The Code of Civil Procedure, 1908 **ACT NO V OF 1908** [21st March, 1908]
WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows: ---
CONTENTS SECTIONS: PRELIMINARY 1. Short title, commencement and extent. 2. Definitions. 3. Subordination of Courts. 4. Savings. 5. Application of the Code to the Revenue Courts. 6. Pecuniary Jurisdiction. 7. Provincial Small Cause Courts. 8. [Omitted.] PART I SUITS IN GENERAL JURISDICTION OF THE COURTS AND RES JUDICATA 9. Courts to try all civil suits unless barred. 10. Stay of suit. 11. RES JUDICATA 12. Bar to further suits. 13. When foreign judgment not conclusive. 14. Presumption as to foreign judgment. PLACE OF SUING 15. Court in which suits to be instituted. 16. Suits to be instituted where subject-matter situate. 17. Suits for immoveable property situate within jurisdiction of different Courts. 18. Place of institution of suit where local limits of jurisdiction, of Courts are uncertain. 19. Suits for compensation for wrongs to person or moveables. 20. Other suits to be instituted where defendants reside or cause of action arises. 21. Objections to jurisdiction. 22. Power to transfer suits which may be instituted in more than one Court. 23. To what Court application lies. 24. General power of transfer and withdrawal. 24 A. Appearance of parties on transfer of suit, etc. 25. [Omitted.] INSTITUTION OF SUITS 26. Institution of suits. SUMMONS AND DISCOVERY 27. Summons to defendants. 28. Service of summons where defendant resides, in another Province. 29. Service of foreign summonses. 30. Power to order discovery and the like. 31. Summons to witness. 32. Penalty for default. JUDGMENT AND DECREE 33. Judgment and decree. INTEREST 34. Interest. 34 A. Interest on public dues. 34 B. Interest etc., on dues of banking company. COSTS 35. Costs. 35 A. Compensatory costs in respect of false or vexatious claims or defences. PART II EXECUTION GENERAL 36. Application to orders. 37. Definition of Court which passed a decree. COURTS BY WHICH DECREE MAY BE EXECUTED 38. Courts by which decree may be executed. 39. Transfer of decree. 40. Transfer of decree to Court in another Province. 41. Result of execution proceeding to be certified. 42. Powers of Court in executing transferred decree. 43. Execution of decrees passed by British Courts in places to which this Part does not extend or in foreign territory. 44. [Omitted.] 44 A. Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory. 45. [Omitted.] 46. Precepts. QUESTIONS TO BE DETERMINED BY THE COURT EXECUTING DECREE 47. Questions to be determined by the Court executing decree. LIMIT OF TIME FOR EXECUTION 48. Execution barred in certain cases. TRANSFEREES AND LEGAL REPRESENTATIVES 49. Transferee. 50. Legal representative. PROCEDURE IN EXECUTION 51. Powers of Court to enforce execution. 52. Enforcement of decree against legal representative. 53. Liability of ancestral property. 54. Partition of estate of separation of share. ARREST AND DETENTION 55. Arrest and detention. 56. Prohibition of arrest or detention of women in execution of decree for money. 57. [Omitted.] 58. Release from detention. 59. [Omitted.] ATTACHMENT 60. Property liable to attachment and sale in execution of decree. 61. Partial exemption of agricultural produce. 62. Seizure of property in dwelling house. 63. Property attached in execution of decrees of several Courts. 64. Private alienation of property after attachment to be void. SALE 65. Purchaser’s title. 66. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff. 67. Power for Provincial Government to make rules as to sales of land in execution of decrees for payment of money. DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES AGAINST IMMOVEABLE PROPERTY 68. Power to prescribe rules for transferring to Collector execution of certain decrees. 69. Provisions of Third Schedule to apply. 70. Rules of procedure. Jurisdiction of Civil Courts barred. 71. Collector deemed to be acting Judicially. 72. Where Court may authorise Collector to stay public sale of land. DISTRIBUTION OF ASSETS 73. Proceeds of execution sale to be rateably distributed among decree-holders. RESISTANCE TO EXECUTION 74. Resistance to execution. PART III INCIDENTAL PROCEEDINGS COMMISSIONS 75. Power of Court to issue commissions. 76. Commission to another Court. 77. Letter of request. 78. Commissions issued by foreign Courts. PART IV SUITS IN PARTICULAR CASES SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY 79. Suits by or against the Government. 80. Notice. 81. Exemption from arrest and personal appearance. 82. Execution of decree. SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND ENVOYS 83. When aliens may sue. 84. When foreign States may sue. 85. Persons specially appointed by Government to prosecute or defend for Ruler of foreign State. 86. [Repealed.] 86 A. Suits against diplomatic agents. 87. [Repealed.] 87 A. [Omitted.] INTERPLEADER 88. Where inter pleader suit may be instituted. PART V SPECIAL PROCEEDINGS ARBITRATION 89. [Omitted.] SPECIAL CASE 90. Power to state case for opinion of Court. SUITS RELATING TO PUBLIC MATTERS 91. Public nuisances. 92. Public charities. 93. Exercise of powers of Advocate General. PART VI SUPPLEMENTAL PROCEEDINGS 94. Supplemental proceedings. 95. Compensation, for obtaining arrest, attachment or injunction on insufficient grounds. PART VII APPEALS APPEALS FROM ORIGINAL DECREES 96. Appeal from original decree. 97. Appeal from final decree where no appeal from preliminary decree. 98. Decision where appeal heard by two or more Judges. 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. APPEALS FROM APPELLATE DECREES. 100. Second appeal. 101. Second appeal on no other grounds. 102. No second appeal in certain cases. 103. Power of High Court to determine issues of fact. APPEALS FROM ORDERS 104. Orders from which appeal lies. 105. Other orders. 106. What Courts to hear appeals. GENERAL PROVISIONS RELATING TO APPEALS 107. Powers of Appellate Court. 108. Procedure in appeals from appellate decrees and orders. APPEALS TO THE SUPREME COURT 109. When appeals, lie to the Supreme Court. 110. [Omitted.] 111. Bar of certain appeals. 111 A. [Omitted.] 112. Savings. PART VIII REFERENCE, REVIEW AND REVISION 113. Reference to High Court. 114. Review. 115. Revision. PART IX SPECIAL PROVISIONS RELATING TO HIGH COURTS 116. Part to apply only to certain High Courts. 117. Application of Code to High Courts. 118. Execution of decree before ascertainment of costs. 119. Unauthorised persons not to address Court. 120. Provisions not applicable to High Court in original civil jurisdiction. PART X RULES 121. Effect of rules in First Schedule. 122. Power of certain High Courts to make rules. 123. Constitution of Rule Committees in certain Provinces. 124. Committee to report High Court. 125. [Omitted.] 126. Rules to be subject to approval. 127. Publication of rules. 128. Matters for which rules may provide. 129. Power of High Courts to make rules as to their original Civil Procedure. 130. [Omitted.] 131. Publication of rules. PART XI. MISCELLANEOUS 132. Exemption of certain women from personal appearance. 133. Exemption of other persons. 134. Arrest other than in execution of decree. 135. Exemption from arrest under Civil process. 135A. Exemption of members of Legislative bodies from arrest and detention under Civil process. 136. Procedure where person to be arrested or property to be attached is outside district. 137. Language of subordinate Courts. 138. Power of High Court to require evidence to be recorded in English. 139. Oath on affidavit by whom to be administered. 140. Assessors in causes of salvage, etc. 141. Miscellaneous proceedings. 142. Orders and notices to be in writing. 143. Postage. 144. Application for restitution. 145. Enforcement of liability of surety. 146. Proceedings by or against representatives. 147. Consent or agreement by person under disability. 148. Enlargement of time. 149. Power to make up deficiency of Court-fees. 150. Transfer of business. 151. Saving of inherent powers of Court. 152. Amendment of judgments, decrees or orders. 153. General power to amend. 154. [Omitted.] 155. [Omitted.] 156. [Repealed.] 157. Continuance of orders under repealed enactments. 158. Reference to Code of Civil Procedure and other repealed enactments. SCHEDULES THE FIRST SCHEDULE.- RULES OF PROCEDURE. APPENDIX A.- PLEADINGS. APPENDIX B.- PROCESS. APPENDIX C.- DISCOVERY, INSPECTION AND ADMISSION. APPENDIX D.- DECREES. APPENDIX E.- EXECUTION. APPENDIX F.- SUPPLEMENTAL PROCEEDINGS. APPENDIX G.- APPEAL, REFERENCE AND REVIEW. APPENDIX H.- MISCELLANEOUS. THE SECOND SCHEDULE.- [Repealed.] THE THIRD SCHEDULE.- EXECUTION OF DECREES BY COLLECTORS. THE FOURTH SCHEDULE.- [Omitted.] THE FIFTH SCHEDULE.- [Repealed.]
The Province of Sindh: Bombay Government Gazette, Extraordinary, 1909, Pt. I and Gazette of India, 1909, Pt. I, p.32.
Scheduled District in the Punjab: Gazette of India, 1909, Pt. I, p.33.
The Districts of Peshawar, Hazara, Kohat, Bannu and Dera Ismail Khan composing the N.W.F.P.; ibid., Pt. I, p.80. It has been declared to be in force in Baluchistan by the British Baluchistan Laws Regulation, 1913 (2 of 1913), s.3 and First Schedule. It has also been extended to the Leased Areas of Baluchistan, see the Leased Areas (Laws) Order, 1950 (G.G.O.3 of 1950); and applied in the Federated Areas of Baluchistan, see Gaz. of India 1937, Pt. I, p.1499. It has been applied to Phulera in the Excluded Area of Upper Tanawal to the extent the Act is applicable in the N.W.F.P., see N.W.F.P (Upper Tanawal) (Excluded Area) Laws Regulation, 1950. It has also been extended to the Excluded Area of Upper Tanawal other than Phulera by the N.W.F.P (Upper Tanawal) Excluded Area) Laws Regulation, 1950 and declared to be in force in that area with effect from the 1st June, 1951, see N.W.F.P Gazette, Extraordinary, dated the 1st June, 1951. The Act has, with certain modification, been applied to the Provincially Administered Tribal Areas of Chitral, Dir, Kalam, Swat and Malakand Protected Area by N.W.F.P Regulation No. 1 of 1974. Code of Civil Procedure, 1908 [1908 : V] PRELIMINARY
It shall come into force on the first day of January, 1909. 1[(3) It extends to the whole of Pakistan.]
"Code" includes rules:
"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties which regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint 2[,the determination of any question within section 144 and an order under rule 60, 98, 99, 101, or 103 of Order XXI], but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.— A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final:
"decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made:
"district" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court:
"foreign Court" means a Court situate beyond the limits of 3[Pakistan] which has no authority in 3[Pakistan] and is not established or continued by 4[the 5[Federal Government] 6* * *]:
6The words "or the Crown Representative" omitted by A.O., 1949.
"foreign judgment" means the judgment of a foreign Court:
"Government Pleader" includes any officer appointed by the 1[Provincial Government] to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader:
"Judge" means the presiding officer of a Civil Court:
"judgment" means the statement given by the Judge of the grounds of a decree or order:
"judgment-debtor" means any person against whom a decree has been passed or an order capable of execution has been made:
"legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued:
"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession:
"moveable property" includes growing crops:
"order" means the formal expression of any decision of a Civil Court which is not a decree:
"pleader" means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court:
"prescribed" means prescribed by rules:
"public officer" means a person falling under any of the following descriptions, namely:— (a) every Judge; 2[(b) Every person in the service of Pakistan;] (c) every commissioned or gazetted officer in the military, ¹[naval or air] forces of ²[Pakistan while in the service of the State]; (d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties; (e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; (f) every officer of ³[the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; (g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of ³[the Government], or to make any survey, assessment or contract on behalf of ³[the Government], or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interest of ³[the Government], or to make, authenticate or keep any document relating to the pecuniary interests of ³[the Government] or to prevent the infraction of any law for the protection of the pecuniary interests of ³[the Government]; and (h) every officer in the service or pay of ³[the Government], or remunerated by fees or commission for the performance of any public duty:
"rules" means rules and forms contained in the First Schedule or made under section 122 or section 125:
"share in a corporation" shall be deemed to include stock, debenture stock, debentures or bonds: and
"signed", save in the case of a judgment or decree, includes stamped.
Code of Civil Procedure, 1908 [1908 : V] jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a land-holder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.
"Revenue Court" in subsection (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceeding of a civil nature.
(a) so much of the body of the Code as relates to— (i) suits excepted from the cognizance of a Court of Small Causes; (ii) the execution of decrees in such suits;
2The words "with the previous sanction of the G.G. in C." omitted by the Devolution Act, 1920 (38 of 1920), s.2 and 1st Sch., Pt. I.
4The words "with the sanction aforesaid" omitted by Act 38 of 1920, s.2 and 1st Sch., Pt. I. 5The words and figures "or under the Berar Small Cause Courts Law, 1905" which were ins. by the Berar Laws Act, 1941 (4 of 1941), s.2 and 2nd Sch., have been omitted by A.O., 1949. 6The original words "under that Act" were first subs. by Act 4 of 1941, s.2 and 2nd Sch., and then amended by A.O., 1949, to read as above. Code of Civil Procedure, 1908 [1908 : V] (iii) the execution of decrees against immoveable property; and (b) the following sections, that is to say,—
sections 91 and 92, sections 94 and 95 [so far as they authorise or relate to— (i) orders for the attachment of immoveable property, (ii) injunctions, (iii) the appointment of a receiver of immoveable property, or (iv) the interlocutory orders referred to in clause (e) of section 94] and sections 96 to 112 and 115.
SUITS IN GENERAL JURISDICTION OF THE COURTS AND Res Judicata
Explanation.— A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
1 Subs. by the Small Cause Courts (Attachment of Immoveable Property) Act, 1926 (1 of 1926), s.3, for "so far as they relate to injunctions and interlocutory orders". 2 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for "the Provinces and the Capital of the Federation" which had been subs. by A.O., 1949, for "British India". claimed, or in any Court beyond the limits of ¹[Pakistan] established or continued by ²[the ³[Federal Government] ⁴* * *] and having like jurisdiction, or before ⁵[the Supreme Court]. Explanation.— The pendency of a suit in a foreign Court does not preclude the Courts in ¹[Pakistan] from trying a suit founded on the same cause of action.
Explanation I.— The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.— For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.— The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.— Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.— Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.— Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. ⁶[12. Bar to further suit. (1)] Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies. ¹Subs. by the Central laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for "the Provinces and the Capital of the Federation" which had been subs. by A.O., 1949, for "British India". ²Subs. by A.O., 1937, for "the G.G.in C". ³Subs. by A.O., 1975, Arts. 2 and Table, for "Central Government". ⁴The words "or the Crown Representative" omitted by A.O., 1949. ⁵Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March 1956), for "His Majesty in Council". ⁶S.12 was renumbered as sub-section (1) of that section by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s.2. 1(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.]
(a) Where it has not been pronounced by a Court of competent Jurisdiction; (b) Where it has not been given on the merits of the case; (c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 2[Pakistan] in cases in which such law is applicable; (d) Where the proceedings in which the Judgment was obtained are opposed to natural justice; (e) Where it has been obtained by fraud; (f) Where it sustains a claim founded on a breach of any law in force in 2[Pakistan].
PLACE OF SUING
(a) for the recovery of immoveable property with or without rent or profits, (b) for the partition of Immoveable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immoveable property, (d) for the determination of any other right to or interest in immoveable property, (e) for compensation for wrong to immoveable property, (f) for the recovery of moveable property actually under distraint or attachment, 1Sub-section (2) added by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s.2.
Code of Civil Procedure, 1908 [1908 : V] shall be instituted in the Court within the local limits of whose jurisdiction the property is situate, 1[or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen]: Provided that a suit to obtain relief respecting, or compensation for wrong to, immoveable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate 1[or, in the case of suit referred to in clause (c), at the place where the cause of action has wholly or partly arisen], or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation.—In this section "property" means property situate in 2[Pakistan].
Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.
Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise Jurisdiction.
Where a statement has not been recorded under subs-section (1), and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of Justice. 1 Ins. by the Code of Civil Procedure (Amdt.) Ordinance, 1962 (44 of 1962), s.6. 2 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for "the Provinces and the Capital of the Federation" which had been subs. by A.O., 1949, for "British India".
Illustrations (a) A, residing in ¹[Karachi], beats B in ²[Quetta]. B may sue A either in ²[Quetta] or ¹[Karachi]. (b) A, residing in ¹[Karachi] publishes in ²[Quetta] statements defamatory of B. B may sue A either in ²[Quetta] or in ¹[Karachi].
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation I.— Where a person has permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation II.— A corporation shall be deemed to carry on business at its sole or principal office in ³[Pakistan] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. (a) A is a tradesman in ¹[Lahore]. B carries on business in ²[Karachi]. B, by his agent in ¹[Lahore], buys goods of A and requests A to deliver them to the ³[Pakistan International Airways]. A delivers the goods accordingly in ¹[Lahore]. A may sue B for the price of the goods either in ¹[Lahore], where the cause of action has arisen, or in ²[Karachi], where B carries on business. (b) A resides at ⁴[Murree], B at ¹[Lahore], and C at ²[Karachi]. A, B and C being together at ⁵[Bahawalpur], B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C ⁵[Bahawalpur], where the cause of action arose. He may also sue them at ¹[Lahore], where B resides, or at ²[Karachi], where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.
Where such Courts are subordinate to different appellate Courts but to the same High Court, the application shall be made to the said High Court.
Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate. ¹Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981) s. 3 and Second Sch., for “Dacca” which had been subs. by Ord. 21 of 1960, s.3 and 2nd Sch., for “Calcutta”. ²Subs. ibid. (with effect from the 14th October, 1955), for “Delhi”. ³Subs. ibid. (with effect from the 14th October, 1955), for “East India Railway Company”. ⁴Subs. ibid. (with effect from the 14th October, 1955), for “Simla”. ⁵Subs. ibid. (with effect from the 14th October, 1955), for “Benares”.
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to subordinate to the District Court.
The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceedings is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located. 1[24A ins. by the Code of Civil Procedure (Amdt.) Ordinance, 1962 (44 of 1962), s.7.] Code of Civil Procedure, 1908 [1908 : V]
INSTITUTION OF SUITS
SUMMONS AND DISCOVERY
The Court to which such summons is sent shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.
Revenue Court situate 1[outside Pakistan] may be sent to the Courts 2[in Pakistan] and served as if they 3[were summonses] issued by such Courts: 4[Provided that the Courts issuing such summonses 5[or processes] have been established or continued by the authority of the 6[Federal Government] 7* * * or that the Provincial Government 8[of the Province in which such summonses or processes are] to be served has by notification in the official Gazette declared the provisions of this section to apply to 9[such Courts.]
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit.
(a) issue a warrant for his arrest; (b) attach and sell his property; (c) impose a fine upon him not exceeding 10[two thousand] rupees; (d) order him to furnish security for his appearance and in default commit him to 10[* * *] prison. 1The original words "beyond the limits of British India" were first subs. by A.O., 1949, and then amended by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), to read as above. 2The original words "in British India" were first subs. by A.O., 1949, and then amended by Ord. 21 of 1960 s.3 and 2nd Sch. (with effect from the 14th October, 1955), to read as above.
7The words "or the Crown Representative" omitted by A.O., 1949.
Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.
Where the court is of opinion that the recovery of any public dues from the plaintiff was unjustified, the Court may, while disposing of the suit, make an order for payment of interest on the amount recovered at the rate of two per cent, above the prevailing bank rate. Explanation.—In this section,— (a) "bank rate" means the bank rate determined and made public under the provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956); and (b) "public dues" includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government or of any local authority.
(a) in the case of interest-bearing loans, for interest at the contracted rate or at the rate of two per cent above the bank rate, whichever is the higher; (b) in the case of loans given on the basis of mark-up in price, lease, hire-purchase or service charges, for the contracted rate of mark-up, rental, hire or service charges, as the case may be, or at the latest rate of the banking company for similar loans, whichever is the higher; and (c) in the case of loans given on the basis of participation in profit and loss, for return at such rate, not being less than the annual rate of profit for the preceding six months paid by the banking company on term deposits of six months accepted by it on the basis of participation in profit and loss, as the court may consider just and reasonable in the circumstances of the case, keeping in view the profit-sharing agreement entered into between the banking company and the judgement debtor when the loan was contracted. Explanation.—In this section in clause (a), "bank rate" has the same meaning as in section 34A. COSTS
Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.
The Court may give interest on cost at any rate not exceeding six per cent. per annum, and such interest shall be added to the costs and shall be recoverable as such.
No Court shall make any such order for the payment of an amount exceeding 1[twenty five thousand] rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less: Provided that where the pecuniary limits of the Jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (IX of 1882), and not being a Court constituted under that Act, are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees: Provided, further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.
No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.
The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.]
EXECUTION GENERAL
(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have Jurisdiction to try such suit.
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) if the decree directs the sale or delivery of immoveable property situate outside the local limits of the jurisdiction of the Court which passed it, or (d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
Without prejudice to the generality of the foregoing provision, the Court executing a decree sent to it shall have the following powers, namely:— Code of Civil Procedure, 1908 [1908 : V] (a) power under section 39 to transfer the decree to another Court, if necessary; (b) Power under sub-section (1) of section 50 to permit execution to proceed against the legal representatives, of a deceased judgment debtor; (c) power under section 152 to correct clerical or arithmetical errors; (d) power under rule 16 of Order XXI to recognise the assignment of a decree; (e) power under sub rule (2) of rule 50 of Order XXI to grant leave to a decree holder to proceed against a person not already recognised as a partner in a firm in an execution proceeding against the firm; (f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of attachment of decree passed by another Court.]
5[44A. Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory.—(1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed in 3[Pakistan] as if it had been passed by the District Court.
Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13. Explanation 1.— "Superior Courts", with reference to the United Kingdom, means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham. 1The original words "part of British India" have successively been amended by A.O., 1949 and the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), to read as above. 2The words "by Court established or continued by the authority of the Federal Government in any Acceding State," omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Second Sch., which had previously been amended by various enactments.
4This section was previously amended by various enactments.
Explanation 2.— "Reciprocating territory" means ¹[the United Kingdom and such other country or territory as] the ²[Federal Government] may, from time to time, by notification in the ³[official Gazette], declare ⁴ to be reciprocating territory for the purposes of this section; and "superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification. Explanation 3.— "Decree", with reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and (a) with reference to superior Courts in the United Kingdom, includes Judgments given and decrees made in any Court in appeals against such decrees or Judgments, but (b) in no case includes an arbitration award, even if such award is enforceable as a decree or Judgment.]
The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree: Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property. ¹Subs. by the Civil and Criminal Procedure Codes (Amdt.) Ordinance, 1962 (67 of 1962), s. 3 for "any country, or territory, situated in "any part of His Majesty's Dominions * * * which". The asterisks denote the omission of "or in India" by A.O., 1937. ²Subs. by F.A.O., 1975, Art. 2 and Table for "Central Government" which had been subs. by A.O., 1937, for "G.G. in C.". ³Subs. by A.O., 1937, for "Gazette of India". ⁴The Central Govt. has declared Fiji to be a reciprocating territory and the Supreme Court of Fiji to be a Superior Court of the territory for the purposes of this section, see Gaz. of P., 1949, Pt. I, p. 275. Certain Courts of Pakistan have been declared to be superior Courts for the purpose of Part II of the Foreign Judgments (Reciprocal Enforcement) Act, 1933 (23 Geo. 5, Ch. 13), see Gaz. of P., 1953, Pt. I, pp. 143-44. The Central Government has declared the Colony of Singapore to be a reciprocating territory, and the Supreme Court of Singapore to be a superior Court of the territory for the purpose of this section, see Gaz. of P., 1954, Pt. I, p. 106. Certain Courts in Pakistan have been declared to be superior Court for the purpose of section 5 of the Reciprocal Enforcement of Judgment Ordinance of Singapore, see Gaz. of P., 1954, Pt. I, p. 206. The Central Government has declared the Australian Capital Territory to be a reciprocating territory, and the Supreme Court of Australian Capital Territory to be a superior Court of the territory for the purposes of this section, see Gaz. of P., 1957, Pt. I, p. 174. The Central Government has declared New Zealand including the Cook Islands (including Niue) and the Trust Territory of Western Samoa to be a reciprocating territory, and the Supreme Court of New Zealand to be a superior Court of that territory, for the purposes of this section (with effect from 7th August, 1958), see Gaz. of 1958 Pt. I, p. 455. The Central Government has declared the Northern Territory of Australia to be reciprocating territory, and the Supreme Court of the said territory to be a superior Court of the territory for the purposes of this section, see Gaz. of P., 1959, Pt. I, p. 425.
The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.
Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation.— For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit. LIMIT OF TIME FOR EXECUTION
(a) the date of the decree sought to be executed, or, (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
Nothing in this section shall be deemed— (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of 2[six years], where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within 2[six years] immediately before the date of the application; or (b) to limit or otherwise affect the operation of article 3[183 of the First Schedule to the Limitation Act, 1908 (IX of 1908).] 1 This section has been amended in its application to Sind by the Sind Rural Credit and Land Transfer Act, 1947 (49 of 1947), s. 18. 2 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch. for "twelve years". 3 Subs. by the Code of Civil Procedure (Amdt.) Act, 1940 (24 of 1940) s. 3, for "180 of the Second Schedule to the Indian Limitation Act, 1877".
Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit. PROCEDURE IN EXECUTION
(a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: [Provided that, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied— (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,— (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account. Explanation.—In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.]
Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.
ARREST AND DETENTION
Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise: Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found: Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest: Provided, fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.
The 1[Provincial Government] may, by notification in the 2[official Gazette], declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the 1[Provincial Government] in this behalf. 3[(3) A judgment-debtor detained in prison under sub-section (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the decree, but he shall not be liable to be re-arrested under the decree in execution of which he was so detained in prison.]
5[57. Subsistence Allowance.] Omitted by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (X of 1980), s. 7. 1 Subs. by A.O., 1937, for "L.G." 2 Subs. ibid., for "local official Gazette". 3 The original sub-sections (3) and (4), as amended by the Code of Civil Procedure (Amdt.) Act, 1921 (3 of 1921), s. 2, have been subs. by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s. 5. 4 The word "civil" was omitted by Ord. 10 of 1980, s.6. 5 S. 57 was amended by A.O., 1937.
(a) the amount mentioned in the warrant for his detention is paid to the officer in charge of the prison; or (b) the decree against him is otherwise fully satisfied; or (c) the person on whose application he has been detained so requests: Provided that he shall not be released from such detention without the order of the Court.]
ATTACHMENT
Provided that the following particulars shall not be liable to such attachment or sale, namely:— (a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman; (b) tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section; (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him; (d) books of account; (e) a mere right to sue for damages; (f) any right of personal service; (g) stipends and gratuities allowed to 1[pensioners of the Government], or payable out of any service family pension fund notified 2 in the 3[official Gazette] by 4[the 5[Federal Government] or the Provincial Government] in this behalf, and political pensions; 6[(h) the wages of labourers and domestic servants, whether payable in money or in kind; 7* * *; 8[(i) salary to the extent of the first hundred rupees and one-half of the remainder: Provided that where such salary is the salary of a 9[servant of the State] or a servant of a railway 10* or local authority, and the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree;]] (j) the pay and allowances of persons to whom the 11[12[Pakistan Army Act, 1952 (XXXIX of 1952)], 13* * * applies]; 14[or of persons other than commissioned officers to whom the 15[Pakistan Navy Ordinance, 1961, (XXXV of 1961), applies]; (k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1[1925 (XIX of 1925)], for the time being applies in so far as they are declared by the said Act not to be liable to attachment; 2[(l) any allowance forming part of the emoluments of any 3[servant of the State] or of any servant of a railway 4* or local authority which the 5[appropriate Government] may by notification 6 in the 7[official Gazette] declare to be exempt from attachment, and any subsistence grant or allowance made to 8[any such servant] while under suspension;] (m) an expectancy of succession by survivorship or other merely contingent or possible right or interest; (n) a right to future maintenance; (o) any allowance declared by 9[any Pakistan law] to be exempt from liability to attachment or sale in execution of a decree; and (p) Where the judgment-debtor is a person liable for the payment of land-revenue, any moveable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue. 10[Explanation. I].—The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are exempt from attachment or sale whether before or after they are actually payable, 11[and in the case of salary other than salary of a 12[servant of the State] or a servant of a railway13* or local authority the attachable portion thereof is exempt from attachment until it is actually payable]. 1[Explanation 2.—In clauses (h) and (i), "salary" means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (i), derived by a person from his employment whether on duty or on leave.] 2[Explanation 3.—In clause (l) "appropriate Government" means— (i) as respects any 3[person] in the service of the 4[Federal Government], or any servant 5[of railway or] 6[* * * of a cantonment authority or of the port authority of a major port, the 4[Federal Government]; 7[* * * * * * *] (iii) as respects any other 8[servant of the State] or a servant of any 9[* * * local authority, the Provincial Government.]
Nothing in this section shall be deemed— 10[*to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land, *10 10[* * * * * * *]
1 Explanation 2 was added by Act 9 of 1937, s. 2, and Subs. by the Code of Civil Procedure (Second Amdt.) Act, 1937 (9 of 1937), s. 2, for the original cls. (h) and (i). The amendments made by that section have no effect in respect of any proceedings arising out of a suit instituted before the 1st June, 1937: see ibid., s.3. 2 Explanation 3 ins. by A.O., 1937. 3 Subs. by Act 5 of 1943, s. 2, for "public officer". 4 Subs. by F.A.O., 1975, Art. 2 and Table, for "Central Government". 5 Ins. ibid. Art. 2 and Sch. (with effect from the 14th August, 1973). 6 The original words "or a Federal Railway or" as amended by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), have been omitted by the Code of Civil Procedure (Amdt.) Ordinance, 1962 (44 of 1962), s.13. 7 Cl. (ii) omitted by A.O., 1949. 8 Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), for "servant of the Crown" which had been subs. by the Code of Civil Procedure (Amdt.) Act, 1943 (8 of 1943), s. 2 for "public officer". 9 The original words "or ordinary" as or amended by Ord. 44 of 1962 s.13, have been omitted by F.A.O., 1975, Art. 2 and Sch. (with effect from the 14th August, 1973). 10 The letter and brackets "(d)", after the word "or", and cl. (d) rep. by the Repealing and Amending Act, 1914 (10 of 1914), s.3 and 2nd Sch. 11 Subs. by A.O., 1937, for "LG". 12 The words "with the previous sanction of the GG in C", rep. by the Devolution Act, 1920 (38 of 1920), s. 2 and Sch. Pt. I. 13 Subs. by A.O., 1937, for "local official Gazette".
No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.
Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.
Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.
Explanation.—For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets. SALE
Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property. 167.—(1) Power for Provincial Government to make rules as to sales of land in execution of decrees for payment of money. The 2[Provincial Government] 3* * *, may, by notification in the 4[official Gazette], make rules for any local area imposing conditions in respect of the sale of any class of interests in land in execution of decrees for the payment of money, where such interests are so uncertain or undetermined as, in the opinion of the 2[Provincial Government], to make it impossible to fix their value. 5[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the 2[Provincial Government] may, by notification in the 4[official Gazette], declare such rules to be in force, or may, 6* * *by a like notification, modify the same. Every notification issued in the exercise of the powers conferred by this sub-section shall set out the rules so continued or modified.] DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES AGAINST IMMOVEABLE PROPERTY
(a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for retransmitting the decree from the Collector to the Court; (b) conferring upon the Collector or any gazatted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector; (c) providing for orders made by the Collector or any gazatted subordinate of the Collector, or orders on appeal with respect to such orders, being subject to appeal to, and revision by, superior revenue-authorities as nearly as may be as the orders made by the Court, or orders made on appeal with respect to such orders, would be subject to appeal to, and revision by, appellate or revisional Courts under this Code or other law for the time being in force if the decree had not been transferred to the Collector. Jurisdiction of Civil Courts barred. (2) A power conferred by rules made under sub-section (1) upon the Collector or any gazatted subordinate of the Collector, or upon any appellate or revisional authority, shall not be exercisable by the Court or by any Court in exercise of any appellate or revisional jurisdiction which it has with respect to decrees or orders of the Court.
In every such case the provisions of sections 69 to 71 and of any rules made in pursuance thereof shall apply so far as they are applicable. DISTRIBUTION OF ASSETS
Provided as follows:— (a) where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale; (b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold; (c) where any immoveable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied— first, in defraying the expenses of the sale; secondly, in discharging the amount due under the decree; thirdly, in discharging the interest and principal monies due on subsequent incumbrances (if any); and fourthly, rateably among the holders of decrees for the payment of money against the judgment debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.
Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.
Nothing in this section affects any right of [1][the Government]. RESISTANCE TO EXECUTION 2[74. Resistance to execution.—(1) Where the Court is satisfied that the holder of a decree for the possession of property or a purchaser of property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or any other person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or the purchaser, order the judgment-debtor or such other person to undergo simple imprisonment for a term which may extend to thirty days and may further direct that the decree-holder or the purchaser be put into possession of the property.
Notwithstanding anything contained in sub-section (1), where a judgment-debtor or any other person resists or obstructs the execution of a decree, the Court may direct the officer in charge of the police-station within whose jurisdiction the judgment-debtor or such other person resides or where the property to which the decree relates is situate to provide the necessary police assistance for the execution of the decree.]
INCIDENTAL PROCEEDINGS COMMISSIONS
(a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; or (d) to make a partition.
Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.
(a) Courts situate beyond the limits of 1[Pakistan] and established or continued by the authority of 3* * * 4[the 5[Federal Government] 6* * *], or Code of Civil Procedure, 1908 [1908 : V] (c) Courts of any State or country outside Pakistan.
SUITS IN PARTICULAR CASES SUITS BY OR AGAINST [THE GOVERNMENT] OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY
(a) in the case of a suit by or against the [Federal Government], [Pakistan]; (b) in the case of a suit by or against a Provincial Government, the Province; and
(a) in the case of a suit against the [Federal Government], a Secretary to that Government; (b) (i) in the case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the Collector of the District; and (ii) in the case of a suit against the [Federal Government] relating to the affairs of a Railway, the General Manager of the Railway concerned. Code of Civil Procedure, 1908 [1908 : V] and in the case of a public officer, delivered to him or left at his office stating the cause of action, the name, description of place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shall not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiff's claim, within the period of two months from the date of the institution of the suit: Provided that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written statement.]
(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree, and, (b) where the Court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.
Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report. 3[SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND ENVOYS]
1 The original words "the Secretary of State for India in Council" were first subs. by A.O., 1937 and then amended by A.O., 1961, Art. 2 (with effect from the 23rd March, 1956), to read as above. 2 Subs. by A.O., 1937, for "G.G. in C.". 3 Subs. by the Code of Civil Procedure (Amdt.) Ordinance, 1960 (22 of 1960), s.2, for "SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS AND RULERS OF ACCEDING STATES" as amended by A.O., 1937 and the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s.4 and 3rd Sch. 4 Subs. by A.O., 1949, for "in British India". 5 Subs. by F.A.O., 1975, Art. 2 and Table, for "Central Government" which had been subs. by A.O., 1937, for "G.G. in C.". 6 Subs. by A.O., 1949, for "of British India". 7 Subs. by A.O., 1961, Art. 2 and Sch., for "Subjects of His Majesty" (with effect from the 23rd March, 1956).
No alien enemy residing ¹[in Pakistan] without such permission, or residing in a foreign country, shall sue in any of such Courts. Explanation.—Every person residing in a foreign country the Government of which is at war with ²[or engaged in military operations against,] ³[Pakistan], and carrying on business in that country without a license in that behalf under the hand ⁴* * *of a Secretary to the ⁵[Federal Government] shall, for the purpose of sub-section (2), be deemed to be an alien enemy residing in a foreign country.
Provided that such State has been recognized by ⁷* * *the ⁸[Federal Government]: Provided, also, that the object of the suit is to enforce a Private right vested in the head of such State or in any officer of such State in his public capacity.
Every Court shall take judicial notice of the fact that a foreign State has or has not been recognized by ⁷* * *the ⁸[Federal Government].
¹⁰* * * * * * * *
An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of the ¹¹[Ruler]. --- ¹Subs. by A.O., 1949, for "in British India". ²Ins. by the Code of Civil Procedure (Amdt.) Act, 1955 (19 of 1955), s.2. ³Subs. by A.O., 1949, for "the United Kingdom of Great Britain and Ireland". ⁴The words "of one of His Majesty's Secretaries of State or" omitted, ibid. ⁵Subs. by F.A.O., 1975, Art. 2 and Table, for "Central Government" which had been subs. by A.O., 1937, for "Government of India". ⁶Subs. by A.O., 1949, for "of British India". ⁷The words "His majesty or by" omitted by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956). ⁸Subs. by F.A.O., 1975, Art. 2 and Table, for "Central Government" which had been subs. by A.O., 1937, for "G.G. in C". ⁹Subs. and shall be deemed to have been so subs. on the 14th day of October, 1955, by the Code of Civil Procedure (Amdt.) Ordinance, 1960 (22 of 1960), s.3, for the existing sub-section (1), as amended by A.O., 1949 and the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. ¹⁰The Explanation which had been ins. by A.O., 1937, omitted by A.O., 1949. ¹¹Subs. and shall be deemed to have been so subs. on the 14th day of October, 1955, by Ordinance 22 of 1960, s.3, for "Prince or Chief".
A person appointed under this section may authorise or appoint persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.
(a) any private immoveable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission; (b) a succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his official functions.
No measures of execution shall be taken in respect of a diplomatic agent except in cases which come under clauses (a), (b) and (c) of sub-section (1) and in which such measures can be taken without infringing the inviolability of his person or of his residence.
The initiation of any proceedings in a Court by a diplomatic agent shall preclude him from invoking immunity from jurisdiction under this section in respect of any counter-claim directly connected with the principal claim.
The immunity of a diplomatic agent under sub-section (1) or sub-section (2) may be waived by the sending State; and any such waiver shall be express.
Waiver of immunity in respect of any proceedings shall not be held to imply waiver of immunity in respect of any measure of execution for which a separate waiver shall be necessary.
In this section, 'diplomatic agent' in relation to a State means the head of the mission in Pakistan of that State and includes a member of the staff of that mission having diplomatic rank.
Code of Civil Procedure, 1908 [1908 : V] 187-A. [Application of sections 85 and 86 to Rulers of Acceding States, etc.] Omitted by the Code of Civil Procedure (Amdt.) Act, 1972 (II of 1972), s.2. INTERPLEADER
Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.
SPECIAL PROCEEDINGS ARBITRATION
89-A. Alternate dispute resolution.— The Court may, where it considers necessary, having regard to the facts and circumstances of the case, with the object of securing expeditious disposal of a case, in or in relation to a suit, adopt with the consent of the parties alternate dispute resolution method, including mediation and conciliation. SPECIAL CASE
SUITS RELATING TO PUBLIC MATTERS
(a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (d) directing accounts and inquiries; (e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust; (f) authorising the whole or any part of the trust-property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.
2* * * 2[No] suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
Code of Civil Procedure, 1908 [1908 : V] exercised also by the Collector or by such officer as the 1[Provincial Government], may appoint in this behalf.
SUPPLEMENTAL PROCEEDINGS
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison; (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient.
(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or (b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the Court and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding2[ten] thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him: Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction.
An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction. 1 Subs. by A.O., 1937, for "L.G.". 2 Subs. by Act XIV of 1994, s. 8.
APPEALS APPEALS FROM ORIGINAL DECREES
An appeal may lie from an original decree passed ex-parte.
No appeal shall lie from a decree passed by the Court with the consent of parties.
Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed: Provided that where the Bench hearing the appeal is composed of two judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.
Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.
1[Sub-section (3) ins. by the Repealing and Amending Act, 1928 (18 of 1928), s.2 and First Sch.]
(a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. 1* * * * * * *
2[102. No second appeal in certain cases. No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes and in any other suit when the amount or value of the subject-matter of the original suit does not exceed the amount or value as the Provincial Government may by law determine.]
APPEALS FROM ORDERS
4* * * * * * * 5[(f) an order under section 35A; (ff) an order under section 47;] 6[(fff) an order under section 91 or section 92 refusing leave to institute a suit;]. (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: 1[Provided that no appeal shall lie against any order specified in clause 2[(f)] save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]
No appeal shall lie from any order passed in appeal under this section.
Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.
GENERAL PROVISIONS RELATING TO APPEALS
(a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. 1Proviso ins. by the Civil Procedure (Amdt.) Act, 1922 (9 of 1922), s. 3. See also foot note to s. 35A, supra.
(a) from appellate decrees, and (b) from orders made under this Code or under any special or local law in which a different procedure is not provided. 1APPEALS TO THE 2[SUPREME COURT] 3[109. When appeals, lie to the Supreme Court. An appeal from a judgment, decree or final order of a High Court shall lie to the Supreme Court— (a) if the amount or value or the subject-matter or the dispute in the Court of first instance was and also in appeal is (unless varied by an Act of Parliament) fifty thousand rupees or upward and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (b) if the judgment, decree or final order involves, directly or indirectly, some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (c) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.].
Code of Civil Procedure, 1908 [1908 : V] (a) from the decree or order of one Judge of a High Court 1* * *, or of one Judge of a Division Court, or of two or more Judges of such High Court, or of a Division Court constituted by two or more Judges of such High Court, where such Judges are equally divided in opinion and do not amount in number to a majority of the whole of the Judges of the High Court at the time being; or (b) from any decree from which under section 102 no second appeal lies. 2[111A. [Appeals to Federal Court.] Omitted by the Federal Court Act, 1941 (XXI of 1941), s. 2.
(a) to affect the powers of the Supreme Court under Article 4[191 of the Constitution or any other provision thereof]; or (b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]
Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.
REFERENCE, REVIEW AND REVISION
5[114. Review.—(1) Subject as aforesaid, any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or 1The existing words "constituted by His majesty by Letters Patent" as amended by A.O., 1937 and Act 13 of 1916. Sch., have been Omitted by A.O., 1961, Art. 2 ans Sch. (with effect from the 23rd March, 1956). 2This section was ins. by A.O., 1937.
4The words "Article 158 of the constitution or any other provision of that Constitution" have successively been amended by A.O., 1964, Art. 2 and Sch. and F.A.O., 1975, Art. 2 and Sch. (with effect from the 14th August, 1973), to read as above.
Nothing contained in sub-section (1) shall apply to a review of any judgment pronounced or any order made by the Supreme Court.]
(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: [Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the sub-ordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court: [Provided further that such application shall be made within ninety days of the decision of the subordinate Court.] [Which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months.] [(2) The District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter where of does not exceed the limits of the appellate jurisdiction of the District Court.
If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Court.]
SPECIAL PROVISIONS RELATING TO1* * HIGH COURTS
and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.
4* * * * * * * * 1The words "THE CHARTERED" have been omitted by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October,1955). 2The words "which are, or may hereafter be, constituted by His Majesty by Letters Patent" as amended by A.O., 1937 and Act 13 of 1916, Sch., have been omitted by Ord. 21 of 1960. s.3 and 2nd Sch. (with effect from the 14th October,1955). 3The word "such" has been omitted by Ord. 21 of 1960, s. 3 and 2nd Sch. (with effect from the 14th October, 1955). 4Sub-section (2) omitted by the Presidency-towns Insolvency Act, 1909 (3 of 1909), s. 127 and Third Sch.
Each such Committee shall consist of the following persons namely:— (a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or 6* * *a Divisional Judge for three years, 7* * * * * * * * * 8[(c) two advocates practising in that Court, and] (d) a Judge of a Civil Court subordinate to the High Court, 9* 9* * * * * * * * * --- 1 Subs. by the Central Laws (Statute Reform) ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for "Courts which are High Courts for the purposes of the Government of India Act, 1935" as amended by A.O., 1937, A.O., 1949 and the Oudh Courts (Supplementary) Act, 1925 (23 of 1925), s. 2 and Sch. 2 The words "and the Chief Court of Lower Burma" were omitted by the Repealing and Amending Act, 1923 (11 of 1923), s. 3 and Second Sch. The words "Chief Court of Lower Burma" had been previously subs., for "Chief Courts of the Punjab and Lower Burma" by the repealing and Amending Act, 1919 (18 of 1919), s. 2 and First Sch. 3 Subs. by the Amending Act, 1916 (13 of 1916), s. 2 and Sch., for "each of the towns of Calcutta, Madras, Bombay, Allahabad, Lahore and Rangoon". 4 The words "and of the chief court" which had been ins. by Act 32 of 1925, s. 2 and Sch., were omitted by A.O., 1949. 5 The words "and of the Chief Court" omitted by Act 11 of 1923, s. 2 and First Sch. The words "of the Chief Court" had been previously subs., for "Chief Courts" by Act 18 of 1919, s. 2 and First Sch. 6 The words and parentheses "(in Burma)" were subs. for "(in the Punjab or Burma)" by s. 2 and First Sch. of Act 18 of 1919, and were subsequently omitted by s. 3 and Second Sch. of Act 11 of 1923. 7 Clause (b) omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and Second Sch. 8 Subs., ibid, for clause (c). 9 The word "and" and cl. (d), omitted ibid.
The members of each such Committee shall be appointed by the Chief Justice 1* * * who shall also nominate one of their member to be President: Provided that, if the Chief Justice 1* * * elects to be himself a member of a Committee, the number of other Judges appointed to be members shall be two, and the Chief Justice 1* * * shall be the President of the Committee.
Each member of any such Committee shall hold office for such period as may be prescribed by the Chief Justice 1* * * in this behalf; and whenever any member retires, resigns, dies or ceases to reside in the Province in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said Chief Justice 1* * * may appoint another person to be a member in his stead.
There shall be a Secretary to each such Committee, who shall be appointed by the Chief Justice 1* * * and shall receive such remuneration as may be provided in this behalf 2[by the Provincial Government].
3[125. Power of other High Courts to make rules.] Omitted by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960), S.3 and 2nd Sch. (with effect from the 14th October, 1955). 4[126. Rules to be subject to approval. Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the Province in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any Province, to the previous approval of the 5[Federal Government].
1 The words "or Chief Judge" have been omitted by the Central Laws (Statute Reforms) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955). 2 Subs. by A.O., 1937, for "by the GG in C. or by the L.G., as the case may be." 3 S. 125 was amended by A.O., 1937 and the Devolution Act, 1920 (38 of 1920), s.2 and First Sch. 4 Subs. by A.O., 1937, for s. 126 as amended by the Amending Act, 1916 (13 of 1916), Sch. 5 Subs. by F.A.O., 1975, Art.2 and Sch. For "President" which had been subs. by A.O., 1961, Art.2 (with effect from the 23rd March, 1956), for "Governor-General" 6 Subs. by the Repealing and Amending Act, 1917 (27 of 1917), s.2 and First Sch., for "sanctioned." 7 Subs. by A.O., 1937, para 4(1), for "Gazette of India or in the local official Gazette, as the case may be". Strictly the substitution would read "official Gazette or in the official Gazette, as the case may be", but the latter words have been omitted as being redundant.
In particular, and without prejudice to the generality of the powers conferred by sub-section
, such rules may provide for all or any of the following matters, namely:— (a) the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service; (b) the maintenance and custody, while under attachment, or live-stock and other moveable property, the fees payable for such maintenance and custody, the sale of such live-stock and property, and the proceeds of such sale; (c) procedure in suits by way of counterclaim, and the valuation of such suits for the purposes of jurisdiction; (d) procedure in garnishee and charging orders either in addition to, or in substitution for, the attachment and sale of debts; (e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not; (f) summary procedure— (i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a contract express or implied; or on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee, where the claim against the principle is in respect of a debt or a liquidated demand only; or on a trust; or (ii) in suits for the recovery of immoveable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant; (g) procedure by way of originating summons; (h) consolidation of suits, appeals and other proceedings; (i) delegation to any Registrar, Prothonotary or master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and
[129A. Powers of other High Courts to make rules as to matters other than procedure.] Omitted by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956).
MISCELLANEOUS
Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.
The names and residences of the persons so exempted shall, from time to time, be forwarded to the High Court by the Provincial Government and a list of such persons shall be kept in such Court, and a list of such persons as reside within the local limits of the jurisdiction of each Court subordinate to the High Court shall be kept in such subordinate Court.
Where any matter pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenue-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.
Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to prison in execution of a decree.
(a) if he is member of a Legislature * * * *, during the continuance of any meeting of such Legislature * * *; (b) if he is member of any committee of such Legislature * * *, during the continuance of any meeting of such committee; * * * * * * * and during the fourteen days before and after such meeting or sitting.
A person released from detention under sub-section (1) shall, subject to the provisions of the said sub-section, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1).
The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by Court subordinate to itself, and shall inform the Court which issued or made such warrant or order of the arrest or attachment.
The Court making an arrest under this location shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the latter Court, or unless he furnishes sufficient security for his appearance before the latter Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.
The [Provincial Government] may declare what shall be the language of any such Court and in what character applications to and proceedings in such Courts shall be written.
Where this Code requires or allows anything other than the recording or evidence to be done in writing in any such Court, such writing may be in English; but if any party or his pleader is unacquainted with English a translation into the language of the Court shall, at his request, be supplied to him; and the Court shall make such order as it thinks fit in respect of the payment of the costs of such translation.
Where a Judge is prevented by any sufficient reason from complying with a direction under sub-section (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.
(a) any Court or Magistrate, or (b) any officer or other person whom a High Court may appoint in this behalf, or (c) any officer appointed by any other Court which the [Provincial Government] has generally or specially empowered in this behalf, may administer the oath to the deponent.
Every such assessor shall receive such fees for his attendance, to be paid by such of the parties as the Court may direct or as may be prescribed.
Provided that the [Provincial Government] [* * *] may remit such postage, or fee, or both, or may prescribe a scale of court-fees to be levied in lieu thereof.
--- 1For notification empowering the District Judge, Karachi, to appoint the officers of District Courts for the purpose of this clause, see Gaz. of P. 1956, Pt. I, p. 294.
4The words "with the previous sanction of the GG in C" omitted by the Devolution Act, 1920 (38 of 1920), s.2 and first Sch., Pt.I.
(a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree, or (c) for the payment of any money, or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of section 47: Provided that such notice as the Court in each case thinks sufficient has been given to the surety.
THE FIRST SCHEDULE RULES ORDER I PARTIES TO SUITS
Court may strike out or add parties. Where defendant added, plaint to be amended.
ORDER II FRAME OF SUIT
Relinquishment of part of claim. Omission to sue for one of several reliefs.
RULES
ORDER III RECOGNIZED AGENTS AND PLEADERS
Appointment to be in writing and to be filed in Court. ORDER IV INSTITUTION OF SUITS
ORDER V ISSUE AND SERVICE OF SUMMONS Issue of Summons
RULES Service of Summons
Effects of substituted service. Where service substituted, time for appearance to be fixed.
RULES ORDER VI PLEADINGS GENERALLY
ORDER VII PLAINT
RULES
Concise statements.
Procedure on returning plaint.
DOCUMENTS RELIED ON IN PLAINT
List of other documents.
Original entry to be marked and returned.
ORDER VIII WRITTEN STATEMENT AND SET-OFF
Effect of set-off.
ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE
When summons duly served. When summons not duly served. When summons served, but not in due time. RULES
SETTING ASIDE DECREE EX-Parte
ORDER X EXAMINATION OF PARTIES BY THE COURT
ORDER XI DISCOVERY AND INSPECTION
RULES
ORDER XII ADMISSIONS
RULES ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS.
ORDER XIV SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON
RULES ORDER XV DISPOSAL OF THE SUIT AT THE FIRST HEARING
ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES
Experts. Scale of expenses.
Expenses of witness detained more than one day.
RULES
ORDER XVII ADJOURNMENTS
Costs of adjournment.
ORDER XVIII HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
RULES
ORDER XIX AFFIDAVITS
ORDER XX JUDGMENT AND DECREE
Judgments of other Courts
RULES
Order, after decree, for payment by instalments.
Appeal from decree relating to set off.
ORDER XXI EXECUTION OF DECREES AND ORDERS Payment under Decree
Courts Executing Decrees
Application for Execution
Written application.
Objection to Execution
Process of execution
Stay of Execution
[Omitted.]
RULES Mode of Execution
Arrest and Detention in the Civil Prison
Attachment of Property
RULES
Investigation of Claims and Objections
Postponement of sale.
Sale Generally
RULES
Sale of Moveable Property
Sale of Immoveable Property
RULES
Resistance to Delivery of Possession to Decree-holder or Purchaser.
ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
Procedure where assignee fails to continue suit or give security. RULES
ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
ORDER XXIV PAYMENT INTO COURT
Procedure where he accepts it as satisfaction in full. RULES ORDER XXV SECURITY FOR COSTS
Residence out of Pakistan.
ORDER XXVI COMMISSIONS Commissions to Examine Witnesses
Commissions for Local Investigations
Report and depositions to be evidence in suit. Commissioner may be examined in person. Commission to examine Accounts
proceedings and report to be evidence. Court may direct further inquiry. Commissions to make Partitions
RULES
General Provisions
Commissions issued at the instance of Foreign Tribunals.
ORDER XXVII SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY
ORDER XXVIIA SUITS INVOLVING ANY SUBSTANTIAL QUESTION AS TO THE INTERPRETATION OF CONSTITUTIONAL LAW
ORDER XXVIII SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN
ORDER XXIX SUITS BY OR AGAINST CORPORATIONS
ORDER XXX SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN
RULES
ORDER XXXI SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
RULES
ORDER XXXIII SUITS BY PAUPERS
If presented by agent, Court may order applicant to be examined by commission.
ORDER XXXIV SUITS RELATING TO MORTGAGES OF IMMOVEABLE PROPERTY
Power to decree sale in foreclosure suit.
RULES ORDER XXXV INTERPLEADER
ORDER XXXVI SPECIAL CASE
ORDER XXXVII SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS
RULES
ORDER XXXVIII ARREST AND ATTACHMENT BEFORE JUDGMENT Arrest before Judgment
Attachment before Judgment
RULES ORDER XXXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Temporary Injunctions
Interlocutory Orders
ORDER XL APPOINTMENT OF RECEIVERS
ORDER XLI APPEALS FROM ORIGINAL DECREES
What to accompany memorandum. Contents of memorandum.
STAY OF PROCEEDINGS AND OF EXECUTION
Stay by Court which passed the decree.
PROCEDURE ON ADMISSION OF APPEAL
Register of Appeals.
Where appellant resides out of Pakistan.
RULES Transmission of paper to Appellate Court. Copies of exhibits in Court whose decree appealed from.
PROCEDURE ON HEARING
Form of objection and provisions applicable thereto.
Objections to findings. Determination of appeal.
JUDGMENT IN APPEAL
RULES
DECREE IN APPEAL
Judge dissenting from judgment need not sign decree.
ORDER XLII APPEALS FROM APPELLATE DECREES
ORDER XLIII APPEALS FROM ORDERS
ORDER XLIV PAUPER APPEALS
Procedure on application for admission of appeal.
ORDER XLV APPEALS TO THE SUPREME COURT
RULES
ORDER XLVI REFERENCE
RULES ORDER XLVII REVIEW
Application where granted
Objections to order granting application.
ORDER XLVIII MISCELLANEOUS
Costs of service.
ORDER XLIX HIGH COURTS
RULES ORDER L PROVINCIAL SMALL CAUSE COURTS
ORDER LI.—[Omitted.] APPENDICES TO THE FIRST SCHEDULE FORMS A.—PLEADINGS
B.—PROCESS. C.—DISCOVERY, INSPECTION AND ADMISSION. D.—DECREE. E.—EXECUTION. F.—SUPPLEMENTAL PROCEEDINGS. G.—APPEAL, REFERENCE AND REVIEW. H.—MISCELLANEOUS. Code of Civil Procedure, 1908 [1908: V] THE FIRST SCHEDULE (See section 121) ORDER I PARTIES TO SUITS
(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to; (b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities.
Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule(1) may apply to the Court to be made a party to such suit.
Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
Where defendant added, plaint to be ammended. Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
Subject to the provisions of the 1[Limitation Act, 1908 (IX of 1908)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
The authority shall be in writing signed by the party giving it and shall be filed in Court.
ORDER II FRAME OF SUIT
Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.— For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. Illustration A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent, due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.
Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; (b) claims for damages for breach of any contract under which the property or any part thereof is held; and (c) claims in which the relief sought is based on the same cause of action: Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
ORDER III RECOGNIZED AGENTS AND PLEADERS
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.
The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent.
Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. 1 Subs. by the Code of Civil Procedure (Second Amndt.) Act, 1926 (22 of 1926) s.2, for “duly appointed to act”. 2 Subs. by the Code of Civil Procedure (Second Amndt.) Act, 1926 (22 of 1926), s.2, for the original rule 4.
For the purposes of sub-rule (2) an application for review of judgment, an application under section 144 or section 152 of this Code, any appeal from any decree or order in the suit and any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.
The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating— (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorized to appear: Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.]
. Appointment to be in writing and to be filed in Court. Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court. ORDER IV INSTITUTION OF SUITS
Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
ORDER V ISSUE AND SERVICE OF SUMMONS Issue of Summons
Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim.
A defendant to whom a summons has been issued under sub-rule (1) may appear— (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions.
Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.
Where the Court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance.
(a) within the local limits of the Court's ordinary original jurisdiction, or (b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the court-house.
Provided that, in every suit heard by a Court of small Causes, the summons shall be for the final disposal of the suit.
Service of Summons
The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct. 1[(3) Unless the Court otherwise directs, the proper officer or an officer authorised by him in this behalf shall cause the service of summons and return it to the Court within fifteen days of issue of summons.]
2[10-A. Service by post.— (1) Simultaneously with the issue of summons under rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant, by 3[courier service and] registered post, acknowledgment due, another copy of the summons signed and sealed in the manner provided in rule 10.
An acknowledgment purporting to be signed by the defendant of the receipt of the registered communication or endorsement by a 3[courier messenger or] postal employee that the defendant refused to take delivery of the same shall be deemed by the Court issuing the summons to be prima facie proof of service of summons.]
For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer.
Explanation.— A servant is not a member of the family within the meaning of this rule. 1Added by Act XIV of 1994, s.11 2Rule 10-A ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. 3Added by No. 300 Rules XI-726, dated 2nd October, 2001.
(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or (b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television; or (c) urgent mail service or public courier services; or (d) beat of drum in the locality where the defendant resides; or 1 Subs and added by Act. XIV of 1994, s.11. (e) publication in press; or (f) any other manner or mode as it may think fit: Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously;]
Effects of substituted service. Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
Where service substituted, time for appearance to be fixed. Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require [which shall not ordinarily exceed fifteen days.]
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(a) in the exercise of any foreign 6[or extraterritorial jurisdiction vested in the 7[Federal Government]], a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons issued by a Court under this Code in any foreign territory in which the defendant resides, or ``` Provisions of s. 25 have been applied to:— (i) the Civil Courts in the Federation of Malaya in so far as the Chief Commissioner's Province of Baluchistan and the Capital of the Federation are concerned, see Gaz. of P., 1949, Pt. I, P. 258 and ibid., Pt. I, P. 68 (ii) all Civil and Revenue Courts of India; and service by any Civil or Revenue Court of India of any summons issued under the Code of Civil Procedure, 1908, by a Court of the Province of Sindh shall be deemed to be valid service, see Sind Government Gazette, Extraordinary, dated 3rd July, 1952, Pt. II, P. 437. (iii) all Civil and Revenue Courts in India and Service by such Courts of any summons issued under the said Code by a Court in the N.W.F.P., Baluchistan or Karachi shall be deemed to be valid service, see N.W.F.P. Government Gazette, 1952, Pt. I, P. 248 and Gaz. of P., 1952, Pt. II, P. 119 and ibid., Pt. VI, P. 126. (iv) all Civil and Revenue Courts in India; and service by such Courts of any summons issued under the said Code by a Court in Khairpur State shall be deemed to be valid service, see Khairpur State Gazette, Pt. I, dated the 15th September, 1952. (v) all Civil and Revenue Courts in India; and service by such Courts of any summons issued under the said Code by a Court in the Bahawalpur State shall be deemed to be valid service, see Bahawalpur Govt. Gazette, dated the 24th October, 1952. (vi) all Civil and Revenue Courts of India; and service by any Civil or Revenue Court in India, within whose jurisdiction the person to be served resides of any summons issued by a Court under the said Code shall be deemed to be valid service, see Punjab Gazette, Ext., 1951, dated the 11th September, 1951, p. 1743. (vii) all Civil and Revenue Courts in the Union of Burma, in respect of Karachi and Baluchistan; and service by such Courts of any summons issued under the said Code by a Court in Baluchistan shall be deemed to be valid service see Gaz. of P., Extra., 1954, P. 1837. (viii) all Civil and Revenue Courts in the Union of Burma in respect of Karachi; and service by such courts of any summons issued under the said Code by a Court in Karachi shall be deemed to be valid service, see Gaz. of P., Extra., 1954, P. 1997. (ix) all Civil and Revenue Courts of the Union of Burma; and service by such Courts of Summons issued under the said Code by a Court in East Bengal shall be deemed to be valid service, see Dacca Gazette, Ext., dated 18th October, 1954, Pt. I, P. 3053. (x) all Civil and Revenue Courts of the Union of Burma; and service by such Courts of any summons issued under the said Code by a Court in the N.W.F.P. shall be deemed to be valid service, see N.W.F.P. Gazette, 1954, Pt. I, P. 523. (xi) all Civil and Revenue Courts of the Union of Burma; and service by such Courts of any summons issued under the said Code by a Court in the Province of Punjab, shall be deemed to be valid service, see Gaz. Of Punjab, 1954, Pt. I, P. 843. (xii) all Civil and Revenue Courts of the Union of Burma; and service by such Courts of any summons issued under the said Code by a Court in the Province of Sind, shall be deemed to be valid service, see W. Pakistan Gazette, 1954, Pt. I, P. 940. (xiii) all Civil and Revenue Courts in the Federal Republic of Germany; and service by such Courts of summons issued under the said Code by a Court in Baluchistan shall be deemed to be valid service, see Gaz. of P., 1955, Pt. I, P. 162. (xiv) the summonses issued by any Civil or Revenue Courts by Pakistan may be sent to the Courts in the Union of Burma and served as if they had been issued by such Courts, see Gaz of 1955, Pt. I, P. 143. (xv) service by any Court situated in Pakistan, of any summons issued by a Court of the Union of Burma shall be deemed to be valid service, see Gaz. Of P., 1955, Pt. I, P. 143. (xvi) all Civil and Revenue Courts in the Federal Republic of Germany and service by such Courts of any summons issued under the said Code by a Court in Karachi, shall be deemed to be valid service, with effect on and from the 1st June, 1955, see Gaz. Of P., 1955, Pt. VI, P. 102. (xvii) all Civil and Revenue Courts in the Federal Republic of Germany; and service by such Courts of any summons issued under the said Code by a Court in the Province of East Bengal shall be deemed to be valid service see Dacca Gazette, 1955, Pt. I, P. 1051. (xviii) all Civil and Courts in Switzerland and the service by such Courts of any summons issued under the Code (C.P.C.) by a Court in the Province of W. Pakistan shall be deemed to be valid service, see W.P. Gaz., 1959, Pt. I, P. 268.
``` 1[(b) 2[the Provincial Government] has, by notification in the 3[official Gazette], declared 4, in respect of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons 5[issued under this Code by a Court of the Province] shall be deemed to be valid service,] the summons may be sent to such Political Agent or Court, by post or otherwise, for the purpose of being served upon the defendant; and, if the Political Agent or Court returns the summons with an endorsement signed by such Political Agent or by the Judge or other officer of the Court that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be deemed to be evidence of service. [26A. Service on civil public officer or on servant of railway company or local authority, in India. Where the defendant is a servant (not belonging to the military, naval or air forces) of any Government in India, or a servant of a railway company or local authority in India, the summons together with a copy of it to be retained by the defendant shall be sent, with a request that it may be served on the defendant,— (a) in the case of a defendant serving in connection with the affairs of the Government of India or a servant of a Railway in India, to the Secretary to the Government of India in the Ministry of Home Affairs, and (b) in the case of a defendant serving in connection with the affairs of any other Government in India, or in the case of a servant of a local authority in India, to the Home Secretary to that Government or, as the case may be, to the Home Secretary to the Government in whose territories the local authority has its jurisdiction.]
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Where from any cause service is impossible, the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.
A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in a summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as a summons.
A letter so substituted may be sent to the defendant by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and, where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent. ORDER VI PLEADINGS GENERALLY
The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
ORDER VII PLAINT
a) the name of the Court in which the suit is brought; b) the name, description and place of residence of the plaintiff; c) the name, description and place of residence of the defendant, so far as they can be ascertained; d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; e) the facts constituting the cause of action and when it arose; f) the facts showing that the Court has jurisdiction; g) the relief which the plaintiff claims; h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.
But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for.
(1A) The plaintiff shall present with his plaint— a) as many copies on plain paper of the plaint as there are defendants, plus two extra copies, unless the Court, by reason of the length of the plaint or the number of the defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claim made, or of the relief claimed in the suit, in which case he shall present such statements; and b) draft forms of summons and fees for the service thereof.]
Procedure on returning plaint. On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it. 1 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the original sub-rule (1).
a) where it does not disclose a cause of action: b) where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so: c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so: d) where the suit appears from the statement in the plaint to be barred by any law.
Documents relied on in Plaint
List of other documents. Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.
or account at the time of filing the plaint, together with a copy of the entry on which he relies.
Original entry to be marked and returned. The Court, or such officer as it appoints in this behalf shall forthwith mark the document for the purpose of identification; and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book, to the plaintiff and cause the copy to be filed.
Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. ¶19. Address to be filed with plaint.— (1) Every plaint or original petition shall be accompanied by a proceeding giving an address at which service of notice, summons or other process may be made on the plaintiff or petitioner.
Plaintiffs or petitioners subsequently added shall immediately on being so added file a proceeding of this nature.
The address filed under this rule shall be entered in the Register of suits maintained under Order IV, rule 2.
If, on the date fixed, such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the said address by registered post, and
(a) the names and addresses of the persons whom, in the event of the death of the plaintiff, may be made a party as his legal representatives; (b) the name and address of the person who, in the event of the death of the plaintiff, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the plaintiff and make an application for the legal representatives to be made a party.
A plaintiff may at any time— (a) file in the Court an amended list, of his presumptive legal representatives; (b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.
A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2) remain in force throughout the pendency of the suit and any proceedings arising therefrom, including appeal, revision and review. ORDER VIII WRITTEN STATEMENT AND SET-OFF
²[Provided that the period allowed for filing the written statement shall not ordinarily exceed ³[thirty] days.] ⁴["Provided further that not more than two adjournments shall be granted for presenting the written statement"].
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
Effect of Set-off. The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgement in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.
The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. Illustrations (a) A bequeaths Rs.2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B's effect. C pays Rs.1,000 as surety for D: then D sues C for the legacy. C cannot set-off the debt of Rs.1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of the Rs.1,000. (b) A dies intestate and in debt to B. C takes out administration to A's effects and B buys part of the effects from C. In a suit for the purchase-money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A. (c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off. (d) A sues B on a bill of exchange for Rs.500. B holds a judgment against A for Rs.1,000. The two claims being both definite pecuniary demands may be set-off. (e) A sues B for compensation on account of trespass. B holds a promissory note for Rs.1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so for, as soon as A recovers, both sums as definite pecuniary demands. (f) A and B sue C for Rs.1,000. C cannot set-off a debt due to him by A alone. (g) A sues B and C for Rs.1,000. B cannot set-off a debt due to him alone by A. (h) A owes the partnership firm of B and C Rs.1,000. B dies, leaving C surviving. A sues C for a debt of Rs.1,500 due in his separate character. C may set-off the debt of Rs.1,000.
Such address shall be entered in the Register of suits to be maintained under Order IV, rule 2.
Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under this rule.
The Court may pass an order under sub-rule (1) suo moto or on the application of any party.
(a) the names and addresses of the persons who, in the event of the death of the defendant, may be made a party as his legal representatives; (b) the name and address of the person, who in the event of the death of the defendant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the defendant and make an application for the legal representatives to be made a party.
A defendant may at any time - a) file in the Court an amended list of his presumptive representatives. Code of Civil Procedure, 1908 [1908 : V] b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.
A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefrom, including appeal, revision or review.] ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE
Provided that no such order shall be made although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent.
"(2) The provision of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1)".
1 Subs. by the Code of Civil Procedure (Amdt.) Act, 1920 (24 of 1920), s.2, for the original sub-rule (1). a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or b) such defendant is avoiding service of process, or c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.]
In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.
(a) When summons duly served. if it is proved that the summons was duly served, the Court may proceed ex parte [and pass decree without recording evidence;]. (b) When summons not duly served. if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served, but not in due time. if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
No order shall be made under this rule unless notice of the application has been served on the opposite party. 1(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1).]
Setting aside Decree Ex Parte 2[13. Setting aside decree ex-parte against defendant.— (1)] In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also[:3 4[Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.] 1 New sub-rule (3) added by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s. 14. 2 Rule 13 re-numbered as sub-rule (1) of that rule by the Code of Civil Procedure (Amdt.) Ordinance, 1980 (10 of 1980), s. 14. 3 Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch., for full-stop. 4 Proviso added ibid. 1(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1).
2[ORDER IX A INTERMEDIATE DATES
(a) a day by which parties shall apply for orders of the Court with regard to any of the following matters, namely,— Pleadings further and better particulars, admissions, discoveries, inspection of documents or or movable or immovable property and the mode by which particular facts may be proved. (b) another day by which parties may reply such applications; and (c) a third day on which, unless the hearing is adjourned, the applications shall be disposed of.
1Sub-rule (2) added by Ord. 10 of 1980, s. 14. 2Added by No. 300 Rules XI-X26, dated 2nd October, 2001. ORDER X EXAMINATION OF PARTIES BY THE COURT
¹[1A The Court may adopt any lawful procedure not inconsistent with the provisions of this Code to— (i) Conduct preliminary proceedings and issue orders for expediting processing of the case; (ii) issue, with the consent of parties, commission to examine witnesses, admit documents and take other steps for the purpose of trial; (iii) adopt, with the consent of parties, any alternative method of dispute resolution including mediation, conciliation or any such other means.]
examined orally by the Court; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.
¹Ins. by ord 34 of 02, s.3. ²Subs. by Act XIV of 1994, s.11 Code of Civil Procedure, 1908 [1908 : V] in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.
If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. ORDER XI DISCOVERY AND INSPECTION
Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.
The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been, in his possession or power; and, if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stated that in the belief of the deponent the party against whom the application is made has, or has at sometime had, in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the suit, or to some of them.
ORDER XII ADMISSIONS
1 Added by No. 300 Rules XI-Y26, dated 2nd October, 2001.
ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
On production of documents under this rule, the Court may call upon the parties to admit or deny the documents produced in the Court and record their admission or, as the case may be, denial.
(a) the number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced, and (d) a statement of its having been so admitted; and the endorsement shall be signed or initiated by the judge.
Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge.
Where such a document is an entry in a public record produced from a public office, or by a public officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book, or account is produced, the Court may require a copy of the entry to be furnished— (a) where the record, book or account is produced on behalf of a party, then by that party, or (b) where the record, book or account is produced in obedience to an order of the Court acting of its own motion, then by either or any party.
Where a copy of an entry is furnished under the foregoing provisions of this rule, the Court shall, after causing the copy to be examined, compared and certified in manner mentioned in rule 17 of Order VII, mark the entry and cause the book, account or record in which it occurs to be returned to the person producing it.
Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.
(a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of: Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor delivers to the proper officer a certified copy to be substituted for the original and undertakes to produce the original if required to do so: Provided also that no document shall be returned which, by force of the decree, has become wholly void or useless.
On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.
Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.
Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit.
ORDER XIV SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON
Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
Issues are of two kinds: (a) issues of fact, (b) issues of law.
At the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents of documents produced by either party.
The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
(a) a sum of money specified in the agreement or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some right or subject to some liability specified in the agreement; (b) some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct; or (c) One or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute.
(a) that the agreement was duly executed by the parties, (b) that they have a substantial interest in the decision of such question as aforesaid, and (c) that the same is fit to be tried and decided, it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by the Court; And shall, upon the finding or decision on such issue, pronounce judgment according to the terms of the agreement; and, upon the judgment so pronounced, a decree shall follow. ORDER XV DISPOSAL OF THE SUIT AT THE FIRST HEARING
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.
Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.
ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES
Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for the original rule 1. Ins. by Act XIV of 1994, s.11.
A party shall not be permitted to call or produce witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission the said witnesses from the list; and the Court grants such permission, it shall record reasons for so doing.
On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court: Provided that no summons shall be issued for service on a person under rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited]
Experts. In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.
Scale of expenses. Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf.
Expenses of witness detained more than one day. Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the moveable property of such party; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.
The service shall be effected by or on behalf of such party by delivering or tendering to the witness in person a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court.
Rules 16 and 18 of Order V shall apply to summons personally served under this rule, as though the person effecting service were a serving officer.
Where the Court sees reason to believe that such evidence or production is material, and that such person has without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12: Provided that no Court of Small Causes shall make an order for the attachment of immovable property.
(a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service, and (b) where he has failed to attend at the time and place named in a proclamation issued under the last preceding rule, that he had no notice of such proclamation in time to attend, the Court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit.
Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid, the Court shall order the property to be released from attachment.
force, where the Court at any time thinks it is necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document.
On the application of either party and the payment through the Court of all necessary expenses (if any), the Court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may order him to be detained in the civil prison.
ORDER XVII ADJOURNMENTS
Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded.
1Rule 4 and 5 were added by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. ORDER XVIII HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
The party beginning may then reply generally on the whole case.
Every memorandum so made shall form part of the record.
The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24.
Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.
The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit.
ORDER XIX AFFIDAVITS
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, and order shall not be made authorizing the evidence of such witness to be given by affidavit.
Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.
ORDER XX JUDGMENT AND DECREE
The Court shall, after the case has been heard, pronounce judgment in open Court, either at once or on some future day not exceeding thirty days, for which due notice shall be given to the parties or their advocates.
Judgments of other Courts. Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.
The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.
The Court may direct that the costs payable to one party by the other shall be set-off against any sum which is admitted or found to be due from the former to the latter. ¹Subs. by Act XIV of 1994, S.11.
Order, after decree, for payment by instalments. After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holders, order that payment of the amount decreed shall be postponed or shall be made by installments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.
a) For the possession of the property; b) For the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits; c) Directing an inquiry as to rent or mesne profits from the institution of the suit until- i. the delivery of possession to the decree-holder; ii. the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court; or iii. the expiration of three years from the date of the decree, whichever event first occurs.
Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.
a) specify a day on or before which the purchase-money shall be so paid, and b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct— a) if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and b) if and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.
if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;
if and in so far as such decree relates to any other immoveable property or to moveable property, the Court may, if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
Appeal from decree relating to set-off. Any decree passed in a suit in which a set-off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had been claimed.
The provisions of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII or otherwise.
ORDER XXI EXECUTION OF DECREES AND ORDERS Payment under Decree
a) into the Court whose duty it is to execute the decree; or b) out of Court to the decree-holder [through a bank or by postal money order or evidence by writing signed by the decree-holder or his authorized agent]; or c) otherwise as the Court which made the decree directs.
Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder.
The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.] Courts executing Decrees
The Court sending a decree for execution shall send - a) a copy of the decree; b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.
Application for Execution
Written application. Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely - (a) the number of the suit; (b) the names of the parties; (c) the date of the decree; (d) whether any appeal has been preferred from the decree; (e) whether any, and (if any), what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree; (f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results; (g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed; (h) the amount of the costs (if any) awarded; (i) the name of the person against whom execution of the decree is sought; and (j) the mode in which the assistance of the Court is required, whether- i) by the delivery of any property specifically decreed; ii) by the attachment and sale, or by the sale without attachment, of any property; iii) by the arrest and detention in prison of any person; iv) by the appointment of a receiver; v) otherwise, as the nature of the relief granted may require.
The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.
Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.
Where an application is made for the attachment of any immoveable property belonging to a judgment-debtor, it shall contain at the foot- (a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and
Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application.
Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution: Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.
Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.
Every amendment made under this rule shall be signed or initiated by the Judge.
When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application: Provided that, in the case of decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.
(a) if the two sums are equal, satisfaction shall be entered upon both decrees; and (b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum.
This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.
This rule shall not be deemed to apply unless - (a) the decree-holder in one of the suits in which the decrees have been made is the judgment-debtor in the other and each party fills the same character in both suits; and (b) the sums due under the decree are definite.
The holder of a decree passed against several persons jointly and severally may treat it as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons. Illustrations (a) A holds a decree against B for Rs1,000. B holds a decree against A for the payment of Rs.1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule. (b) A and B, co-plaintiffs, obtain a decree for Rs.1,000 against C, and C obtains a decree for Rs.1,000 against B. C cannot treat his decree as a cross-decree under this rule. (c) A obtains a decree against B for Rs.1,000. C who is a trustee for B, obtains a decree on behalf of B against A for Rs.1,000. B cannot treat C's decree as a cross-decree under this rule. (d) A, B, C, D, and E are jointly and severally liable for Rs.1,000 under a decree obtained by F. A obtains a decree for Rs.100 against F singly and applies for execution to the Court in which the joint-decree is being executed, F may treat his joint-decree as a cross-decree under this rule.
(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and (b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.
(a) more than one year after the date of the decree, or (b) against the legal representative of a party to the decree, [or where an application is made for execution of a decree filed under the provisions of section 44A,] the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him. [Ins. by the Code of Civil Procedure (Amdt.) Act, 1937 (8 of 1937), section 3.]
Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit. 1[Objection to Execution 23-A. Deposit of decretal amount, etc. An objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless— (a) in the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its payment; and (b) in the case of any other decree, he furnishes security for the due performance of the decree.]. Process for Execution
Every such process shall bear date the day on which it is issued, and shall be signed by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.
In every such process a day shall be specified on or before which it shall be executed.
Where the endorsement is to the effect that such officer is unable to execute the process, the Court shall examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result. 1 Rule 23A and heading ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.
Where the property or person of the judgment-debtor has been seized under an execution the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.
Mode of Execution
Where any attachment under sub-rule (1) has remained in force for six months, if the judgment debtor has not obeyed the decree and the decree holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of moveable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgment debtor on his application.
Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.
Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced [1in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction] by his detention in 2* * * prison, or by the attachment of his property, or by both.
Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation, or, with the leave of the Court, by the detention in 2* * * prison of the directors or other principal officers thereof, or by both attachment and detention.
Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
Where the judgment debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
2Omitted by Act. XIV of 1994, s.11. A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B. A, in-spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution-proceedings.
Where the Court has made an order under sub-rule (1) ³***, it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.
The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again revive the same, either wholly or in part as it may think just.
Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.
The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit. ¹Ins. by the Code of Civil Procedure (Amdt.) Act, 1923 (29 of 1923). ²Subs. ibid, for "shall not be executed by detention in prison". ³The words "and the decree-holder is the wife" omitted, by the Code of Civil Procedure (Amdt.) Act, 1923 (29 of 1923).
The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the documents so delivered.
The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely:- "C.D., Judge of the Court of (or as the case may be), for A. B., in a suit by E.F. against A.B.", and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.
The Court, or such officer as it may appoint in this behalf, shall cause the document to be registered if its registration is required by the law for the time being in force or the decree-holder desires to have it registered, and may make such order as it thinks fit as to the payment of the expenses of the registration.
Where a decree is for the joint possession of immoveable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.
Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does no afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.
3[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.]
Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.
1 * * * * * * * * 4[40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest.— (1) When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be 1[detained in] prison.
Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required.
Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in 1* * * prison and shall in that event cause him to be arrested if he is not already under arrest : Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.
A judgment-debtor released under this rule may be re-arrested.
When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release. Attachment of Property
(a) the judgment-debtor, or (b) in the case of a corporation, any officer thereof, or (c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents.
Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.
(a) where such produce is a growing crop, on the land on which such crop has grown, or and another copy on the outer door or on some other conspicuous part of the house in which the judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for gain or in which he is known to have last resided or carried on business or personally worked for gain; and the produce shall thereupon be deemed to have passed into the possession of the Court.
Subject to such conditions as may be imposed by the Court in this behalf either in the order of attachment or in any subsequent order, the judgment-debtor may tend, cut, gather and store the produce and to any other act necessary for maturing or preserving it; and if the judgment-debtor fails to do all or any of such acts, the decree-holder may, with the permission of the Court and subject to the like conditions, do all or any of them either by himself or by any person appointed by him in this behalf, and the costs incurred by the decree-holder shall be recoverable from the judgment-debtor as if they were included in, or formed part of, the decree.
Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil.
Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be fit to be cut or gathered, the Court may suspend the execution of the order for such time as it thinks fit, and may, in its discretion make a further order prohibiting the removal of the crop pending the execution of the order of attachment.
A growing crop which from its nature does not admit of being stored shall not be attached under this rule at any time less than twenty days before the time at which it is likely to be fit to be cut or gathered.
(a) a debt not secured by a negotiable instrument, (b) a share in the capital of a corporation, (c) other moveable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting,— (i) in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court; (ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon; (iii) in the case of the other moveable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.
A copy of such order shall be affixed on some conspicuous part of the court-house and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same.
A debtor prohibited under clause (i) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.
(a) where such salary or allowances are to be disbursed within the local limits to which this Code for the time being extends, the officer or other person whose duty it is to disburse the same shall withhold and remit to the Court the amount due under the order, or the monthly installments, as the case may be; (b) where such salary or allowances are to be disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to be disbursed shall remit to the Court the amount due under the order, or the monthly installments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time be disbursed by the aggregate of the amounts from time to time remitted to the Court.]
Where the attachable proportion of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by 1[the appropriate Government] in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.
Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2), shall, without further notice or other process, bind 2[the appropriate Government] or the railway company or local authority, as the case may be, while the judgment debtor is within the local limits to which this Code for the time being extends and while he is beyond those limits if he is in receipt of any salary or allowances payable out of 3[the revenues of the 4[Federal Government] or a Provincial Government] or the funds of a railway company carrying on business in any part of 5[Pakistan] or local authority in 5[Pakistan]; and 2[the appropriate Government] or the railway company or local authority, as the case may be, shall be liable for any sum paid in contravention of this rule. 6[Explanation.—In this rule "appropriate Government" means— (i) as respects any 7[person] in the service of the 4[Federal Government], or any servant 8* * * of a cantonment authority or of the port authority of a major port, the 4[Federal Government]; 9* * * * * * * * (iii) as respects any other 10[Servant of the State] or a servant of any 11[railway or local authority, the Provincial Government.] 1 Subs. by Act 25 of 1942, for "the Central or the Provincial Govt., as the case maybe" which were subs. by A.O., 1937, for "the Govt.". 2 Subs. by the Repealing and Amending Act, 192 (25 of 1927), for "the Central Government or the Provincial Government" which was subs. by A.O., 1937, for "the Government". 3 Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March 1956) for "His Majesty's [Pakistan Revenues]". The words in crotchets were subs. by A.O., 1949, for "Indian revenues". 4 Subs. by F.A.O., 1975, Art. 2 and Table, for "Central Government". 5 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for "the Provinces and the Capital of the Federation" which had been subs. by A.O., 1949, for "British India". 6 Explanation added by Act 25 of 1942, s.3 and Second Sch. 7 Subs. by the Code of Civil Procedure (Amdt.) Act, 1943 (6 of 1943) s.3, for "public officer". 8 The words "of a Railway" or omitted by A.O., 1964, Art. 2 and Sch. The asterisk denotes the omission of "Federal" by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956). 9 Cl. (ii) omitted by A.O., 1969. 10 The original words "public officer" were first subs. by Act 5 of 1943, s.3 and then amended by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), to read as above. 11 The word "other" omitted by A.O., 1964, Art. 2 and Sch.
The Court may, on the application of the holder of a decree against a partner make an order charging the interest of such partner in the partnership property and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require.
The other partner or partners shall be at liberty at any time to redeem the interest charged, or, in the case of a sale being directed, to purchase the same.
Every application for an order under sub-rule (2) shall be served on the judgment-debtor and on his partners or such of them as are within¹[Pakistan].
Every application made by any partner of the judgment-debtor under sub-rule (3) shall be served on the decree-holder and on the judgment-debtor, and on such of the other partners as do not join in the application and as are within¹[Pakistan].
Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners, and all orders made on such applications shall be similarly served.
(a) against any property of the partnership; (b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear: Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of section 247 of the Contract Act, 1872 (IX of 1872).
Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.
Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
Save as against any property of the partnerships, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.
Provided that, where such property is in the custody of a Court, any question of title or priority arising between the decree-holder, and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.
(a) if the decrees were passed by the same Court, then by order of such Court, and (b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until - (i) the Court which passed the decree sought to be executed cancels the notice, or (ii) the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree.
Where a Court makes an order under clause (a) of sub-rule (1), or receives an application under sub-head (ii) of clause (b) of the said sub-rule, it shall, on the application of the ``` creditor who has attached the decree or his judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.
The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.
Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1), the attachment shall be made, by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court, also by sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.
The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.
On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force.
The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate.
(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or (b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or (c) the decree is set aside or reversed, ``` the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.
Investigation of Claims and Objections
[Provided that no such investigation shall be made where it appears to the Court that the claim or objection (whether made before or after the sale) has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier, unless the claimant or objector— (a) proves title acquired in good faith and for consideration subsequent to the date of the first attachment; (b) Proves that his predecessors-in-interest, whether their interest existed at the time of such attachment or was acquired thereafter, fraudulently omitted to make a claim or objection; and (c) impleads all such predecessors-in-interest, as parties.].
Postponement of sale. Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection.
Sale Generally
Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible— (a) the property to be sold; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.
Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.
Where the Court so directs, such proclamation shall also be published in the 1[official Gazette] or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.
Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given.
Provided that, where the sale is made in, or within the precincts of, the court-house, no such adjournment shall be made without the leave of the Court. 1[Subs. by A.O., 1937, for "local official Gazette".]
Where a sale is adjourned under sub-rule(1) for a longer period than seven days, a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.
Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the sale.
Where decree-holder purchases, amount of decree may be taken as payment. Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of section 73, be set-off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.
Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order, set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder.
Sale of Moveable Property
(a) if such produce is a growing crop, on or near the land on which such crop has grown, or, (b) if such produce has been cut or gathered, at or near the threshing-floor or place for treading out grain or the like or fodder-stack on or in which it is deposited: Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the produce is thereby likely to sell to greater advantage.
Where, on the produce being put up for sale, - (a) a fair price, in the estimation of the person holding the sale, is not offered for it, and (b) the owner of the produce or a person authorized to act in his behalf applies to have the sale postponed till the next day or, if a market is held at the place of sale, the next market-day, the sale shall be postponed accordingly and shall be then completed, whatever price maybe offered for the produce.
Where the crop from its nature does not admit of being stored, it may be sold before it is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending and cutting or gathering it.
On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.
Where the moveable property to be sold is a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.
Where the property sold is moveable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.
Where the property sold is a debt not secured by a negotiable instrument, or is a share in a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, or prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.
Such execution or endorsement may be in the following form, namely:— A.B by C.D., Judge of the Court of (or as the case may be), in a suit by E.F against A.B.
Until the transfer of such negotiable instrument or share, the Court may, by order, appoint some person to receive any interest or divided due thereon and to sign a receipt for the same; and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.
In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 64, to make the proposed mortgage, lease or sale: Provided that all monies payable under such mortgage, lease or sale shall be paid, not to the judgment-debtor, but, save in so far as a decree-holder is entitled to set off such money under the provisions of rule 72, into Court: Provided also that no mortgage, leases or sale under this rule shall become absolute until it has been confirmed by the Court.
Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.
Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72, the Court may dispense with the requirements of this rule.
Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.
(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and (b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.
Where a person applies under rule 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
Nothing in this rule shall relieve the judgement-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.
Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud:1 2[Provided further that no such application shall be entertained unless the applicant deposits such amount, not exceeding twenty per cent of the sum realised at the sale, or furnishes such security, as the Court may direct.]
2Proviso added ibid.
Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.
The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.
2[103. Certain orders conclusive and suit barred. All questions arising as to title, right or interest in, or possession of immoveable property between an applicant under rule 97 and the ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
²[(2) Where within the time allowed by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place.]
Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. ¹Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s. 2 and Sch. for the original rule 103. ²Subs. ibid., s. 2, for the original sub-rule (2). 1(3) When within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place. 2(4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place.
Where the husband is by law liable for the debts of his wife the decree may, with the permission of the Court, be executed against the husband also; and, in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of the husband, where the husband is by law entitled to the subject-matter of the decree.
Procedure where assignee fails to continue suit or give security. Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff's estate.
Any person claiming to be the legal representative of a deceased plaintiff or defendant or the assignee or the receiver in the case of an insolvent plaintiff may apply to the Court for setting aside any order made or judgment pronounced by it in his absence; and if it is proved that he was prevented by any sufficient cause from continuing the suit or defending the suit, as the case may be, the Court shall set aside the order or the judgment upon such terms as to costs or otherwise as it thinks fit.
The provisions of section 5 of the Limitation Act, 1908, (IX of 1908) shall apply to applications under sub-rule (2).
The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
Where the Court is satisfied— (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
ORDER XXIV PAYMENT INTO COURT
of the plaintiff's claim, the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff's claim.
Procedure where he accepts it as satisfaction in full. Where the plaintiff accepts such amount as satisfaction in full of his claim, he shall present to the Court a statement to that effect, and such statement shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation. Illustrations (a) A owes B Rs.100. B sues A for the amount, having made no demand for payment and having no reason to believe that the delay caused by making A demand would place him at a disadvantage. On the plaint being filed, A pays the money into Court. B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part. (b) B sues A under the circumstances mentioned in illustration (a). On the plaint being filed, A disputes the claim. Afterwards A pays the money into Court. B accepts it in full satisfaction of his claim. The Court should also give B his costs of suit, A's conduct having shown that the litigation was necessary. (c) A owes B Rs 100, and is willing to pay him that sum without suit. B claims Rs.150 and sues A for that amount. On the plaint being filed A pays Rs.100 into Court and disputes only his liability to pay the remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his claim. The Court should order him to pay A's costs. ORDER XXV SECURITY FOR COSTS
Residence out of Pakistan. Whoever leaves Pakistan under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of Pakistan within the meaning of sub-rule (1).
On the application of any defendant in a suit for the payment of money, in which the plaintiff is a woman, the Court may at any stage of the suit make a like order if it is satisfied that such plaintiff does not possess any sufficient immoveable property within Pakistan.
Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside, and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
The dismissal shall not be set aside unless notice of such application has been served on the defendant. ORDER XXVI COMMISSIONS Commissions to Examine Witnesses
(a) any person resident beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and (c) [any person in the service of the [State]] who cannot, in the opinion of the Court, attend without detriment to the public service.
Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.
The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.
(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a person in the service of the [State] who cannot, in the opinion of the Court, attend without detriment to the public service, or (b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a), and authorises the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
Provided that, where the [Provincial Government] has made rules as to the person to whom such commission shall be issued, the Court shall be bound by such rules.
Report and depositions to be. The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. Commissions to examine Accounts
Proceedings and report to be evidence. Court may direct further inquiry. The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.
The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.
Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit. General Provisions
(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him; (b) call for and examine documents and other things relevant to the subject of inquiry; (c) at any reasonable time enter upon or into any land or building mentioned in the order.
A Commissioner may apply to any Court (not being a High Court) within the local limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.
Where all or any of the parties do not so appear, the Commissioner may proceed in their absence. 1[Commissions issued at the instance of Foreign Tribunals]
(a) that a foreign Court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it, (b) that the proceeding is of a civil nature, and (c) that the witness is residing within the limits of the High Court's appellate jurisdiction, it may, subject to the provisions of rule 20, issue a commission for the examination of such witness.
Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)- (a) by a certificate signed by the consular officer of the foreign country of the highest rank in 2[Pakistan] and transmitted to the High Court through the 3[Federal Government], or (b) by a letter of request issued by the foreign Court and transmitted to the High Court through the 4[Federal Government], or --- 1 Rules 19 to 22 and the heading above them were ins. by the Code of Civil Procedure (Amdt.) Act, 1932 (10 of 1932), s.3. 2 Subs. by A.O., 1949, for "India." 3 Subs. F.A.O., 1975 Art. 2 and Table for "Central Government", which was previously subs. by A.O., 1937, for "GG in C". (c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding.
(a) upon application by a party to the proceeding before the foreign Court, or (b) upon an application by a law officer of the ¹[Provincial Government] acting under instructions from the ¹[Provincial Government].
The provisions of rules 6, 15, 16, 17 and 18 of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the ⁴[Federal Government] along with the letter of request for transmission to the foreign Court. ORDER XXVII SUITS BY OR AGAINST⁵[THE GOVERNMENT] OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY
Upon such application the Court shall extend the time for so long as appears to it to be necessary.
application the Court shall cause a note of his authority to be entered in the register of civil suits.
Where no application under sub-rule (1) is made by 1[the Government pleader] on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties: Provided that the defendant shall not be liable to arrest, nor his property to attachment otherwise than in execution of a decree. 2[8A. No security to be required from Government or a public officer in certain cases. No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the 3[Government] or, where the 3[Government] has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.
(a) in relation to any suit by or against 4* * * the 5[Federal Government], or against a public officer in the service of that Government, the 5[Federal Government] and such pleader as that Government may appoint whether generally or specially for the purposes of this Order; 6* * * * * * * (c) in relation to any suit by or against a Provincial Government or against a public officer in the service of a Province, the Provincial Government and the Government pleader, or such other pleader as the Provincial Government may appoint, whether generally or specially, for the purposes of this Order.] 7[ORDER XXVIIA SUITS INVOLVING 8[ANY SUBSTANTIAL QUESTION AS TO THE INTERPRETATION OF CONSTITUTIONAL LAW].
Code of Civil Procedure, 1908 [1908 : V] for Pakistan] if the question of law concerns the 1[Federal Government] and to the Advocate-General of the Province if the question of law concerns a Provincial Government.
ORDER XXVIII SUITS BY OR AGAINST MILITARY 5[OR NAVAL] MEN6[OR AIRMEN]
The authority shall be in writing and shall be signed by the officer, 7[soldier, sailor or airman] in the presence of (a) his commanding officer, or he next subordinate officer, if the party is himself the commanding officer, or (b) where the officer, 7[soldier, sailor or airman] is serving in military, 5[naval, 6[or air force] staff employment, the head or other superior officer of the office in which he is employed. Such commanding or other officer shall countersign the authority, which shall be filed in Court. ---
7The words “soldier or airman” were subs. by Act 10 of 1927, s. 2 and 1st Sch., for the words “or soldier” and the word “sailor” was ins. by Act 35 of 1934, s. 2 and Sch.
When so filed the countersignature shall be sufficient proof that the authority was duly executed, and that the officer, ¹[soldier, sailor or airman] by whom it was granted could not obtain leave of absence for the purpose of prosecuting or defending the suit in person. Explanation.— In this Order the expression "commanding officer" means the officer in actual command for the time being of any regiment, corps, ²[ship,] detachment or depot to which the officer, ¹[soldier, sailor or airman] belongs.
ORDER XXIX SUITS BY OR AGAINST CORPORATIONS
(a) on the secretary, or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.
¹The words "soldier or airman" were subs. by the Repealing and Amending Act, 1927 (10 of 1927), s.2 and 1st Sch., for the words "or soldier", and the word "sailor" was ins. by the Amending Act, 1934 (35 of 1934), s. 2 and Sch. ²Ins. by Act 35 of 1934, s.2 and Sch. ORDER XXX SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN.
Where persons sue or are sued as partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons.
Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1), all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct.
Where the names of the partners are declared in the manner referred to in sub-rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint: Provided that all the proceedings shall nevertheless continue in the name of the firm.
(a) upon any one or more of the partners, or (b) at the principal place at which the partnership business is carried on within Pakistan upon any person having, at the time of service, the control or management of the partnership business there, as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without [Pakistan]: Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within [Pakistan] whom it is sought to make liable.
Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have— (a) to apply to be made a party to the suit, or (b) to enforce any claim against the survivor or survivors.
ORDER XXXI SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
Provided that the executors who have not proved their testator's will, and trustees, executors and administrators outside Pakistan, need not be made parties.
ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
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.
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.
No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. 1[(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.]
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 be appointed guardian for the suit.
Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, 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, and may give directions for the repayment of allowance of such costs as justice and the circumstances of the case may require.
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
(a) by way of compromise before decree or order, or (b) under a decree or order in favour of the minor.
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 moveable 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.
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.
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.
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 Code of Civil Procedure, 1908 [1908 : V] desires to be himself appointed in the place of the next friend, the Court shall remove, the next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor, and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit.
Where the pleader of such minor omits, within a reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.
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.
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 may 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.
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 theretofore 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.
Notice of the application shall be served on all the parties concerned; and the Court, upon being satisfied of such unreasonableness or impropriety, may grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.
ORDER XXXIII SUITS BY PAUPERS
Explanation.— A person is a "pauper" when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, when he is not entitled to property worth [one thousand] rupees other than his necessary wearing-apparel and the subject matter of the suit. [Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and second Sch., for the original rule 16, which was previously amended by various enactments from time to time. Subs. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch., for "one hundred".]
If presented by 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.
(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or (b) where the applicant is not a pauper, or (c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or (d) where his allegations do not show a cause of action, or (e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter.
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 as herein provided, 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 a pauper.
(a) if he is guilty of vexatious or improper conduct in the course of the suit; (b) if it appears that his means are such that he ought not to continue to sue as a pauper; or (c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter.
(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court fee or postal charges (if any) chargeable for such service, or (b) because the plaintiff does not appear when the suit is called on for hearing, The Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.
ORDER XXXIV SUITS RELATING TO MORTGAGES OF IMMOVEABLE PROPERTY
Explanation.— A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage. 1[2. Preliminary decree in foreclosure suit. In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree— (a) Ordering that an account be taken of what was due to the plaintiff at the date of such decree for— i. principal and interest on the mortgage, ii. the costs of suit, if any, awarded to him, and iii. other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon; or (b) declaring the amount so due at that date; and (c) directing— (i) that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the plaintiff shall deliver up to the defendant, or to such person as the 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 encumbrances created by the plaintiff or any person claiming under him, or, where the plaintiff claims, by derived title, by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property; and 1Rules 2 to 8 were subs. by the Transfer of Property (Amdt.) Supplementary Act, 1929 (21 of 1929), s.4, for the original rules. (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.
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary, - (b) ordering him to re-transfer at the cost of the defendant the mortgaged property as directed in the said decree, and also, if necessary,— (c) ordering him to put the defendant in possession of the property.
where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.
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.
The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
Power to decree sale in foreclosure suit. In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the Court may, at the instance of any party to the suit or of any other person interested in the mortgage-security or the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.
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.
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and if necessary,— (b) ordering him to transfer the mortgaged property as directed in the said decree, and, also, if necessary,— (c) ordering him to put the defendant in possession of the property.
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 re-payment of the amount of the purchase-money paid into Court by him, together with a sum equal to five percent thereof.
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.
(a) Ordering that an account be taken of what was due to the defendant at the date of such decree for - (i) principal and interest on the mortgage, (ii) the costs of suit, if any, awarded to him, and (iii) other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage security, together with interest thereon; or (b) declaring the amount so due at that date; and (c) directing - (i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10 together with subsequent interest on such sums respectively as provided in rule 11, the defendant shall deliver up the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the plaintiff at his cost free from the mortgage and from all encumbrances created by the defendant or any person claiming under him, or where the defendant claims by derived title, by those under whom he claims, and shall also if necessary, put the plaintiff 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 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— (a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or (b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all rights 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 the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
(a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary,— (b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree, and, also, if necessary,- c) ordering him to put the plaintiff in possession of the property.
Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under, sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff, in addition to the amount mentioned in sub-rule (1), 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.
Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the defendant in this behalf,- a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.] 8A Recovery of balance due on mortgage in suit for redemption. Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the defendant, the Court, on application by him, may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance.]
a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage - i) on the principal amount found or declared due on the mortgage, at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable, ii) on the amount of the costs of the suit awarded to the mortgagee, at such rate as the Court deems reasonable from the date of the preliminary decree, and iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the mortgage money at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principle, or failing both such rates, at nine per cent per annum; and b) subsequent interest up to the date of realization or actual payment at such rate as the Court deems reasonable - i) on the aggregate of the principal sums specified in clause (a) and of the interest thereon as calculated in accordance with that clause; and ii) on the amount adjudged due to the mortgagee in respect of such further costs, charges and expenses as may be payable under rule 10.]
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 in consequence whereof the sale was directed, and of the cost 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.
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 (IV of 1882).
Nothing in sub-rule (1) shall apply to any territories to which the Transfer of Property Act, 1882 (IV of 1882) has not been extended.
Subs. by the Transfer of Property (Amdt.) Supplementary Act, 1929 (21 of 1929), s.7, for the original rule 15. ORDER XXXV INTERPLEADER
(a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs; (b) the claims made by the defendants severally; and (c) that there is no collusion between the plaintiff and any of the defendants.
(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or (b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the suit.
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 - (a) that an issue or issues between the parties be framed and tried, and (b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner.
Code of Civil Procedure, 1908 [1908 : V] purpose of compelling them to interplead with any persons other than persons making claim through such principals or the landlords. Illustrations (a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C. (b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute an interpleader-suit against A and C.
ORDER XXXVI SPECIAL CASE
a) a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them; or b) some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.
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.
The agreement 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 it was presented.
Where the Court is satisfied, after examination of the parties or after taking such evidence as it thinks fit,- a) that the agreement was duly executed by them, b) that they have a bona fide interest in the question stated therein, and c) that the same is fit to be decided, it shall proceed to pronounce judgement thereon, in the same way as in an ordinary suit, and upon the judgement so pronounced a decree shall follow. ORDER XXXVII SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS 1[1. Application of Order: This order shall apply only to the High Court 2[, to the District Court, and to any other Civil Court notified in this behalf by the High Court.]
1The original rule 1 has successively been amended by A.O., 1937, A.O., 1949, the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955) and the Civil Procedure and Limitation (Amdt.) Ordinance, 1961 (1 of 1961), s.2, to read as above.
In any case in which the plaint and summons are in such forms, respectively the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree - (a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80, as the case may be, of the Negotiable Instruments Act, 1881, (XXVI of 1881) up to the date of the institution of the suit, or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and (b) for such subsequent interest, if any, as the Court may order under section 34 of this Code; and (c) for such sum for costs as may be prescribed: Provided that, if the plaintiff claims more than such fixed sum for costs, the costs shall be ascertained in the ordinary way.
A decree passed under this rule may be executed forthwith.]
Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1).
ORDER XXXVIII ARREST AND ATTACHMENT BEFORE JUDGMENT Arrest before Judgment
a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,- i) has absconded or left the local limits of the jurisdiction of the Court, or ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or b) that the defendant is about to leave Pakistan 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 entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.
Code of Civil Procedure, 1908 [1908 : V] until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit, in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.
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.
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.
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
(a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
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.
Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, make such other order as it thinks fit.
1[13. Small Cause Court not to attach immoveable property. Nothing in this Order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.] ORDER XXXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Temporary Injunctions
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors. The Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.
The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit.
In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in 2[* * *] prison for a term not exceeding six months, unless in the meantime the Court directs his release. 1Rule 13 ins. by the Small Cause Courts (Attachment of Immoveable Property) Act, 1926 (1 of 1926), s.4. 2Omitted and Ins. by Act XIV of 1994, s.11.
No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto. 1(2A) An interim injunction passed under rules 1 or 2 in the absence of defendant shall not ordinarily exceed fifteen days: Provided that such injunction may be extended for failure of its service on the defendant when such failure is not attributable to the plaintiff or when the defendant seeks time for defence of application for injunction. (2B) The order of injunction made under rules 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the Court after hearing the parties again and for reasons to be recorded for such extension: Provided that report of such extension shall be submitted to the High Court.] 2[3. Before granting injunction Court to direct notice to opposite party. The Court shall in all cases, before granting an injunction direct notice of the application for the same to be given to the opposite-party: 3[Provided that, except in the case of sale of goods for default in payment, at the stipulated time, of a debt in respect of which the goods were pledged with any bank, or where the injunction is to be granted against Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government in any case not involving the ejectment of any person from, or the demolition of, any premises, the Court may, where it appears that the object of granting injunction would be defeated by the delay, dispense with such notice: Provided further that the period of notice under this rule to Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government shall not be less than two days nor exceed seven days.]
4[4A. Injunction to cease to be in force after certain period. An injunction granted by a Court in a suit which seeks to question the validity or legal effect of any order made, proceedings taken or act done by any authority or person, which has been made, taken or done, or purports to have been made, taken or done, under any law which is specified in Part I of the First Schedule to the Constitution or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expiration of a period of 5[six months] following the day on which it is made, unless the case is finally decided, or the injunction is discharged or set aside, by the Court earlier. Explanation.- In this rule, 'public revenues' includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government.]
Interlocutory Orders
a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein; b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; and c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.
The provisions as to execution of process shall apply, mutatis mutandis, to persons authorised to enter under this rule.
An application by the defendant for a like order may be made after notice to the plaintiff at any time after appearance.
Code of Civil Procedure, 1908 [1908 : V] 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.
ORDER XL APPOINTMENT OF RECEIVERS
a) appoint a receiver of any property, whether before or after decree; b) remove any person from the possession or custody of the property; c) commit the same to the possession, custody or management of the receiver; and d) confer upon the receiver all such powers, as to bringing and defending 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 of those powers as the Court thinks fit.
Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not present right so to remove.
a) furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property; b) submit his accounts at such periods and in such form as the Court directs; Code of Civil Procedure, 1908 [1908 : V] c) pay the amount due from him as the Court directs; and d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.
a) fails to submit his accounts at such periods and in such form as the Court directs, or b) fails to pay the amount due from him as the Court directs, or c) 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 him or any loss occasioned by him, and shall pay the balance (if any) to the receiver.
ORDER XLI APPEALS FROM ORIGINAL DECREES
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.
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.
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.
Stay of Proceeding and of Execution
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— a) that substantial loss may result to the party applying for stay of execution unless the order is made; b) that the application has been made without unreasonable delay; and c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
Notwithstanding anything contained in sub-rule(3), the Court may make an ex parte order for stay of execution pending the hearing of the application.
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 dispose of.
[Provided that, where such appeal has been preferred by the judgment-debtor, he shall be required, unless the Court is of opinion that prima facie the appeal is one which must succeed owing to an error apparent on the face of the record,- a) in the case of a decree for the payment of money, to deposit the decretal amount or to furnish security for its payment; and b) in the case of any other decree, to furnish security for the due performance of the decree.] Procedure on Admission of Appeal
Register of Appeals. Such book shall be called the Register of Appeals.
Where appellant resides out of Pakistan. Provided that the Court shall demand such security in all cases in which the appellant is residing out of Pakistan and is not possessed of any sufficient immovable property within Pakistan other than the property (if any) to which the appeal relates.
Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.
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.
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.
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.
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.
Procedure on Hearing
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.
Hearing appeal ex-parte. Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
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.
required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. [(2) The provisions of section 5 of the Limitation Act 1908 (IX of 1908) shall apply to an application for re-admission of an appeal dismissed under sub-rule (2) of rule 11 or sub-rule (1) of rule 17.
2[(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1)].
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 acknowledgment 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.
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 therefore.
Determination of appeal. After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, 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.
Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
Judgment in Appeal
(a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection: [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 make 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. It has power to pass a decree against Y.
Decree in Appeal
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.
Code of Civil Procedure, 1908 [1908 : V] ORDER XLII APPEALS FROM APPELLATE DECREES
ORDER XLIII APPEALS FROM ORDERS
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court; (b) an order under rule 10 of Order VIII pronouncing judgment against a party; (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; (e) an order under rule 4 of Order X pronouncing judgment against a party; (f) an order under rule 21 of Order XI; (g) an order under rule 10 of Order XVI for the attachment of property; (h) an order under rule 20 of Order XVI pronouncing judgment against a party; (i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; [(ii) an order under rule 62 or rule 103 of Order XXI relating to the right, title or interest of the claimant or objector in attached property;] 1[Cl. (ii), added by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch.] (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; (l) an order under rule 10 of Order XXII giving or refusing to give leave; (m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction; (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; (o) an order [under rule 2, rule 4 or rule 7] of Order XXXIV refusing to extend the time for the payment of mortgage-money; (p) an order in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV; (q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII; (r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX; (s) an order under rule 1 or rule 4 of Order XL; (t) an order of refusal under rule 19 of Order XLI to readmit, or under rule 21 of Order XLI to re-hear an appeal; (u) an order under rule 23 of Order XLI remanding a case where an appeal would lie from the decree of the Appellate Court; (v) an order made by any Court other than a High Court refusing the grant of a certificate under rule 6 of Order XLV; (w) an order under rule 4 of Order XLVII granting an application for review.
Code of Civil Procedure, 1908 [1908 : V] through registered post acknowledgement due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the appellate Court.]
On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine.
ORDER XLIV PAUPER APPEALS
Procedure on application for admission of appeal. Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.
Provided that, if the applicant was allowed to sue or appeal as a pauper in the Court from whose decree the appeal is preferred, no further inquiry in respect of his pauperism shall be necessary, unless the Appellate Court sees cause to direct such inquiry. ORDER XLV APPEALS TO THE [SUPREME COURT] 2[1. "Decree" defined. In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a judgment or a final Order.]
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[:5 6[Provided that no notice shall be directed to be served on or given to the opposite party or to the legal representative of a deceased opposite party in a case where such opposite party 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.] 7[(3) The Court may, if the opposite party in response to the notice issued under sub-rule (2) appears, after hearing both the parties, or if the opposite party does not appear in response to such notice, then after hearing the party making the petition, grant or refuse the certificate.
If on the date fixed for the hearing, the party making the petition does not appear and the opposite party appears in response to such notice or if both the parties do not appear on such date, the petition shall be dismissed.
6Proviso added by F.A.O., 1975, Art. 2 and Sch. (with effect from the 14th August, 1973). 7Sub-rules (3) and (4) added ibid.
a) furnish security ²[in cash or in Government securities] for the costs of the respondent, and b) deposit the amount required to defray the expense of translating, transcribing, indexing ³[, printing] and transmitting to⁴[the Supreme Court] a correct copy of the whole record of the suit, except –
formal documents directed to be excluded by any ⁵[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: ²[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.] 6* * * * *
a) declare the appeal admitted, b) give notice thereof to the respondent, c) transmit to 1[the Supreme Court] under the seal of the Court a correct copy of the said record, except as aforesaid, and d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore and paying the reasonable expenses incurred in preparing them.
or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid, the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within like time, the required payment.
and the appeal shall not proceed without an order in this behalf of 1[the Supreme Court], and in the meantime execution of the decree appealed from shall not be stayed.
The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,— a) impound any moveable property in dispute or any part thereof, or Code of Civil Procedure, 1908 [1908 : V] b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which 1[the Supreme Court] may make on the appeal, or c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of any order which 1[the Supreme Court] may make on the appeal, or d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.
In default of such further security being furnished as required by the Court,— (a) if the original security was furnished by the appellant, the Court may, on the application of the respondent, executes, the decree appealed from as if the appellant had furnished no such security; (b) if the original security was furnished by the respondent, the Court shall, so far as may be practicable, stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respecting the subject-matter of the appeal as it thinks fit.
Such Court shall transmit the order of 1[the Supreme Court] to the Court which passed the first decree appealed from, or to such other Court as 1[the Supreme Court] by such 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 order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.
2[(4) Unless 3[the Supreme Court] is pleased otherwise to direct, no order of 3[the Supreme 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.]
4[17. [Appeals to the Federal Court]. Omitted by the Federal Court Act 1941 (XXI of 1941), S.2. ORDER XLVI REFERENCE
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.
1Sub-rule (3) omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch., which was previously amended by various enactments, from time to time. 2Sub-section (4) ins. by the Indian Limitation and Code of Civil Procedure (Amdt.) Act, 1920 (26 of 1920), s.5.
4This section was ins. by A.O., 1937.
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.
On receiving the record and statement the High Court may make such order in the case as it thinks fit.
With respect to any proceedings subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such order as in the circumstance appears to it to be just and proper.
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 purpose of this rule. ORDER XLVII REVIEW
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
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.
Application where granted. Where the Court is of opinion that the application for review should be granted it shall grant the same: Provided that— (a) no such application shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.
Where there is a majority, the decision shall be according to the opinion of the majority.
(a) in contravention of the provisions of rule 2, (b) in contravention of the provisions of rule 4, or (c) after the expiration of the period of limitation prescribed therefore and without sufficient cause. Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.
Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.
No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.
Code of Civil Procedure, 1908 [1908 : V]
Nothing in this Order shall apply to any judgment pronounced or order made by the Supreme Court.] ORDER XLVIII MISCELLANEOUS
Costs of service. The court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued.
ORDER XLIX 2*HIGH COURTS
2The word "Chartered" omitted by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955).
1) rule 10 and rule 11, clauses (b) and (c), of Order VII; 2) rule 3 of Order X; 3) rule 2 of Order XVI; 4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII; 5) rules 1 to 8 of Order XX; and 6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction. ORDER L PROVINCIAL SMALL CAUSE COURTS
a) so much of this schedule as relates to - i) suit excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits; ii) the execution of decrees against immoveable 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); Order XLI to XLV (appeals); Order XLVII, rules 2, 3, 5, 6, 7 (review); Order LI. ORDER LI [PRESIDENCY SMALL CAUSE COURTS] Omitted by the A.O., 1949. APPENDIX A PLEADINGS
TITLES OF SUITS IN THE COURT OF A.B. (add description and residence) ..... Plaintiff Against C.D. (add description and residence) ..... Defendant
Description of Parties in Particular Cases 1[2* * *Pakistan or the Province of, as the case may be.] The Advocate General of 1The original words "The Secretary of State for India in Council," have successively been amended by A.O., 1937 and A.O., 1949, to read as above. 2The words "the Federation of" have been omitted by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956). 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., 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 Thakar. FORMS OF PLEADINGS A.B., (add description and residence) executor of C.D., deceased. A.B., (add description and residence) heir of C.D., deceased.
Plaints No. 1 MONEY LENT (Title) A.B., the above-named plaintiff, states as follows:-
[If the plaintiff claims exemption from any law of limitation, say:-]
No. 2 MONEY OVER PAID (Title) A.B., the above-named plaintiff, states as follows:-
[As in paras 4 and 5 of Form No. 1 and Relief claimed]. NO. 3. GOODS SOLD AT A FIXED PRICE AND DELIVERED (Title) A.B., the above-named plaintiff, states as follows:-
[As in paras 4 and 5 of Form No. 1]
NO. 4 GOODS SOLD AT A REASONABLE PRICE AND DELIVERED (Title) A.B., the above-named plaintiff, states as follows:-
(As in paras 4 and 5 of Form No. 1 and Relief claimed) NO. 5 GOODS MADE AT DEFENDANT'S REQUEST, AND NOT ACCEPTED (Title) A.B., the above-named plaintiff, states as follows:-
(As in paras 4 and 5 of Form No. 1, and Relief claimed) NO. 6 DEFICIENCY UPON A RE-SALE GOODS AT AUCTION (Title) A.B., the above-named plaintiff, states as follows:-
[As in paras 4 and 5 of Form No. 1, and Relief claimed]. NO. 7 SERVICES AT REASONABLE RATE (Title) A.B., the above-named plaintiff, states as follows:-
(As in paras 4 and 5 of Form No. 1, and Relief claimed). NO. 8 SERVICES AND MATERIALS AT A REASONABLE COST (Title) A.B., the above-named plaintiff, states as follows:-
[As in paras 4 and 5 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:—
(As in paras 4 & 5 of Form No. 1)
NO. 10 ON AN AWARD (Title) A. B. the above-named plaintiff, states as follows:—
[As in para 4 and 5 of Form No. 1 and relief claimed]. NO. 11 ON A FOREIGN JUDGMENT (Title) A. B. the above-named plaintiff states as follows:—
[As in paras 4 and 5 of Form No 1, and Relief claimed.] NO. 12 AGAINST SURETY FOR PAYMENT OF RENT (Title) A. B., the above-named plaintiff, states as follows:—
[If, by the terms of the agreement, notice is required to be given to the surety, add:—
[As in paras 4 & 5 of Form No. 1, and Relief claimed] ___ NO. 13 BREACH OF AGREEMENT TO PURCHASE LAND (Title) A. B., the above-named plaintiff, states as follows:—
[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.]
NO. 14 NOT DELIVERING GOODS SOLD (Title) A. B., the above-named plaintiff, states as follows:—
(As in paras. 4 and 5 of Form No. 1, and Relief claimed) NO. 15 WRONGFUL DISMISSAL (Title) A.B., the above-named plaintiff, states as follows:—
(As in paras. 4 and 5 of Form No. 1, and Relief claimed). NO. 16 BREACH OF CONTRACT TO SERVE (Title) A. B., the above-named plaintiff, states as follows:—
(As in paras. 4 and 5 of form No. 1, and Relief claimed) NO. 17 AGAINST A BUILDER FOR DEFECTIVE WORKMANSHIP (Title) A.B., the above-named plaintiff, states as follows:—
[2. The plaintiff duly performed all the conditions of the agreement on his part.]
[As in paras 4 and 5 of Form NO. 1, and Relief claimed] NO. 18 ON A BOND FOR THE FIDELITY OF A CLERK (Title) A.B, the above-named plaintiff, states as follows:—
[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 of a bond in favour of the plaintiff, and the original document is hereto annexed.] Code of Civil Procedure, 1908 [1908 : V]
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] NO. 19 BY TENANT AGAINST LANDLORD WITH SPECIAL DAMAGE (Title) A. B., the above-named plaintiff, states as follows:-
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] NO. 20 ON AN AGREEMENT OF INDEMNITY (Title) A. B., the above-named plaintiff, states as follows:-
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] NO. 21 PROCURING PROPERTY BY FRAUD (Title) A. B., the above-named plaintiff, states as follows:-
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] NO. 22 FRAUDULENTLY PROCURING CREDIT TO BE GIVEN TO ANOTHER PERSON (Title) A. B., the above-named plaintiff, states as follows:-
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] NO. 23 POLLUTING THE WATER UNDER THE PLAINTIFF'S LAND (Title) A.B., the above named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1 and Relief claimed] NO. 24 CARRYING ON A NOXIOUS MANUFACTURE. (Title) A. B., the above-named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1. and Relief claimed] NO. 25 OBSTRUCTING A RIGHT OF WAY (Title) A.B., the above-named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1, and Relief claimed]. NO. 26 OBSTRUCTING A HIGHWAY (Title)
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] NO. 27 DIVERTING A WATER-COURSE (Title) A. B., the above-named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] NO. 28 OBSTRUCTING A RIGHT TO USE WATER IRRIGATION (Title) A. B., the above-named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] --- NO. 29 INJURIES CAUSED BY NEGLIGENCE ON A RAILROAD (Title) A. B., the above-named plaintiff, states as follows:—
[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 defendants' railway which the plaintiff was then lawfully crossing, that the said engine and train were driven and struck against the plaintiff, whereby, etc., as in para 3.] --- NO. 30 INJURIES CAUSED BY NEGLIGENT DRIVING (Title) A. B., above-named plaintiff, states as follows:— The plaintiff is a shoemaker, carrying on business at ____. The defendant is a merchant of ____.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed] NO. 31 FOR MALICIOUS PROSECUTION (Title) [A.B., the above-named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.] ¹subs. by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s.4 and Third Sch., for "southward". ²Subs. ibid., for "Chowringhee". ³Subs. ibid., for "Calcutta". ⁴Subs. ibid., for "Middleton Street". NO. 32 MOVEABLES WRONGFULLY DETAINED (Title) A. B., the above-named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1]
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) A. B., the above-named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1]
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:-
[As in paras. 4 and 5 of Form No. 1]
____ 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:-
[As in paras. 4 and 5 of Form No. 1]
[Pecuniary compensation may also be claimed] NO. 36 INJUNCTION RESTRAINING NUISANCE (Title) A.B., the above named plaintiff, states as follows:-
[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]
NO. 37 PUBLIC NUISANCE (Title) A. B., the above named plaintiff, states as follows:—
[As in paras. 4 and 5 of Form No. 1]
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. NO. 38 INJUNCTION AGAINST THE DIVERSION OF 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 MOVEABLE PROPERTY THREATENED WITH DESTRUCTION, AND FOR AN INJUNCTION (Title) A.B., the above-named plaintiff, states as follows:-
[As in paras 4 and 5 of Form No. 1]
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:-
that the defendants be restrained, by injunction, from taking any proceedings against the plaintiff in relation thereto;
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;]
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:—
[As in paras. 4 and 5 of Form No. 1]
No. 42 ADMINISTRATION BY SPECIFIC LEGATEE (Title) [Alter form No. 41 thus]— [Omit paragraph 1 and commence paragraph 2] E. F., late of Code of Civil Procedure, 1908 [1908: V] 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 _____ 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:—
[As in paras. 4 and 5 of Form No. 1]
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 :-
[As in paras 4 and 5 of Form No. 1]
[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 :-
(a) (date); (b) (names of mortgagor and mortgagee); (c) (sum secured); (d) (rate of Interest); (e) (Property subject to mortgage); (f) (amount now due);
[As in paras 4 and 5 of Form No. 1]
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 a decree for the balance. No. 46 REDEMPTION (Title) A. B, the above-named plaintiff, states as follows:-
(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)
[As in paras. 4 and 5 of Form No. 1]
NO. 47 SPECIFIC PERFORMANCE (NO. 1) (Title) A.B., the above named-plaintiff, states as follows:- Code of Civil Procedure, 1908 [1908 : V]
[As in paras 4 and 5 of Form No. 1]
NO. 48 SPECIFIC PERFORMANCE (No.2) (Title) A. B., the above-named plaintiff, states as follows:
The defendant was absolutely entitled to the immovable property described in the agreement.
[As in paras 4 and 5 of Form No. 1]
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:-
[As in paras. 4 and 5 of Form No. 1]
Dissolution of the partnership;
that accounts be taken;
that a receiver be appointed. (N. B. In suits for the winding-up of any partnership, omit the claim for dissolution; and instead insert a paragraph stating the facts of the partnership having been dissolved).
Written Statements General Defenses Denial.- The defendant denies that (set out facts). The defendant does not admit that (set out facts). The defendant admits that ___ but says that ___ Protest.- The defendant denies that he is a partner in the defendant firm of ___. The defendant denies that he made the contract alleged or any contract with the plaintiff. The defendant denies that he contracted with the plaintiff as alleged or at all. The defendant admits assets but not the plaintiff's claim. The defendant denies that the plaintiff sold to him the goods mentioned in this plaint or any ___ of them. Limitation.- The suit is barred by article ___ or article ___ of the Second Schedule to the 1[Limitation Act, 1908 (IX of 1908)]. 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 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 statements as to which estoppel is claimed) because (here state the facts relied on as creating the estoppel). Ground of defense 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
[or] 4.
6.
No. 2 DEFENCE IN SUITS ON BONDS
No. 3 DEFENCE IN SUITS ON GUARANTEES
No. 4. DEFENCE IN ANY SUIT FOR DEBT
Particulars are as follows:- Rs. 1907, January, 25th.. .. .. 150 February, 1st .. .. .. 50 Total .. 200
No. 5. DEFENCE IN SUITS FOR INJURIES CAUSED BY NEGLIGENT DRIVING
No. 6. DEFENCE IN ALL SUITS FOR WRONGS
No. 7. DEFENCE IN SUITS FOR DETENTION OF GOODS
Particulars are as follows:- 1907, May 3rd. To carriage of the goods claimed from ³(Lahore) to ¹(Karachi):- 45 maunds at Rs. 2 per maund .. .. Rs. 90.00 ¹Subs. by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s.4 and Third Sch., for "Calcutta". ²Subs. ibid, for "Middleton Street". ³Subs. ibid, for "Delhi". No. 8 DEFENCE IN SUITS FOR INFRINGEMENT OF COPYRIGHT
NO. 9 DEFENCE IN SUITS FOR INFRINGEMENT TRADE MARK
NO. 10 DEFENCES IN SUITS RELATING TO NUISANCES
[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].
1871 Plaintiff came into possession. 1883 First complaint.
NO. 11 DEFENCE TO SUIT FOR FORECLOSURE
Rs. (Insert date) 1,000 (Insert date) 500
NO. 12 DEFENCE TO SUIT FOR REDEMPTION
(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[Subs. by the Federal Laws (Revision and Declaration) Ordinance, 1981 (27 of 1981), s.3 and Second Sch., for "Indian Limitation Act, 1877 (XV of 1877)"].
(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 Indian Limitation Act, accord and satisfaction, release, fraud, etc.). NO. 14 DEFENCES IN ADMINISTRATION SUIT BY PECUNIARY LEGATEE
NO. 15 PROBATE OF WILL IN SOLEMN FORM
The defendant claim-
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. ¹See now the Succession Act, 1925 (39 of 1925). 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 ___ day 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.
Code of Civil Procedure, 1908 [1908: V] NO. 2 SUMMONS FOR SETTLEMENT OF ISSUES, (O. 5, rr. 1, 5) (Title) To [Name, description and place of residence] WHEREAS has instituted a suit against you for ______ you are hereby summoned to appear in this court in person, or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions, on the ______ day of ______ 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 ¹[and to file on or before that date your 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 ______ 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.
NO. 3 SUMMONS TO APPEAR IN PERSON (O. 5, r. 3) (Title) [Name, description and place of residence] To 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 ______ 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. GIVEN under my hand and the seal of the Court this ______ day of ______ 19 Judge. Ins. by the Law Reforms Ordinance, 1972 (12 of 1972), s.2 and Sch. NO. 4 SUMMON IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT (O. 37, r. 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. ______, balance of principal and interest due to him as the ______ of a ______, which a copy is hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the suit, and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such 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, from the date of the institution of the suit as the Court may order]. Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to appear in the suit. GIVEN under my hand and the seal of the Court, this ______ day of ______ 19__. Judge NO. 5 NOTICE TO PERSON WHO, THE COURT CONSIDERS, SHOULD BE ADDED AS CO-PLAINTIFF (O. I, 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 ______ ¹Ins. by the Negotiable Instruments (Interest) Act, 1926 (30 of 1926), s.4. 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) TO 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 realized in this Court in stamps. Dated ___ 19__. Judge. NO. 8 ORDERED FOR TRANSMISSION OF SUMMONS TO BE SERVED ON A PRISONER (O. 5, r. 24) (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 Criminal Procedure, 1908, a summons in duplicate is herewith forwarded for service on the defendant ___ who is stated to be serving under you. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon, by you. Judge NO. 10 TO ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT (O. 5, r. 23) (Title) 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 summons, the service which may have to be affected in the same manner No. 11 AFFIDAVIT OF PROCESS TO ACCOMPANY RETURN OF A SUMMONS OR NOTICE (O. 5, r. 18) (Title) The affidavit of ______ son of ______ I ______ make oath/affirm and say as follows:—
I am a process-server of this Court.
On the ______ day of ______ 19, I received a summons/notice issued by the Court of ______ in Suit No. ______ of 19 in the said Court, dated the ______ day of ______ 19, for service on ______.
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) (a) Here state whether the person served signed or refused to sign the process, and in whose presence. (b) Signature of process-server. or, The said ______ not being personally known to me ______ accompanied me to ______ and pointed out to me a person whom he stated to be the said ______, and I served the said 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) (a) Here state whether the person served signed or refused to sign the process, and in whose presence. (b) Signature of process-server. or,
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) (a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5 rule 15 and 17. (b) Signature of process-server. or,
One ___ accompanied me to ___ and there pointed out to me ___ which he said was the house in which ___ ordinarily resides. I did not find the said ___ there. (a) (b) (a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5 rules 15 and 17. (b) Signature of process-server. or, If substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of the order for substituted service. Sworn/Affirmed by the said ___ before me this ___ day of ___ 19, 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 ___ of 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 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 traveling 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 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.
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 ___ 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. 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 his 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 C.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 [defendant E.F. and G.H. or plaintiff].
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 interrogatories for his examination by the above-named plaintiff. In answer to the said interrogatories, I, the above named E. F., make oath and say as follows :- 1. 2. Enter answers to interrogatories in paragraph 3. 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 :-
Code of Civil Procedure, 1908 [1908 : V] copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto. NO. 6 ORDER TO PRODUCE DOCUMENTS FOR INSPECTION. (O. 11, r. 14) (Title as in No. 1, supra) Upon hearing upon reading the affidavit 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 liberty to inspect and peruse the documents so produced, and to make notes of their contents. In the meantime, it is ordered that all further proceedings to 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 the day of 19]. [Describe documents required] (X.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]:- 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 documents hereunder specified, and that the same may be inspected by the defendant [or plaintiff], his pleader or agent, at on between the hours of ; and the defendant [or plaintiff], is hereby required, within 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, saying 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-
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. | Qualifications or limitations, if any, subject to which they are admitted. | |-----------------|---------------------------------------------------------------| | 1. That M. died on the 1st January, 1890. | 1. | | 2. That he died intestate | 2. | | 3. That N. was his lawful son | 3. But not that he was his only lawful son. | | 4. That O. died | 4. But not that he died on the 1st April, 1896. | | 5. That O. was never married. | 5. | NO. 12 NOTICE TO PRODUCE (GENERAL FORM). (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 or power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly. G. H., pleader [or agent] for plaintiff [or defendant]. To E. F., pleader [or agent] for defendant [or plaintiff]. APPENDIX D DECREES NO. 1 DECREE IN ORIGINAL SUIT. (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 Suits | Plaintiff | Defendant | |------------------------------------|---------------------------------| | Rs. | A. | P. | Rs. | A. | P. | | 1. Stamp for plaint .. | Stamp for power .. | | 2. Do. for power .. | Do. for petition .. | | 3. Do. for exhibits .. | Pleader’s fee .. | | 4. Pleader’s fee on Rs. | "Subsistence for witnesses | | 5. Subsistence for witnesses. | Service of process | | 6. Commissioner’s fee | Commissioner’s fee | | 7. Service of process. | | Code of Civil Procedure, 1908 [1908 : V] NO. 2. SIMPLE MONEY DECREE. (Section 34) (Title) Claim for This suit coming on this day for final disposal before __________ in the presence of __________ for the plaintiff and of __________ for the defendant, it is ordered that the __________ do pay to the __________ the sum of Rs. __________ with interest thereon at the rate of __________ per cent per annum from __________ to the date of realization of the said sum and do also pay Rs. __________, the costs of 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 Suits | Plaintiff | Defendant | |-----------|-----------| | Rs. | A. | P. | Rs. | A. | P. | | 1. Stamp for plaint .. | Stamp for power .. | | 2. Do. for power .. | Do. for petition .. | | 3. Do. for exhibits .. | Pleader's fee .. | | 4. Pleader's fee on Rs. | "Subsistence for witnesses | | 5. Subsistence for witnesses. | Service of process | | 6. Commissioner's fee | Commissioner's fee | | 7. Service of process. | | This suit coming on this ______ day, etc.; It is hereby ordered and decreed that it be referred to ______ as the Commissioner to take the accounts of following:- (i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent, per annum or at such rate as the Court deems reasonable); (ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the willful default of the plaintiff or such person might have been so received; (iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent-per annum); (iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being force or by the terms of the mortgage-deed.
(i) that the defendant do pay into Court on or before the ______ day of ______, or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due, and the sum of Rs. ______ for the costs of the suit awarded to the plaintiff; (ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so 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.
SCHEDULE Description of the mortgaged property NO. 3A PRELIMINARY DECREE FOR FORECLOSURE (Order XXXIV, rule 2.-Where the Court declares amount due) (Title) This suit coming on this day etc.; It is hereby declared that the amount due to the plaintiff on his mortgage mentioned in the plaint calculated up to this day of is the sum of Rs. for principal, the sum of Rs. for interest on the said principal, the sum of Rs. for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage security, together with interest thereon, and the sum of Rs. for the costs of the suit awarded to the plaintiff, making in all the sum of Rs.
(i) that the defendant do pay into Court on or before the day of or any later date up to which time for payment may be extended; by the Court of the said sum of Rs. (ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over 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.
SCHEDULE Description of the mortgage property No. 4 FINAL DECREE FOR FORECLOSURE (Order XXXIV, rule 3) (Title) Upon reading the preliminary decree passed in this suit on the ___ day of ___ and further orders (if any) dated the ___ day of ___ and the application of the plaintiff dated the ___ day of ___ for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the said mortgage: It is hereby ordered and decreed that 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; *[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].
*Words not required to be deleted. No 5 PRELIMINARY DECREES 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 decreed that it be referred to as the Commissioner to take the accounts following:— (i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest be computed at the rate payable on the principal or where no such rate is fixed, at six per cent. per annum or at such rate as the Court deems reasonable); (ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the willful default of the plaintiff or such person might have been so received; (iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum); (iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage deed.
(i) that the defendant do pay into Court on or before the ______ day of ______ or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs. ______ for the costs of the suit awarded to the plaintiff; (ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such 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 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.
SCHEDULE Description of the mortgaged property No. 5A PRELIMINARY DECREE FOR SALE (Order XXXIV, rule 4.—When the Court declares the amount due) (Title) THIS suit coming on this ______ day, etc.; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this ______ day of ______ is the sum of Rs. ______ for principal, the sum of Rs. ______ for interest on the said principal, the sum of Rs. ______ for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs. ______ for the costs of the suit awarded to the plaintiff, making in all the sum of Rs. ______.
(i) that the defendant do pay into Court on or before the ______ day of ______ or any later date up to which time for payment may be extended by the Court, the said sum of Rs. ______; (ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, reconvey or retransfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
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 decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the mortgage; It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or on power relating to the mortgaged property.
No. 7 PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE FOR FORECLOSURE IS PASSED. (Order XXXIV, rule 7.-Where accounts are directed to be taken) (Title) This-suit coming on this _______ day, etc.; It is hereby ordered and decreed that it be referred to _______ as the Commissioner to take the accounts following:— (i) an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent. per annum or at such rate as the Court deems reasonable); (ii) an account of the income of the mortgaged property received up to this date by the defendant or by any other person by order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received; (iii) an account of all sums of money properly incurred by the defendant up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum); (iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.
(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, on such payment, and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all 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.
SCHEDULE 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) (Title) This suit coming on this ______ day, etc.; it is hereby ordered and decreed that it be referred to ______ as the Commissioner to take the accounts following:- (i) an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent. per annum or at such rate as the Court deems reasonable); (ii) an account of the income of the mortgaged property received up to this date by the defendant or by any other person by the order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received; (iii) an account of an sums of money properly incurred by the defendant up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum); (iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.
(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, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all 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.
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 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. _______.
(i) that the plaintiff do pay into Court on or before the _______ day of _______ or any later date up to which time for payment may be extended by the Court the said sum of Rs. _______; (ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as maybe payable under rule 10, together with such subsequent interest as maybe 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, reconvey or retransfer 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.
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 the 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. _______.
(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 retransfer 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.
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 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 *[and (if the plaintiff be in possession of that said mortgaged property) that the plaintiff shall deliver to the defendant quiet and peaceable possession of the said mortgaged property].
No. 7E FINAL DECREE FOR SALE IN A REDEMPTION SUIT ON DEFAULT OF PAYMENT BY MORTGAGOR. (Order XXXIV, rule 8) (Title) Upon reading the preliminary decree passed in this suit on the ___ day of ___ and further orders (if any) dated the ___ day of ___, and the 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 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 relation to the mortgaged property. *Words not required to be deleted.
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:- (i) The mortgagee do execute a deed of reconveyance of the property in the aforesaid preliminary decree mentioned in favour of the mortgagor *[or, as the case may be, ______ who has redeemed the property] or an acknowledgment of the payment of the amount due in his favour; (ii) The mortgaged 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 reconveyance or acknowledgment in the manner aforesaid,- (i) The said sum of Rs. ______ be paid out of Court to the mortgagee; (ii) The said deeds and documents brought into the Court be delivered out of Court to the mortgagor *[or the person making the payment] and the mortgagee do, when so required, concur in registering, at the cost of the mortgagor *[or other person making the payment], the said deed of reconveyance or the acknowledgment in the office of the Sub-Registrar of ______; and (iii) *[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 *[or such person as aforesaid who has made the payment]. *Words not required to be deleted. 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 is 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:— 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 realization of the said sum, and the costs of this application. No. 9 PRELIMINARY DECREE FOR FORECLOSURE OR SALE [Plaintiff .. .. .. .. .. 1st Mortgagee. 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 the 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).
*Words not required to be deleted.
(i) (a) that defendants or one of them do pay into Court on or before the ___ day of ___ or any later date up to which time for payment has been extended by the Court the said sum of Rs. ___ due to the plaintiff; and (b) that defendant No. 1 do pay into Court on or before the ___ day of ___ or any later date up to which time for payment has been extended by the Court the said sum of Rs. ___ due to defendant No. 2; and (ii) that, on payment of the sum declared to be due to the plaintiff by defendants or either of them in the manner prescribed in clause (i) (a) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant No. ___ (Who has made the payment), or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all 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.)
(i) *[in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for the mortgage-deed is foreclosure and not sale] that the defendants jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver to the plaintiff quiet and peaceable possession of the said property; or (ii) *[in the case of any other mortgage] that the mortgaged property or a sufficient part thereof shall be sold; and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and (iii) *[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 there-from of the *Words not required to be deleted. Code of Civil Procedure, 1908 [1908 : V] 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 this 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 (iv) That, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2 or both of them, as the case may be, shall be at liberty (when such remedy is open under the terms of their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amounts remaining due to them respectively.
(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)— *(i) that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgage 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 *(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.
(i) that the money realized 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, *Words not required to be deleted. Code of Civil Procedure, 1908 [1908 : V] charges and expenses as may be payable to defendant No. 2 under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No.1 or other persons entitled to receive the same; and (ii) that, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of the plaintiff's mortgage or defendant No. 2's mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against defendant No.1 for the amount of the balance.
SCHEDULE Description of the mortgaged property. No. 10 PRELIMINARY DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND FORECLOSURE OR SALE ON SUBSEQUENT MORTGAGE. Plaintiff .. .. .. .. .. 2nd Mortgagee, Vs. Defendant No.1 ... .. .. .. .. Mortgagor Defendant No.2 ... .. .. .. .. 1st Mortgagee The suit coming on this day, etc.; It is hereby declared that the amount due to defendant No.2 on the mortgage mentioned in the plaint calculated up to this day of is the sum of Rs. for principal, the sum of Rs. for interest on the said principal, the sum of Rs. for costs, charges and expenses (other than the costs of the suit) properly incurred by defendant No.2 in respect of the mortgage-security with interest thereon and the sum of Rs. for the costs of this suit awarded to defendant No.2, making in all the sum of Rs. (Similar declarations to be introduced with regard to the amount due from defendant No.1 to the plaintiff in respect of his mortgage if the mortgage money due there-under has become payable at the date of the suit.)
*Words not required to be deleted. ``` (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, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, defendant No. 2 shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff or defendant No. 1 (whoever has made the payment), or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all in-cumbrances 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.)
(i) *[in the case of 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 property; or (ii) *[in the case of any other mortgage] that the mortgaged property or a sufficient part thereof shall be sold; and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and (iii) *[in the case where a sale is ordered under clause 4(ii) above] that the money realized 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 ``` Code of Civil Procedure, 1908 [1908 : V] adjudge due to defendant No. 2 in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to the plaintiff and that, if any balance be left, it shall be paid to defendant No. 1 or other persons entitled to receive the same; and (iv) that, if the money realized 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.
(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) - *[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 *[ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property;] and (b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.
(i) that the money realised by such sale shall be paid into Court and be duly applied (after deduction there-from 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, Code of Civil Procedure, 1908 [1908 : V] together with such subsequent interest as may be payable under rule II, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No.1 or other persons entitled to receive the same; and (ii) that, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of defendant No.2's mortgage or the plaintiff's mortgage, defendant No.2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against defendant No.1 for the amount of the balance.
SCHEDULE Description of the mortgaged property No. 11 PRELIMINARY DECREE FOR SALE [Plaintiff ... Sub or derivative mortgagee. 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.)
(i) that defendant No.1 do pay into Court on or before the said day of or any later date up to which time for payment may be extended by the Court the said sum of Rs. due to defendant No.2. (Similar declarations to be introduced with regard to the amount due to the plaintiff, defendant No.2 being at liberty to pay such amount.) (ii) that, on payment of the sum declared due to defendant No. 2 by defendant No. 1 in the manner prescribed in clause 2 (i) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff and defendant No. 2 shall bring into Court all documents in their possession or power relating to the mortgaged property in the plaint mentioned, and all such documents (except such as relate only to the sub-mortgage) shall be delivered over to defendant No. 1, or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the property to defendant No. 1 free from the said mortgage clear of and from all in-cumbrances created by defendant No. 2 or any person claiming under him or any person under whom he claims, and free from all liability arising from the mortgage or this suit and shall, if so required, deliver up to defendant No. 1 quiet and peaceable possession of the said property; and (iii) that, upon payment into the Court by defendant No. 1 of the amount due to defendant No. 2, the plaintiff shall be at liberty to apply for payment to him of the sum declared due to him together with any subsequent costs of the suit and other costs, charges and expenses as may be payable under rule 10, together with such subsequent 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 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.
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 _______ be rectified by _______. No. 13 DECREE TO SET ASIDE A TRANSFER IN FRAUD OF CREDITORS (Title) It is hereby declared that the _______, dated the _______ day of _______ 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 as 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-
In suits by legatees-
In suit by next-of-kin-
[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.]
(a) An inquiry what immoveable property the deceased was seized of or entitled to at the time of his death; (b) An inquiry what are the incumbrances (if any) affecting the immoveable property of the deceased or any part thereof; (c) An account, so far as possible, of what is due to the several incumbrances, and to include a statement of the priorities of such of the incumbrances as shall consent to the sale hereinafter directed.
*Here insert name of proper officer. No. 18 FINAL DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE (Title)
(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 costs as aforesaid, let the sums found to be owing to the several creditors mentioned in the ___ schedule to the certificate, of the ___ *, together with subsequent interest on such of the debts as bear interest, be paid; and, after making such payments, let the amount coming to the several legatees mentioned in the ___ schedule, together with subsequent interest (to be verified as aforesaid), be paid to them.
No. 19 PRELIMINARY DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE WHERE AN EXECUTOR IS HELD PERSONALLY LIABLE FOR THE PAYMENT OF LEGACIES. (Title)
*Here insert name of proper officer. No. 20 FINAL DECREE IN AN ADMINISTRATION-SUIT BY NEXT-OF-KIN (Title)
(a) Let the defendant, within one week after the taxation of the said costs by the *as aforesaid, pay one-third share of the said residue to the plaintiffs A.B., and C.D., his wife, in her right as the sister and one of the next-kin of the said E.F., the intestate. (b) Let the defendant retain for her own use one other hand share of the said residue as the mother and one of the next-of-kin of the said E.F., the intestate. (c) And let, the defendant, within one week after, the taxation of the said cost by the *as aforesaid, pay the remaining one-third share of the said residue to G.H., as the brother and the other next-of-kin of the said E.F., the intestate. No. 21 PRELIMINARY DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE TAKING OF PARTNERSHIP ACCOUNTS (Title) IT is declared that the proportionate shares of the parties in the partnership are as follows: - It is declared that this partnership shall stand dissolved [or shall be deemed to have been dissolved] as from the day of and it is ordered that the dissolution thereof as from that day be advertised in the Gazette, etc. And it is ordered that be the receiver of the partnership estate and effects in this suit and do get in all the outstanding book-debts and claims of the partnership. And it is ordered that the following accounts be taken: -
*Here insert name of proper officer.
And it is ordered that the good will 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 *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 *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:
[These costs must be ascertained before the decree is drawn up]
[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.]
*Here insert name of proper officer. No. 23 Code of Civil Procedure, 1908 [1908 : V] DECREE FOR RECOVERY OF LAND AND MESNE PROFITS (Title) IT is hereby decreed as follows :-
Or
[The relinquishment of Possession by the judgment debtor will 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) To WHEREAS in execution of the decree in the above-named suit has applied to this Court that the sum of Rs. _______ recoverable under the decree has been 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 of _______ day of _______ 19 ____. _________________________ *Here insert name of proper officer. No. 2 PRECEPT (Section 46) (Title) UPON hearing the decree-holder it is ordered that this precept be sent to the Court of _______ at _______ under section 46 of the Code of Civil Procedure, 1908, with directions to attach the property specified in the annexed schedule and to hold the same pending any application which may be made by the decree-holder for execution of the decree. Schedule Dated the _______ day of _______ 19 . Judge 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 _______ 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 (1) 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
if partial, strike out "no" and state to what extent. NO. 5 CERTIFICATE OF EXECUTION OF DECREE TRANSFERRED TO ANOTHER COURT (O. 21, r. 6) (Title) | Number of suit and the Court by which decree was passed | Names of parties | Date of application for execution | Number of the execution case | Process issued and dates of service 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 Muharrir in charge. Signature of Judge Code of Civil Procedure, 1908 [1908 : V] 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. | Names of parties. | Date of decree. | Whether any appeal preferred from decree. | Payment or 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 particulars 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. | |---|---|---|---|---|---|---|---|---|---| | 789 of 1897 | A.B.- Plaintiff C.D.- Defendant | October 11th, 1897. | No. | None | Rs. 72-4 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]. | | Against the defendant C.D. | [When attachment and sale of moveable 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 costs of taking out this execution, be realized by attachment and sale of defendant's moveable property as per annexed list and paid to me. [When attachment and sale of immoveable 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 costs of taking out this execution be realized by the attachment and sale of defendant's immoveable 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. Dated the ____________ day of ____________ 19 ____________, Signed, ____________, decree-holder. Code of Civil Procedure, 1908 [1908: V] [When attachment and sale of immoveable 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 land 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. ¹[(O.21, r. 16)] (Title) To WHEREAS _______ made application to this Court for execution of decree in Suit No. _______ of 19__, on the allegation that the said decree has been transferred to him by 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 OF MOVEABLE 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. _______ Decree Principal .. Interest Cost.. Costs of execution Further interest Total ¹Subs. by the Repealing and Amending Act, 1914 (10 of 1914) s.2 and First Sch., for “O21, r22”. 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 moveable property of the said as set forth the on 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 costs 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 No. 9 WARRANT FOR SEIZURE OF SPECIFIC MOVEABLE 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 moveable property (or a share in the moveable 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 moveable property (or a share of the said moveable property) and to deliver it to the plaintiff or to such person as he may appoint in his behalf. GIVEN under my hand and the seal of the Court, this day of 19 , Schedule Judge No. 10 NOTICE TO STATE OBJECTIONS 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 immoveable 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 objection 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 BAILIFF TO GIVE POSSESSION OF LAND, ETC. (O. 21, L 35) (Title) To The Bailiff of the Court. WHEREAS the under mentioned 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 1*** prison in execution of the said decree. GIVEN under my hand and the seal of the Court, this ___ day of ___ 19__, Judge 1 Omitted by Act XIV of 1994, s. 11. 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 costs 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 .. Interest .. Cost .. Execution .. Total No. 14 WARRANT OF COMMITTAL 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 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 the terms and provisions of section 58 of the Code of Civil Procedure, 1908 * * *. GIVEN under my signature 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 MOVEABLE 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 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 for Rs. ; It ordered that the defendant be, and is hereby, prohibited and restrained, until the further order of this Court, from receiving from you a certain debt alleged now to be due from you to the said defendant, namely, and that you, the said , be, and you are hereby, prohibited and restrained, until the further order of this Court from making payment of the said debt, or any part thereof, to any person, whomsoever or otherwise than into this Court. GIVEN under my hand and the seal of the Court, this day of 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 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 you, the defendant, be, and you are hereby, prohibited and restrained, until the further order of this Court, from making any transfer of shares in the aforesaid Corporation, namely, , or from receiving payment of any dividends thereon; and you, , the Secretary of the said Corporation, are hereby prohibited and restrained from permitting any such transfer or making any such payment. GIVEN under my hand and the seal of the Court, this day of 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 office of judgment-debtor) receiving his salary (or allowance) 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 OR 1[PUBLIC OFFICER]. (O. 21, r. 52) (Title) To SIR, The plaintiff having applied, under rule 52 of Order XXI of the Code of Civil Procedure1908, 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 of subject to the further order of this Court I have the honour 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. 53) (Title) To The Judge of the Court of SIR, I have the honour to inform you that the decree obtained in your Court on the day of 19 , by in Suit No. of 19 , 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 . 1 Subs. by A.O., 1937, for "officer of Government". 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 IMMOVEABLE 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 this Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift or otherwise, and that all persons be, and that they are hereby, prohibited from receiving the same by purchase, gift or otherwise. 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 unsatisfied. You are further commanded to return 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 SETTLING A SALE PROCLAMATION (O. 21, r. 66) (Title) To WHEREAS in the above-named suit of ______; the decree Judgment-debtor ______, holder, has applied for the sale of ______; You are hereby informed that the ______ day of ______ 19__ has been fixed for settling the terms of the proclamation of sale. GIVEN under my hand and the seal of the Court, this ______ day of ______ 19__. Judge No. 29 PROCLAMATION OF SALE, (O. 21, r. 66) (Title) Notice is hereby given that, under rule 64 of Order XXI of the Code of Civil Procedure, 1908, an order has been passed by this Court for the sale of (1) Suit No. of the attached property mentioned in the annexed schedule, in satisfaction of the claim of the decree of in which holder in the suit (1) mentioned in the margin was plaintiff and amounting with costs and interest up to date of was defendant 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 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 authorised 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
Code of Civil Procedure, 1908 [1908 : V] such declaration a deposit 25 per cent on the amount of his purchase-money to the officer conducting the sale, and in default of such deposit the property shall forthwith be put up again and resold.
GIVEN under my hand and the seal of the Court, this ______ day of ______ 19____. Judge Schedule of Property No. 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 an estate or a part of an estate paying revenue to Government. Detail of any incumbrances to which the property is liable. Claims, if any, which have been put forward to the property and any other known particulars bearing on its nature and value. 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. Dated 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 ________, purchaser there was a deficiency the price of the said property amounting to Rs. ________, and that the expenses attending such resale 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 MOVEABLE 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 EXECUTING 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 or persons except the said GIVEN under the hand and 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 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 authorise the said judgment-debtor to make the proposed mortgage, lease or sale within a period of __________ from the date of this certificate; provided that all monies payable under such mortgage, lease or sale shall be paid into this Court and not to the said judgment-debtor. Description of property GIVEN under my hand and the seal of the Court, this __________ day of __________ 19. Judge No. 36 NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE. (O. 21, rr. 90, 92) (Title) To WHEREAS the under-mentioned property was sold on the ___ day of ___ 19__, in execution of the decree passed in the above-named suit, and whereas ___, the decree-holder [or judgment-debtor], has applied to this Court to set aside the sale of the said property on the ground of a material irregularity [or fraud] in publishing [or conducting] the sale, namely that Take notice that if you have any cause to show why the said application should not be granted you should appear with your proofs in this Court on the ___ day of ___ 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, rr. 90, 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 determined. 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 the said ________ be committed to [***] prison; You are hereby commanded and required to take and receive the said ________ into [***] 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 decree 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 sufficient 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 some 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 his obligation: Your are hereby summoned to appear in this Court in person on the day of 19 , at A.M., when the said application will be heard and determined. GIVEN under my hand and the seal of the Court, this day of 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 has failed to do: it is ordered that the said defendant be committed to *[***] 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 ____________ or 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 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 * Omitted by Act XIV of 1994, s.11. 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. ____________ or such sum not exceeding the said sum as the said Court may adjudge. Schedule Witness my hand at ____________ this ____________ day of ____________ 19. (Signed) Witnesses
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 fulfill 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 Upon motion made unto this Court by ____________, pleader of [or Counsel for] the plaintiff A.B., and upon reading the petition of the said plaintiff in this matter filed [this day] or the plaint filed in this suit on the ____________ day of ____________, or the written statement of the said plaintiff filed on the ____________ day of ____________] and upon hearing the evidence of ____________ and ____________ in support thereof [if after notice and defendant not appearing: add, and also the evidence of ____________ as to service of notice of this motion upon the defendant C.D.]: This Court doth order that an injunction be awarded to restrain the defendant C.D., his servants, agents and workmen, from pulling down, or suffering to be pulled down, the house in the plaint in the said suit of the plaintiff mentioned [or in the written statement, or petition, of the plaintiff and evidence at the hearing of this motion mentioned], being No. 9, Oilmongers Street, Hindupur, in the Taluk of ____________, and from selling the materials whereof the said house is composed, until the hearing of this suit or until the further order of this Court. Dated this ____________ day of ____________ 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 defendants ____________ and ____________ from parting without of the custody of them or any of them or endorsing, assigning or negotiating the promissory note [or bill of exchange] in question, dated on or about the ____________, etc., mentioned in the plaintiff's plaint [or petition] and the evidence heard at this motion until the hearing of this suit, or until the further order of this Court. [In Copyright cases] to restrain the defendant C.D., his servants, agents or workmen, from printing, publishing or vending a book, called ____________, or any part thereof, until the, etc. [Where part only of a book is to be restrained] to restrain the defendant C.D., his servants, agents or workmen, from printing, publishing, selling or otherwise disposing of such parts of the book in the plaint [or petition and evidence, etc.] mentioned to have been published by the defendant as hereinafter specified, namely, that part of the said book which is entitled ____________ and also that part which is entitled ____________ [or which is contained in page ____________ to page ____________ both inclusive] until ____________, etc. [In Patent cases] to restrain the defendant C.D., his agents, servants and workmen, from making or vending any perforated bricks [or as the case may be] upon the principle of the inventions in the plaintiff's plaint [or petition, etc., or written statement, etc.] mentioned, belonging to the plaintiff's or either of them, during the remainder of the respective terms of the patents in the plaintiff's plaint [or as the case may be] mentioned, and from counterfeiting, imitating or resembling the same inventions, or either of them, or making any addition thereto, or subtraction therefrom, until the hearing, etc. [In cases of Trademarks] to restrain the defendant C.D., his servants, agents or workmen, from selling, or exposing for sale, or procuring to be sold, any composition or blacking [or as the case may be] described as or purporting to be blacking manufactured by the plaintiff A.B., in bottles having affixed thereto such labels as in the plaintiff's plaint [or petition, etc.] mentioned, or any other labels so contrived or expressed as, by colourable imitation or otherwise, to represent the composition or blacking sold by the defendant to be the same as the composition or blacking manufactured and sold by the plaintiff A.B., and from using trade-cards so contrived or expressed as to represent that any composition or blacking sold or proposed to be sold by the defendant is the same as the composition or blacking manufactured or sold by the plaintiff A.B., until the, etc. [To restrain a partner from in any way interfering in the business] to restrain the defendant C.D., his agents and servants, from entering into any contract, and from accepting, drawing, endorsing or negotiating any bill of exchange, note or written security in the name of the partnership-firm of B. and D., and from contracting any debt, buying and selling any goods, and from making or entering into any verbal or written promise, agreement or undertaking, and from doing, or causing to be done, any act, in the name or on the credit of the said partnership-firm of B. and D., or whereby the said partnership firm can or may in any manner become or be made liable to or for the payment of any sum of money, or for the performance of any contract, promise or undertaking until the, etc. No. 19 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. 1 The number of the form, originally misprinted as 6, was corrected by the Repealing and Amending Act, 1914 (10 of 1914), s. 2 and First Sch., GIVEN under my hand and the seal of the Court, this ______ day of ______ 19__. Judge No. 1[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 the said ______ or his successor in office for the time being. For which payment to be made we bind ourselves, and each of us, in the whole, our and each of our heirs, executors and administrators, jointly and severally, by these presents. Dated this ______ 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 moveable property of ______ in the said plaint named: Now the condition of this obligation is such, that if the above-bounden ______ shall duly account for all and every the sum and sums of money which he shall so receive on account of the rents and profits of the immovable property, and in respect of the moveable property, of the said ______ at such periods as the said Court shall appoint, and shall duly pay the balances which shall from time to time be certified to be due from him as the said Court hath directed or shall hereafter direct, then this obligation shall be void, otherwise it shall remain in full force. Signed and delivered by the above-bounden in the presence of ______. Note.- If deposit of money is made, the memorandum thereof should follow the terms of the condition of the bond. --- 1 The number of the form, originally misprinted as 7, was corrected by the Repealing and Amending Act, 1914 (10 of 1914), s. 2 and First Sch. APPENDIX G APPEAL, REFERENCE AND REVIEW No.1 MEMORANDUM OF APPEAL (O. 41, 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 called upon to furnish security. Accordingly I, of my own free will, stand security to the extent of Rs. , mortgaging the properties specified in the schedule hereunto annexed, and covenant that if the decree of the first Court be confirmed or varied by the Appellate Court the said defendant shall duly act in accordance with the decree of the Appellate Court and shall pay whatever may be payable by him thereunder, and if he should fail therein then any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient to pay the amount due, I and my legal representatives will be personally liable to pay the balance. To this effect I execute this security bond, this day of 19 . Schedule Witnessed by 1. 2. (Signed) Code of Civil Procedure, 1908 [1908: V] 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 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 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 Witnessed by 1. 2. (Signed) No. 4 SECURITY FOR COSTS OF APPEAL. (O. 41, r. 10) (Title) To THIS security bond for costs of appeal executed by ____________ witnesseth: - This appellant has preferred an appeal from the decree in Suit No. ____________ of 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 ____________. Code of Civil Procedure, 1908 [1908 : V] 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 OF LOWER COURT OF ADMISSION OF APPEAL. (O. 41, r. 13) (Title) To You are hereby directed to take notice that the ___ in the above suit, has preferred an appeal to this Court from the decree passed by you therein on the ___ day of ___ 19 . You are requested to send with all practicable despatch all material papers in the suit. Dated the ___ day of ___ 19 . Judge No. 6 NOTICE TO RESPONDENT OF THE DAY FIXED FOR THE HEARING OF THE APPEAL (O. 41, r. 14) (Title) APPEAL from the ___ of the Court of ___ dated 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 authorised 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 19__, in the Court of ______, and whereas the ______ has preferred an appeal to this Court from the decree passed against him in the said suit and it appears to this Court that you are interested in 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 seat of the Court, this ______ day of ______ 19__. Judge No. 8 MEMORANDUM OF CROSS OBJECTIONS. (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 appeals to the ______ Court at ______ from the decree 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 for the appellant and of for the respondent, it is ordered— The costs of this appeal, as detailed below, amounting to Rs. , are to be paid by . The costs of the original suit are to be paid by . GIVEN under my hand this day of 19. Judge Costs of Appeal | Appellant | Amount | Respondent | Amount | |-----------|--------|------------|--------| | | Rs. a. p. | | Rs. a. p. | | 1. Stamp for memorandum of appeal | | Stamp for power | | | 2. Do. for power.. | | Do. for petition | | | 3. Service of processes | | Service of processes | | | 4. Pleader’s fee on Rs. | | Pleader’s fee on Rs. | | | Total…. | | Total … | | No. 10 APPLICATION TO APPEAL in forma 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 moveable and immoveable 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 forma 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 1[SUPREME COURT] SHOULD NOT BE GRANTED. (O. 45, r. 3) (Title) To Take notice that has applied to this Court for a certificate that as regards amount or value and nature the above case fulfils the requirements of section 110 of the Code of Civil Procedure, 1908, or that it is otherwise a fit one for appeal to the 2[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 1[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 2[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 1 Subs. by A.O., 1961, Art. 2 and Sch., for "KING IN COUNCIL" (with effect from the 23rd March, 1956.) 2 Subs. ibid., for "His Majesty in Council" (with effect from the 23rd March, 1956.) 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___ in the above case. The __________ day of __________ 19___ is fixed for you to show cause why the Court should not grant a review of its decree in this case. GIVEN under my hand and the seal of the Court, this __________ day of __________ 19___. Judge APPENDIX H MISCELLANEOUS No. 1 AGREEMENT OF PARTIES AS TO ISSUES TO BE TRIED (O. 14, r. 6) (Title) WHEREAS we, the parties, in the above suit, are agreed as to the question of fact [or of law] to be decided between us and the point at issue between us is whether a claim founded on a bond, dated the __________ day of __________ 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 Rs. __________ [or such suit as the Court shall hold to be due thereon, and I, the said __________, will accept the said sum of Rupees __________ (or such 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 No. 3 NOTICE OF PAYMENT INTO COURT. (O. 24, r. 2) (Title) TAKE notice that the defendant has paid into Court Rs. ______ and says that that sum is sufficient to satisfy the plaintiff's claim in full. To Z., Pleader for the plaintiff X. Y., Pleader for the defendant No. 4 NOTICE TO SHOW CAUSE. (GENERAL FORM) (Title) To, WHEREAS the above-named ______ has made application to this Court that ______. You are hereby warned to appear in this Court in person or by a pleader duly instructed on the ______ day of ______ 19______, at ______ o'clock in the forenoon, to show cause against the application, failing wherein, the said application will be heard and determined ex parte. GIVEN under my hand and the seal of the Court, this ______ day of ______ 19______. Judge No.5 LIST OF DOCUMENTS PRODUCED BY PLAINTIFF (O. 13, r.1) DEFENDANT (Title) | No. | Description of documents | Date, if any, which the document bears | Signature of party or pleader | |----|---------------------------|----------------------------------------|--------------------------------| | 1 | 2 | 3 | 4 | No.6 NOTICE TO PARTIES OF THE DAY FIXED FOR EXAMINATION OF A WITNESS ABOUT TO LEAVE THE JURISDICTION. (O. 18, r. 16) (Title) To Plaintiff (or defendant). WHEREAS in the above suit application has been made to the Court by that the examination of ____________, a witness required by the said ____________, in the said suit may be taken immediately; and it has been shown to the Court's satisfaction that the said witness is about to leave the Court's jurisdiction (or any other good and sufficient cause to be stated): TAKE notice that the examination of the said witness will be taken by the Court on the ____________ day of ____________ 19__. Dated the ____________ day of ____________ 19__. Judge No.7 COMMISSION TO EXAMINE ABSENT WITNESS. (O. 26, rr. 4, 18) (Title) To WHEREAS the evidence of __________ is required by the __________ in the above suit; and whereas __________, you are requested to take the evidence on interrogatories [or viva voce] of such witness __________, and you are hereby appointed Commissioner for that purpose. The evidence will be taken in the presence of the parties or their agents if in attendance, who will be at liberty to question the witness on the points specified, and you are further requested to make return of such evidence as soon as it may be taken. Process to compel the attendance of the witness will be issued by any Court having jurisdiction on your application. A sum of Rs. __________, being your fee in the above, is herewith forwarded. GIVEN under my hand and the seal of the Court, this __________ day of __________ 19 . __________ Judge No.8 LETTER OF REQUEST (O. 26, r. 5) (Title) (Heading:-To the President and Judges of, etc., etc., or as the case may be) WHEREAS a suit is now pending in the __________ in which A. B. is plaintiff and C. D. is defendant; And the said suit the plaintiff claims. And whereas it has been represented to the said Court that it is necessary for the purposes of justice and for the due determination of the matters in dispute between the parties, that the following persons should be examined as its witnesses upon oath touching such matters, that is to say: E. F., of __________ G., H., of __________ and I. J., of __________ And it appearing that such witnesses are resident within the jurisdiction of your honourable Court; Now I __________, as the __________ of the said Court, have the honour to request, and do hereby request, that for the reasons aforesaid and for the assistance of the said Court, you as the President and Judges of the said __________, or some one or more of you, will be pleased to summon the said witness (and such other witnesses as the agents of the said plaintiff and defendant shall humbly request you in writing so to summon) to attend at such time and place as you shall appoint before some one or more of you or such other person as according to the procedure of your Court is competent to take the examination of witnesses, and that you will cause such witnesses to be examined upon the interrogatories which accompany this letter of request (or viva voce) touching the said matters in question in the presence of the agents of the plaintiff and defendant, or such of them as shall, on due notice given, attend such examination. Code of Civil Procedure, 1908 [1908 : V] And I further have the honour to request that you will be pleased to cause the answers of the said witnesses to be reduced into writing, and all books, letters, papers and documents produced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of your tribunal, or in such other way as is in accordance with your procedure, and to return the same, together with such request in writing, if any, for the examination of other witnesses to the said Court. (Note.-If the request is directed to a Foreign Court, the words "through ¹[the ²[Federal Government]] for transmission" should be inserted after the words "other witnesses" in the last line of this form.) No. 9 COMMISSION FOR A LOCAL INVESTIGATION, OR TO EXAMINE ACCOUNTS (O. 26, rr. 9, 11) (Title) To WHEREAS it is deemed requisite, for the purposes of this suit, that a commission for __________ should be issued; You are hereby appointed Commissioner for the purpose of __________ Process to compel the attendance before you of any witnesses, or for the production of any documents whom or which you may desire to examine or inspect, will be issued by any Court having jurisdiction on your application. A sum of Rs. __________, being your fee in the above, is herewith forwarded. GIVEN under my hand and the seal the Court, this __________ day of __________ 19 . Judge No. 10 COMMISSION TO MAKE A PARTITION. (O. 26, r. 13) (Title) To WHEREAS it is deemed requisite for the purposes of this suit that a commission should be issued to make the partition or separation of the property specified in and according to the rights as declared in, the decree of this Court dated the __________ day of __________ 19 ; you are here by appointed Commissioner for the said purpose and are directed to make such inquiry as may be necessary, to divide the said property according to the best of your skill and judgment in the shares set out in the said decree, and to allot such shares to the several parties. You are hereby authorised to award sums to be paid to any party by any other party for the purpose of equalizing the value of the shares. ¹ Subs. by A.O., 1949, for "His Majesty's Secretary of State for Foreign Affairs". ² Subs. by F.A.O., 1975, Art. 2 and Table, for "Central Government". Code of Civil Procedure, 1908 [1908 : V] process to compel the attendance before you of any witness, or for the production of any documents, whom or which you may desire to examine or inspect, will be issued by any Court having jurisdiction on your application. A sum of Rs. , being your fee in the above, I herewith forwarded. GIVEN under my hand and the seal of the Court, this day of 19 . Judge No. 11 NOTICE TO MINOR DEFENDANT AND GUARDIAN. (O. 32, r. 3) (Title) To Minor Defendant. Natural Guardian.
Here insert the name of the guardian WHEREAS an application has been presented on the part of the plaintiff in the above suit for the appointment of a guardian for the suit to the minor defendant, you, the said minor, and you (1) are hereby required to take notice that unless within days from the service upon you of this notice, an application is made to this Court for the appointment of you (1) or of some friend of you, the minor, to act as guardian for the suit, the Court will proceed to appoint some other person to act as a guardian to the minor for the purposes of the said suit. GIVEN under my hand and the seal of the Court, this day of 19 . Judge No. 12 NOTICE TO OPPOSITE PARTY OF DAY FIXED FOR HEARING EVIDENCE OF PAUPERISM. (O. 33, r. 6) (Title) To WHEREAS has applied to this Court for permission to institute a suit against in forma pauperis under Order XXXIII of the Code of Civil Procedure, 1908; and whereas the Court sees no reason to reject the application; and whereas he day of 19 has been fixed for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof: Notice is hereby given to you under rule 6 of Order XXXIII that in case you may wish to offer any evidence to disprove the pauperism of the applicant, you may do so on appearing in this Court on the said day of 19 . GIVEN under my hand and the seal of the Court, this day of 19 . Judge No. 13 NOTICE TO SURETY OF HIS LIABILITY UNDER A DECREE (Section 145) (Title) To WHEREAS you did on ________ become liable as surety for the performance of any decree which might be passed against the said ________ defendant in the above suit; and whereas a decree was passed on the ________ day of ________ 19 ________ against the said defendant for the payment of ________, and whereas application has been made for execution of the said decree against you: Take notice that you are hereby required on or before the ________ day of ________ 19 ________ to show cause why the said decree should not be executed against you, and if no sufficient cause shall be, within the time specified, shown to the satisfaction of the Court, an order for its execution will be forthwith issued in the terms of the said application. GIVEN under my hand and the seal of the Court, this ________ day of ________ 19 ________. ________ Judge No. 14 REGISTER OF CIVIL SUITS (O. 4, R. 2) Court of the ____________________________ REGISTER OF CIVIL SUITS IN THE YEAR 19 ________________ at ____________________________ Date of Presentation of Plaint Number of Suit Plaintiff Name: Description: Place of residence: Defendant Name: Description: Place of residence: Particulars Amount or Value When the cause of action accrued Day for parties to appear Claim Plaintiff Defendant Judgment (Appeal) Date For whom For what and amount Date of decision on appeal Judgment in appeal Date of application Date of order Against whom For what and amount of money Amount of costs Amount paid into Court Arrested Minute of other Return than Payment or Arrest, and date of every Return Return of Execution Execution Note.—Where there are numerous plaintiffs, or numerous defendants, the name of the first plaintiff only, or the first defendant only, as the case may be, need be entered in the register. Date of memorandum. Number of appeal. Name. Description. Place of residence. Appellant Name. Description. Place of residence. Respondent Of what Court. Number of Original Suit. Particulars. Amount or value. Day for parties to appear. Decree appealed from Appellant. Respondent. Appearance Date. Judgment Confirmed, reversed or varied. For what or amount. THE THIRD SCHEDULE (See section 69) EXECUTION OF DECREES BY COLLECTORS
(a) proceed as the Court would proceed when the sale of immoveable property is postponed in order to enable the judgment-debtor to raise the amount of the decree; or (b) raise the amount of the decree by letting in perpetuity, or for a term on payment of a premium, or by mortgaging, the whole or any part of the property ordered to be sold; or (c) sell the property ordered to be sold or so much thereof as may be necessary.
(a) every person holding a decree for the payment of money against the judgment-debtor capable of execution by sale of his immoveable property and which such decree holder desires to have so executed, and every holder of a decree for the payment of money in execution of which proceedings for the sale of such property are pending, to produce before the Collector a copy of the decree, and a certificate from the Court which passed or is executing the same, declaring the amount recoverable thereunder; (b) every person having any claim on the said property to submit to the Collector a statement of such claim, and to produce the documents (if any) by which it is evidenced.
Such notice shall be published by being affixed on a conspicuous part of the Court-house of the Court which made the original order for sale, and in such other places (if any) as the Collector thinks fit; and where the address of any such decree-holder or claimant is known, a copy of the notice shall be sent to him by post or otherwise.
Where there is no dispute as to the fact or extent of the liability of the judgment-debtor to any of the decrees or claims of which the Collector is informed, or as to the relative priorities of such decrees or claims, or as to the liability of any such property for the satisfaction of such decrees or claims, the Collector shall draw up a statement, specifying the amount to be recovered for the discharge of such decrees, the order in which such decrees and claims are to be satisfied, and the immoveable property available for that purpose.
Where any such dispute arises, the Collector shall refer the same, with a statement thereof and his own opinion thereon, to the Court which made the original order for sale, and shall, pending the reference, stay proceedings relating to the subject thereof. The Court shall dispose of the dispute if the matter thereof is within its jurisdiction, or transmit the case to a competent Court for disposal, and the final decision shall be communicated to the Collector, who shall then draw up a statement as above provided in accordance with such decision.
(a) if it appears that the amount cannot be recovered without the sale of the whole of the property available, proceed to sell such property; or (b) if it appears that the amount with interest (if any) in accordance with the decree, and, when not decreed, with interest (if any) at such rate as he thinks reasonable, may be recovered without such sale, raise such amount and interest (notwithstanding the original order for sale)— (i) by letting in perpetuity or for a term, on payment of a premium, the whole or any part of the said property; or (ii) by mortgaging the whole or any part of such property; or (iii) by selling part of such property; or (iv) by letting on farm, or managing by himself or another, the whole or any part of such property for any term not exceeding twenty years from the date of the order of sale; or (v) partly by one of such modes, and partly by another or others of such modes.
For the purpose of managing the whole or any part of such property, the Collector may exercise all the powers of its owner.
For the purpose of improving the saleable value of the property available or any part thereof, or rendering it more suitable for letting or managing, or for preserving the property from sale in satisfaction of an incumbrance, the Collector may discharge the claim of any incumbrancer which has become payable or compound the claim of any incumbrancer whether it has become payable or not, and, for the purpose of providing funds to effect such discharge or composition, may mortgage, let or sell any portion of the property which he deems sufficient. If any dispute arises as to the amount due on any incumbrance with which the Collector proposes to deal under this clause, he may institute a suit in the proper Court, either in his own name or the name of the judgment-debtor, to have an account taken, or he may agree to refer such dispute to the decision of two arbitrators, one to be chosen by each party, or of an umpire to be named by such arbitrators.
In proceeding under this paragraph the Collector shall be subject to such rules consistent with this Act as may, from time to time, be made in this behalf by the ¹[Provincial Government.]
Such charges shall include all debts and liabilities from time to time due to ²[the Government] in respect of the property or any part thereof, the rent (if any) from time to time due to a superior holder in respect of such property or part, and, if the Collector so directs, the expenses of any witnesses summoned by him. --- ¹Subs. by A.O., 1937, for "L.G.". ²The original words "the Government" were first subs. by A.O., 1937, and then amended by A.O., 1961, Art. 2 (with effect from the 23rd March, 1956), to read as above.
The balance shall be applied by the Court— (a) in providing for the maintenance of such members of the judgment-debtor's family (if any) as are entitled to be maintained out of the income of the property, to such amount in the case of each member as the Court thinks fit; and (b) where the Collector has proceeded under paragraph 1, in satisfaction of the original decree in execution of which the Court ordered the sale of immoveable property, or otherwise as the Court may under section 73 direct; or (c) where the Collector has proceeded under paragraph 2,— (i) in keeping down the interest on incumbrances on the property; (ii) where the judgment-debtor has no other sufficient means of subsistence, in providing for his subsistence to such amount as the Court thinks fit; and (iii) in discharging rateably the claims of the original decree-holder and any other decree-holders who have complied with the said notice, and whose claims were included in the amount ordered to be recovered.
No other holder of a decree for the payment of money shall be entitled to be paid out of such property or balance until the decree-holders who have obtained such order have been satisfied, and the residue (if any) shall be paid to the judgment-debtor or such other person as the Court directs.
(a) fix a reasonable reserved price for each lot; (b) adjourn the sale for a reasonable time whenever, for reasons to be recorded, he deems the adjournment necessary for the purpose of obtaining a fair price for the property; (c) buy in the property offered for sale, and re-sell the same by public auction or private contract, as he thinks fit.
During the same period no Civil Court shall issue any process of execution either against the judgment-debtor or his property in respect of any decree for the satisfaction whereof provision has been made by the Collector under paragraph 7.
The same period shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived
THE FOURTH SCHEDULE.—[Enactments amended.] Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981), s. 3 and Second Schedule. THE FIFTH SCHEDULE.—[Enactments repealed.] Rep. by the Second Repealing and Amending Act, 1914 (XVII of 1914), s. 3 and Second Schedule.
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