the amount due from defendant No. 1 to the plaintiff in respect of his mortgage if the mortgage-money due thereunder has become payable at the date of the suit.)

  1. It is further declared that defendant No. 2 is entitled to payment of the amount due to him in priority to the plaintiff [467][or (if there are several subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively:—].
  1. And it is hereby ordered and decreed as follows:—

(i)(a) that the plaintiff or defendant No. 1 or one of them do pay into Court on or before the. . . . . . day of. . . .

. . or any later date up to which time for payment has been extended by the Court the said sum of Rs. . . . . .

due to defendant No. 2; and

(b) that defendant No. 1 do pay into Court on or before the. . . . . . .day of. . . . . . or any later date up to which time for payment has been extended by the Court the said sum of. Rs. . . . . . .due to the plaintiff; and

(ii) that, on payment of the sum declared due to defendant No. 2 by the plaintiff and defendant No. 1 or either of them in the manner prescribed in clause (i) (a) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, or Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, defendant No. 2 shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff or defendant No. 1 (whoever has made the payment), or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by defendant No. 2 or any person claiming under him or any person under whom he claims, and also free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff or defendant No. 1 (whoever has made the payment) quiet and peaceable possession of the said property.

(Similar declarations to be introduced, if defendant No. 1 pays the amount found or declared due to the plaintiff with such variations as may be necessary having regard to the nature of his mortgage.)

  1. And it is hereby further ordered and decreed that, in default of payment as aforesaid, of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court that the suit be dismissed or for a final decree—
  • [468][in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is foreclosure and not sale] that the plaintiff and defendant No. 1 jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall; if so required, deliver to the defendant No. 2 quiet and peaceable possession of the said property; or
  • [469][in the case of any other mortgage] that the mortgaged property or a sufficient part thereof shall be sold; and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and
  • [470][in the case where a sale is ordered under clause 4(ii) above] that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to defendant No. 2 under the decree and any further orders that may be passed in this suit and in payment of the amount which the Court may adjudge due to defendant No. 2 in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under rule 10, together with such subsequent interest as may be payable under rule 11, or Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908; and that the balance, if any, shall be applied in payment of the amount due to the plaintiff and that, if any balance be left, it shall be paid to defendant No. 1 or other persons entitled to receive the same; and
  • that, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to defendant No. 2 and the plaintiff, defendant No. 2 or the plaintiff or both of them, as the case may be, shall be at liberty (when such remedy is open under the terms of their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amounts remaining due to them respectively.
  1. And it is hereby further ordered and decreed,—

(a) that, if the plaintiff pays into Court to the credit of this suit the amount adjudged due to defendant No. 2 but defendant No. 1 makes default in the payment of the said amount, the plaintiff shall be at liberty to apply to the Court to keep defendant No. 2’s mortgage alive for his benefit and to apply for a final decree (in the same manner as the defendant No. 2 might have done under clause 4 above)—

[471][(i) that defendant No.1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property]; or

[472][(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgage property;] and

(b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff’s mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.

  1. And it is hereby further ordered and decreed (in the case where a sale is ordered under clause 5 above)—

(i) that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount paid by the plaintiff in respect of defendant No. 2’s mortgage and the costs of the suit in connection therewith and in payment of the amount which the Court may adjudge due in respect of subsequent interest on the said amount; and that the balance, if any, shall then be applied in payment of the amount adjudged due to the plaintiff in respect of his own mortgage under this decree and any further orders that may be passed and in payment of the amount which the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No. 1 or other persons entitled to receive the same; and

(ii) that, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of the defendant No. 2’s mortgage or the plaintiff’s mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amount of the balance.

  1. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 11

Preliminary Decree for Sale

[Plaintiff Sub or derivative mortgage

vs.

Defendant No. 1 Mortgagor,

Defendant No. 2 Original Mortgagee.]

(Order XXXIV, Rule 4)

(Title)

This suit coming on this. . . . . . . . . day, etc; It is hereby declared that the amount due to defendant No. 2 on his mortgage calculated up to this. . . . . . day of. . . . . . is the sum of Rs. . . for principal, the sum of Rs. . . . . .

for interest on the said principal, the sum of Rs. . . . . . for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon and the sum of Rs. . . . . . for the costs of the suit awarded to defendant No. 2, making in all the sum of Rs. . . . . . . . . . . . . . . . . . . . . . . . .

(Similar declarations to be introduced with regard to the amount due from defendant No. 2 to the plaintiff in respect of his mortgage.)

  1. And it is hereby ordered and decreed as follows:—

(i) that defendant No. 1 do pay into Court on or before th said. . . .day of. . . . . . or any later date of up to which time for payment may be extended by the Court the said sum of Rs. . . . . . . . . due to defendant No. 2;

(Similar declarations to be introduced with regard to the amount due to the plaintiff, defendant No. 2 being at liberty to pay such amount.)

  • that, on payment of the sum declared due to defendant No. 2 by defendant No. 1 in the manner prescribed in clause 2(i) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, or Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff and defendant No. 2 shall bring into Court all documents in their possession or power relating to the mortgaged property in the plaint mentioned, and all such documents (except such as relate only to the sub-mortgage) shall be delivered over to defendant No. 1, or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the property to defendant No. 1 free from the said mortgage clear of and from all incumbrances created by defendant No. 2 or any person claiming under him or any person under whom he claims, and free from all liability arising from the mortgage or this suit and shall, if so required, deliver up to defendant No. 1 quiet and peaceable possession of the said property; and
  • that, upon payment into the Court by defendant No. 1 of the amount due to defendant No. 2 the plaintiff shall be at liberty to apply for payment to him of the sum declared due to him together with any subsequent costs of the suit and other costs, charges and expenses, as may be payable under rule 10, together with such subsequent interests as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908; and that the balance, if any, shall then be paid to defendant No. 2; and that if the amount paid into the Court be not sufficient to pay in full the sum due to the plaintiff, the plaintiff shall be

at liberty (if such remedy is open to him by the terms of the mortgage and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 2 for the amount of the balance.

  1. And it is further ordered and decreed that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, the plaintiff shall bring into the Court all documents, etc, [as in sub-clause (ii) of the clause 2.].
  1. And it is hereby further ordered and decreed that, in default of payment by defendant Nos. 1 and 2 as aforesaid, the plaintiff may apply to the Court for a final decree for sale, and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and that for the purposes of such sale the plaintiff and defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in their possession or power relating to the mortgaged property.
  1. And it is hereby further ordered that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount due to the plaintiff as specified in clause 1 above with such costs of the suit and other costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any shall be applied in payment of the amount due to defendant No. 2; and that, if any balance be left, it shall be paid to defendant No.1 or other persons entitled to receive the same.
  1. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be; sufficient for payment in full of the amounts payable to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2, or both of them, as the case may be, shall be at liberty (if such remedy is open under their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 2 or defendant No. 1 (as the case may be) for the amount of the balance.
  1. And it is hereby further ordered and decreed that, if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in payment of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court for a final decree for foreclosure or sale (as the case may)—(declarations in the ordinary form to be introduced according to the nature of defendant No. 2’s morgage and the remedies open to him thereunder).
  1. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

No. 12

Decree for Rectification of Instrument

(Title)

It is hereby declared that the. . . . . . , dated the. . . . . . . . . day of. . . . . . . 19. . . . ., does not truly express the intention of the parties to such

And it is decreed that the said. . . . . . rectified by

No. 13

DECREE TO SET ASIDE A TRANSFER IN FRAUD OF CREDITORS

(Title)

It is hereby declared that the. . . . . . , . . . . . . . . dated the . . . . . . .day of. . . .19. . . . . ., and made between and. . . . . . is void as against the plaintiff and all other the creditors, if any, of the defendant

No. 14

Injunction Against Private Nuisance

(Title)

Let the defendant. . . . . . , his agents, servants and workmen, be perpetually restrained from burning, or causing to be burnt, any bricks on the defendant’s plot of land marked B in the annexed plan, so as to occasion a nuisance to the plaintiff as the owner or occupier of the dwelling-house and garden mentioned in the plaint a belonging to and being occupied by the plaintiff.

No. 15

Injunction against Building Higher than Old Level

(Title)

Let the defendant. . . ., his contractors, agents and workmen, be perpetually restrained from continuing to erect upon his premises in. . . . . . any house or building of a greater height than the buildings which formerly stood upon his said premises and which have been recently pulled down, so or in such manner as to darken, injure or obstruct such of the plaintiff’s windows in his said premises as are ancient lights.

No. 16

Injunction Restraining Use of Private Road

(Title)

Let the defendant. . . . . . . . . , his agents, servants and workmen, be perpetually restrained from using or permitting to be used any part of the lane at. . . . . . . . . , the soil of which belongs to the plaintiff, as a carriage-way for the passage of carts, carriages or other vehicles, either going to or from the land marked B in the annexed plan or for any purpose whatsoever.

No. 17

Preliminary Decree in an Administration-Suit

(Title)

It is ordered that the following accounts and inquiries be taken and made; that is to say—

In creditor’s suit—

  1. That an account be taken of what is due to the plaintiff and all other the creditors of the deceased. In suits by legatees—
  1. That an accounts be taken of the legacies given by the testator’s will,

In suits by next-of-kin—

  1. That an inquiry be made and account taken of what or of what share, if any, the plaintiff is entitled to as next-of-kin [or one of the next-of-kin] of the intestate.
[After the first paragraph, the decree will, where necessary, order, in a creditor’s suit, inquiry and accounts for legatees, heirs-at-law and next-of-kin. In suits by claimants other than creditors, after the first paragraph, in all cases, an order to inquire and take an account of creditors will follow the first paragraph and such of the others as may be necessary will follow, omitting the first formal words. The form is continued as in a creditor’s suit.]
  1. An account of the funeral and testamentary expenses.
  1. An account of the movable property of the deceased come to the hands of the defendant, or to the hands of any other person by his order or for his use.
  1. An inquiry what part (if any) of the movable property of the deceased is outstanding and undisposed of.
  1. And it is further ordered that the defendant do, on or before the. . . . . . day of. . . . . . next, pay into, Court all sums of money which shall be found to have come to his hands, or to the hands of any person by his order or for his use.
  1. And that if the. . . . . . [473]shall find it necessary for carrying out the objects of the suit to sell any part of the movable property of the deceased that the same be sold accordingly, and the proceeds paid into Court.
  1. And that Mr. E.F. be receiver in the suit (or proceeding) and receive and get in all outstanding debts and outstanding movable property of the deceased, and pay the same into the hands of the . . . . . . 1(and shall give security by bond for the due performance of his duties to the amount. . . . . . . . . .rupees)
  1. And it is further ordered that if the movable property of the deceased be found insufficient for carrying out the objects of the suit, then the following further inquiries be made, and accounts taken, that is to say—
  • an inquiry what immovable property the deceased was seized of or entitled to at the time of his death;
  • an inquiry what are the incumbrances (if any) affecting the immovable property of the deceased or any part thereof;
  • an account, so far as possible, of what is due to the several incumbrancers, and to include a statement of the priorities of such of the incumbrancers as shall consent to the sale hereinafter directed.
  1. And that the immovable property of the deceased, or so much thereof as shall be necessary to make up the fund in Court sufficient to carry out the object of the suit, be sold with the approbation of the Judge, free from incumbrances (if any) of such incumbrancers as shall consent to the sale and subject to the incumbrances of such of them as shall not consent.
  1. And it is ordered that G.H. shall have the conduct of the sale of the immovable property, and shall

prepare the conditioins and contacts of sale subject to the approval of the. . . . . .[474] and that in case any doubt or difficulty shall arise the papers shall be submitted to the Judge to settle.

  1. And it is further ordered that, for the purpose of the inquiries hereinbefore directed, . . the . . . . . . . 1.shall advertise in the newspapers according to the practice of the Court, or shall make such inquiries in any other way which shall appear to the . . . . . . . . .1to give the most useful publicity to such inquiries.
  1. And it is ordered that the above inquiries and accounts be made and taken, and that all other acts ordered to be done be completed, before the day of . . . . . . . and that the . . . . . . . .1do certify the result of the injuries, and the accounts, and that all other acts ordered are completed, and have his certificate in that behalf ready for the inspection of the parties on the day of
  1. And, lastly, it is ordered that this suit [or proceedings] stand adjourned for making final decree to the day of
[Such part only of this decree is to be used as is applicable to the particular case.]

No. 18

Final Decree in an Administration-Suit by a Legatee

(Title)

  1. It is ordered that the defendant. . . .do, on or before the. . . . . . .day of. . . . . . ., pay into Court the sum of Rs. . . . . . ., the balance by the said certificate found to be due from the said defendant on account of the estate of. . . . . . . . . . . ., the testator and also the sum of Rs. . . . . . for interest, at the rate of Rs. . . . . . .per cent per annum, from the. . . .day of. . . . . . to the. . . .day of. . . ., amounting together to the sum of Rs. . . . . .

. . . . . .

  1. Let the. . . . . . . . . 1 of the said Court tax the costs of the plaintiff and defendant in this suit, and let the amount of the said costs, when so taxed, be paid out of the said sum of Rs. . . . . . . . . . . . ordered to be paid into Court as aforesaid, as follows:—

(a) The costs of the plaintiff to Mr. . . . . . ., his attorney [or pleader] or and the costs of the defendant to Mr. . .

. . . , his attorney [or pleader].

(b) And (if any debts are due) with the residue of the said sum of Rs. . . . . . after payment of the plaintiff’s and defendant’s costs as aforesaid let the sums, found to be owing to the several creditors mentioned in the,.

. . . . . .schedule to the certificate, of the. . . . . . .1 together with subsequent interest on such of the debts as bear interest, be paid; and, after making such payments, let the amount coming to the several legatees mentioned in the schedule, together with subsequent interest (to be verified as aforesaid), be paid to them.

  1. And if there should then be any residue, let the same be paid to the residuary legatee.

No. 19

Preliminary Decree in an Administration-Suit by a Legatee, where an Executor is held Personally Liable for the Payment of Legacies

(Title)

  1. It is declared that the defendant is personally liable to pay the legacy of Rs. . . . . . bequeathed to the plaintiff.
  1. And it is ordered that an account be taken of what is due for principal and interest on the said legacy.
  1. And it is also ordered that the defendant do, within. . . .weeks after date of the certificate of the. . . . . .
[475] pay to the plaintiff the amount of what the. . . . . . shall certify to be due for principal and interest.

  1. And it is ordered that the defendant do pay the plaintiff his cost of suit, the same to be taxed in case the parties differ.

No. 20

Final Decree in an Administration-Suit by Next-of-Kin

(Title)

  1. Let the. . . . . . .1 of the said Court tax the costs of the plaintiff and defendant in this suit, and let the amount of the said plaintiff’s costs, when so taxed, be paid by the defendant to the plaintiff out of the sum of Rs. . . . . . , the balance by the said certificate found to be due from the said defendant on account of the personal estate of E.F., the intestate, within one week after the taxation of the said costs by the said . . . . . . .

. . 1, and let the defendant retain for her own use out of such sum her costs, when taxed.

  1. And it is ordered that the residue of the said sum of Rs. . . . . . after payment of the plaintiff’s and defendant’s costs as aforesaid, be paid and applied by defendant as follow:—
  • Let the defendant, within one week after the taxation of the said costs by the. . . . . . 1as aforesaid, pay one-third share of the said residue to the plaintiffs A.B., and C.D., his wife, in her right as the sister and one of the next-of-kin of the said E.F., the instestate.
  • Let the defendant retain for her own use one other third share of said residue, as the mother and one of the next-of-kin of the said E.F., the intestate.
  • And let the defendant, within one week after the taxation of the said costs by the . . . . . . . . . .1as aforesaid, pay the remaining one-third share of the said residue to G.H., as the brother and the other next-of-kin of the said E.F., the intestate.

No. 21

Preliminary Decree in a Suit for Dissolution of Partnership and the Taking of

Partnership Accounts

(Title)

It is declared that the proportionate shares of the parties in the partnership are as follows:—

It is declared that this partnership shall stand dissolved [or shall be deemed to have been dissolved] as from the. . . .day of. . . . . . ., and it is ordered that the dissolution thereof as from that day be advertised in the . . . .

. . .Gazette, etc.

And it is ordered that. . . . . . be the receiver of the partnership-estate and effects in this suit and do get in all the outstanding book-debts and claims of the partnership.

And it is ordered that the following accounts be taken:—

  1. An account of the credits, property and effects now belonging to the said partnership;
  1. An account of the debts and liabilities of the said partnership;
  1. An account of all dealings and transactions between the plaintiff and defendant, from the foot of the settled account exhibited in this suit and marked (A), and not disturbing any subsequent settled accounts.

And it is ordered that the goodwill of the business heretofore carried on by the plaintiff and defendant as in the plaint mentioned, and the stock-in-trade, be sold on the premises, and that the. . . . . . Here insert name of proper officer.

may, on the application of any of the parties, fix a reserved bidding for all or any of the lots at such sale, and that either of the parties is to be at liberty to bid at the sale.

And it is ordered that the above accounts be taken, and all the other acts required to be done be completed, before the . . . . . . . . . .day of. . . . . . ., and that the. . . . . . . . . 1 do certify the result of the accounts, and that all other acts are completed, and have his certificate in that behalf ready for the inspection of the parties on the. . . . . . . . . day of. . . . . . .

And, lastly, it is ordered that this suit stand adjourned for making a final decree to the . . . . . . . . . .day of . . . .

. . . . . . . . .

No. 22

Final Decree in a Suit for Dissolution of Partnership and the Taking of

Partnership Accounts

(Title)

It is ordered that the fund now in Court, amounting to the sum of Rs. . . , be; applied as follows:—

  1. In payment of the debts due by the partnership set forth in the certificate of the. . . . . .. . 1amounting in the whole to Rs.. . . . . . . . . . . .
  1. In payment of the costs of all parties in this suit, amounting to Rs. . . . . . . . . . . . . .
[These costs must be ascertained before the decree is drawn up.]
  1. In payment of the sum of Rs. . . . . . to the plaintiff as his share of the partnership-assets, of the sum of Rs.

. . . . . ., being the residue of the said sum of Rs. . . .now in Court to the defendant as his share of the partnership-assets.

[Or, And that, the remainder of the said sum of Rs. . . .be paid to the said plaintiff (or defendant) in part payment of the sum of Rs. . . . . . certified to be due to him in respect of the partnership-accounts.]
  1. And that the defendant [or plaintiff] do on or before the. . . .day of. . . . . . pay to the plaintiff [or defendant] the sum or Rs. . . . . . being the balance of the said sum of Rs. . . . . . due to him, which will then remain due.

No. 23

Decree for Recovery of Land and Mesne Profit

(Title)

It is hereby decreed as follows:—

  1. that the defendant do put the plaintiff in possession of the property specified in the schedule hereunto annexed.

2.That the defendant do pay to the plaintiff the sum of Rs. . . .with interest thereon at the rate of. . . . . . .per cent per annum to the date of realization on account of mesne profits which have accrued due prior to the institution of the suit.

Or

  1. That an inquiry be made as to the account of mesne profits which have accrued due prior to the institution of the suit.
  1. That an inquiry be made as to the amount of mesne profits from the institution of the suit until [the delivery of possession to the decree-holder] [the relinquishment of possession by the judgment-debtor with notice to the decree -holder through the Court] [the expiration of three years from the date of the decree].

Schedule

APPENDIX E

EXECUTION

No. 1

Notice to Show Cause Why a Payment or Adjustment should not be Recorded as Certified

(O 21, R. 2)

(Title)

Whereas in execution of the decree in the above-named suit. . . . . . .has applied to this Court that the sum of Rs. . . . . . recoverable under the decree has been paid/adjusted and should be recorded as certified, this is to give you notice that you are to appear before this Court on the. . . . . . . . . day of . . . . . . . . . 19. . . . . . ., to show cause why the payment/adjustment aforesaid

should not be recorded as certified.

Given under my hand and the seal of the Court, this. . . . . . .day of 19.

No. 2

Precept

(Section 46)

(Title)

Upon hearing the decree-holder it is ordered that this precept be sent to the Court of. . . . . . . . . .at. . . . . . . . .

. . . under section 46 of the Code of Civil Procedure, 1908, with directions to attach the property specified in the annexed schedule and to hold the same pending any application which may be made by the deree-holder for executive of the decree.

No. 3

Order Sending Decree for Execution to another Court

(O. 21, R. 6)

(Title)

Whereas the decree-holder in the above suit has applied to this Court for a certificate to be sent to the Court of. . . . . . . . at . . . . . . . for execution of the decree in the above suit by the said Court, alleging that the judgment-debtor resides or has property within the local limits, of the jurisdiction of the said Court, and it is deemed necessary and proper to send a certificate to the said Court under Order XXI, rule 6, of the Code of Civil Procedure, 1908, it is

Ordered :

That a copy of this order be sent to . . . . . . . . with a copy of the decree and of any order which may have been made for execution of the same and a certificate of non-satisfaction.

Dated the . . . . . . . . . day of . . . . . . . 19 . . . .,

Judge

No. 4

Certificate of Non-Satisfaction of Decree

(O. 21, R. 6.)

(Title)

Certified that no[476] satisfaction of the decree of this Court in suit No. . . . . . . . of 19 . . . ., a copy which is hereunto attached, has been obtained by execution within the jurisdiction of this Court.

Dated the . . . . . . . . . day of . . . . . . . 19 . . . .,

Judge

No. 5

Certificate of Execution of Decree Transferred to Another Court (O. 21, R. 6)

(Title)

No of suitn and the Court by which decree was passed Name of parties

Date of application for execution Number of the execution case

Processesissued and dates of services thereof Costs of execution

Amount realized

How the case is disposed of Remarks

1

2

3

4

5

6

7

8

9

Rs.

a.

p.

Rs.

a.

p.

Signature of Maharir incharge Signature of Judge No. 6

Application for Execution of Decree (O. 21, R. 11)

In the Court of

I . . . . . . , decree-holder, hereby apply for execution of the decree herein-below set forth : No. of Suit

217

Name of parties

Date of Decree

Whether any appeal preferred from decree

Payment of adjustment made, if any

Previous application, if any, with date and result

Amount with interest due upon the decree or other relief granted thereby together with particular, of any cross decree

Amount of costs, if any, awarded

Against whom to be executed

Mode in which the assistance of the Court is required.

1

2

3

4

5

6

7

8

9

10

789 of 1897

A.B.—Plaintiff

C.D.—Defendant

October 11, 1897

No.

None.

Rs.72-4-0 recorded on application dated the 4th March, 1899.

Rs. 314-8-2 principal[interest at 6 per cent, per annum, from date of decree till payment].

Rs. a. p.

As awarded in the decree 47 10 4

Subsequently incurred 8 2 0

Against the defendant C.D.

[When attachment and sale of movable property is sought.]

I pray that the total amount of Rs…………[together with interest on the principal sum up to date of payment] and the cost of taking out this execution, be realised by attachment and sale of defendant’s movable property as per annexed list and paid to me.

[When attachment and sale of immovable property is sought.]

I pray that the total amount of Rs……………[together with interest on the principal sum up to date of payment] and the cost of taking out this execution, be realised by attachment and sale of defendant’s immovable property specified at the foot of this application and paid to me.

I . . . . . . . declare that what is stated herein is true to the best of my knowledge and belief.

Signed. . . . . . . . . . . . . . . . . . ., decree-holder

Dated the . . . . . . . . . day of . . . . . . . 19 . . . .,

[When attachment and sale of immovable property is sought.]

Description and specification of property

The undivided one-third share of the judgment-debtor in a house situated in the village of . . . . . . , value Rs. 40, and bounded as follows :—

East by G’s house; west by H’s house; south by public road; north by private lane and J’s house.

I . . . . . . . declare that what is stated in the above description is true to the best of my knowledge and belief, and so far as I have been able to ascertain the interest of the defendant in the property therein specified.

Signed . . . . . . . . . . . . . . , decree-holder

No. 7

Notice to Show Cause Why Execution should not Issue

(O. 21, R. 16)

(Title)

To

Whereas . . . . . . . . . . . . . . has made application to this Court for execution of decree in Suit No. . . . . . . . . . .

of 19 . . . . ., on the allegation that the said decree has transferred to him by assignment [477][or without assignment], this is to give you notice that you are to appear before this Court . . . . . . . on the . . . . . . . . . day of . . . . . . . 19 . . . ., to show cause why execution should not be granted.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .

Judge.

No. 8

Warrant of Attachment for Movable Property in Execution of a Decree for Money

(O. 21, R. 30)

(Title)

To

The Bailiff of the Court,

Whereas . . . . . . . was ordered by decree of this Court passed on the day of . . . . . . .19 . . . ., in Suit No. . . . .

. . . of 19 . . . . . . ., to pay to the plaintiff. . . . . . . . . . . . . . the sum of Rs. . . . . . . . . . . . . . . as noted in the margin; and whereas the said sum of Rs. . . . . . . . has not been paid; These are to command you to attach the movable property of the said . . . . . . . . . , as set forth in the schedule hereunto annexed, or which shall be pointed out to you by the said . . . . . . . ., and unless the said . . . . . . . shall pay to you the said sum of Rs.

. . . . . . . together with Rs. . . . . . . . , the cost of this attachment, to hold the same until further orders from this Court.

You are further commanded to return this warrant on or before the . . . . . . . . . day of . . . . . . . 19 . . . ., with an endorsement certifying the day on which and manner in which it has been executed, or why it has not been executed.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .,

Schedule

Judge.

Decree

Principal

Interest

Costs

Further interest

Total

No. 9

Warrant for Seizure of Specific Movable Property Adjudged by Decree

(O. 21, R. 31)

(Title)

To

The Bailiff of the Court.

Whereas . . . . . . . was ordered by decree of this Court passed on the . . . . . . . . . day of . . . . . . . 19 . . . ., in Suit No. . . . . . . . of 19. . . ., to deliver to the plaintiff the movable property (or a . . . . . . . share in the movable property) specified in the schedule hereunto annexed, and whereas the said property (or share) has not been delivered.

These are to command you to seize the said movable property (or a . . . . . . . share of the said movable property) and to deliver it to the plaintiff or to such person as he may appoint in this behalf.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .,

Schedule

Judge

.

No. 10

Notice to State Objection to Draft of Document

(O. 21, R. 34)

(Title)

To

Take notice that on the . . . . . . . . . day of . . . . . . . 19 . . . ., . . . . . . . the decree-holder in the above suit presented an application to this Court that the Court may execute on your behalf a deed of . . . . . . ., whereof a draft is hereunto annexed, of the immovable property specified hereunder, and that the . . . . . . . . . day of .

. . . . . . 19 . . . ., is appointed for the hearing of the said application, and that you are at liberty to appear on the said day and to state in writing any objections to the said draft.

Description of property

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .,

Judge.

No. 11

Warrant to the Belief to Give Possession of Land, etc.

(O. 21, R. 35)

(Title)

To

The Bailiff of the Court.

Whereas the undermentioned property in the occupancy of . . . . . . . . . . . . . . has been decreed to . . . . . . . , the plaintiff in this suit; You are hereby directed to put the said . . . . . . . . . . . . . . in possession of the same, and you are hereby authorized to remove any person bound by the decree who may refuse to vacate the same.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .,

Schedule

Judge.

No. 12

Notice to Show Cause Why Warrant of Arrest should not Issue

(O. 21, R. 37)

(Title)

To

Whereas . . . . . . . . has made application to this Court for execution of decree in Suit No. . . . . . ., of 19 . . . .

., by arrest and imprisonment of your person, you are hereby required to appear before this Court on the . . .

. . . . . . day of . . . . . . . 19 . . . ., to show cause why you should not be committed to the civil prison in execution of the said decree.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .,

Judge.

No. 13

Warrant of Arrest in Execution

(O. 21, R. 38)

(Title)

To

The Bailiff of the Court.

Whereas . . . . . . . . . was adjudged by a decree of the Court in suit No. . . . . . . of 19 . . . ., dated the . . . . . . .

. . day of . . . . . . . 19 . . . ., to pay to the decree-holder the sum of Rs. . . . . . . as noted in the margin, and whereas the said sum of Rs. . . . . . has not been paid to the said decree-holder in satisfaction of the said decree, these are to command you to arrest the said judgment-debtor and unless the said judgment-debtor shall pay to you the said sum of Rs. . . . . . . . together with Rs. . . . . . . . for the cost of executing this process, to bring the said defendant before the Court with all convenient speed.

You are further commanded to return this warrant on or before the . . . . . . . . . day of . . . . . . . 19 . . . .,with an endorsement certifying the day on which and manner in which it has been executed, or the reason why it has not been executed.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .,

Judge.

Decree

Principal

221

Interest

Costs

Execution

Total

No. 14

Warrant of Commital of Judgment-Debtor to Jail

(O. 21, R. 40)

(Title)

To

The Officer in charge of the Jail at

Whereas . . . . . . . who has been brought before this Court this . . . . . . . . . day of . . . . . . . . . 19 . . . ., under a warrant in execution of a decree which was made and pronounced by the said Court on the . . . . . . . . . day of . . . . . . . 19 . . . ., and by which decree it was ordered that the said . . . . . . . should pay . . . . . . . ; And whereas the said . . . . . . . has not obeyed the decree nor satisfied the Court that he is entitled to be discharged from custody; You are hereby commanded and required to take and receive the said . . . . . . .

into the civil prison and keep him imprisoned therein for a period not exceeding . . . . . . . or until the said decree shall be fully satisfied, or the said . . . . . . . . . . shall be otherwise entitled to be released according to terms and provisions of Section 58 of the Code of Civil Procedure, 1908; and the Court does hereby fix [478]* * * per diem as the rate of the monthly allowance for the subsistence of the said . . . . . . . during his confinement under this warrant of committal.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .,

Judge.

No. 15

Order for the Release of a Person Imprisoned in Execution of a Decree

(Sections 58, 59)

(Title)

To

The Officer in charge of the Jail at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Under orders passed this day, you are hereby directed to set free . . . . . . . judgment-debtor now in your custody.

dated. . . . . . . . . . . . .

Judge.

No. 16

Attachment in Execution Prohibitory Order, where the Property to be

Attached Consists of Movable Property to which the Defendant is

Entitled Subject to a lien or Right of some other Person to the

Immediate Possession thereof

(O. 21, R. 46)

(Title)

To

Whereas . . . . . . . . . . . . . . has failed to satisfy a decree passed against . . . . . . . on the . . . . . . . . . day of . .

. . . . . 19 . . . ., in Suit No. . . . . . . . . . . . of 19 . . . . ., in favour of . . . . . . . for Rs. . . . . . . . ; It is ordered that the defendant be, and is hereby, prohibited and restrained until the further order of this Court, from receiving from . . . . . . . the following property in the possession of the said, . . . . . . . that is to say, . . . . . ., to which the defendant is entitled, subject to any claim of the said . . . . . . ., and the said . . . . . . . is hereby prohibited and restrained, until the further order of this Court, from delivering the said property to any person or persons whomsoever.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .,

Judge.

[479][No. 16A

Affidavit of Assets to be made by a Judgment-debtor

Order XXI, Rule 41(2)]

In the Court of

A.B . . . . . . . . . Decree-holder.

vs.

C . . . . . . . . Judgment-debtor.

I . . . . . . . . . . . . . . . . . . . . . . . of

state onEroman{{oath} over {solemn affirmation}} as follows:—

  1. My full name is . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,

(Block Capitals)

  1. I live at

*3. I am married/single/widower (widow)/divorced

  1. The following persons are dependant upon me:—
  1. My employment, trade or profession is that of carried on by me at I am a director of the following companies:—
  1. My present annual/monthly/weekly income, after paying income-tax, is as follows:—

(a) From my employment, trade or profession Rs.

(b) From other sources Rs.

*7. (a) I own the house in which I live; its value is Rs.

I pay as outgoings by way of rates, mortgage, interest, etc., the annual sum of Rs.

(b) I pay as rent the annual sum of Rs. . . . . . . .

  1. I possess the following:—

(a) Banking accounts;

(b) Stocks and shares;

(c) Life and endowment policies; Give particulars.

(d) House property;

(e) Other property;

(f) Other securities;

  1. The following debts are due to me:—C0

(give particulars)

(a) Form . . . . . . . of . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rs.

(b) From . . . . . . .of . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rs. . . . . . . .(etc.)

Sworn before me, etc.]

No. 17

Attachment in Execution Prohibitory Order, where the Property Consists of

Debts not Secured by Negotiable Instruments

(O. 21, R. 46)

(Title)

To

Whereas. . . . . . .has failed to satisfy a decree passed against . . . . . . . . . on the . . . . . . . . . day of . . . . . . . .

. 19. . ., in Suit No. . . . . . . . . . of 19 . . . . . . . , in favour of until the further order of this Court, from receiving from you a certain debt alleged now to be due from you to the said defendant, namely, . . . . . . . . . and that you, the said . . . . . . . . . be, and you are hereby, prohibited and restrained, until the further order of this Court, from making payment of the said debt, or any part thereof, to any person whomsoever or otherwise than into this Court.

Given under my hand and the seal of the Court, this . . . . . . . . . day of 19 . . .

Judge.

No. 18

Attachment in Execution Prohibitory Order, where the Property Consists of

Shares in the Capital of a Corporation

(O. 21, R. 46)

(Title)

To

Defendant and to . . . . . . . . . , Secretary of Corporation

Whereas . . . had failed to satisfy a decree passed against . . . on the . . . day of. . . 19 . . . , in Suit No. . . . . .

. . . . of 19 . . . . . , in favour of. . . , for Rs. . . . . ; It is ordered that you, the defendant, be, and you are hereby, prohibited and restrained, until the further order of the Court, from making any transfer of. . . . shares in the aforesaid corporation, namely, . . . . or from receiving payment of any dividends thereon; and you, . . . , the Secretary of the said Corporation, are hereby prohibited and restrained from permitting any such transfer or making any such payment.

Given under my hand and the seal of the Court, this . . . . . day of . . . . . . . . 19. . . . .

Judge.

No. 19

Order to Attach Salary of Public Officer or Servant of Railway

Company or Local Authority

(O. 21, R. 48)

(Title)

To

Whereas . . . . . . . . . , judgment-debtor in the above-named case, is a (describe officer of judgment-debtor) receiving his salary (or allowances) at your hands; and whereas . . . . . . . . . , decree-holder in the said case, has applied in this Court for the attachment of the salary (or allowances) of the said . . . . . . . . to the extent of

. . . . . . . . due to him under the decree; You are hereby required to withhold the said sum of. . . . . . . . . . from the salary of the said . . . . . . . . . in monthly instalments of . . . . . . . . and to remit the said sum (or monthly instalments) to this Court.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . 19. . .

Judge.

No. 20

Order of Attachment of Negotiable Instrument

(O. 21, R. 51)

(Title)

To

The Bailiff of the Court.

Whereas an order has been passed by this Court on the . . . . . day of . . . . . . . . . 19 . . ., for the attachment of . . . ; You are hereby directed to seize the said . . . . . . . . . and bring the same into Court.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19…

Judge.

No. 21

Attachment Prohibitory Order, where the Property Consists of Money or of

any Security in the Custody of a Court of Justice of Public Officer

(O. 21, R. 52).

(Title)

To

Sir,

The plaintiff having applied, under rule 52 of Order XXI of the Code of Civil Procedure, 1908, for an attachment of certain money now in your hands (here state how the money is supposed to be in the hands of the person addressed, on what account, etc.), I request that you will hold the said money subject to the further order of this Court.

I have the hounour to be,

Sir

Your most obedient Servant.

Judge.

Dated the . . . . . . . . . day of . . . . . . . . . 19…

No. 22

Notice of Attachment of a Decree to the Court which Passed it

(O. 21, R. 52.)

(Title)

To

The Judge of the Court of

Sir,

I have the honour to inform you that the decree obtained in your Court on the . . . . . . . . . day of . . . . . . . . .

  1. . . by . . . . . . . . . in Suit No. . . . . . . . . . of 1`9. . . , in which he was . . . . . . . . . and . . . . . . . . . was . . .

has been attached by this Court on the application of . . . . . . . . . , the . . . . . . . . . in the suit specified above. You are therefore requested to stay the execution of the decree of your Court until you receive an intimation from this Court that the present notice has been cancelled or until execution of the said decree is applied for by the holder of the decree now sought to be executed or by his judgment-debtor.

I have the honour, etc.

Judge.

Dated the . . . . . . . . . day of. . . 19. . .

No. 23

Notice of Attachment of a Decree to the Holder of the Decree

(O. 21, R. 53)

(Title)

To

Whereas an application has been made in this Court by the decree-holder in the above suit for the attachment of a decree obtained by you on the . . . . . . . . . day of . . . . . . . . 19 . . ., in the Court of . . . . . . . . .

in Suit No. . . . . . . . of 19 . . . , in which . . . . . . . . . was . . . . . . . . . and . . . . . . . . . was . . . . . . . . . It is ordered that you, the said . . . . . ., be, and you are hereby, prohibited and restrained, until the further order of this Court, from transferring or charging the same in any way.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . .

Judge.

No. 24

Attachment in Execution

Prohibitory Order, Where the Property Consists of Immovable Property

(O. 21, R. 54)

(Title)

To

Defendant

Whereas you have failed to satisfy a decree passed against you on the . . . . . . . . . day of . . . . . . . . . 19. . . .

., in Suit No. . . . . . . of 19. . . , in favour of . . . . . . . . . .for Rs. . . . . . .; It is ordered that you, the said . . . . . . .

. . , be, and you are hereby, prohibited and restrained, until the further order of the Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift or otherwise, and that all person be, and that they are hereby, prohibited from receivng the same by purchase, gift or otherwise.

[480] [It is also ordered that you should attend Court on the . . . . . . . . . day of . . . . . . . . . 19. . . to take notice of the date fixed for setting the terms of the proclamation of sale.]

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . . . . .

Schedule

Judge.

No. 25

Order for Payment to the Plaintiff, etc., of Money, etc., in the Hands of a Third Party

(O. 21, R. 56)

(Title)

To

Whereas the following property . . . . . . . . . has been attached in execution of a decree in Suit No. . . . . . . . . .

of . . . . . . . . . 19 . . . , passed on the . . . . . . . . . day of . . . . . . . . . 19. . . , in favour of . . . . . . . . . for Rs. . . . .

. . . . . . It is ordered that the property so attached, consisting of Rs. . . . . . . . . . in money and Rs. . . . . . . . . .

in currency-notes, or a sufficient part thereof to satisfy the said decree, shall be paid over by you, the said . .

. . . . . . . to

Given under my hand and the seal of the Court, this . . . . day of . . . . 19 . . .

Judge.

No. 26

Notice to Attaching Creditor

(O. 21, R. 58)

(Title)

To

Whereas . . . . . . . . . has made application to this Court for the removal of attachment on . . . . . . . .placed at your instance in execution of the decree in Suit No. . . . . . . . . . of . . . . . . . . . 19. . . , this is to give you notice to appear before this Court on . . . . . . . . . , the . . . . . . . . . day of . . . . . . . . . 19. . . . either in person or by a pleader of the Court duly instructed to support your claim, as attaching creditor.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . .

Judge.

No. 27

Warrant of Sale of Property in Execution of a Decree for Money

(O. 21, R. 66)

(Title)

To

The Bailiff of the Court.

These are to command you to sell by auction, after giving . . . . . . . . . days’ previous notice, by affixing the same in this Court-house, and after making due proclamation, the . . . . . . . . . . property attached under a warrant from this Court, dated the . . . . . . . . day of. . . 19. . . , in execution of a decree in favour of . . . . . . . . .

in Suit No. . . . . . . . . . of 19 . . ., or so much of the said property as shall realize the sum of Rs. . . . . ., being the . . . . . of the said decree and costs still remaining unsatisifed.

You are further commanded to retrun this warrant on or before the . . . . . . . . . day of . . . . 19. . . , with an endorsement certifying the manner in which it has been executed, or the reason why it has not been executed.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19 . . .

Judge.

No. 28

Notice of the Day Fixed for Setting a Sale Proclamation

(O. 21, R. 66)

(Title)

To

Judgment-debtor.

Whereas in the above-named suit . . . . . . . . . , the decree-holder, has applied for the sale of . . . . . . . . . ; you are hereby informed . . . . . . . . . that the . . . . . . . . . day of . . . . . . . . 19. . . . , has been affixed for setting the terms of the proclamation of sale.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . . .

Judge.

No. 29

Proclamation of Sale

(O. 21, R. 66)

(Title)

(1) Suit No. . . . . of 19. . . , decided by the . . . . . . . . . of . . . . . . . . . in which was plaintiff and was defendant—Notice is hereby given that, under rule 64 of Order XXI of the Code of Civil Procedure, 1908, an order has been passed by this Court for the sale of the attached property mentioned in the annexed schedule, in satisfaction of the claim of the decree-holder in the suit (1) mentioned in the margin, amounting with costs and interest up to date of sale to the sum of.

The sale will be by public auction, and the property will be put up for sale in the lots specified in the schedule. The sale will be of the property of the judgment-debtors above-named as mentioned in the schedule below; and the liabilities and claims attaching to the said property, so far as they have been ascertained, are those specified in the schedule against each lot.

In the absence of any order of postponement, the sale will be held by . . . . . . . . . at the monthly sale commencing at . . . . . . . . . o’clock on the . . . . . . . . . at . . . . . . . . . In the event, however, of the debt above specified and of the costs of the sale being tendered or paid before the knocking down of any lot, the sale will be stopped.

At the sale the public generally are invited to bid, either personally or by duly authorized agent. No bid by, or on behalf of, the judgment-creditors above-mentioned, however, will be accepted, nor will any sale to them be valid without the express permission of the Court previously given. The following are the further.

Conditions of sale

  1. The particulars specified in the schedule below have been stated to the best of the information of the Court, but the Court will not be answerable for any error, mis-statement or omission in this proclamation.
  1. The amount by which the biddings are to be increased shall be determined by the officer conducting the sale. In the event of any dispute arising as to the amount bid, or as to the bidder, the lot shall at once be again put up to auction.
  1. The highest bidder shall be declared to be the purchaser of any lot, provided always that he is legally qualified to bid, and provided that it shall be in the discretion of the Court or officer holding the sale to decline acceptance of the highest bid when the price offered appears so clearly inadequate as to make it advisable to do so.
  1. For reasons recorded, it shall be in the discretion of the officer conducting the sale to adjourn it subject always to the provisions of rule 69 of Order XXI.
  1. In the case of movable property, the price of each lot shall be paid at the time of sale or as soon after as the officer holding the sale directs, and in default of payment the property shall forthwith be again put up and re-sold.
  1. In the case of immovable property, the person declared to be the purchaser shall pay immediately after such declaration a deposit of 25 per cent. on the amount of his purchaser-money to the officer conducting the sale, and in default of such deposit the property and forthwith be put up again and re-sold.
  1. The full amount of the purchase-money shall be paid by the purchaser before the Court closes on the fifteenth day after the sale of the property, exclusive of such day, or if the fifteenth day be a Sunday or other holiday, then on the first office day after the fifteenth day.
  1. In default of payment of the balance of purchase-money within the period allowed, the property shall be re-sold after the issue of a fresh notification of sale. The deposit, after defraying the expenses of the sale, may, if the Court thinks fit, be forfeited to Government and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . . .

Judge.

Schedule of Property

Number of lot

Description of property to be sold, with the name of each owner where there are more judgment-debtors than one

The revenue assessed upon the estate or part of the estate, if the property to be sold is an interest in estate or a part of an estate paying revenue to Government

Detail of any encumbrances to which the property is liable

Claims, if any, which have been put forward to the property and any other known particular bearing on its nature and value

[481][The value of the property as state by the decree holder

The value of the property as stated by the judgment-debtor]

No. 30

Order on the Nazir for Causing Service of Proclamation of Sale

(O. 21, R. 66)

(Title)

To

The Nazir of the Court.

Whereas an order has been made for the sale of the property of the judgment-debtor specified in the schedule hereunder annexed, and whereas the . . . . . . . day of . .. . . . . 19. . ., has been fixed for the sale of the said property, . . . . copies of the proclamation of sale are by this warrant made over to you, and you are hereby ordered to have the proclamation published by beat of drum within each of the properties specified in the said schedule, to affix a copy of the said proclamation on a conspicuous part of each of the said properties and afterwards on the Court-house, and then to submit to this Court a report showing the dates on which and the manner in which the proclamations have been published.

Date the . . . . . . . . . day of. . . . . . . . . 19. . .

Schedule

Judge.

No. 31

Certificate by Officer Holding a Sale of the Deficiency of Price on a

Re-sale of Property by Reason of the Purchaser’s Default

(O. 21, R. 71)
(Title)
Certified that at the re-sale of the property in execution of the decree in the above-named suit, in
consequence of default on the part of. . . . . . . . . . . . ., purchase, there was a deficiency in the price of the
said property amounting to Rs …., and that the expenses attending such re-sale amounted to Rs. . . . . . . . . . ,
making a total of Rs. . . . . . . . . . , which sum is recoverable from the defaulter.

Dated the . . . . . . . . . day of . . . . . . . . . 19. . .

Officer holding the sale

No. 32

Notice to Person in Possession of Movable Property Sold in Execution

(O. 21, R. 79)

(Title)

To

Whereas . . . . . . . . . has become the purchaser at a public sale in execution of the decree in the above suit of . . . . . . . . . now in your possession, you are hereby prohibited from delivering possession of the said . . . . .

. . . . to any person except the said . . . . . . . . .

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19 . . .,

Judge.

No. 33

Prohibitory Order against Payment of Debts Sold in Execution to any

Other than the Purchaser

(O. 21, R. 79)

(Title)

To

and to . . . . . . . . .

Whereas . . . . . . . . . has become the purchaser at a public sale in execution of the decree in the above suit of . . . . . . . . . being debts due from you . . . . . . . . . to you . . . . . . . . . ; It is ordered that you . . . . . . . . . be, and you are hereby, prohibited from receiving, and you . . . . . . . . . from making payment of, the said debt to any person of or person except the said . . . . . . .

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . . .

Judge.

No. 34

Prohibitory Order against the Transfer of Share Sold in Execution

(O. 21, R. 79)

(Title)

To

. . . . . . . . . and . . . . . .. . . . . . . . . , Secretary of . . . . . .. . . . . . . . . . . . . . . .. . . . . Corporation.

Whereas . . . . . . . . . has become the purchaser at a public sale in execution of the decree, in the above suit, of certain shares in the above Corporation, that is to say, of . . . . . . . . . standing in the name of you . . . . . . . .

. ; It is ordered that you . . . . . . . . . be, and you are hereby, prohibited from making any transfer of the said

shares to any person except the said . . . . . . . . . , the purchaser aforesaid, or from receiving any dividends thereon; and you . . . . . . . . . , Secretary of the said Corporation, from permitting any such transfer or making any such payment to any person except the said . . . . . . . . . , the purchaser aforesaid.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19 . . . ,

Judge.

No. 35

Certificate to Judgment-debtor Authorising him to Mortgage Lease or Sell Property

(O. 21, R. 83)

(Title)

Whereas in execution of the decree passed in the above suit an order was made on the . . . . . . . . . day of . .

. . . . . . . 19. . . , for the sale of the under-mentioned property of the judgment-debtor . . . . . . . . . , and whereas the Court has, on the application of the said judgment-debtor, postponed the said sale to enable him to raise the amount of the decree by mortgage, lease or private sale of the said property or of some part thereof:

This is to certify that the Court doth hereby authorize the said judgment-debtor to make the proposed mortgage, lease or sale within a period of . . . . . . . . . from the date of this certificate; provided that all monies payable under such mortgage, lease or sale be paid into this Court and not to the said judgment-debtor.

Description of property

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . . .

Judge.

No. 36

Notice to Show Cause Why Sale should not be Set Aside

(O. 21, R. 90, 92)

(Title)

To

Whereas the under-mentioned property was sold on the . . . . . . day of . . . . . . . . . 19 . . ., in execution of the decree passed in the abovenamed suit, and whereas . . . . . . . . . , the decree-holder [or judgement-debtor], has applied to this Court to set aside the sale of the said property on the ground of a material irregularity [or fraud] in publishing [or conducting] the sale, namely, that . . . . . . . . .

Take notice that if you have any cause to show why the said application should not be granted, you should appear with your proofs in this Court on the . . . . . . . . . day of . . . . . . . . . 19 . . ., when the said application will be heard and determined.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19 . . .

Description of property

Judge.

No. 37

Notice to Show Cause Why Sale should not be Set Aside

(O. 21, R. 91, 92)

(Title)

To

Whereas . . . . . . . . . , the purchaser of the under-mentioned property sold on . . . . . . . . the day of . . . . . . . . .

19 . . ., in execution of the decree passed in the above-named suit, has applied to this Court to set aside the sale of the said property on the ground that . . . . . . . . . , the judgment-debtor, had no saleable interest therein.

Take notice that if you have any cause, to show why the said application should not be granted, you should appear with your proofs in this Court on the . . . . . . . . . day of . . . . . . . . . 19 . . . ., when the said application will be heard and determiend.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19 . . .

Description of property

Judge.

No. 38

Certificate of Sale of Land

(O. 21, R. 94)

(Title)

This is to certify that . . . . . . . . . has been declared the purchaser at a sale by public auction on the . . . . . . . .

. day of . . . . . . . . . 19 . . ., of . . . . in execution of decree in this suit, and that the said sale has been duly confirmed by this Court.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . . .

Judge.

No. 39

Order for Delivery to Certified Purchaser of Land at a Sale in Execution

(O. 21, R. 95)

(Title)

To

The Bailiff of the Court,

Whereas . . . . . . . . . . . . . . . . . . has become the certified purchaser . . . . . . . of . . . . . . . at a sale in execution of decree in Suit No. . . . . . . . . . of . . . . . . . . . 19 . . . ; You are hereby ordered to put the said . . . .

. . . . . , the certified purchaser, as aforesaid, in possession of the same.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . .

Judge.

No. 40

Summons to Appear and Answer Charge of Obstructing Execution of Decree

(O. 21, R. 97)

(Title)

To

Whereas . . . . . . . . . . . . . . . . . . the decree-holder in the above suit, has complained to this Court that you have resisted (or obstructed) the officer charged with the execution of the warrant for possession:

You are hereby summoned to appear in this Court on the . . . . . .. . . . . . . . day of . . . . . . . . 19. . . . ., at . . . .

a.m., to answer the said complaint.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. .

Judge.

No. 41

Warrant of Committal

(O. 21, R. 98)

(Title)

To

The officer in charge of the Jail at. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Whereas the under-mentioned property has been decreed to . . . . . . . . . , the plaintiff in this suit, and whereas the Court is satisfied that . . . . . . . . . without any just cause resisted [or obstructed] and is still resisting [or obstructing] the said . . . . . . . . . in obtaining possession of the property, and whereas the said . .

. . . . . . . . . . has made application to this Court that he said . . . . . . . . . be committed to the civil prison;

You are hereby commanded and required to take and receive the said . . . . . . . . . into the civil prison and to keep him imprisoned therein for the period of . . . . . . . . . days.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19 . . .

Judge.

No. 42

Authority of the Collector to Stay Public Sale of Land

(Section 72)

(Title)

To

Collector of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sir,

In answer to your communication No. . . . . . . . . . dated . . . . . . . . . representing that the sale in execution of the decree in this suit of . . . . . . . . . . . . . . . . . . land situate within your district is objectionable, I have the honour to inform you that you are authorised to make provision for the satisfaction of the said deree in the manner recommended by you.

I have the honour to be,

Sir,

Your obedient servant

Judge.

APPENDIX F

SUPPLEMENTAL PROCEEDINGS

No. 1

Warrant of Arrest before Judgment

(O. 38, R. 1)

(Title)

To

The Bailiff of the Court.

Whereas . . . . . . . . . , the plaintiff in the above suit, claims the sum of Rs. . . . . . . . . . as noted in the margin, and has proved to the satisfaction of the Court that there is probable cause for believing that the defendant is about to . . . . . . These are to command you to demand and receive from the said . . . . . . . . . the sum of Rs. .

. . . . . . . . as sufficint to satisfy the plaintiff’s claim, and unless the said sum of Rs. . . . . . . . . . is forthwith delivered to you by or on behalf of the said . . . . . . . . . to take the said . . . . . . . . . into custody, and to bring him before this Court in order that he may show cause why he should not furnish security to the amount of Rs . . . . . . . . . for his personal appearance before the Court, until such time as the said suit shall be fully and finally disposed of, and until satisfaction of any decree that may be passed against him in the suit.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . .

Judge.

Principal

Interest

Costs

Total

No. 2

Security for Appearance of a Defendant Arrested before Judgment

(O. 38, R. 2)

(Title)

Whereas at the instance of . . . . . . . . . , the plaintiff in the above suit, the defendant, has been arrested and brought before the Court;

And whereas on the failure of the said defendant to show cause why he should not furnish security for his appearance, the Court has ordered him to furnish such security:

Therefore I . . . . . . . . . . . . have voluntarily become surety and do hereby bind myself, my heirs and executors, to the said Court, that the said defendant shall appear at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the said suit; and in default of such appearance I bind myself, my heirs and executors, to pay to the said Court, at its order, any sum of money that may be adjudged against the said defendant in the said suit.

Witness my hand at . . . . . . . . . this . . . . . . . . . day of . . . . . . . . . 19 . . .

(Signed)

Witnesses.

1.

2.

No. 3

Summons to Defendant to Appear on Surety’s Application For Discharge

(O. 38, R. 3)

(Title)

To

Whereas . . . . . . . . . , who became surety on the . . . . . . . . . day of . . . . . . . . . 19. . . for your appearance in the above suit, has applied to this Court to be discharged from this obligation:

You are hereby summoned to appear in this Court in person on the . . . . . . . . . day of . . . . . . . . . 19. . . , at . .

. . . . . . . a.m., where the said application will be heard and determined.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . .

Judge.

No. 4

Order For Committal

(O. 38, R. 4)

(Title)

To

Whereas . . . . . . . . . , plaintiff in this suit, has made application to the Court that security be taken for the appearance of . . . . . . . . . , the defendant, to answer any judgment that may be passed against him in the suit; and whereas the Court has called upon the defendant to furnish such security, or to offer a sufficient deposit in lieu of security, which he had failed to do; it is ordered that the said defendant . . . . . . . . . be committed to the civil prison until the decision of the suit; or, if judgment be pronounced against him, until satisfaction of the decree.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . . .

Judge

No. 5

Attachment before Judgment, with Order to Call for Security for

Fulfilment of Decree

(O. 38, R. 5)

(Title)

To

The Bailiff of the Court.

Whereas . . . . . . . . . has proved to the satisfaction of the Court that the defendant in the above suit . . . . . . . .

. ; . . . . . . . . . . . . . . . . . .

These are to command you to call upon the said defendant . . . . . . . . . on or before the . . . . . . . . . . . . . day of . . . . . . . . . 19 . . . . . . . . . either to furnish security for the sum of rupees . . . . . . . . . to produce and place at the disposal of this Court when required . . . . . . . . . for the value thereof, or such portion of the value as may be sufficient to satisfy any decree that may be passed against him; or to appear and show cause why he should not furnish security; and you are further ordered to attach the said . . . . . . . . . and keep the same under safe and secure custody until the further order of the Court; and you are further commanded to retun this warrant on or before the . . . . . . . . . day of . . . . . . . . . 19. . . , with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . .

Judge.

No. 6

Security for the Production of Property

(O. 38, R. 5)

(Title)

Whereas at the instance of . . . . . . . . . , the plaintiff in the above suit, . . . . . . . . . . the defendant has been directed by the Court to furnish security in the sum of Rs. . . . . . . . . . to produce and place at the disposal of the Court the property specified in the schedule hereunto annexed;

Therefore I . . . . . . . . . have voluntarily become surety and do hereby bind myself, my heirs and executors, to the said Court, that the said defendant shall produce and place at the disposal of the court, when required, the property specified in the said schedule, or the value of the same, or such portion thereof as may be

sufficient to satisfy the decree; and in default of his so doing I bind myself, my heirs and executors, to pay to the said Court, at its order; the said sum of Rs. . . . . . . . . . of such sum not exceeding the said sum as the said Court may adjudge.

Schedule

Witness my hand at . . . . . . . . . this day of . . . . . . . . . 19. . .

(Signed)

Witnesses.

1.

2.

No. 7

Attachment before Judgment, on Proof of Failure to Furnish Security

(O. 38, R. 6)

(Title)

To

The Bailiff of the Court.

Whereas . . . . . . . . . , the plaintiff in this suit, has applied to the Court to call upon . . . . . . . . . the defendant, to furnish security to fulfil any decree that may be passed against him in the suit, and whereas the Court has called upon the said . . . . . . . . . to furnish such security, which he has failed to do; these are to command you to attach . . . . . . . . . , the property of the said . . . . . . . . . , and keep the same under safe and secure custody until the further order of the Court, and you are further commanded to return this warrant on or before the . . . . . . . . . day of . . . . . . . . . 19 . . . . . . . . . with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . . .

Judge.

No. 8

Temporary Injunctions

(O. 39, R. 1)

(Title)

Upon motion made unto this Court by . . . . . . . . . Pleader of [or Counsel for] the plaintiffA. B., and upon reading the petition of the said plaintiff in this matter filed [this day] [or the plaint filed in this suit on the . . . . .

. . . . . . day of . . . . . . . . . ,or the written statement of the said plaintiff filed on the . . . . . . . . day of . . . . . . . . .

] and upon hearing the evidence of . . . . . . . . . and . . . . . . . . . in support thereof [if after notice and defendant not appearing: and, and also, the evidence of . . . . . . . . . as to service of notice of this motion upon the defendantC.D.]: This Court doth order that an injunction be awarded to restrain the defendantC.D., his servants, agents and workmen, from pulling down, or suffering to be pulled down, the house in the plaint in the said suit of the plaintiff mentioned [or in the written statement,or petition, of the plaintiff and evidence at the hearing of this motion mentioned], being No. 9, Oilmongers Street, Hindupur, in a Taluk of . . . . . . . . .

and from selling the materials where of the said house is composed, until the hearing of this suit of until the further order of this Court.

Dated this . . . . . . . . . day of . . . . . . . . . 19. . . .

Judge.

[Where the injunction is sought to restrain the negotiation of a note or bill, the ordering part of the order may run thus:—]

. . . . . . . . . to restrain the defendant . . . . . . . . . and . . . . . . . . . from parting without of the custody of them or any of them or endorsing, assigning or negotiating the promisory note [or bill of exchange] in question, dated on or about the . . . . . . . . . , etc., mentioned in the plaintiff’s plaint [or petition] and the evidence heard at this motion until the hearing of this suit, or until the further order of this Court.

[In Copyright cases] to restrain the defendantC.D., his servants, agents or workmen, from printing, publishing or vending a book, called . . . . . . . . . or any part thereof, until the, etc.

[Where part only of a book is to be restrained]

. . . . . . . . . to restrain the defendantC.D., his servant, agents or workmen, from printing, publishing, selling or otherwise disposing of such parts of the book in the plaint [or petition and evidence, etc.] mentioned to have been published by the defendant as hereinafter specified, namely, that part of the said book which is entitled

. . . . . . . . . and also that part which is entitled . . . . . . . . . [or which is contained in page . . . . . . . . . to page .

. . . . . . . . both inclusive] until . . . . . . . . . , etc.

[In Patent cases] . . . . . . . . . to restrain the defendantC. D., his agents, servants and workmen, from making or vending any perforated bricks [or as the case may be] upon the principle of the inventions in the plaintiff’s plaint [or petition, etc.,or written statement, etc.,] mentioned, belonging to the plaintiffs, or either of them, during the remainder of the respective terms of the patents in the plaintiff’s plaint [or as the case may be] mentioned, and from counterfeiting, imitating or resembling the same inventions or either of them, or making any addition thereto, or substraction therefrom, until the hearing, etc.

[In cases of Trade marks] . . . . . . . . . to restrain the defendantC.D., his servants, agents or workmen, from selling, or exposing for sale, or procuring to be sold, any composition or blacking [or as the case may be] described as or purporting to be blacking manufactured by the plaintiffA.B., in bottles having affixed thereto such labels as in the plaintiff’s plaint [or petition, etc.] mentioned, or any other labels so contrived or expressed as, by colourable imitation or otherwise, to represent the composition or blacking sold by the defendant to be the same as the composition or blacking manufactured and sold by the plaintiffA.B., and from using trade-cards so contrived or expressed as to represent that any composition or blacking sold or proposed to be sold by the defendant is the same as the composition or blacking manufactured or sold by the plaintiffA.B., until the, etc.

[To restrain a partner from in any way interfering in the business]

to restrain the defendantC.D., his agents, and servants, from entering into any contract, and from accepting, drawing, endorsing or negotiating any bill of exchange, note or written security in the name of the partnership firm ofB. andD., and from contracting any debt, buying and selling any goods, and from making or entering into any verbal or written promise, agreement or undertaking, and from doing, or causing to be done, any act, in the name or the credit of the said partnership-firm ofB. andD., or whereby the said partnership-firm can or may in any manner become or be made liable to or for the payment of any sum of money, or for the performance of any contract, promise or undertaking until the, etc.

No. 9

Appointment of a Receiver

(O. 40, R. 1)

(Title)

To

Whereas . . . . . . . . . has been attached in execution of a decree passed in the above suit on the . . . . . . . . .

day of . . . . . . . . . 19. . ., in favour of . . . . . . . . . ; You are hereby (subject to your giving security to the satisfaction of the Court) appointed receiver of the said property under Order XL of the Code of Civil Procedure, 1908, with full powers under the provisions of that Order.

You are required to render a due and proper account of your receipts and disbursements in respect of the said property on . . . . . . . . . You will be entitled to remuneration at the rate of . . . . . . . . . per cent. upon your receipts under the authority of this appointment.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . . . 19. . .

Judge

No. 10

Bond to be Given by Receiver

(O. 40, R. 3)

(Title)

Know all men by these presents, that we, . . . . . . . . . and . . . . . . . . . and . . . . . . . . . , are jointly and severally bound to . . . . . . . . . of the Court of . . . . . . . . . in Rs. . . . . . . . . . to be paid to be said . . . . . . . . . or his successor in office for the time being. For which payment to be made we bind ourselves, and each of us, in the whole, our and each of our heirs, executors and administrators, jointly and severally, by these presents.

Dated this . . . . . . . . . day of . . . . . . . . . 19.. .

Whereas a plaint has been filed in this Court by . . . . . . . . . against . . . . . . . . . for the purpose of [here insert the object of suit]:

And whereas the said . . . . . . . . . has been appointed, by order of the above-mentioned Court, to receive the rents and profits of the immovable property and to get in the outstanding movable property of . . . . . . . . . . . .

. .in the said plaint named: . . . . . . . . . . . . . .

Now the condition of this obligation is such, that if the above-bounden . . . . . . . . . shall duly account for all and every the sum and sums of money which he shall so receive on account of the rents and profits of the immovable property, and in respect of the movable property, of the said . . . . . . . . . at such periods as the said Court shall appoint, and shall duly pay the balances which shall from time to time be certified to be due from him as the said Court hath directed or shall hereafter direct, then this obligation shall be void otherwise it shall remain in full force.

Signed and delivered by the above-bounden in the presence of . . . . . . . . . . . . .

Note.—If deposit of money is made, the memorandum thereof should follow the terms and the condition of the bond.

APPENDIX G

APPEAL, REFERENCE AND REVIEW

No. 1

Memornadum of Appeal

(O. 4l, R. 1)

(Title)

The

. . . . . . . above-named appeals to the . . . . . . . . . Court at . . . . . . . . . from the decree of . . . . . . . . . in Suit No. . . . . . . . . . of . . . . . . . . . 19 . . . . . . , dated the . . . . . . . . . day of . . . . . . . . . 19 . . . , and sets forth the following grounds of objection to the decree appealed from, namely:—

No. 2

Security Bond to be Given on Order Being Made to Stay Execution of Decree

(O. 41, R. 5)

(Title)

To

This security bond on stay of execution of decree executed by . . . . . . . . . witnesseth:—

That . . . . . . . . . , the plaintiff in Suit No. . . . . . . . . . of 19 . . . having sued . . . . . . . . . , the defendant, in this Court and a decree having been passed on the . . . . . . . . . day of . . . . . . . . . 19 . . . , in favour of the plaintiff,

and the defendant having preferred an appeal from the said decree in the . . . . . . . . . Court, the said appeal is still pending.

Now the plaintiff decree-holder having applied to execute the decree, the defendant has made an application praying for stay of execution and has been called upon to furnish security. Accordingly I, of my own free will, stand security to the extent of Rs. . . . . . . . . ., mortgaging the properties specified in the schedule hereunto annexed, and covenant that if the decree of the first Court be confirmed or varied by the Appellate Court the said defendant shall duly act in accordance with the decree of the Appellate Court and shall pay whatever may be payable by him thereunder, and if he should fail theein then any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient to pay the amount due, I and my legal representatives will be personally liable to pay the balance. To this effect I execute this security bond this . . . . . . . . . day of . . . . . . . . 19. . .

Schedule

(Signed)

Witnessed by

1.

2.

No. 3

Security Bond to be Given During the Pendency of Appeal

(O. 41, R. 6)

(Title)

To

This security bond on stay of execution of decree executed by witnesseseth:—

That . . . . . . . . . , the plaintiff in Suit No. . . . . . . of . . . 19 . . . , having sued, the defendant, in this Court and a decree having been passed on the . . . day of . . . 19 . . ., in favour of the plaintiff, and the defendant having preferred an appeal from the said decree in the Court, the said appeal is still pending.

Now the plaintiff decree-holder has applied for execution of the said decree and has been called upon to furnish security. Accordingly I, of my own free will, stand security to the extent of Rs. . . . , mortgaging the properties specified in the schedule hereunto annexed, and covenant that if the decree of the first Court be reversed or varied by the Appellate Court, the plaintiff shall restore any property which may be or has been taken in execution of the said decree and shall duly act in accordance with the decree of the Appellate Court and shall pay whatever may be payable by him thereunder, and if he should fail therein then any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient to pay the amount due, I and my legal representatives will be personally liable to pay the balance. To this effect I execute this security bond this . . . . . . . . . day of . . . . . . . . . 19 . . . .

Schedule

(Signed)

Witnessed by

1.

2.

No. 4

Security for Costs of Appeal

(O. 4l, R. 10)

(Title)

To

This security bond for costs of appeal executed by . . . . . . . witnesseth:—

This appellant has preferred an appeal from the decree in Suit No. . . . . . . . . . of . . . 19 . . ., against the respondent, and has been called upon to furnish security. Accordingly I, of my own free will stand security for the costs of the appeal, mortgaging the properties specified in the Schedule hereunto annexed. I shall not transfer the said properties or any part thereof, and in the event of any default on the part of the appellant. I shall duly carry out any order that may be made against me with regard to payment of the costs of appeal. Any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient to pay the amount due I and my legal representatives will be personally liable to pay the balance. To this effect I execute this security bond this . . . . . . . . . day of . . . . . . .

. . 19 . . .

Schedule

(Signed)

Witnessed by

1.

2.

No. 5

Intimation to Lower Court of Admission of Appeal

(O. 4l, R. 13)

(Title)

To

You are hereby directed to take notice that . . . . . . . . . , the . . . . . . . . . in the above suit, has preferred an appeal to this Court from the decree passed by you therein on the . . . day of . . . . . . . . . 19 . . .

You are requred to send with all practicable despatch all material papers in suit.

Dated the . . . . . . . . . day of . . . . . . . . . 19 . . .

Judge.

No. 6

Notice to Respondent of the Day Fixed for the Hearing of the Appeal

(O. 4l, R. 14)

(Title)

Appeal from the . . . . . . . . . of the Court . . . . . . . . . of . . . . . . . . . the . . . . . . . . . day of . . . . . . . 19 . . .

To Respondent

Take notice that an appeal from the decree of . . . . . . . . . in this case has been presented by . . . . . . . . . and registered in this Court, and that the . . . . . . . . . day of . . . . . . . . . 19 . . . . . . . . . has been fixed by this Court for the hearing of this appeal.

If no appearance is made on your behalf by yourself, your pleader, or by some one by law authorized to act for you in this appeal, it will be heard and decided in your absence.

Given under my hand and the seal of the Court, this. . . . . . . day of . . . . . . . .19 . . .

Judge.

[Note—If a stay of execution has been ordered, intimation should be given of the fact on this notice.]

No. 7

Notice to a Party to a Suit not made a Party to the Appeal but

Joined by the Court as a Respondent

(O. 41, R. 20)

(Title)

To

Whereas you were a party in Suit No. . . . . . . . . of . . . ., in the Court of, . . . . . . . . . , and whereas the . . . . . .

has perferred an appeal to this Court from the decree passed against him in the said suit and it appears to this Court that you are interested in the result of the said appeal:

This is to give you notice that this Court has directed you to be made a respondent in the said appeal and has adjourned the hearing thereof till the . . . . . . . . . . . . day of . . . . . . . . . 19 . . . , at . . . a.m. If no appearance is made on your behalf on the said day and at the said hour the appeal will be heard and decided in your absence.

Given under my hand and the seal of the Court, this. . . . . . . day of . . . . . . . .19 . . .

Judge.

No. 8

Memorandum of Cross Objection

(O. 41, R. 22)

(Title)

Whereas the . . . . . . has preferred an appeal to the . . . . Court at . . . . . . . . . from the decree of . . . . . . . . in Suit No. . . . of 19 . . . , dated the . . . . . . . . . . .day of . . . . . . . .19 . . , and whereas notice of the day fixed for hearing the appeal was served on the . . . . . . . . . . . . on the . . . . . . . . . . .day of . . . . . .. . . . .19 . . . , the . . .

. . . . . . files this memorandum of cross objection under rule 22 of Order XLI of the Code of Civil Procedure, 1908, and sets forth the following grounds of objection to the decree appealed from, namely:—

No. 9

Decree in Appeal

(O. 41, R. 35)

(Title)

Appeal No. . . . . . . . . . of 19 . . . from the decree of the Court of . . . . . . . . dated the . . . . . . . . day of . . . 19 .

. .

Memorandum of Appeal.

Plaintiff.

Defendant.

The . . . . . . . . . above-named appeal to the . . . . . . . . Court at . . . . . . . . . from the decree of . . . . . . . . . in the above suit, dated the . . . . . . . . . day of . . . . . 19 . . . , for the following reasons, namely:—

This appeal coming on for hearing on the . . . . . . . . . day of. . . . . 19 . . . , before . . . . . . . . . in the presence of . . . . . . . . . or the appellant and of . . . . . . . . . for the respondent, it is ordered—

The costs of this appeal, as detailed below, amounting to Rs. . . are to be paid by . . . . . . . . . The costs of the original suit are to be paid by . . . . . . . . . . . . . . . . . . . . .

Given under my hand this . . . . . . . . . day of . . . . . . . . 19 . . .

Judge

Costs of Appeal

Appellant

Amount

Respondent

Amount

1.

2.

3.

4.

Stamp for memorandum of appeal

Do. For power

Service of processes

Pleader’s fee on Rs.

Total

Rs.

a.

p.

Stamp for power

Do. For power

Service of processes

Pleader’s fee on Rs.

Total

Rs.

a.

p.

No. 10

Application to Appeal in BIforma pauperis

(O. 44, R. 1)

(Title)

I . . . . . . . . . the . . . . . . . . . above-named, present the accompanying memorandum of appeal from the decree in the above suit and apply to be allowed to appeal as a pauper.

Annexed is a full and true schedule of all the movable and immovable property belonging to me with the estimated value thereof.

Dated the . . . . . . . . . day of . . . . . . . . . 19 . . .

(Signed)

[Note.—Where the application is by the plaintiff he should state whether he applied and was allowed to sue in the Court of first instance as a pauper.]

No. 11

Notice of Appeal In BIforma pauperis

(O. 44, R. 1)

(Title)

Whereas the above-named . . . . . . . . . has applied to be allowed to appeal as a pauper from the decree in the above suit dated the . . . . . . . . . day of . . . . . . . . . 19 . . . and whereas the . . . . . . . . . day of . . . . . . . . .

19 . . ., has been fixed for hearing the application, notice is hereby given to you that if you desire to show cause why the applicant should not be allowed to appeal as a pauper an opportunity will be given to you of doing so on the afore-mentioned date.

Given under my hand and the seal of the Court, this . . . . . . . day of . . . . . . . . . 19 . . .

Judge.

No. 12

Notice to Show Cause why a Certificate of Appeal to the

Supreme Court should not be Granted

(O. 43, R. 3.)

(Title)

To

[482] [Take notice that . . . . . . . . . . . . . . . . . . . . . . . . . . . has applied to this Court for a certificate—

  • that the case involves a substantial question of law of general importance, and
  • that in the opinion of this Court the said question needs to be decided by the Supreme Court.]

The . . . . . . . . . day of . . . . . . . 19 . . . . is fixed for you to show cause why the Court should not grant the certificate asked for.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .

Registrar.

No. 13

Notice to Respondent of Admission of Appeal to the Supreme Court

(O. 45, R. 8.)

(Title)

To

Whereas . . . . . . . . . . . . . . . . . . . . . , the . . . . . . . . . . . . . . in the above case, has furnished the security and made the deposit required by Order XLV, rule 7, of the Code of Civil Procedure, 1908;

Take notice that the appeal of the said . . . . . . . . . . . . . to the Supreme Court has been admitted on the . . . .

. . . . . day of . . . . . . . 19 . . . .

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .

Registrar.

No. 14

Notice to Show Cause Why a Review should not be Granted

(O. 47, R. 4.)

(Title)

To

Take notice that . . . . . . . . . . . . . . has applied to this Court for a review of its decree passed on the . . . . . . . .

. day of . . . . . . . 19 . . . . fixed for you to show cause why the Court should not grant a review of its decree in this case.

Given under my hand and the seal of the Court, this . . . . . . . . . day of . . . . . . . 19 . . . .

Judge.

APPENDIX H

MISCELLANEOUS

No. 1

Agreement of Parties as to Issues to be Tried

(Order 14, Rule 6)

(Title)

Whereas we, the parties in the above suit, are agreed as to the question of fact [or of law] to be decided between us and the point at issue between us is whether a claim founded on a bond, dated the . . . . . . . . .

day of . . . . . . . 19 . . . and filed as Exhibit . . . . . . . . . . . . . . in the said suit, is or is not beyond the statute of limitation (or state the point at issue whatever it may be):

We therefore severally bind ourselves that, upon the finding of the Court in the negative [or affirmative] of such issue, . . . . . . . . . . . . . . will pay to the said . . . . . . . the sum of Rupees . . . . . . . . . . (or such sum as the Court shall hold to be due thereon), and I, the said . . . . . . . . ., will accept the said sum of Rupees . . . . . .

. . . (or such sum as the Court shall hold to be due) in full satisfaction of my claim on the bond aforesaid [or that upon such finding I, the said . . . . . . . , will do or abstain from doing, etc., etc.]

Plaintiff.

Defendant.

Witnesses :—

1.

2.

Dated the . . . . . . . . . day of . . . . . . . 19 . . . .

No. 2

Notice of Application for the Transfer of a Suit to Another Court for Trial

(Section 24)

In the Court of the District Judge of . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . No. . . . . . . . of 19. . . .,

To

Whereas an application, dated the . . . . . . . . . day of . . . . . . . 19 . . ., has been made to this Court by . . . . . .

. . . . . . . . the. . . . . . . . . . . . . . in Suit No. . . . . . . . . . . . . . . of 19. . . . . . . now pending in the Court of the . . .

. . . . . . . . . . . at. . . . . . . , in which . . . . . . . is . . . . plaintiff and . . . . . . . . . . . . . . is defendant, for the transfer of the suit for trial to the Court of the . . . . . . . at . . . . . . .

You are hereby informed that the . . . . . . . . . day of . . . . . . . 19 . . ., has been fixed for the hearing of the application, when you will be heard if you desire to offer any objection to it.

Given under my hand and the seal of the Court, this . . . . . . . . . . . . . .day of . . . . . . 19 . . . .,

Judge.

[483][No. 2A

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