Code of Civil Procedure, 1908
[72A. Mortgagee not to bid at sale without the leave of the Court.—(/) Notwithstanding anything
contained in rule 72, a mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for or purchase the property.
(2) If leave to bid is granted to such mortgagee, then the Court shall fix a reserve price as regards the mortgagee, and unless the Court otherwise directs, the reserve price shall be—
(a) not less than the amount then due for principal, interest and costs in respect of the mortgage if
the property is sold in one lot; and
(b) in the case of any property sold in lots, not less than such sum as shall appear to the Court to
be properly attributable to each lot in relation to the amount then due for principal, interest and costs on the mortgage.
(3) In other respects, the provisions of sub-rules (2) and (3) of rule 72 shall apply in relation to purchase by the decree-holder under that rule.]
73. Restriction on bidding or purchase by officers.—No officer or other person having any duty to
perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.
Sale of movable property
74. Sale of agricultural produce.—(1) Where the property to be sold is agricultural produce, the sale shall be held,—
(a) if such produce is a growing crop, on or near the land on which such crop has grown, or
(b) if such produce has been cut or gathered, at or near-the threshing floor or place for trading out grain or the like or fodder-stack on or in which it is deposited :
Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the Produce is thereby likely to sell to greater advantage.
(2) Where, on the produce being put up for sale,—
(a) a fair price, in the estimation of the person holding the sale, is not offered for it, and
(b) the owner of the produce or a person authorized to act in his behalf applies to have the sale postponed till next day or, if a market is held at the place of sale, the next market-day,
the sale shall be postponed accordingly and shall be then completed, whatever price may be offered for the produce.
75. Special provisions relating to growing crops.—(1) Where the property to be sold is a growing crop
and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so
fixed as to admit of its being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is ready for storing.
(2) Where the crop from its nature does not admit of being stored, it may be sold before it is cut and
gathered, and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending and cutting or gathering it.
76. Negotiable instruments and shares in corporations.—Where the property to be sold is a
negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction, authorized the sale of such instrument or share through a broker.
77. Sale by public auction.—(1) Where movable property is sold by public auction the price of each
lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be re-sold.
(2) On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.
(3) Where the movable property to be sold is a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.
78. Irregularity not to vitiate sale, but any person injured may sue.—No irregularity in publishing
or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by
reason of such irregularity at the hand of any other person may institute a suit against him for compensation
or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery).
79. Delivery of movable property, debts and shares.—(1) Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser.
(2) Where the property sold is movable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.
(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share in a
corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor
from receiving the debt or any interest thereon, and the debtor from making payment thereof to any
person except the purchaser, or prohibiting the person in whose name the share, may be standing from
making any transfer of the share to any person except the purchaser, or receiving payment of any
dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.
80. Transfer of negotiable instruments and shares.—(1) Where the execution of a document or the
endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is
required to transfer such negotiable instrument or, share the Judge or such officer as he may appoint in
this behalf may execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by the party.
(2) Such execution or endorsement may be in the following form, namely :—
A. B. by C.D. Judge of the Court of (or as the case may be) , in a suit by E. F. against A.B.
(3) Until the transfer of such negotiable instrument or share, the Court may, by order, appoint some
person to receive any interest or dividend due thereon and to sign a receipt for the same; and any receipt
so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.
81. Vesting order in case of other property.—In the case of any movable property not hereinbefore
provided for, the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.
Sale of immovable property
82. What Court may order sales.—Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.
83. Postponement of sale to enable judgment-debtor to raise amount of decree.—(1) Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that
there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor,
the Court may, on his application, postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.
(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a
period to be mentioned therein, and notwithstanding anything contained in section 64, to make the
proposed mortgage, lease or sale:
Provided that all moneys payable under such mortgage, lease or sale shall be paid, not to the 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 not mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.
(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sole in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.
84. Deposit by purchaser and re-sale on default.—(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent. on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.
(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule
72, the Court may dispense with the requirements of this rule.
85. Time for payment in full of purchase money.—The full amount of purchase-money payable
shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the
property:
Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.
86. Procedure in default of payment.—In default of payment within the period mentioned in the
last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.
88. Bid of co-sharer to have preference.—Where the property sold is a share of undivided immovable property and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.
89. Application to set aside sale on deposit.—(1) Where immovable property has been sold in
execution of a decree,
[any person claiming an interest in the property sold at the time of the sale or at
the time of making the application, or acting for or in the interest of such person,] may apply to have the sale set aside on his depositing in Court,—
(a) for payment to the purchaser, a sum equal to five per cent. of the purchase-money, and
(b) for payment, to the decree-holder, the amount specified in the proclamation of sale as that for
the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.
(2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.
[90. Application to set aside sale on ground of irregularity or fraud.—(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person
entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it
unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.
(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.
Explanation.—The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.]
91. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest.—The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.
92. Sale when to become absolute or be set aside.—(1) Where no application is made under rule 89,
rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order
confirming the sale, and thereupon the sale shall become absolute:
[Provided that, where any property is sold in execution of a decree pending the final disposal of any
claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.]
(2) Where such application is made and allowed, and where, in the case of an application-under rule
89, the deposit required by that rule is made within
[sixty days] from the date of sale,
[or in cases where
the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake
on the part of the depositor and such deficiency has been made good within such time as may be fixed by
the Court, the Court shall make an order setting aside the sale]:
Provided that no order shall be made unless notice of the application has been given to all persons
affected thereby:
[Provided further that the deposit under this sub-rule may be made within sixty days in all such cases
where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.
(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.
[(4) Where a third party challenges the judgment-debtor’s title by filing a suit against the auction-
purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.
(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which
the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered].
93. Return of purchaser-money in certain cases.—Where a sale of immovable property is set aside under rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.
94. Certificate to purchaser.—Where a sale of immovable property has become absolute, the Court
shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.
95. Delivery of property in occupancy of judgment-debtor—Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a
certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the
purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to
receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.
96. Delivery of property in occupancy of tenant.—Where the property sold is in the occupancy of a
tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted
under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a
copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-
debtor has been transferred to the purchaser.
Resistance of delivery of possession to decree-holder or purchaser
97. Resistance or obstruction to possession of immovable property.—(1) Where the holder of a
decree for the possession of immovable property or the purchaser of any such property sold in execution
of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
[(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.]
2. Sub s . b y Ac t 2 2 o f 2 002 , s. 14, fo r “t hi r t y d a ys” ( w. e . f . 1- 7- 200 2 ).
4. I n s . b y A c t 2 2 o f 2 0 0 2 , s . 1 4 ( w . e . f . 1 - 7 - 2 0 0 2 ) .
5. I n s . b y A c t 1 0 4 o f 1 9 7 6 , s . 7 2 ( w . e . f 1 - 2 - 1 9 7 7 ) .
[98. Orders after adjudication.—(1) Upon the determination of the questions referred to in rule
101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule
(2),—
(a) make an order allowing the application and directing that the applicant be put into the
possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on
his behalf, or by any transferee, where such transfer was made during the pendency of the suit or
execution proceeding, it shall direct that the applicant be put into possession of the property, and where
the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
99. Dispossession by decree-holder or purchaser.—(1) Where any person other than the judgment-
debtor is dispossessed of immovable property by the holder of a decree for the possession of such
property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession.—Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,—
(a) make an order allowing the application and directing that the applicant be put into the
possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined.—All questions (including questions relating to right, title or
interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule
99 or their representatives, and relevant to the adjudication of the application, shall be determined by the
Court dealing with the application and not by a separate suit and for this purpose, the Court shall,
notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
102. Rules not applicable to transferee lite pendente.—Nothing in rules 98 and 100 shall apply
to
resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgement-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Explanation.—In this rule, “transfer” includes a transfer by operation of law.
103. Orders to be treated as decrees.—Where any application has been adjudicated upon under rule
98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]
[104. Orders under rule 101 or rule 103 to be subject to the result or pending suit.—Every order
made under rule 101 or rule 103 shall subject to the result of any suit that may be pending on the date of
commencement of the proceeding in which such order, is made if in such suit the party against whom the
order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.
105. Hearing of application.—(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant
does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.
Explanation.—An application referred to in sub-rule (1) includes a claim or objection made under rule 58.
106. Setting aside orders passed ex parte, etc.—(1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed ex parte under sub-rule
(3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance whom the application was called
on for hearing, the Court shall set aside the order or such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.
(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.
(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or
where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.]
ORDER XXII
Death, Marriage and Insolvency or Parties
1. No abatement by party's death if right to sue survives.—The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.—
Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue
survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record,. and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.—(1) Where one of two
or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a
sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application
made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall
abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may
award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
4. Procedure in case of death of one of several defentlants or of sole defendant.—(1) Where one
of two or more defendants dies and the right to sue does not survive against the surviving defendant or
defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the
Court, on an application made in that behalf, shall cause the legal representative of the deceased defendants to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the
legal representatives of any such defendant who has failed to file a written statement or who, having filed
it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced
against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5) Where—
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an
application for the substitution of the legal representative of the defendant under this rule within the
period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act,
1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under
section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not
making the application with the period specified in the said Act,
the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]
[4A. Procedure where there is no legal representative.—(1) If, in any suit, it shall appear to the Court
that any party who has died during the pendency of the suit has no legal representative, the Court may, on the
application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may be order appoint the Administrator-General, or an officer of the Court or such other person as it
thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order
subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.
(2) Before making an order under this rule, the Court—
(a) may require notice of the application for the order to be given to such (if any) of the persons
having an interest in the estate of the deceased person as it thinks fit; and
(b) shall as certain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.]
5. Determination of question as to legal representative.—Where a question arises as to whether
any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such
question shall be determined by the Court:
[Provided that where such question arises before an Appellate Court, that Court may, before
determining the question, direct any subordinate Court to try the question and to return the records
together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]
6. No abatement by reason of death after hearing.—Notwithstanding anything contained in the
foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the
death of either party between the conclusion of the hearing and the pronouncing of the judgment, but
judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.
7. Suit not abated by marriage of female party.—(1) The marriage of a female plaintiff or
defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with the judgment, and, where the decree is against a female defendant, it may be executed against her alone.
(2) Where the husband is by law liable for the debts of his wife, the decree may, with the permission
of the Court, be executed against the husband also; and, in case of judgment for the wife, execution of the
decree may, with such permission, be issued upon the application of the husband, where the husband is by law entitled to the subject-matter of the decree.
8. When plaintiff's insolvency bars suit.—(1) The insolvency of a plaintiff in any suit which the
assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless
such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.
(2) Procedure where assignee fails to continue 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 an awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff’s estate.
9. Effect of abatement or dismissal.—(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the
assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement
or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the
[Indian Limitation Act, 1877 (15 of 1877)] shall apply to applications under sub-rule (2).
[Explanation.—Nothing in this rule shall be construed as barring, in any later suit, a defence based
on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]
10. Procedure in case of assignment before final order in suit.—(1) In other cases of an
assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
[10A. Duty of pleader to communicate to Court death of a party.—Wherever a pleader
appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about
it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.]
11. Application of Order to appeals.—In the application of this Order to appeals, so far as may be,
the word “Plaintiff” shall be held to include an appellant, the word “defendant” a respondant, and the word “suit”an appeal.
12. Application of Order to proceedings.—Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.
ORDER XXIII
Withdrawal and Adjustment of Suits
[1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution
of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of
his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in
rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit
of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of
the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,—
(a) that a suit must fail by reason of some formal defect, or
1. See now the Limitation Act, 1973 (36 of 1963), ss. 4 and 5.
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the
subject matter of 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 such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff—
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),
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.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.]
[1A.When transposition of defendants as plaintiffs may be permitted.—Where a suit is
withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff
under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]
2. Limitation law not affected by first suit.—In any fresh suit instituted on permission granted
under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.
3. Compromise of suit.—Where it is proved to the satisfaction of the Court that a suit has been
adjusted wholly or in part by any lawful agreement or compromise
[in writing and signed by the parties]
or where the defendant satisfied the plaintiff in respect to the whole or any part of the subject-matter of
the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a
decree in accordance therewith
[so far as it relates to the parties to the suit, whether or not the subject-
matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:]
[Provided that where it is alleged by one party and denied by the other that an adjustment or
satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted
for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]
[Explanation.— An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not he deemed to be lawful within the meaning of this rule.]
[3A. Bar to suit.—No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.
3B. No agreement or compromise to be entered in a representative suit without leave of Court.—(1) No agreement or compromise in a representative suit shall be entered into without the leave
of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court as recorded shall be void.
(2) Below granting such leave, the Court shall give notice in such manner as it may think fit to such persons is as may appear to it to be interested in the suit.
Explanation.—In this rule, “representative suit” means,—
(a) a suit under Section 91 or Section 92,
(b) a suit under rule 8 of Order I,
(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the
other members of the family,
(d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.]
4. Proceedings in execution of decrees not affected.—Nothing in this Order shall apply to any proceedings in execution of a decree or order.
ORDER XXIV
P
ayment into Court
1. Deposit by defendant of amount in satisfaction of claim.—The defendant in any suit to recover a
debt or damages may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim.
2. Notice of deposit.—Notice of the deposit shall be given through the Court by the defendant to the
plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application.
3. Interest on deposit not allowed to plaintiff after notice.—No interest shall be allowed to the
plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full of the claim or falls short thereof.
4. Procedure where plaintiff accepts deposit as satisfaction in part.—(1) Where the plaintiff
accepts such amount as satisfaction in part only of his claim, he may prosecute his suit for the balance;
and, if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiff's claim,
the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff's claim.
(2) Procedure where he accepts it as satisfaction in full.—Where the plaintiff accepts such amount as
satisfaction in full of his claim, he shall present to the Court a statement to that effect, and such statement
shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.
Illustrations
(a) A owes B Rs. 100. B. sues A for the amount, having made no demand for payment and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into
Court, B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part.
(h) 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 in full satisfaction of his claim. The Court should also give B his cast of suit.
A's conduct having shown that the litigation was necessary.
(c) A owes B Rs. 100, and is willing to pay him that sum without suit.- B claims Rs. 150 and sues A for that amount. On the plaint being filed, A pays Rs. 100 into Court and disputes only his liability to pay the remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his claim. The Court should order him to pay A's costs.
ORDER XXV
Security for Costs
[1. When security for costs may be required from plaintiff.—(1) At any stage of a suit, the Court
may, either of its own motion or on the application of any defendant, order the plaintiff, for reasons to be
recorded, to give within the time fixed by it security for the payment of all costs incurred and likely to be
incurred by any defendant:
Provided that such an order shall be made in all cases in which it appears to the Court that a sole
plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing out of India and
that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property within India other than the property in suit.
(2) Whoever leaves India under such circumstances as to afford reasonable probability that he will
not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule (1)].
2. Effect of failure to furnish security.—(1) In the event of such security not being furnished within
the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.
(2) Where a suit is dismissed under this rule, the plaintiff may apply for 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.
(3) The dismissal shall not be set aside unless notice of such application has been served on the defendant.
ORDER XXVI
C
OMMISSIONS
Commissions to examine witnesses
1. Cases in which Court may issue commission to examine witness.—Any Court may in any suit
issue a commission for the examination on interrogatories or otherwise of any person resident within the
local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from
sickness or infirmity unable to attend it:
[Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.
Explanation.—The Court may, for the purpose of this rule, accept a certificate purporting to be
signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.]
2. Order for commission.—An order for the issue of a commission for the examination of a witness
may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.
3. Where witness resides within Court’s jurisdiction.—A commission for the examination of a
person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.
4. Persons for whose examination commission may issue.—(1) Any Court may in any suit issue a
commission
[for the examination on interrogatories or otherwise of—]
(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 Government] who cannot in the opinion of the Court, attend
without detriment to the public service:
[Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in
person, a commission shall be issued for his examination if his evidence is considered necessary in the
interests of justice:
Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.]
1.
Ins. by Act 104 of 1976, s. 75 (w.e.f. 1-2-1977).
(2) Such commission may be issued to any Court, not being a High Court, within the local limits of
whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.
[4A. Commission for examination of any person resident within the local limits of the jurisdiction of the Court.—Notwithstanding anything contained in these rules, any court may, in the
interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in
any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.]
5. Commission or request to examine witness not within India.—Where any Court to which
application is made for the issue of a commission for the examination of a person residing at any place
not within
[India] is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.
6. Court to examine witness pursuant to Commission.—Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.
7. Return of commission with depositions of witnesses.—Where a commission has been duly
executed, it shall be returned, together with the evidence taken under it, to the Court from which it was
issued, unless the order for issuing the commission has otherwise directed, in which case the commission
shall be returned in terms of such order; and the commission and the returned thereto and the evidence
taken under it shall
[(subject to the provisions of rule 8)] from part of the record of the suit.
8. When depositions may be read in evidence.—Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless—
(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable
from sickness or infirmity to attend to be personally examined, or exempted from personal
appearance in Court, or is a
[person in the service of the Government] who cannot, in the opinion of
the Court, attend without detriment to the public service, or
(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in
clause (a)and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
Commissions for local investigations
9. Commissions to make local investigations.—In any suit in which the Court deems a local
investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual
net profits, the Court may issue a commission to such person as it thinks fit directing him to make such
investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
10. Procedure of Commissioner.—(1) The Commissioner, after such local inspection as he deems
necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.—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.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
[Commissions for scientific investigation, performance of ministerial act and sale of movable
property
10A. Commission for scientific investigation.—(1) Where any question arising in a suit involves any
scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the
Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a
commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.
10B. Commission for performance of a ministerial act.—(1) Where any question arising in a suit
involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently
performed before the Court, the Court may, if for reasons to be recorded, it is of opinion that it is
necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall apply in relation to a commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.
10C. Commission for the sale of movable property.—(1) Where, in any suit, it becomes necessary
to sell any movable property which is in the custody of the Court pending the determination of the suit
and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion
that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.
(3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree.]
Commissions to examine accounts
11. Commission to examine or adjust accounts.—In any suit in which an examination or
adjustment of the accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.
12. Court to give Commissioner necessary instructions.—(1) The Court shall furnish the
Commissioner with such part of the proceedings and such instructions as appear necessary, and the
instructions shall distinctly specify whether the commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.
(2) Proceedings and report to be evidence. Court may direct further inquiry.—The proceedings
and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.
Commissions to make partitions
13. Commission to make partition of immovable property.—Where a preliminary decree for partition
has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.
14. Procedure of Commissioner.—(1) The Commissioner shall, after such inquiry as may be necessary,
divide the property into as many shares as may be directly by the order under which the commission was
1. Ins. b y Ac t 104 o f 1976, s. 75 ( w. e. f. 1-2 -1977).
issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
(2) The commissioner shall then prepare and sign a report or the Commissioners (where the
commission was issued to more than one person and they cannot agree) shall prepare and sign separate
reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court;
and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with
the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.
General provisions
15. Expenses of commission to be paid into court.—Before issuing any commission under this
Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission
to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.
16. Powers of commissioners.—Any commissioner appointed under this Order may, unless otherwise directed by the order of appointment,—
(a) examine the parties themselves and any witness whom they or any of them may produce, and
any other person whom the Commissioner thinks proper to call upon to give evidence in the matter
referred to him;
(b) call for and examine documents and other things relevant to the subject of inquiry;
(c) at any reasonable time enter upon or into any land or building mentioned in the order.
[16A. Questions objected to before the Commissioner.—(1) Where any question put to a witness is
objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the
Commissioner shall take down the question, the answer, the objections and the name of the party or, as the
case may be, the pleader so objecting:
Provided that the Commissioner shall not take down the answer to a question which is objected to on
the ground of privilege but may continue with the examination of the witness, leaving the party to get the
question of privilege decided by the Court, and, where the Court decides that there is no question of
privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege.
(2) No answer taken down under sub-rule (1) shall be read as evidence in the suit except by the order of the Court.]
17. Attendance and examination of witnesses before Commissioner.—(1) The provisions of this Code
relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and
penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce
documents under this Order whether the commission in execution of which they are so required has been
issued by a Court situate within or by a Court situate beyond the limits of
[India], and for the purposes of
this rule the Commissioner shall be deemed to be a Civil Court:
[Provided that when the Commissioner is not a Judge of a Civil Court, he shall not be competent to
impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.]
(2) A Commissioner may apply to any Court (not being a High Court) within the local limits or
whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to
or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.
18. Parties to appear before Commissioner.—(1) Where a commission is issued under this Order,
the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.
[18A. Application of order to execution proceedings.—The provisions of this Order shall apply, so far as may be, to proceedings in execution of a decree or order.
18B. Court to fix a time for return of commission.—The Court issuing a commission shall fix a
date on or before which the commission shall be returned to it after execution, and the date so fixed
shall not be extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date.]
[Commissions issued of the instance of foreign Tribunals
19. Cases in which High Court may issue commission to examine witness.—(1) If a High Court is satisfied.—
(a) that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in
any proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the High Court’s appellate jurisdiction, it may, subject to the provisions of rule 20, issue a commission for the examination of such witness.
(2) Evidence may be given of the matters specified in clause (a), (b) and (c) of sub-rule (1)—
(a) by a certificate signed by the consular officer of the foreign country of the highest rank in
India and transmitted to the High Court through the Central Government, or
(b) by a letter of request issued by the foreign Court and transmitted to the High Court through
the Central Government, or
(c) by a letter of request issued by the foreign court and produced before the High Court by a party to the proceeding.
20. Application for issue of commission.—The High Court may issue a commission under rule 19—
(a) upon application by a party to the proceeding before the foreign court, or
(b) upon an application by a law officer of the State Government acting under instructions from the State Government.
21. To whom commission may be issued.—A commission under rule 19 may be issued to any Court
within the local limits of whose jurisdiction the witness resides, or
*** the witness resides within the
local limits of
[the ordinary original civil jurisdiction of the High Court], to any person whom the Court thinks fit to execute the commission.
22. Issue, execution and return of commissions, land transmission of evidence to foreign Court.—The provisions of rules 6, 15,
[sub-rule (1) of rule 16A, 17, 18 and 18B] 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 Government General in Council along with the letter of request for transmission to the foreign court.]
4. Subs. ibid., for “its ordinary original civil jurisdiction”.
ORDER XXVII
Suits by or against the government or public officers in their official capacity
1. Suits by or against Government.—In any suit by or against
[the Government], the plaint or
written statement shall be signed by such person as the Government may, by general or special order,
appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.
2. Persons authorised to act for Government.—Persons being ex officio or otherwise authorised to act
for the Government in respect of any judicial proceeding shall be deemed to be recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.
3. Plaints in suits by or against Government.—In suits by or
[against the Government], instead of
inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall
be sufficient to insert
[the appropriate name as provided in section 79
***].
[4. Agent for Government to receive process.—The Government pleader in any Court shall be the
agent of the Government for the purpose of receiving processes against the Government issued by such Court].
5. Fixing of day for appearance on behalf of Government.—The Court, in fixing the day for
[the
Government] to answer to the plaint, shall allow a reasonable time for the necessary communication with
the Government through the proper channel, and for the issue of instructions to the
[Government pleader]
to appear and answer on behalf of
[the Government]
***, and may extend the time at its discretion
[but the time so extended shall not exceed two months in the aggregate].
[5A. Government to be joined as a party in a suit against a public officer.—Where a suit is
instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.
5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.—(1) In every suit or proceeding to which the Government, or a public officer acting in his
official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every
endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage, it appears to the court that there is a reasonable
possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.
(3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn proceedings.].
6. Attendance of person able to answer questions relating to suit against Government.—The
Court may also, in any case in which the
[Government pleader] is not accompanied by any person on the
part of
[the Government] who may be able to answer any material questions relating to the suit, direct the attendance of such a person.
2. Subs. ibid., for “against the Secretary of State for India in Council”.
7. Extension of time to enable public officer to make reference to Government.—(1) Where the
defendant is a public officer and, on receiving the summons, considers it proper to make a reference to the
Government before answering the plaint, he may apply to the Court to grant such extension of the time
fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel.
(2) Upon such application the Court shall extend the time for so long as appears to it to be necessary.
8. Procedure in suits against public officer.—(1) Where the Government undertakes the defence of
a suit against a public officer, the
[Government pleader] upon being furnished with authority to appear
and answer the plaint, shall apply to the court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.
(2) Where no application under sub-rule (1) is made by the
[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.
[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 Government or, where
the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity. ,
8B. Definitions of “Government” and “Government pleader”.—In this Order
[unless otherwise
expressly provided] “Government” and
[“Government pleader”] mean respectively—
(a) in relation to any suit by or against
*** the Central Government, or against a public officer in
the service of that Government, the Central Government and such pleader as that Government may
appoint whether generally or specially for the purposes of this order;
*
(c) in relation to any suit by or against State Government or against a public officer in the service of a State. the State Government and the Government pleader
[as defined in clause (7) of section 2],
or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.].
[ORDER XXVII-A]
Suits involving a substantial question of law as to the interpretation for
[the constitution]
[or as to the
validity of any statutory instrument]
1. Notice to the Attorney General or the Advocate-General.—In any suit in which it appears to the
Court that
[any such question as is referred to
[in clause (1) of Article 132, read with Article 147 of the
Constitution,] is involved, the Court shall not proceed to determine that question until after notice has
been given to
[the Attorney General for India] if the question of law concerns the Central Government and to the Advocate-General of the State if the question of law concerns a State Government.
[1A. Procedure in suits involving validity of any statutory instrument.—In any suit in which it
appears to the Court that any question as to the validity of any statutory instrument, not being a question of
5. Cl. (b) omitted by the A.O. 1948.
12. Subs. ibid., for “the Advocate-General of India”.
the nature mentioned in rule l, is involved, the Court shall not proceed to determine that question except after giving notice—
(a) to the Government pleader, if the question concern the Government, or
(b) to the authority which issued the statutory instrument, if the question concerns an authority other than Government.]
2. Court may add Government as party.—The Court may at any stage of the proceedings order that
the Central Government or a State Government shall be added as a defendant in any suit involving
[any
such question as is referred to
[in clause (1) of Article 132 read with Article 147, of the Constitution]], if
[the Attorney General for India] or the Advocate-General of the State, as the case may be, whether upon
receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.
[2A. Power of Court to add Government or other authority as a defendant in a suit relating to the validity of any statutory instrument.—The Court may, at any stage of the proceedings in any suit involving
any such question as is referred to in rule 1A, order that the Government or other authority shall be added as a
defendant if the Government pleader or the pleader appearing in the case for the authority which issued the
instrument, as the case may be, whether upon receipt of notice under rule lA or otherwise, applies for such
addition, and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question.]
[3. Costs.—Where, under rule 2 or rule 2A the Government or any other authority is added as a defendant in a suit, the Attorney-General, Advocate-General, or Government Pleader or Government or
other authority shall not be entitled to, or liable for, costs in the Court which ordered the addition unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.]
4. Application of Order to appeals.—In the application of this Order to appeals the word
“defendant” shall be held to include a respondent and the word “suit” an appeal.
[Explanation.—In this Order, “statutory instrument” means a rule, notification, bye-law, order, scheme or form made as specified under any enactment.]
ORDER XXVIII
Suits by or against military
[or naval] men
[or airmen]
1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorise any person to sue or defend for them.—(1) Where any officer,
[soldier,
[sailor] or airman] actually
[serving under the
Government] in
[such] capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorise any person to sue or defend in his stead.
3. Subs., ibid., for “the Advocate-General of India”.
(2) The authority shall be writing and shall be signed by the officer,
[soldier,
[sailor] or airman] in
the presence of (a) his commanding officer, or the next subordinate officer, if the party is himself the
commanding officer, or (b) where the officer,
[soldier,
[sailor] or airman,] is serving in military,
[naval],
[or air force] staff employment, the head or other superior officer of the office in which he is employed. Such commanding or other officer shall countersign the authority, which shall be filed in Court.
(3) When so filed the countersignature shall be sufficient proof that the authority was duly executed,
and that the officer,
[soldier
[, sailor] or air man] by whom it was granted could not obtain leave of absence for the purpose of prosecuting of 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,
[ship,] detachment or depot to which the officer,
[soldier
[, sailor] or airman] belongs.
2. Person so authorised may act personally or appoint pleader.—Any person authorised by an
officer,
[soldier
[, sailor] or airman] to prosecute or defend a suit in his stead may prosecute or defend it
in person in the same manner as the officer,
[soldier
[, sailor] or airman] could do if present; or he may
appoint a pleader to prosecute or defend the suit on behalf of such officer,
[soldier
[, sailor] or airman].
3. Service on person so authorised, or on his pleader, to be good service.—Processes served upon
any person authorised by an officer
[soldier
[, sailor] or airman] under rule 1 or upon any pleader
appointed as aforesaid by such person shall he as effectual as if they had been served on the party in person.
ORDER XXIX
Suits by or against corporations
1. Subscription and verification of pleading.—In suits by or against a corporation, any pleading
may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
2. Service on corporation.—Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served—
(a) on the secretary, or on any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.
3. Power to require personal attendance of officer of corporation.—The Court may, at any stage
of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.
ORDER XXX
Suits by or against firms and persons carrying on business in
names other than their own
1. Suing of partners in name of firm.—(1) Any two or more persons claiming or being liable as
partners and carrying on business in,
[India] may sue or be sued in the name of the firm (if any) of which
such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in
such case apply to the Court for a statement of the names and addresses of the persons who were, at the
time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.
(2) Where persons sue or are sued 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 of the defendant, suffice such pleading or other document is signed, verified or certified by any one of such persons.
2. Disclosure of partners’ names.—(1) Where a suit is instituted by partners in the name of their
firm, the plaintiffs or their pleader shall, on demanding writing by or on behalf of any defendant,
forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.
(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all
proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct.
(3) Where the names of the partners are declared in the manner referred to in sub-rule (1) the suit
shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had
been named as plaintiffs in the plaint:
[Provided that all proceedings shall nevertheless continue in the name of the firm, but the name of the partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree.]
3. Service.—Where persons are sued as partners in the name of their firm, the summons shall be served either—
(a) upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried on within
[India] upon any
person having, at the time of service, the control or management of the partnership business, there,
as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all
or any of the partners are within or without
[India]:
Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff
before the institution of the suit, the summons shall be served upon every person within
[India] whom it is sought to make liable.
4. Rights of suit on death of partner.—(1) Notwithstanding anything contained in section 45 of the Indian
Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under the
foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the deceased may have—
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors.
5. Notice in what capacity served.—Where a summons is issued to a firm and is served in the manner
provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the
time of such service, whether he is served as a partner or as a person having the control or management of
the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.
6. Appearance of partners.—Where persons are sued as partners in the name of their firm, they
shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.
7. No appearance except by partners.—Where a summons is served in the manner provided by
rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.
[8. Appearance under protest.—(1) Any person served with summons as a partner under rule 3
may enter an appearance under protest, denying that he was a partner at any material time.
(2) On such appearance being made, either the plaintiff or the person entering the appearance may, at
any time before the date fixed for hearing and final disposal of the suit, apply to the Court for determining whether that person was a partner of the firm and liable as such.
(3) If, on such application, the Court holds that he was a partner at the material time, that shall not
preclude the person from filing a defence denying the liability of the firm in respect of the claim against the defendant.
(4) If the Court, however, holds that such person was not a partner of the firm and was not liable as
such that shall not preclude the plaintiff from otherwise serving a summons on the firm and proceeding
with the suit; but in that event, the plaintiff shall be precluded from alleging the liability of that person as a partner of the firm in execution of any decree that may be passed against the firm.]
9. Suits between co-partners.—This Order shall apply to suits between a firm and one or more of
the partners therein and to suits between firms having one or more partners in common; but no execution
shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such
execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.
[10. Suit against person carrying on business in name other than his own.—Any person carrying
on business in a name or style other than his own name, or a Hindu undivided family carrying on business
under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly.]
ORDER XXXI
Suits by or against trustees, executors and administrators
1. Representation of beneficiaries in suits concerning property vested in trustees etc.—In all
suits concerning property vested in a trustee, executor or administrator, where the contention is between
the persons beneficially interested in such property and a third person, the trustee, executor or
Administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.
2. Joinder of trustees, executors and administrators.—Where there are several trustees, executors
or administrators, they shall all be made parties to a suit against one or more of them:
Provided that the executors who have not proved their testator’s will, and trustees, executors and
administrators outside
[India], need not be made parties.
3. Husband of married executrix not to join.—Unless the Court directs otherwise, the husband of a married trustee, administratrix or executrix shall not as such be a party to a suit by or against her.
ORDER XXXII
Suits by or against minors and persons of unsound mind
1. Minor to sue by next friend.—Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
[Explanation.—In this Order, “minor” means a person who has not attained his majority within the
meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]
2. Where suit is instituted without next friend, plaint to be taken off the file.—(1) Where a suit is
instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.
(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.
[2A. Security to be furnished by next friend when so ordered.—(1) Where a suit has been
instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its
own motion or on the application of any defendant, and for reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant.
(2) Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government.
(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished.]
3. Guardian for the suit to be appointed by Court for minor defendants.—(1) Where the
defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) 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.
(3) 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.
(4) Order shall be made on any application under this rule except upon notice
*** 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 where there is no father, to the mother, or where there is no father
or mother, to other natural guardian] of the minor, or, where there is
[no father, mother or other natural
guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
[(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]
[(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his
appointment is terminated by retirement, removal or death, continue as such throughout all proceedings
arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.]
[3A. Decree against minor not to be set aside unless prejudice has been caused to his interest.—
(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the
minor, but the fact that by reasons of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by
reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.]
4. Who may act as next friend or he appointed guardian for the suit—(1) Any person who is of
sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:
Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
(2) 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.
(3) No person shall without his consent
[in writing] be appointed guardian for the suit.
(4) 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
[or out of the
property of the minor], and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.
5. Representation of minor by next friend or guardian for the suit.—(1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit.
(2) Every order made in a suit or on any application, before the Court in or which a minor is in any way
concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the
case may be, may be discharged, and, where the pleader of the party at whose instance such order was
obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.
6. Receipt by next friend or guardian for the suit of property under decree for minor.—(1) A
next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either—
(a) by way of compromise before decree or order, or
(b) under a decree or order in favour of the minor.
(2) Where the next friend or guardian for the suit has not been appointed or declared by competent
authority to be guardian of the property of the minor, or, having been so appointed or declared, is under
any disability known to the Court to receive the money or other movable property, the Court shall, if it
grants him leave to receive the property, require such security and give such directions as will, in its
opinion, sufficiently protect the property from waste and ensure its proper application :
[Provided that the Court may, for reasons to be recorded, dispense with such security while granting
leave to the next friend or guardian for the suit to receive money or other movable property under a decree or order, where such next friend or guardian—
(a) is the manager of a Hindu undivided family and the decree or order relates to the property or
business of the family; or
(b) is the parent of the minor.]
7. Agreement or compromise by next friend or guardian for the suit.—(1) No next friend or guardian
for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
[(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next
friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader,
by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his
opinion, for the benefit of the minor :
Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is, for the benefit of the minor. ]
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall
be voidable against all parties other than the minor:
8. Retirement of next friend.—(1) Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in this place and giving security for the costs already incurred.
(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.
9. Removal of next friend.—(1) Where the interest of the next friend of a minor is adverse to that of the
minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it
unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or,
during the pendency of the suit, ceases to reside within
[India], or for any other sufficient cause, application,
may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the
sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.
(2) Where the next friend is not a guardian appointed or declared by an authority competent in this
behalf, and an application is made by a guardian so appointed or declared, who desires to be himself
appointed in the place of the next friend, the Court shall remove 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.
10. Stay of proceedings on removal, etc., of next friend.—(1) On the retirement, removal or death of
the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.
(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new 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.
11. Retirement, removal or death of guardian for the suit.—(1) Where the guardian for the suit
desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court
may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.
(2) Where the guardian for the suit, retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place.
12. Course to be followed by minor plaintiff or applicant on attaining majority.—(1) A minor
plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.
(2) Where lie 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.
(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:
“A.B., late a minor by C.D., his next friend, but now having attained majority.”.
(4) 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.
(5) Any application under this rule may be made ex parte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.
13. Where minor co-plaintiff attaining majority desires to repudiate suit.—(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.
(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant.
(3) 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.
(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.
14. Unreasonable or improper suit.—(1) A minor on attaining majority may, if a sole plaintiff,
apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper.
(2) Notice of the application shall be served on all the parties concerned; and the Court, upon being
satisfied of such unreasonableness or impropriety, 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.
[15. Rules 1 to 14 (Except rule 2A) to apply to persons of unsound mind.—Rules 1 to 14 (except
rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of
unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing being sued.]
[16. Savings.—(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing
or being sued in the name of his State, or being sued by the direction of the Central Government in the name of an agent or in any other name.
(2) Nothing contained in this Order shall be construed as affecting or in any way derogating from the
provisions of any local law for the time being in force relating to suits by or against minors or by or against lunatics or other persons of unsound mind.]
[ORDER XXXII-A
Suits relating to matters concerning the family
1. Application of the Order.—(1)The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family.
(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the
provisions of this Order shall apply to the following suits or proceedings concerning the family, namely:—
(a) a suit or proceeding for matrimonial relief, including a suit or proceedings for declaration as
to the validity of a marriage or as to the matrimonial status of any person;
(b) a suit or proceeding for a declaration as to legitimacy of any person;
(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor
or other member of the family, under a disability;
(d) a suit or proceeding for maintenance;
(e) a suit or proceeding as to the validity or effect of an adoption;
(f) a suit or proceeding, instituted by a member of the family, relating to wills, intestacy and
succession;
(g) a suit or proceeding relating to any other matter concerning the family in respect of which, the parties are subject to their personal law.
(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding.
2. Proceedings to be held in camera.—In every suit or proceeding to which this Order applies, the proceedings may be held in camera if the Court so desires and shall be so held if either party so desires.
3. Duty of Court to make efforts for settlement.—(1) In every suit or proceeding to which this
Order applied, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement. In respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable
possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.
4. Assistance of welfare expert.—In every suit or proceeding to which this Order applies, it shall be
open to the Court to secure the services of such person (preferably a woman where available), whether
related to the parties or not, including a person professionally engaged in promoting the welfare of the
family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 of this Order.
5. Duty to enquire into facts.—In every suit or proceeding to which this Order applies, it shall be the
duty of the Court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.
6. “Family”—meaning of.—For the purposes of this Order, each of the following shall be treated as constituting a family, namely:—
(a) (i) a man and his wife living together,
(ii) any child or children, being issue of theirs; or of such man or such wife,
(iii) any child or children being maintained by such man and wife;
(b) a man not having a wife or not living together with his wife, any child or children, being issue
of his, and any child or children being maintained by him;
(c) a women not having it husband or not living together with her husband, any child or children
being issue of hers, and any child or children being maintained by her;
(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or
her; and
(e) any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or clause (d) of this rule.
Explanation.—For the avoidance of doubts, it is hereby declared that the provisions of rule 6 shall be
without any prejudice to the concept of “family” in any personal law or in another law for the time being in force.]
ORDER XXXIII
[Suits by indigent persons]
1. Suits may be instituted by indigent persons.—Subject to the following provisions, any suit may
be instituted by an
[indigent person].
[Explanation 1.—A person is an indigent person,—
(a) If he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by
law for the plaint in such suit, or
(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.
Explanation II.—Any property which is acquired by a person after the presentation of his application
for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.
Explanation III—Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. ]
[1A. Inquiry into the means of an indigent person.—Every inquiry into the question whether or
not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of
the Court, unless the Court otherwise directs, and the Court may adopt the report of such officer as its own finding or may itself make an inquiry into the question.]
2. Contents of application.—Every application for permission to sue as an
[indigent person] shall
contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property
belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
3. Presentation of application.—Notwithstanding anything contained in these rules, the application shall
be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which
case the application may be presented by an authorised agent who can answer all material questions relating to
the application, and who may be examined in the same manner as the party represented by him might have
been examined had such party attended in person:
[Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs.]
4. Examination of applicant.—(1) Where the application is in proper form and duly presented, the
Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent regarding the merits of the claim and the property of the applicant.
(2) If presented 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.
5. Rejection of application.—The Court shall reject an application for permission to use as
[an indigent person]—
(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or
(b) where the applicant is not
[an indigent person], 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 use as
[an indigent person]:
[Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person.] or
(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;
[or]
[(f) where the allegations, made by the applicant in the application show that the suit would be
barred by any law for the time being in force, or
(g) where any other person has entered into an agreement with him to finance the litigation.]
.
6. Notice of day for receiving evidence of applicant’s indigency.—Where the Court sees no reason
to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten day's
clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence
as the applicant may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof.
7. Procedure at hearing.—(1) On the day so fixed or as soon thereafter as may be convenient the
Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his
agent, and shall may
[a full record of their evidence].
[(1A) The examination of the witnesses under sub-rule (1) shall be confined to the matters specified
in clause (b), clause (c) and clause (e) of rule 5 but the examination of the applicant or his agent may relate to any of the matters specified in rule 5.]
(2) 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
[under rule 6 or under this rule], the applicant is or is not subject to any of the prohibitions specified in rule 5.
(3) The Court shall then either allow or refuse to allow the applicant to sue as
[an indigent person].
8. Procedure if application admitted.—Where the application is granted, it shall be numbered and
registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee
[or
fees payable for service of process] in respect of any petition, appointment of a pleader or other proceeding connected with the suit.
9. Withdrawal of permission to sue as an indigent person.—The Court may, on the application of the
defendant, or of the Government pleader, of which seven days, clear notice in writing has been given to the plaintiff, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn—
(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
[an indigent
person]; 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.
[9A. Court to assign a pleader to an unrepresented indigent person.—(1) Where a person, who is
permitted to sue as an indigent person, is not represented by a pleader, the Court
-
may, if the circumstances of the case so require, assign a pleader to him.
(2) The High Court may, with the previous approval of the State Government, make rules providing for—
(a) the mode of selecting pleaders to be assigned under sub-rule (1);
(b) the facilities to be provided to such pleaders by the Court ;
(c) any other matter which is required to be or may be provided by the rules for giving effect to the provisions of sub-rule (1).]
10. Costs where indigent person succeeds.—Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted
to sue as
[an indigent person]; such amount shall be recoverable by the
[State Government] from any party ordered by the decree to pay the same and shall be a first charge, on the subject-matter of the suit.
1. The provisions of this rule so far as it relates to the making of a memorandum are not applicable to the Chief Court of Oudh, see Oudh Courts Act, 1925 (U.P. Act 4 of 1925), s. 16 (2).
3. Ins . b y s . 81 , ib id. ( w.e.f . 1- 2 -19 77 ) .
11. Procedure where indigent person fails.—Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismisses,—
(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 to present copies of the plaint or concise statement], 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
[an indigent person].
[11A. Procedure where indigent person’s suit abates.—Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the Court shall order that the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as
[an indigent person] shall be recoverable by the State Government from the estate of the deceased plaintiff.]
12. State Government may apply for payment of court-fees.— The
[State Government] shall have the right at any time to apply to the Court to make an order for the payment of court-fees under rule 10,
rule 11 or
[rule 11A].
13. State Government to be deemed a party.—All matters arising between the
[State Government]
and any party to the suit under rule 10, rule 11,
[rule 11A] or rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of section 47.
[14. Recovery of amount of court-fees.—Where an order is made under rule 10, rule 11 or rule
11A, the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were an arrear or land revenue.]
15. Refusal to allow applicant to sue as an indigent person to bar subsequent application of like nature.—An order refusing to allow the applicant to sue as
[an indigent person] shall be a bar to any
subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall
be at liberty to institute a suit in the ordinary manner in respect of such right;
[provided that the plaint
shall be rejected if he does not pay, either at the time of the institution of the suit or within such time
thereafter as the Court may allow,] the costs (if any) incurred by the
[State Government] and by the
opposite party in opposing his application for leave to sue as
[an indigent person].
[15A. Grant of time for payment of court-fee.—Nothing contained in rule 5, rule 7 or rule 15 shall
prevent a Court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court
or extended by it from time to time; and upon such payment and on payment of the costs referred to in
*** rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.]
16. Costs.—The costs of an application for permission to sue as an
[indigent person] and of an inquiry into indigency shall be costs in the suit.
[17. Defence by an indigent person.—Any defendant, who desire to plead a set-off or counter-
claim, may be allowed to set up such claim as an indigent person, and the rules contained in this Order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint.
18. Power of Government to provide for free legal services to indigent persons.—(1) Subject to
the provisions of this Order, the Central or State Government may make such supplementary provisions
as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons.
(2) The High Court may, with the previous approval of the State Government, make rules for
carrying out the supplementary provisions made by the Central or State Government for providing free legal services to indigent persons referred to in sub-rule (1), and such rules may include the nature and
extent of such legal services, the conditions under which they may be made available, the matters in respect of which, and the agencies through which, such services may be rendered.]
ORDER XXXIV
Suits relating to mortgages of immovable property
1. Parties to suits for foreclosure sale and redemption.—Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.
Explanation.—A puisne mortgagee may sue for foreclosure or for sale without making the prior
mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage.
[2. Preliminary decree in foreclosure suit.—(1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree—
(a) ordering that an account be taken of what was due to the plaintiff at the date of such decree for—
(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 incumbrances created by
the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title, by
those under whom he claims, and shall also, if necessary, put the defendant in possession of the
property; and
(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not
made on or before the date so fixed, or the defendant fails to pay, within such time as the Court
3. Subs by Act 21 of 1929, s. 4, for the rules 2 to 8.
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.
(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time,
at any time before 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.
(3) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or
subrogated to the rights of, any such mortgagees are joined as parties, the preliminary decree shall
provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10, as the case may be, of Appendix D with such variations as the circumstances of the case may require.
3. Final decree in foreclosure suit.—(1) Where, before a final decree debarring the defendant from
all right to redeem the mortgaged property has been passed, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 2, the Court shall, on application made by the defendant in this behalf, pass a final decree—
(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 or 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.
(2) 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 or debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.
(3) On the passing of a final decree under sub-rule (2), all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.
4. Preliminary decree in suit for sale.—(1) In a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (i) of sub-rule (1) of rule 2, and
further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled
to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the
proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in
payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together
with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same.
(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time,
at any time before 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.
(3) 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.
(4) Where, in a suit for sale or a suit foreclosure in which sale is ordered, subsequent mortgages or
persons deriving title from, or subrogated to the rights of, any such mortgagees are joined as parties, the preliminary decree referred to in sub-rule (1) shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No.
11 as the case may be, of Appendix D with such variations as the circumstances of the case may require.
5. Final decree in suit for sale.—(1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court
shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order—
(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.
(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent. thereof.
(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application
made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a
sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of rule 4.
6. Recovery of balance due on mortgage in suit for sale.—Where the net proceeds of any sale held
under
[rule 5] are found insufficient to pay the amount due to the plaintiff, the Court, on application by
him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.
7. Preliminary decree in redemption suit.—(1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree—
(a) ordering that an account be taken of what was due to the defendant at the date of such decree for—
(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 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 to the plaintiff, or to such person as the plaintiff appoints, all documents in his
possession or power relating to the mortgaged property, and shall, if so required, retransfer the
property to the plaintiff at his cost free from the mortgage and from all encumbrances created by
the defendant or any person claiming under him where the defendant claims by derived title, by
those under whom the 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 mortgage 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 right to redeem the property.
(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time,
at any time before the passing of a final decree for foreclosure 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.
8. Final decree in redemption suit.—(1) Where, before a final decree debarring the plaintiff from
all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order—
(a) ordering the defendant to delivery 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.
(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent. thereof.
(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the 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 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
[rule 8] are found insufficient to pay the amount due to the defendant, the Court,
[on
application by him in execution], may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance.]
9. Decree where nothing is found due or where mortgagee has been overpaid.—Notwithstanding
anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is
due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so require, to re-transfer the property and to pay to the plaintiff the amount which may be found due to him;
and the plaintiff shall, if necessary, be put in possession of the mortgaged property.
[10. Costs of mortgagee subsequent to decree.—In finally adjusting the amount to be paid to a
mortgagee in case of a foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money
such costs of the suit and other costs, charges and expenses as have been properly incurred by him since
the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment:]
[Provided that where the mortgagor, before or at the time of the institution of the suit, tenders or
deposits the amount due on the mortgage, or such amount as is not subsequently deficient in the opinion
of the Court, he shall not be ordered to pay the costs of the suit to the mortgagee and the mortgagor shall
be entitled to recover his own costs of the suit from the mortgagee, unless the Court, for reasons to be recorded, otherwise directs.]
[10A. Power of Court to direct mortgagee to pay mesne profits.—Where in a suit for foreclosure, the
mortgagor has, before or at the time of the institution of the suit, tendered or deposited the sum due on the
mortgage, or such sum as is not substantially deficient in the opinion of the Court, the Court shall direct the mortgagee to pay to the mortgagor mesne profits for the period beginning with the institution of the suit].
11. Payment of interest.—In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:—
(a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage—
(i) on the principal amount found or declared due on the mortgage,—at the rate payable on
the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable,
*and
(iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the 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 such rate not exceeding six per cent. per annum as the Court deems reasonable]; and
[(b) subsequent interest up to the date of realisation or actual payment on the aggregate of the
principal sums specified in clause (a) as calculated in accordance with that clause at such rate as the Court deems reasonable.]
12. Sale of property subject to prior mortgage.—Where any property the sale of which is directed
under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee,
direct that the property
-
be sold free from the same, giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.
2. In s . b y Ac t 1 04 o f 197 6, s. 82 ( w. e . f. 1 -2 -19 77 ).
13. Application of proceeds.—(1) Such proceeds shall be brought into Court and applied as follows:—
first, in payment of all expenses incident to the sale or properly incurred in any attempted
sale;
secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage,
and of costs, properly incurred in connection therewith;
thirdly, in payment in all interest due on account of the mortgage in consequence whereof the sale
was directed, and of the costs of the suit in which the decree directing the sale was made;
fourthly, in payment of the principal money due on account of that mortgage; and
lastly, the residue (if any) shall be paid to the person proving himself to be interested in the
property sold, or if there are more such persons than one, than two, to such persons according to their respective interests therein or upon their joint receipt.
(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882 (4 of 1882).
14. Suit for sale necessary for bringing mortgaged property to sale.—(1) Where a mortgage has
obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall
not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in
enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, rule 2.
(2) Nothing in sub-rule (1) shall apply to any territories to which the Transfer of Property Act, 1882
(4 of 1882), has not been extended.
[15. Mortgages by the deposit of title deeds and charges.—
[(1)] All the provisions contained in
this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the
Transfer of Property Act, 1882 (4 of 1882);
[(2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree.]
ORDER XXXV
INTERPLEADER
1. Plaint in interpleader-suit.—In every suit of interpleader the plaint shall, in addition to the other statements necessary for plaints, state—
(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.
2. Payment of thing claimed into Court.—Where the thing claimed is capable of being paid into
Court or placed in the custody of the Court, the plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.
3. Procedure where defendant is suing plaintiff.—Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect the subject-matter of such suit, the Court in
which the suit against the plaintiff is pending shall, on being informed by the Court in which the interpleader-suit has been instituted, stay the proceedings as against him; and his costs in the suit so
stayed may be provided for in such suit; but if, and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader-suit.
2. Rule 15 renumbered as sub-rule (1) by Act 104 of 1976, s. 82 (w.e.f. 1-2-1977).
4. Procedure at first hearing.—(1) At the first hearing the Court may—
(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.
(2) Where the Court finds that the admission of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed.
(3) 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.
5. Agents and tenants may not institute interpleader suits.—Nothing in this Order shall be deemed
to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or 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 in interpleader-suit against A and C.
6. Charge for plaintiff’s costs.—Where the suit is properly instituted the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.
ORDER XXXVI
SPECIAL CASE
1. Power to state case for Court’s opinion.—(1) Parties claiming to be interested in the decision of
any question of fact or law may enter into an agreement in writing stating such question in the form of a
case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question,—
(a) 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.
(2) Every case stated under this rule shall be divided into consecutively numbered paragraphs, and
shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised thereby.
2. Where value of subject-matter must be stated.—Where the agreement is for the delivery of any
property, or for the doing, or the refraining from doing, any particular act, the estimated value of the property to be delivered, or to which the act specified has reference, shall be stated in the agreement.
3. Agreement to be filed and registered as suit.—(1) The agreement, if framed in accordance with
the rules hereinbefore contained, may be filed
[with an application] in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.
(2)
[The application] when so filed, shall be numbered and registered as a suit between one or more
of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of them as
defendant or defendants; and notice shall be given to all the parties to the agreement, other than the party
or parties by whom
[the application was presented.]
4. Parties to be subject to Court’s jurisdiction.—Where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained therein.
5. Hearing and disposal of case.—(1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suit so far as the same are applicable.
(2) Where the Court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit—
(a) that the agreement was duly executed by them,
(b) that they have a bona fide interest in question stated therein, and
(c) that the same is fit to be decided,
it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.
[6. No appeal from a decree passed under rule 5.—No appeal shall lie from a decree passed under rule 5.]
ORDER XXXVII
SUMMARY PROCEDURE
***
[1. Courts and classes of suits to which the Order is to apply.—(1) This Order shall apply to the following Courts, namely:—
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) other Courts:
Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in
the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper,
and may also, from time to time, as the circumstances of the case may require, by subsequent notification
in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely:—
(a) suits upon bills of exchange, hundies and promissory notes;
(b) 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,—
(i) on a written contract, or
(ii) 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
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.]
[2. Institution of summary suits.—(1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,—
(a) a specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint;
and
(c) the following inscription, immediately below the number of the suit in the title of the suit, namely :—
“(Under Order XXXVII of the Code of Civil Procedure, 1908).”
(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed.
(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance
and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted
and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the
summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for
costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.]
[3. Procedure for the appearance of defendant—(1) In a suit to which this Order applies, the plaintiff
shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures
thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.
(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be
served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.
(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant
to the plaintiff’s pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from
time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.
(5) The defendant may, at any time within ten days from the service of such summons for judgment,
by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply
on such summons for leave to defend such suit, and leave to defend may be granted to him
unconditionally or upon such terms as may appear to the Court or Judge to be just:
Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed
by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to
be put up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant
to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.
(6) At the hearing of such summons for judgment,—
(a) if the defendant has not applied for leave to defend, or if such application has been made and
is refused, the plaintiff shall be entitled to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or
Judge may direct him to give such security and within such time as may be fixed by the Court or Judge
and that, on failure to give such security within the time specified by the Court or Judge or to carry out
such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.
(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.]
4. Power to set aside decree.—After decree the Court may, under special circumstances set aside
the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to
the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.
5. Power to order bill, etc., to be deposited with officer of Court.—In any proceeding under this
Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited
with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.
6. Recovery of cost of noting non-acceptance of dishonoured bill or note.—The holder of every
dishonoured bill of exchange or promissiory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment, or otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.
7. Procedure in suits.—Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.
ORDER XXXVIII
A
RREST AND ATTACHMENT BEFORE JUDGMENT
Arrest before judgment
1. Where defendant may be called upon to furnish security for appearance.—Where at any
stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,—
(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,—
(i) has absconded or left the local limits of the jurisdiction of the Court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the Court, 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
[India] under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any
decree that may be passed against the defendant in the suit,
the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why
he should not furnish security for his appearance:
Provided that the defendant shall not be arrested if he pays to the officer 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.
2. Security.—(1) Where the defendant fails to show such cause the Court shall order him either to
deposit in Court money or other property sufficient to answer the claim against him, or to furnish security
for his appearance at any time when called upon while the suit is pending and until satisfaction of any
decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.
(2) Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.
3. Procedure on application by surety to be discharged.—(1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.
(2) 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.
(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary
surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.
4. Procedure where defendant fails to furnish security or find fresh security.—Where the defendant
fails to comply with any order under rule 2 or rule 3, the Court may commit him to the civil prison until the
decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied:
Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the
suit does not exceed fifty rupees:
Provided also that no person shall be detained in prison under this rule after he has complied with such order.
Attachment before judgment
5. Where
defendant may be called upon to furnish security for production of property.—(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,—
(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.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
[(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.]
6. Attachment where cause not shown or security not furnished.—(1) Where the defendant fails
to show cause why he should not furnish security, or fails to furnish the security required, within the time
fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
(2) Where the defendant shows such cause 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, or make such other order as it thinks fit.
7. Mode of making attachment.—Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.
[8. Adjudication of claim to property attached before judgment.—Where any claim is preferred to
property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudication of claim to property attached in execution of a decree for the payment of money.]
9. Removal of attachment when security furnished or suit dismissed.—Where an order is made
for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant
furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed.
10. Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale.—Attachment before judgment shall not affect the rights, existing prior to the
attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.
11. Property attached before judgment not to be re-attached in execution of decree.—Where
property is under attachment by virtue of the provisions of this order decree is subsequently passed in
favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.
[11A. Provisions applicable to attachment.—(1) The provisions of this Code applicable to an
attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.
(2) An attachment made before judgment in a suit which is dismissed for default shall not become
revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.]
12. Agricultural produce not attachable before judgment.—Nothing in this Order shall be deemed
to authorise the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.
[13. Small Cause Court not to attach immovable property.—Nothing in this Order shall be
deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.]
ORDER XXXIX
T
EMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS
Temporary injunctions
1. Cases in which temporary injunction may be granted.—Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to
[defrauding] his creditors,
[(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit,]
the Court may 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
[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.—(1) In any suit for restraining the
defendant from committing a breach of contract or other injury of any kind, whether compensation is
claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either
before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from
committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may 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.
*
[2A. Consequence of disobedience or breach of injunction.—(1) In the case of disobedience of
any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which
the injunction was granted or the order made, the Court granting the injunction or making the order, or
any Court to which the suit or proceeding is transferred, may order the property of the person guilty of
such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of
which time, if the disobedience or breach continues, the property attached may be sold and out of the
proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]
3. Before granting injunction, Court to direct notice to opposite party.—The Court shall in all
cases, except where it appears that the object of granting the injunction would be defeated by the delay,
before granting an injunction, direct notice of the application for the same to be given to the opposite
party:
[Provided that, where it is proposed to grant an injunction without giving notice of the application to
the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant—
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with—
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant, relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.]
[3A. Court to dispose of application for injunction within thirty days.—Where an injunction has
been granted without giving notice to the opposite party, the Court shall make an endeavour to finally
dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.]
2. Sub-rules (3) and (4) omitted by s. 86, ibid. (w.e.f. 1-2-1977).
4. Order for injunction may be discharged, varied or set aside.—Any order for an injunction may
be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied
with such order:
[Provided that if in an application for temporary injunction or in any affidavit supporting such application,
a party has knowingly made a false or misleading statement in relation to a material particular and the
injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless,
for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:
Provided further that where an order for injunction has been passed after giving to a party an
opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that
party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.]
5. Injection to corporation binding on its officer.—An injunction directed to a corporation is
binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.
Interlocutory orders
6. Power to order interim sale.—The Court may, on the application of any party to a suit, order the
sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property, being the subject-matter of such suit, or attached before judgment in such suit, which is
subject to speedy and natural delay, or which for any other just and sufficient cause, it may be desirable to have sold at once.
7. Detention, preservation, inspection, etc., of subject-matter of suit.—(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit,—
(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 expendient for the purpose of obtaining full information or evidence.
(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorised to enter under this rule.
8. Application for such orders to be after notice.—(1) An application by the plaintiff for an order
under rule 6 or rule 7 may be made
*** at any time after institution of the suit.
(2) An application by the defendant for a like order may be made
*** at any time after appearance.
[(3) Before making an order under rule 6 or rule 7 on an application made for the purpose, the Court
shall, except where it appears that the object of making such order would be defeated by the delay, direct notice thereof to be given to the opposite party.]
9. When party may be put in immediate possession of land the subject-matter of suit.—Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a suit, if the party in
possesion of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor
of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other
party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or
rent due previously to the sale (and with or without security at the discretion of the Court), be put in
immediate possession of the land or tenure;
and the Court in its decree may award against the defaulter the amount so paid, with interest thereon
at such rate as the Court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the Court orders, in any adjustment of accounts which may be directed in the decree passed in the suit.
10. Deposit of money, etc., in Court.—Where the subject-matter of a suit is money or some other
thing capable of delivery and any party thereto admits that he holds such money or other thing as a
trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.
ORDER XL
A
PPOINTMENT OF RECEIVERS
1. Appointment of receivers.—(1) Where it appears to the Court to be just and convenient, the Court may by order—
(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
realisation, 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.
(2) 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 a present right so to remove.
2. Remuneration.—The Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver.
3. Duties.—Every receiver so appointed shall—
(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;
(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.
4. Enforcement of receiver’s duties.—Where a receiver—
(a) fails to submit his accounts at such periods and in such form as the Court directs, or
(b) fails to pay 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.
5. When Collector may he appointed receiver.—Where the property is land paying revenue to the
Government, or land of which the revenue has been assigned or redeemed, and the Court considers that
the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector, appoint him to be receiver of such property.
ORDER XLI
A
PPEALS FROM ORIGINAL DECREES
1. Form of appeal What to accompany memorandum.—(1) Every appeal shall be preferred in the
form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the
[Judgment].
[Provided that where two or more suits have been tried together and a common judgment has been
delivered therefor and two or more appeals are filed against any decree covered by that judgment,
whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.]
(2) Contents of memorandum.—The memorandum shall set forth, concisely and under distinct
heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.
[(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time
as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]
2. Grounds which may be taken in appeal.—The appellant shall not, except by leave of the Court,
urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the
Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the
memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.
3. Rejection or amendment of memorandum.—(1) Where the memorandum of appeal is not drawn
up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.
(2) Where the Court rejects any memorandum, it shall record the reasons for such rejection.
(3) Where a memorandum of appeal is amended, the judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.
[3A. Application for condonation of delay.—(1) When an appeal is presented after the expiry of
the period of limitation specified therefore, it shall be accompanied by an application supported by
affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent,
notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-rule (1), the Court shall not make an order fact the
stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.]
4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.—Where there are more plaintiffs or more defendants than one in a suit, and
the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants,
any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the
Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
Stay of proceedings and of execution
5. Stay by Appellate Court.—(I) An appeal shall not operate as a stay of proceedings under a decree
or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be
stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
[Explanation.—An order by the Appellate Court for the stay of execution of the decree shall be
effective from
the date of the communication of such order to the Court of first instance, but an
affidavit sworn
by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the
decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.]
(2) 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.
(3) 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.
(4)
[Subject to the provision of sub-rule (3),] the Court may make an ex parte order for stay of execution pending the hearing of the application.
[(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.]
6. Security in case of order for execution of decree appealed from.—(1) Where an order is made
for the execution of a decree from which an appeal is pending, the Court which passed the decree shall,
on sufficient cause being shown by the appellant, require security to be taken for the restitution of any
property which may be or has been taken in execution of the decree or for the payment of the value of
such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.
(2) Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court
which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.
7.
[No security to be required from the Government or a public officer in certain cases.] Rep. by the A.O. 1937.
8. Exercise of power in appeal from order made in execution of decree.—The powers conferred
by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.
Procedure on admission of appeal
[9. Registry of memorandum of appeal.—(1) The Court from whose decree an appeal lies shall
entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.
(2) Such book shall be called the register of appeal.]
10. Appellate Court may require appellant to furnish security for costs.—(1) The Appellate
Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards
on the application of the respondent, demand from the appellant security for the costs of the appeal, or of
the original suit, or of both:
Where appellant resides out of India.—Provided that the Court shall demand such security in all
cases in which the appellant is residing out of
[India], and is not possessed of any sufficient immovable
property within
[India] other than the property (if any) to which the appeal relates.
3. See order XXVII, rule 8A, supra.
(2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.
11. Power to dismiss appeal without sending notice to Lower Court.—
[(1) The appellate Court
after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal].
(2) If on the day fixed or arty 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.
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
[(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it
shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in
accordance with the judgment.]
[11A. Time within which hearing under rule 11 should be concluded.—Every appeal shall be
hear under rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.]
12. Day for hearing appeal.—(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.
[(2) Such day shall be fixed with reference to the current business of the Court.]
13. [Appellate Court to give notice to Court whose decree appealed from.] Omitted by Code of Civil Procedure (Amendment) Act 1999, (46 of 1999), s. 31 (w.e.f. 1-7-2002.)
14. Publication and service of notice of day for hearing appeal.—(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate
Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on
his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to
appear and answer, and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.
(2) Appellate Court may itself cause notice to be served.—Instead of sending the notice to the
Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.
[(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.
(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to
serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded
for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.
(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.]
15. [Contents of notice.] Omitted by Code of Civil Procedure (Amendment) Act 1999, (46 of
1999), s. 31 (w.e.f. 1-7-2002.)
Procedure on hearing
16. Right to begin.—(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.
(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply.
17. Dismissal of appeal for appellants’ default.—(1) Where on the day fixed, or on any other day 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.
[Explanation.—Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]
(2) Hearing appeal ex parte.—Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
18. [Dismissal of appeal where notice not served in consequence of appellant’s failure to deposit cost.]omitted by the Code of Civil Procedure (Amendment)Act, 1 9 9 9 (46 of 1999) s. 31 (w.e.f. 1-7-
2002).
19. Re-admission of appeal dismissed for default. —Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17
[***] the appellant may apply to the Appellate Court for the re-admission of the
appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was, called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
20. Power to adjourn hearing and direct persons appearing interested to be made respondents. —
[(1)] Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from
whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the
result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.
[(2) No respondent shall be added under this rule, after the expiry of the period of limitation for
appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit.]
21. Re-hearing on application of respondent against whom ex parte decree made.—Where an
appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or
that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.
22. Upon hearing respondent may object to decree as if he had preferred separate appeal.—(1)
Any respondent, though he may not have appealed from any part of the decree, may not only support the
decree
[but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken
by way of appeal provided he has filed such objection in the Appellate Court within one month from the
date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
[Explanation. —A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far
as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other
finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]
(2) 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.
*
3. Rule 20 re-numbered as sub-rule (1) by Act 104 of 1976, s. 87 (w.e.f 1-2-1977).
6. Subs-rule (3) omitted by Act 46 of 1999, s. 31 (w.e.f. 1-7-2002).
(4) 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.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.
23. Remand of case by Appellate Court.—Where the Court from whose decree an appeal is preferred
has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may,
if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
[23A. Remand in other cases.—Where the Court from whose decree an appeal is preferred has
disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.
24. Where evidence on record sufficient Appellate Court may determine case finally.—Where the
evidence upon the record is sufficient to enable the Appellate Court to pronounce judgement, the Appellate
Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the
judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.—Where the Court from whose decree the appeal is preferred has omitted to frame or try
any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right
decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the
same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such
Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court
together with its findings thereon and the reasons therefor
[within such time as may be fixed by the Appellate Court or extended by it from time to time].
26. Findings and evidence to be put on record. Objections to findings.—(1) Such evidence and
findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.
(2) Determination of appeal.—After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.
[26A. Order of remand to mention date of next hearing.—Where the Appellate Court remands a
case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date
for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit.]
27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if —
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which
ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of
due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to
enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
28. Mode of taking additional evidence.—Wherever additional evidence is allowed to be produced,
the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is
preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
29. Points to be defined and recorded.—Where additional evidence is directed or allowed to be
taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.
Judgment in appeal
30. Judgment when and where pronounced.—
[(1)] The Appellate Court, after hearing the parties
or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from
whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce
judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.
[(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination,
the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the
Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced.]
31. Contents, date and signature of judgment.—The judgment of the Appellate Court shall be in writing and shall state—
(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.
32. What judgment may direct.—The judgment may be for confirming, varying or reversing the
decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the
decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.
33. Power of Court of Appeal.—The Appellate Court shall have power to pass any decree and make
any order which ought to have been passed or made and to pass or make such further or other decree or
order as the case may require, and this power may be exercised by the Court 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
[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in
respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:
2. Rule 30 re-numbered as sub-rule (1) by s. 87, ibid. (w.e.f. 1-2-1977).
[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.
34. Dissent to be recorded.—Where the Appeal is heard by more judges than one, any judge
dissenting from the judgment of the Court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.
Decree in appeal
35. Date and contents of decree.—(1) The decree of the Appellate Court shall bear date the day on which the judgment was pronounced.
(2) 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.
(3) 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.
(4) The decree shall be signed and dated by the Judge or Judges who passed it:
Judge dissenting from judgment need not sign decree.—Provided that where there are more
Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree.
36. Copies of judgment and decree to be furnished to parties.—Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense.
37. Certified copy of decree to be sent to Court whose decree appealed from.—A copy of the
judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall
be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit, and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.
ORDER XLII
A
PPEALS FROM APPELLATE DECREES
1. Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.
[2. Power of Court to direct that the appeal be heard on the question formulated by it —At the time
of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate
the substantial question of law as required by section 100, and in doing so, the Court may direct that the second
appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.
3. Application of rule 14 of Order XLI.—Reference in sub-rule (4) of rule 14 of Order XLI to the
Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.]
2. This rule is not applicable to the Chief Court of Oudh in the exercise of its appellate Jurisdiction; see the Oudh Courts Act,
1925 (U.P. 4 of 1925), s. 16(3).
ORDER XLIII
A
PPEALS FROM ORDERS
1. Appeal from orders.—An appeal shall lie from the following orders under the provisions of section 104, namely: —
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court
[except where the procedure specified in rule 10A of Order VII has been followed];
*
(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;
*
(f) an order under rule 21 of Order XI;
*
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an
endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
[ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule
105 of that Order is appealable;]
(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;
*
(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;
[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to
sue as an indigent person;]
*
(p) orders 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 (XXVIII);
(r) an order under rule 1, rule 2
[rule 2A], 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 re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23
[or rule 23A] of Order XLI remanding a case, where an appeal would lie
from the decree of the Appellate Court;
*
(w) an order under rule 4 of Order XLVII granting an application for review.
2. Cls. (b) , (e), (g), (h), (m), (o) and (v) o mit ted b y s. 89, ibid, (w.e.f. 1-2-1977).
[1A. Right to challenge non-appealable orders in appeal against decrees.—(1) Where any order
is made under this Code against a party and thereupon any judgment is pronounced against such party and
a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a
compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]
2. Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from orders.
ORDER XLIV
[APPEALS BY INDIGENT PERSONS]
1. Who may appeal
[as an indigent person]. —
[(1)] Any person entitled to prefer an appeal, who
is unable to pay the fee required for the memorandum of appeal, may present an application accompanied
by a memorandum of appeal, and may be allowed to appeal as an
[indigent person], subject, in all
matters, including the presentation of such application, to the provisions relating to suits by
[indigent persons], in so far as those provisions are applicable.
* *
[2. Grant of time for payment of court-fee.—Where an application is rejected under rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as
may be fixed by the Court or extended by it from time to time; and upon such payment, the memorandum of
appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.
3. Inquiry as to whether applicant is an indigent person.—(1) Where an applicant, referred to in
rule 1, was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is
preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be
necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person
since the date of the decree appealed from; but if the Government Pleader or the respondent disputes the
truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of that Court.
(2) Where the applicant, referred to in rule 11, is alleged to have become an indigent person since the
date of the decree appealed from, the inquiry into the question whether or not he is an indigent person
shall be made by the Appellate Court or, under the orders of the Appellate Court, by an officer of that
Court unless the Appellate Court considers it necessary in the circumstances of the case that the inquiry should be held by the Court from whose decision the appeal is preferred.]
4. Rule 1 re-numbered as sub-rule (1) by Act 66 of 1956, s. 14.
6. Proviso omitted by Act 66 of 1956, s. 14.
7. Sub-rule (2) ins. by s. 14, ibid. and omitted by Act 104 of 1976, s. 90 (w.e.f 1-2-1977).
ORDER XLV
A
PPEALS TO THE
[SUPREME COURT]
1. “Decree” defined.—In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.
2. Application to Court whose decree complained of.—
[(1)] Whoever desires to appeal
[the Supreme Court] shall apply by petition to the Court whose decree is complained of.
[(2) Every petition under sub-rule (1) shall be heard as expeditiously as possible and endeavour shall
be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1).]
3. Certificate as to value or fitness. —
[(1) Every petition shall state the grounds of appeal and pray for a certificate—
(i) that the case involves a substantial question of law of general importance, and
(ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court.]
(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted.
4. [Consolidation of suits.] Rep. by the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973), s. 4 (w.e.f. 1-2-1977).
5. [Remission of dispute to Court of first instance.] Rep. by s. 4, ibid. (w.e.f. 1-2-1977).
6. Effect of refusal of certificate.—Where such certificate is refused, the petition shall be dismissed.
7. Security and deposit required on grant of certificate.—(1) Where the certificate is granted, the
applicant shall, within
[ninety days or such further period, not exceeding sixty days, as the Court may
upon cause shown allow;] from the date of the decree complained of, or within six weeks from the date of the grant of the certificate whichever is the later date,—
(a) furnish security
[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
[printing,] and transmitting to
[the Supreme Court] a correct copy of the whole record of the suit, except—
(1) formal documents directed to be excluded by any
[Rule of the Supreme Court] in force
for the time being;
(2) papers which the parties agree to exclude;
2. Rule 2 re-numbered as sub-rule (1) of that rule by Act 104 of 1976, s. 91 (w.e.f. 1-2-1977).
9. Subs., ibid., for “order of His Majesty in Council”.
(3) 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
(4) such other documents as the High Court may direct to be excluded:
[Provided that the Court at the time of granting the certificate may, after hearing any opposite party
who appears, order on the ground of special hardship that some other form of security may be furnished:
Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security.]
*
8. Admission of appeal and procedure thereon.—Where such security has been furnished and deposit made to the satisfaction of the Court, the court shall—
(a) declare the appeal admitted,
(b) give notice thereof to the respondent,
(c) transmit to
[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.
9. Revocation of acceptance of security.—At any time before the admission of the appeal the Court may, upon cause shown, revoke the acceptance of any such security, and make further directions thereon.
[9A. Power to dispense with notices in case of deceased parties.—Nothing in these rules requiring
any notice to be served on or given to an opposite party or respondent shall be deemed to require any
notice to be served on or given to the legal representative of any deceased opposite party or deceased
respondent in a case, where such opposite party or respondent did not appear either at the hearing in the
Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:
Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct.]
10. Power to order further security or payment.—Where at any time after the admission of an
appeal but before the transmission of the copy of the record, except as aforesaid, to
[the Supreme Court],
such security appears inadequate,
or further payment is required for the purpose of translating, transcribing, printing, indexing or
transmitting the copy of the record, except as aforesaid,
the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within like time, the required payment.
11. Effect of failure to comply with order.—Where the appellant fails to comply with such order,
the proceedings shall be stayed,
and the appeal shall not proceed without an order in this behalf of,
[the Supreme Court], and in the meantime execution of the decree appealed from shall not be stayed.
2. Sub-rule (2) omitted by the A.O. 1950.
12. Refund of balance deposit.—When the copy of the record, except as aforesaid, has been
transmitted to
[the Supreme Court], the appellant may obtain a refund of the balance (if any) of the amount which he has deposited under rule 7.
13. Powers of Court pending appeal.—(1) Notwithstanding the grant of a certificate for the
admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.
(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,—
(a) impound any movable property in dispute or any part thereof, or
(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
[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 decree or order]
which
[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.
14. Increase of security found inadequate.—(1) Where at any time during the pendency of the
appeal the security furnished by either party appears inadequate, the Court may, on the application of the other party, require further security.
(2) In default of such further security being furnished as required by the Court,—
(a) if the original security was furnished by the appellant, the Court may, on the application of the
respondent, execute the decree, appealed from as if the appellant had furnished no such security:
(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.
15. Procedure to enforce orders of the Supreme Court.—(1) Whoever desires to obtain execution
of
[any decree or order] of
[the Supreme Court] shall apply by petition, accompanied by a certified copy
of the decree passed or order made in appeal and sought to be executed, to the Court from which the
appeal to
[the Supreme Court] was preferred.
(2) Such Court shall transmit the
[decree or order] of
[the Supreme Court] to the Court which passed
the first decree appealed from, or to such other Court as
[the Supreme Court] by such
[decree or order]
may direct and shall (upon the application of either party) give such directions as may be required for the
execution of the same; and the Court to which the said
[decree or order] is so transmitted shall execute it
accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.
*
1. Subs., by the A.O. 1950, for “His Majesty in Council”.
2. Subs., ibid., for “any order”.
3. Subs., ibid., for “His Majesty”.
4. Subs., ibid., for “order”.
5. Sub-rule (3) omitted by the A.O. 1950.
[(4)
[Unless the Supreme Court otherwise directs, no decree or order of that Court] shall be
inoperative on the ground that no notice has been served on or given to the legal representative of any
deceased opposite party or deceased respondent in a case, where such opposite party or respondent did
not appear either at the hearing in the Court whose decree was complained of or at any proceedings
subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.]
16. Appeal from order relating to execution.—The orders made by the Court which executes the
[decree or order] of
[the Supreme Court], relating to such execution, shall be appealable in the same
manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees.
17. [Appeals to Federal Court.] Rep. by the Federal Act, 1941 (21 of 1941), s. 2.
ORDER XLVI
R
EFERENCE
1. Reference of question to High Court.—Where, before or on the hearing of a suit or an appeal in
which the decree is not subject to appeal, or where, in the execution of any such decree, any question of
law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the
decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any
of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.
2. Court may pass decree contingent upon decision of High Court.—The Court may either stay
the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an
order contingent upon the decision of the High Court on the point referred:
But no decree or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference.
3. Judgment of High Court to be transmitted and case disposed of accordingly.—The High
Court, after hearing the parties if they appear and desire to be heard, shall decide the point so referred,
and shall transmit a copy of its judgment, under the signature of the Registrar, to the Court by which the
reference was made; and such Court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.
4. Cost of reference to High Court.—The costs (if any) consequent on a reference for the decision of the High Court shall be costs in the case.
[4A. Reference to High Court under proviso to section 113.—The provisions of rules 2, 3 and 4
shall apply to any reference by the Court under the proviso to section 113 as they apply to a reference
under rule 1; and]
5. Power to alter, etc., decree of Court making reference.—Where a case is referred to the High
Court under rule
[or under the proviso to section 113], the High Court may return the case for
amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose, and make such order as it thinks fit.
3. Subs., ibid., for “order”.
4. Subs., ibid., for “His Majesty in Council”.
6. Power to refer to High Court questions as to jurisdiction in small causes.—(1) Where at any
time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by
a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.
(2) On receiving the record and statement, the High Court may order the Court either to proceed with
the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit.
7. Power to District Court to submit for revision proceeding had under mistake as to jurisdiction in small causes.—(1) Where it appears to a District Court that a Court subordinate thereto
has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so
cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested,
the District Court may, and if required by a party shall, submit the record to the High Court with a
statement of its reasons for considering the opinion of the Subordinate Court with respect to the nature of the suit to be erroneous.
(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.
(3) 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.
(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this rule.
ORDER XLVII
R
EVIEW
1. Application for review of judgment.—(1) Any person considering himself aggrieved—
(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.
(2) A party who is not appealing from a decree or order may apply for a review of judgment
notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is
common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.
[Explanation.—The fact that the decision on a question of law on which the judgment of the Court is
based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]
2. [To whom applications for review may be made.]—Rep. by the Code of Civil Procedure
(Amendment) Act, 1956 (66 of 1956) s. 14.
3. Form of applications for review.—The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review.
4. Application where rejected.—(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.
(2) Application where granted.—Where the Court is of opinion that the application for review
should be granted, it shall grant the same:
Provided that—
(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.
5. Application for review in Court consisting of two or more Judges.—Where the Judge or
Judges, or any one of the Judges, who passed the decree or made the order a review of which is applied
for, continues or continued attached to the Court at the time when the application for a review is
presented, and is not or not precluded by absence or other cause for a period of six months next after the
application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.
6. Application where rejected.—(1) Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected.
(2) Where there is a majority, the decision shall be according to the opinion of the majority.
7. Order of rejection not appealable. Objections to order granting application.—
[(1) An order
of the Court rejecting the application shall not be appealable; but an order granting an application may be
objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.]
(2) 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 which 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.
(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.
8. Registry of application granted, and order for re-hearings.—When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.
9. Bar of certain application.—No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.
ORDER XLVIII
M
ISCELLANEOUS
1. Process to be served at expense of party issuing.—(1) Every process issued under this Code shall
be served at the expense of the party on whose behalf it is issued, unless the Court
-
otherwise directs.
(2) Costs of service.—The court-fee chargeable for such service shall be paid within a time to be fixed-before the process is issued.
2. Orders and notices how served.—All orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons.
3. Use of forms in appendices.—The Forms given in the appendices, with such variation as the circumstances or each case may require, shall be used for the purposes therein mentioned.
ORDER XLIX
C
HARTERED HIGH COURTS
1. Who may serve processes of High Court.—Notice to produce documents, summonses to
witnesses, and every other judical process, issued in the exercise of the original civil jurisdiction of the
High Court, and of its matrimonial, testamentary and intestate jurisdictions, except summonses to
defendants, writs of execution and notices to respondents may be served by the attorneys in the suits, or by persons employed by them, or by such other persons as the High Court, by any rule or order, directs.
2. Saving in respect of Chartered High Courts.—Nothing in this Schedule shall be deemed to limit
or otherwise affect any rules in force at the commencement of this Code for the taking of evidence or the recording of judgments and orders by a Chartered High Court.
3. Application of rules.—The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:—
(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) rule 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
P
ROVINCIAL. SMALL CAUSE COURTS
1. Provincial Small Cause Courts.—The provisions hereinafter specified shall not extend to Court
constituted under the Provincial Small Cause Courts Act 1887 (9 of 1887)
[or under the Berar Small
Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes
[under the
said Act or Law]
[or to Courts in
[any part of India to which the said Act does not extend] exercising a corresponding jurisdiction that is to say—
(a) so much of this Schedule as relates to—
(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees
in such suits;
(ii) the execution of decrees against immovable property or the interest of a partner in
partnership property;
(iii) the settlement of issues; and
(b) the following rules and orders:—
Order II, rule 1 (frame of suit);
Order X, rule 3 (record of examination of parties);
Order XV, except so much of rule 4 as provides for the pronouncement at once of
judgment;
Order XVIII, rule 5 to 12 (evidence);
Order XLI, to XLV (appeals);
Order XLVII, rules 2, 3, 5, 6, 7 (review);
Order LI.
ORDER LI
P
RESIDENCY SMALL CAUSE COURTS
1. Presidency Small Cause Courts.—Save as provided in rules 22 and 23 of Order V, rules 4 and 7
of Order XXI, and rule 4 of Order XXVI, and by the Presidency Small Cause Courts Act, 1882 (15 of
1882), this Schedule shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.
APPENDIX A
P
LEADINGS
(1) Titles of Suits
IN THE COURT OF . ...............................................................................................
A.B. (add description and residence)..................................................................................... Plaintiff
against C.D. (add description and residence) .................................................................................... Defendant
(2) Description of parties in particular Cases
[The Union of India or the State of.........................., as the case may be.]
The Advocate General of
The Collector of
The State of __________________
The A. B. Company, Limited having its registered office at
A. B., a public officer of the C. D. Company.
A. B. (add description and residence), on behalf of himself and all other creditors of C. D. late of
(add description and residence)
A. B. (add description and residence), on behalf of himself and all other holders of debentures issued by the Company limited.
The Official Receiver.
A. B. a minor (add description and residence),by C. D. [or by the Court of Wards], his next friend.
A. B. (add description and residence), a person of unsound mind [or of weak mind], b y. C. D. his ne xt friend.
A. B. a firm carrying on business in partnership at A. (add description and residence), by his constituted attorney C. D. (add description and residence).
A. B. (add description and residence), Shebait of Thakur.
A. B. (add description and residence), executor of C. D. deceased.
A. B. (add description and residence), heir of C. D. deceased.
(3) Plaints No. 1
MONEY LENT
(Title)
A. B., the above named plaintiff, states as follows:—
1. On the....................................day of...........20................, he lent the defendant
........rupees repayable on the...........................day of.........................................
2. The defendant has not paid the same, except..............rupees paid on the..........day of............20..............
[If the plaintiff claims exemption from any law of limitation, say:—]
3. The plaintiff was a minor [or insane] from the.......................day of........................ till the................day of....................... .
4. [Facts showing when the cause of action arose and that the Court has jurisdiction.]
5. The Value of the subject-matter of the suit for the purpose of jurisdiction is .......rupees and for the purpose of court-fees is.............rupees.
6. The plaintiff claims............rupees, with interest at..................per cent. from the......day of
.............20.............
No. 2
M
ONEY OVERPAID
(Title)
A. B., the above named plaintiff, states as follows:—
1. On the..................day of................20......, the plaintiff agreed to buy and the defendant agreed to sell..............bars of silver at............annas per tola of fine silver.
2. The plaintiff procured the said bars to be assayed by E.F, who was paid by the defendant for such assay, and E.F declared each of the bars to contain 1,500 tolas of fine silver, and the plaintiff accordingly the defendant............. rupees.
3. Each of the said bars contained only 1,200 tolas of fine silver, of which fact the plaintiff was ignorant when he made the payment.
4. The defendant has not repaid the sum so overpaid.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 3
G
OODS SOLD AT A FIXED PRICE AND DELIVERED
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the..................day of............20......., E. F. sold and delivered to the defendant [one hundred barrels of flour, or the goods mentioned in the schedule hereto annexed. or sundry goods.]
2. The defendant promised to pay.............. rupees for the said goods on delivery [or on the.........
day of.............some day before the plaint was filed].
3. He has not paid the same.
4. E. F. died on the...............day of.....20.........By his last will he appointed his brother, the plaintiff, his executor.
[As in paras 4 and 5 of Form No. 1,]
7. The plaintiff as executor of E.F. claims [Relief Claimed].
No. 4
G
OODS SOLD AT A REASONABLE PRICE AND DELIVERED
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the..............day of....................20........., plaintiff sold and delivered to the defendant
[sundry articles of house-furniture], but no express agreement was made as to the price.
2. The goods were reasonably worth ..............rupees.
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and relief claimed]
No. 5
G
OODS MADE AT DEPENDANT’S REQUEST, AND NOT ACCEPTED
(Title)
A. B., the above named plaintiff, states as follows:—
1. On the.............day of................20..........., E.F. agreed with the plaintiff that the plaintiff should make for him [six tables and fifty chairs] and that E.F should pay for the goods on delivery.......... rupees.
2. The plaintiff made the goods, and on the................day of...............20.......... , offered to deliver them to E.F., and has ever since been ready and willing so to do.
3. E.F. has not accepted the goods or paid for them.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No. 6
D
EFICIENCY UPON A RE-SALE [GOODS SOLD AT AUCTION]
(Title)
A. B., the above named plaintiff, states as follows:—
1. On the.............day of................20..........., the plaintiff put up at auction sundry [goods],
subject to the condition that all goods not paid for and removed by the purchaser within [ten days] after the sale should be re-sold by auction on his account, of which condition the defendant had notice.
2. The defendant purchased [one crate of crockery] at the auction at the price of...... rupees.
3. The plaintiff was ready and willing to deliver the goods to the defendant on the date of the sale and for [ten days] after.
4. The defenant did not take away the goods purchased by him, nor pay for them within [ten days]
after the sale, nor afterwards.
5. On the...............day of............20......, the plaintiff re-sold the [crate of crockery], on account of the defendant, by public auction, for...........rupees.
6. The expenses attendant upon such re-sale amounted to........rupees.
7. The defendant has not paid the deficiency thus arising, amounting to rupees.
[As in paras 4 and 5 of Form No. I, and Relief claimed.]
No. 7
S
ERVICES AT A REASONABLE RATE
(Title)
A. B., the above named plaintiff, states as follows:—
1. Between the................ day of......................20.......... , and the......... day of............
......20......at..............., plaintiff [executed sundry drawings, designs and diagrams] for the defendant, at his request; but no express agreement was made as to the sum to be paid for such services.
2. The services were reasonably worth.........rupees.
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 8
S
ERVICES AND MATERIALS AT A REASONABLE COST
(Ti t l e)
A. B., the above named plaintiff, states as follows:—
1. On the...............day of....................20........., at................ the plaintiff built a house
[known as No. .................., in.....], and furnished the materials therefor, for the defendant, at his request, but no express agreement was made as to the amount to be paid for such work and materials.
2. The work done and materials supplied were reasonably worth...... rupees.
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 9
U
SE AND OCCUPATION
(Title)
A. B., the above-named plaintiff, executor of the will of X. Y., deceased, states as follows:—
1. That the defendant occupied the [house No..........,...............Street], by permission of the said X.Y, from the.......day of.......................20................ , until the day of...............20....., and no agreement was made as to payment for the use of the said premises.
2. That the use of the said premises for the said period was reasonably worth rupees.
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. I.]
4. The plaintiff as executor of X Y, claims [relief claimed].
No. 10
O
N AN AWARD
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the.......day of.............20..., the plaintiff and defendant, having a difference between
them concerning [a demand of the plaintiff for the price of ten barrels of oil which the defendant refused to pay]; agreed in writing to submit the difference to the arbitration of E. F and G. H. and the original document is annexed hereto.
2. On the............. ....day of........................20....., the arbitrators awarded that the defendant should [pay the plaintiff rupees].
3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1 and relief claimed.]
No. 11
O
N A FOREIGN JUDGMENT
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the............day of............20......., at.......in the State [or Kingdom] of....., the.....
Court of that State [or Kingdom,] in a suit therein pending between the plaintiff and the defendant, duly adjudged that the defendant should pay to the plaintiff..............................rupees, with interest from the said date.
2. The defendant has not paid the money.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No. 12
A
GAINST SURETY FOR PAYMENT OF RENT
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the...........day of...............20..., E. F. hired from the plaintiff for the term of........years, the
[house No................, ..................street], at the annual rent of.........rupees, payable [monthly].
2. The defendant agreed, in consideration of the letting of the premises to E.F, to gurantee the punctual payment of the rent.
3. The rent for the month of ..........20..........., amounting to.............................rupees, has not been paid.
[If, by the terms of the agreement, notice is required to be given to the surety, add:—]
4. On the......................day of.............. 19........, the plaintiff gave notice to the defendant of the non-payment of the rent, and demanded payment thereof.
5. The defendant has not paid the same.
[As in paras. 4 and 5 of Form No. I, and relief claimed.]
No. 13
B
REACH OF AGREEMENT TO PURCHASE LAND
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the................day of.........20......, the plaintiff and defendant entered into an agreement, and the Original document is hereto annexed.
[Or, on the............day of..................20........, 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.]
2. On the............. day of...................20......., the plaintiff, being then the absolute owner of the
property [and the same being free from all incumbrances, as was made to appear to the defendant], tendered to
the defendant a sufficient instrument of transfer of the same [or, was ready and willing, and is still ready and
willing, and offered, to transfer the same to the defendant by a sufficient instrument] on the payment by the defendant of the money agreed upon.
3. The defendant has not paid the money.
[As in paras. 4 and 5 of Form No. I, and relief claimed.]
No. 14
N
OT DELIVERING GOODS SOLD
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the...............day of............20....., the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff on the..............day of.................20........, and that the plaintiff should pay there for........ rupees on delivery.
2. On the [said] day the plaintiff was ready and willing, and offered, to pay the defendant the said sum upon delivery of the goods.
3. The defendant has not delivered the goods, and the plaintiff has been deprived of the profits which would have accrued to him from such delivery.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No . 1 5
WRONGFUL DISMISSAL
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the...............day of............20........, the plaintiff and defendant mutually agreed that the
plaintiff should serve the defendant as [an accountant, or in the capacity of foreman, or as the case may
be], and that the defendant should employ the plaintiff as such for the term of [one year] and pay him for his services.........rupees [monthly].
2. On the.............. day of................20........, the plaintiff entered upon the service of the defendant
and has ever since been, and still is, ready and willing to continue in such service during the remainder of the said year whereof the defendant always has had notice.
3. On the.......day of.................20........, the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, or to pay him for his services.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 16
B
REACH OF CONTRACT TO SERVE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the.........day of................20......, the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at as [annual] salary of.....rupees, and that the defendant should serve the plaintiff as [an artist] for the term of [one year].
2. The plaintiff has always been ready and willing to perform his part of the agreement [and on the day of..............20........., offered so to do].
3. The defendant (entered upon) the service of the plaintiff on the above-mentioned day, but afterwards, on the..........day of................20........, he refused to serve the plaintiff as aforesaid.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 17
A
GAINST A BUILDER FOR DEFECTIVE WORKMANSHIP
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the.............day of................20....., the plaintiff and defendant entered into an agreement, and the original document is hereto annexed. [Or state the tenor of the contract.]
[2. The plaintiff duly performed all the conditions of the agreement on his part.]
3. The defendant [built the house referred to in the agreement in a bad and unworkman like manner].
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No. 18
O
N A BOND FOR THE FIDELITY OF A CLERK
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the.........day of..............20............ , the plaintiff took E.F. into his employment as a clerk.
2. In consideration thereof, on the.........day of.............20........., the defendant agreed with plaintiff that if E.F. should not faithfully perform his duties as a clerk to the plaintiff, or should fail to account to the
plaintiff for all monies, evidences of debt or other property received by him for the use of the plaintiff, the
defendant would pay to the plaintiff whatever loss he might sustain by reason thereof, not exceeding...rupees.
[Or, 2. In consideration thereof, the defendant by his bond of the same date bound himself to pay the plaintiff the penal sum of.........rupees, subjects to the condition that if E.F. should faithfully
perform his duties as clerk and cashier to the plaintiff and should justly account to the plaintiff for all
monies, evidences of debt or other property which should be at any time held by him in trust for the plaintiff, the bond should be void.]
[Or 2. In consideration thereof, on the same date the defendant executed a bond in favour of the plaintiff, and the original document is hereto annexed.]
3. Between the...........day of..............20........, and the.......................day of .........20......, E.F. received money and other property, amounting to the value of..........rupees, for the use of the plaintiff, for which sum he has not accounted to him, and the same still remains due and unpaid.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No. 19
B
Y TENANT AGAINST LANDLORD, WITH SPECIAL DAMAGE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the......day of.........20......, the defendant, by a registered instrument, let to the plaintiff [the house No........Street] for the term of........years, contracting with the plaintiff, that he, the plaintiff, and his legal representatives should quietly enjoy possession thereof for the said term.
2. All conditions were fulfilled and all things happened necessary to entitle the plaintiff to maintain this suit.
3. On the............day of.............20......., during the said term, E.F. who was the lawful owner of
the said house, lawfully evicted the plaintiff therefrom, and still withholds the possession thereof from him.
4. The plaintiff was thereby [prevented from continuing the business of a tailor at the said place, was compelled to expend........rupees in moving, and lost the custom of G.H. and I.J by such removal].
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No. 20
O
N AN AGREEMENT OF INDEMNITY
(Ti tl e)
A. B., the above-named plaintiff, states as follows:—
1. On the..............day of.......................20......, the plaintiff and defendant, being partners in trade under the style of A. B. and C.D., dissolved the partnership, and mutually agreed that the defendant
should take and keep all the partnership property, pay all debts of the firm and indemnify the plaintiff against all claims that might be made upon him on account of any indebtedness of the firm.
2. The plaintiff duly performed all the conditions of the agreement on his part.
3. On the.............. day of.....................20........., [a judgment was recovered against the plaintiff and defendant by E.F., in the High Court of Judicature at......., upon a debt due from the firm to E.F., and on the day of.................20.....,] the plaintiff paid.........rupees [in satisfaction of the same].
4. The defendant has not paid the same to the plaintiff.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No. 21
PROCURING PROPERTY BY FRAUD
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the ............... day of ........... .......20....., the defendant, for the purpose of inducing the
plaintiff to sell him certain goods, represented to the plaintiff that [he, the defendant, was solvent, and worth............rupees over all his liabilities].
2. The plaintiff was thereby induced to sell [and deliver] to the defendant, [dry goods] of the value of ........................ rupees.
3. The said representations were false [or state the particular falsehoods] and were then known by the defendant to be so.
4. The defendant has not paid for the goods, [Or, if the goods were not delivered.] The
plaintiff, in preparing and shipping the goods and procuring their restoration, expended..............rupees.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No. 22
FRAUDULENTLY PROCURING CREDIT TO BE GIVEN TO ANOTHER PERSON
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the..........day of.................20........., the defendant, represented to the plaintiff that E.F., was solvent and in good credit, and worth................rupees over all his liabilities [or that E.F, then held a
responsible situation and was in good circumstances, and might safely be trusted with goods on credit].
2. The plaintiff was thereby induced to sell to E.F., (rice) of the value of........ rupees [on.........months credit].
3. The said representations were false and were then known by the defendant to be so, and were made by him with intent to deceive and defraud the plaintiff [or to deceive and injure the plaintiff].
4. E.F, [did not pay for the said goods at the expiration of the credit aforesaid, or] has not paid for the said rice, and the plaintiff has wholly lost the same.
[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No. 23
P
OLLUTING THE WATER UNDER THE PLAINTIFF'S LAND
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain lands called..........and situate in...........and of a well therein, and of water in the well, and was entitled to the
use and benefit of the well and of the water therein, and to have certain springs and streams of water which flowed and ran into the well to supply the same to flow or run without being fouled or polluted.
2. On the........... day of ............20.........., the defendant wrongfully fouled and polluted the well and the water therein and the springs and streams of water which flowed into the well.
3. In consequence the water in the well became impure and unfit for domestic and other necessary purposes, and the plaintiff and his family are deprived of the use and benefit of the well and water.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 24
C
ARRYING ON A NOXIOUS MANUFACTURE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain lands called..........situate in...................
2. Ever since the.................. day of....................20....., the defendant has wrongfully caused to
issue from certain smelting works carried on by the defendant large quantities of offensive and
unwholesome smoke and other vapours and noxious matter, which spread themselves over and upon the said lands, and corrupted the air, and settled on the surface of the lands.
3. Thereby the trees, hedges, herbage and crops of the plaintiff growing on the lands were damaged and deteriorated in value, and the cattle and live-stocks of the plaintiff on the lands became unhealthy, and many of them were poisoned and died.
4. The plaintiff was unable to graze the lands with cattle and sheep as he otherwise might have
done, and was obliged to remove his cattle, sheep and farming stock therefrom, and has been
prevented from having so beneficial and healthy a use and occupation of the lands as he otherwise would have had.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 25
O
BSTRUCTING A RIGHT OF WAY
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and at the time hereinafter mentioned was, possessed of [a house in the village of ................ ].
2. He was entitled to a right of way from the [house] over a certain field to a public highway and
back again from the highway over the field to the house, for himself and his servants [with vehicles, or on foot] at all times of the year.
3. On the................day of.......................20.........., defendant wrongfully obstructed the said way,
so that the plaintiff could not pass [with vehicles, or on foot, or in any manner] along the way [and has ever since wrongfully obstructed the same].
4. (State special damage, if any).
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 26
O
BSTRUCTING A HIGHWAY
(Title)
1. The defendant wrongfully dug a trench and heaped up earth and stones in the public highway leading from.................. to......... so as to obstruct it.
2. Thereby the plaintiff, while lawfully passing along the said highway, fell over the said earth and
stones, [or into the said trench] and broke his arm, and suffered great pain, and was prevented from attending to his business for a long time, and incurred expense for medical attendance.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 27
D
IVERTING A WATER-COURSE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and at the time hereinafter mentioned was, possessed of a mill situated on a
[stream] known as the......... , in the village of........... , district of..........
2. By reason of such possession the plaintiff was entitled to the flow of the stream for working the mill.
3. On the....................... day of................20......, the defendant, by cutting the bank of the stream, wrongfully diverted the water thereof, so that less water ran into the plaintiff’s mill.
4. By reason thereof the plaintiff has been unable to grind more than....... sacks per day, whereas, before the said diversion of water, he was able to grind......sacks per day.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 28
O
BSTRUCTING A RIGHT TO USE WATER FOR IRRIGATION
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is, and was at the times hereinafter mentioned was, possessed of certain lands situate, etc., and entitled to take and use a portion of the water of a certain stream for irrigating the said lands.
2. On the.................day of.......................20.........., the defendant prevented the plaintiff from
taking and using the said portion of the said water as aforesaid, by wrongfully obstructing and diverting the said stream.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 29
I
NJURIES CAUSED BY NEGLIGENCE ON A RAILROAD
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the ............ day of.............20........., the defendants were common carriers of passengers by railway between ....... ...... and ...................
2. On that day the plaintiff was a passenger in one of the carriages of the defendants on the said railway.
3. While he was such passenger, at............... [or near the station of................. or between the stations of ................... and .................. ], a collision occurred on the said railway caused by the negligence and
unskilfulness of the defendants’ servants, whereby the plaintiff was much injured [having his leg broken, his head cut, etc., and state the special damage, if any, as], and incurred expense for medical attendance and is
permanently disabled from carrying on his former business as [a salesman].
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
[Or thus:—2. On that day the defendants by their servants so negligently and unskillfully drove and
managed an engine and a train of carriages attached thereto upon and along the defendant’s railway which
the plaintiff was then lawfully crossing that the said engine and train were driven and struck against the plaintiff, whereby, etc., as in para. 3].
No. 30
I
NJURIES CAUSED IN NEGLIGENT DRIVING
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is a shoemaker, carrying on business at ............the defendant is a merchant of .........................
2. On the ............. day of .....................20........., the plaintiff was walking southward along Chowringhee, in the City of Calcutta, at about 3 o’clock in the afternoon. He was obliged to cross Middleton Street, which is a street running into Chowringhee at right angles. While he was crossing this
street, and just before he could reach the foot pavement on the further side thereof, a carriage of the
defendant's, drawn by two horses under the charge and control of the defendant's servants, was
negligently, suddenly and without any warning turned at a rapid and dangerous pace out of Middleton Street into Chowringhee. The pole of the carriage struck the plaintiff and knocked him down, and he was much trampled by the horses.
3. By the blow and fall and trampling the plaintiff’s left arm was broken and he was bruised and
injured on the side and back, as well as internally, and in consequence thereof the plaintiff was for four
months ill and in suffering, and unable to attend to his business, and incurred heavy medical and other expenses, and sustained great loss of business and profits.
[As in paras. 4 and 5 of Form No. 1, and relief claimed.]
No. 31
F
OR MALICIOUS PROSECUTION
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the .............. day of .......................20..........., the defendant obtained a warrant of arrest from ............. [a Magistrate of the said city, or as the case may be] on a charge of .........., and the plaintiff was arrested thereon, and imprisoned for ................ [days, or hours, and gave bail in the sum of ............... rupees to obtain his release].
2. In so doing the defendant acted maliciously and without reasonable or probable cause.
3. On the ................. day of ...................20......., the Magistrate dismissed the complaint of the defendant and acquitted the plaintiff.
4. Many persons, whose names are unknown to the plaintiff, hearing of the arrest, and supposing the
plaintiff to be a criminal, have ceased to do business with him; or in consequence of the said arrest, the plaintiff lost his situation as clerk to one E.F.; or in consequence the plaintiff suffered pain of body and
mind, and was prevented transacting his business, and was injured in his credit, and incurred expense in obtaining his release from the said imprisonment and in defending himself against the said complaint.
[As in paras. 4 and 5 of Form No. 1, and relief claimed].
No. 32
M
OVABLES WRONGFULLY DETAINED
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the ................. day of ...............20........., plaintiff owned [or state facts showing a right
to the possession] the goods mentioned in the schedule hereto annexed [or describe the goods,] the estimated value of which is ................... rupees.
2. From that day until the commencement of this suit the defendant has detained the same from
the plaintiff
3. Before the commencement of the suit, to wit, on the ................. day of..........20 ..........., the plaintiff demanded the same from the defendant, but he refused to deliver them.
[As in Paras 4 and 5 of Form No. 1.]
6. The plaintiff claims—
(1) delivery of the said goods, or ........... rupees, in case delivery cannot be had;
(2) .................rupees compensation for the detention thereof.
No. 33
A
GAINST A FRAUDULENT PURCHARER AND HIS TRANSFEREE WITH NOTICE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the ............... day of ..................20......., the defendant C.D., for the purpose of including the plaintiff to sell him certain goods, represented to the plaintiff that [he was solvent, and worth .........
rupees over all his liabilities].
2. The plaintiff was thereby induced to sell and deliver to C.D. [one hundred boxes of tea], the estimated value of which is .................. rupees.
3. The said representations were false, and were then known by C.D. to be so [or at the time of making the said representations, C.D. was insolvent, and knew himself to be so].
4. C.D. afterwards transferred the said goods to the defendant E.F. without consideration [or who had notice of the falsity of the representation].
5. [Facts showing when the cause of action arose and that the Court has jurisdiction.]
6. The value of the subject-matter of the suit for the purpose of jurisdiction is .............. rupees and for the purpose of court-fees is .............. rupees.
7. The plaintiff claims—
(1) delivery of the said goods, or ................... rupees, in case delivery cannot be had;
(2) .................... rupees compensation for the detention thereof.
No. 34
RESCISSION OF A CONTRACT ON THE GROUND OF MISTAKE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the ................ day of ...........................20........... , the defendant represented to the plaintiff that a certain piece of ground belonging to the defendant, situated at ................, contained [ten bighas].
2. The plaintiff was thereby induced to purchase the same at the price of ...................rupees in the
belief that the said representation was true, and signed an agreement, of which the original is hereto annexed. But the land has not been transferred to him.
3. On the ................. day of ...........................20........., the plaintiff paid the defendant rupees as part of the purchase money.
4. That the said piece of ground contained in fact only [five bighas].
5. [Facts showing when the cause of action arose and that the Court has jurisdiction.]
6. The value of the subject-matter of the suit for the purpose of jurisdiction is............. rupees and for the purpose of court-fees is...................rupees.
7. The plaintiff claims—
(1) .............. rupees, with interest from the ............. day of............... 20.......... .
(2) that the said agreement be delivered up and cancelled.
No. 35
A
N INJUNCTION RESTRAINING WASTE
(Title)
A. B., the above-named plaintiff states as follows:—
1. The plaintiff is the absolute owner of [describe the property].
2. The defendant is in possession of the same under a lease from the plaintiff.
3. The defendant has [cut down a number of valuable trees, and threatens to cut down many more for the purpose of sale] without the consent of the plaintiff.
4. [Facts showing when the cause of action arose and that the Court has jurisdiction.]
5. The value of the subject-matter of the suit for the purpose of jurisdiction is.......... rupees and for the purpose of court-fees is........... rupees.
6. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further waste on the said premises.
[Pecuniary compensation may also be claimed.]
No. 36
I
NJUNCTION RESTRAINING NUISANCE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute owner of [the house No.....................Street, Calcutta].
2. The defendant is, and at all the said times was, the absolute owner of [a plot of ground in the same street................].
3. On the ................ day of...............20.........., the defendant erected upon his said plot a slaughter-
house, and still maintains the same; and from that day until the present time has continually caused cattle to
be brought and killed there [and has caused the blood and offal to be thrown into the street opposite the said house of the plaintiff].
[4. In consequence the plaintiff has been compelled to abandon the said house, and has been unable to rent the same.]
5. [Facts showing when the cause of action arose and that the Court has jurisdiction.]
6. The value of the subject-matter of the suit for the purpose of jurisdiction is rupees and for the purpose of court-fees is...........rupees.
7. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further nuisance.
No. 37
P
UBLIC NUISANCE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The defendant has wrongly heaped up earth and stones on a public road known as...............Street at...........so as to obstruct the passage of the public along the same and threatens and intends, unless restrained from so doing, to continue and repeat the said wrongful act.
[*2. The plaintiff has obtained the leave of the Court for the institution of this suit.]
[As in paras. 4 and 5 of Form No. 1]
5. The plaintiff claims—
(1) a declaration that the defendant is not entitled to obstruct the passage of the public along the
said road;
(2) 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
I
NJUNCTION AGAINST THE DIVERSION OF A WATER-COURSE
(Title)
A. B., the above-named plaintiff, states as follows:—
[As in form No. 27.]
The plaintiff claims that the defendant be restrained by injunction from diverting the water as aforesaid.
No. 39
R
ESTORATION OF MOVABLE PROPERTY THREATENED WITH DESTRUCTION AND FOR AN INJUNCTION
(Title)
A. B., the above-named plaintiff, states as follows:—
1. Plaintiff is, and at all times hereinafter mentioned was, the owner of [a portrait of his grandfather
which was executed by an eminent painter], and of which no duplicate exists [or state any facts showing that the property is of a kind that cannot be replaced by money].
2. On the.............. day of...............20......, he deposited the same for the safe-keeping with the defendant.
3. On the............... day of...............20......, he demanded the same from the defendant and offered to pay all reasonable charges for the storage of the same.
4. The defendant refuses to deliver the same to the plaintiff and threatens to conceal, dispose of, cut or injure the same if required to deliver it up.
5. No pecuniary compensation would be an adequate compensation to the plaintiff for the loss of the
[painting].
[As in paras. 4 and 5 of Form No. 1. ]
8. The plaintiff claims—
(1) that the defendant be restrained by injunction from disposing of, injuring or concealing the
said [painting],
(2) that he be compelled to deliver the same to the plaintiff.
No. 40
I
NTERPLEADER
(Title)
A. B., the above-named plaintiff, states as follows:—
1. Before the date of the claims hereinafter mentioned G.H. deposited with the plaintiff [describe the property] for [safe-keeping].
2. The defendant C.D. claims the same [under an alleged assignment thereof to him from G.H.].
3. defendant E. F. also claims the same [under an order of G.H. transferring the same to him.]
4. The plaintiff is ignorant of the respective rights of the defendants.
5. He has no claim upon the said property other than for charges and costs, and is ready and willing to deliver it to such persons as the Court shall direct.
6. The suit is not brought by collusion with either of the defendants.
[As in paras. 4 and 5 of Form No. 1.]
9. The plaintiff claims—
(1) that the defendants be restrained, by injunction, from taking any proceedings against the
plaintiff in relation thereto;
(2) that they be required to interplead together concerning their claims to the said property;
[(3) that some person be authorised to receive the said property pending such litigation;]
(4) that upon delivering the same to such [person] the plaintiff be discharged from all liability to either of the defendants in relation thereto.
No. 41
A
DMINISTRATION BY CREDITOR ON BEHALF OF HIMSELF AND ALL OTHER CREDITORS
(Title)
A. B., the above-named plaintiff, states as follows:—
1. E.F. late of................. , was at the time of his death, and his estate still is, indebted to the plaintiff in the sum of....................... [here insert nature of debt and security, if any].
2. E.F. died on or about the........................... day of.......................By his last will, dated the...........
day of.............he appointed C.D. his executor [or devised his estate in trust, etc., or died intestate, as the case may be].
3. The will was proved by C.D. [or letters of administration were granted, etc.].
4. The defendant has possessed himself of the movable [and immovable], or the proceeds of the immovable property of E.F. and has not paid the plaintiff his debt.
[As in paras. 4 and 5 of Form No. 1.]
7. The plaintiff claims that an account may be taken of the movable [and immovable] property of E.F., deceased, and that the same may be administered under the decree of the Court.
No. 42
A
DMINISTRATION BY SPECIFIC LEGATEE
(Title)
[Alter Form No. 41 thus]
[Omit paragraph 1 and commence paragraph 2] E.F. late of ..... , died on or about the..........................
day of ...................... By his last will, dated the ................... day of........ he appointed C.D., his executor, and bequeathed to the plaintiff [here state the specific legacy].
For paragraph 4 substitute—
The defendant is in possession of the movable property of E.F., and, amongst other things, of the said [here name the subject of the specific bequest].
For the commencement of paragraph 7 substitute—
The plaintiff claims that the defendant may be ordered to deliver to him the said [here name the subject of the specific bequest], or that, etc.
No. 43
A
DMINISTRATION BY PECUNIARY LEGATEE
(Title)
[Alter Form No. 41 thus]
[Omit paragraph 1 and substitute for paragraph 2] E.F, late of.......... ........................, died on or about the .............. day of ............................................... By his last will, dated the...........................................day of...................... he appointed C.D. his executor, and bequeathed to the plaintiff a legacy of............
rupees.
In paragraph 4 substitute “legacy” for “debt”
Another form
(Title)
E. F, the above-named plaintiff, states as follows:—
1. A. B. of K. in the.....................died on the................ Day of.......................by his last will, dated the........... day of..............., he appointed the defendant and M.N. [who died in the testator’s lifetime]
his executors, and bequeathed his property, whether movable or immovable, to his executors in trust, to
pay the rents and income thereof to the plaintiff for his life; and after his decease, and in default of his having a son who should attain twenty-one, or a daughter who should attain that age or marry, upon trust as to his immovable property for the person who would be the testator's heir-at-law, and as to his movable property for the persons who would be the testator’s next-of-kin if he had died intestate at the time of the death of the plaintiff and such failure of his issue as aforesaid.
2. The will was proved by the defendant on the...............................day of........................The plaintiff has not been married.
3. The testator was at his death entitled to movable and immovable property; the defendant entered
into the receipt of the rents of the immovable property and got in the movable property; he has sold some part of the immovable property.
[As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff claims—
(1) to have a movable and immovable property of A. B. administered in this Court, and for that
purpose to have all proper directions given and accounts taken;
(2) such further or other relief as the nature of the case may require.
No. 44
E
XECUTION OF TRUSTS
(Title)
A. B., the above-named plaintiff, states as follows:—
1. He is one of the trustees under an instrument of settlement bearing date on or about the.................day of............................. made upon the marriage of E.E. and G.H., the father and mother of the defendant [or an instrument of transfer of the estate and effects of E.F. for the benefit of C.D., the defendant, and the other creditors of E.F.].
2. A.B. has taken upon himself the burden of the said trust, and is in possession of [or of the proceeds of] the movable and immovable property transferred by the said instrument.
3. C.D. claims to be entitled to a beneficial interest under the instrument.
[As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff is desirous to account for all the rents and profits of the said immovable property [and
the proceeds of the sale of the said, or of part of the said, immovable property, or movable, or the proceeds
of the sale of, or of part of, the said movable property, or the profits occurring to the plaintiff as such trustee
in the execution of the said trust]; and he prays that the Court will take the accounts of the said trust, and also that the whole of the said trust estate may be administered in the Court for the benefit of C.D., the defendant, and all other persons who may be interested in such administration, in the presence of C.D. and such other persons so interested as the Court may direct, or that C.D. may show good cause to the contrary.
[N.B.—Where the suit is by a beneficiary, the plaint may be modelled mutatis mutandis on the plaint by a legatee.]
No. 45
F
ORECLOSURE OR SALE
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is mortgagee of lands belonging to the defendant.
2. The following are the particulars of the mortgage:—
(a) (date);
(b) (names of mortgagor and mortgagee);
(c) (sum secured);
(d) (rate of interest);
(e) (Property subject to mortgage);
(f) (amount now due);
(g) (if the plaintiff's title is derivative, state shortly the transfers or devolution under which he claims).
(If the plaintiff is mortgagee in possession add).
3. The plaintiff took possession of the mortgaged property on the .........day of........................ and is ready to account as mortgagee in possession from that time.
[As in paras. 4 and 5 of Form No. 11
6. The plaintiff claims—
(1) payment, or in default [sale or] foreclosure [and possession];
[Where Order 34, rule 6, applies.]
(2) 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
[an order for the balance].
No. 46
REDEMPTION
(Title)
A. B., the above-named plaintiff, states as follows:—
1. The plaintiff is mortgagor of lands of which the defendant is mortgagee.
2. The following are the particulars of the mortgage:—
(a) (date);
(b) (names of mortgagor and mortgagee);
(c) (sum secured);
(d) (rate of interest);
(e) (property subject to mortgage);
(f) (If the plaintiff’s title is derivative, state shortly the transfers or devolution under which he claims).
(If the defendant is mortgagee in possession, add)
3. The defendant has taken possession [or has received the rents] of the mortgaged property.
[As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff claims to redeem the said property and to have the same reconveyed to him [and to have possession thereof].
[together with mesne profits].
No. 47
SPECIFIC PERFORMANCE (No. 1)
(Title)
A. B., the above-named plaintiff, states as follows:—
1. By an agreement dated the........... day of................ and signed by the defendant, he contracted to
buy of [or sell to] the plaintiff certain immovable property therein described and deferred to, for the sum of........................ rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.
[As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement
and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit.
No. 48
S
PECIFIC PERFORMANCE (No. 2)
(Title)
A. B., the above-named plaintiff, states as follows:—
1. On the..............day of..............20............, the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed.
The defendant was absolutely entitled to the immovable property described in the agreement.
2. On the...........day of...............20............, the plaintiff tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.
3. On the..........day of..................20.........., the plaintiff again demanded such transfer. [Or the defendant refused to transfer the same to the plaintiff.]
4. The defendant has not executed any instrument of transfer.
5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant.
[As in paras. 4 and 5 of Form No. 1.]
8. The plaintiff claims—
(1) that the defendant transfers the said property to the plaintiff by a sufficient instrument
[following the terms of the agreement];
(2)................ rupees compensation for withholding the same.
No. 49
P
ARTNERSHIP
(Title)
A.B., the above-named plaintiff, states as follows:—
1. He and C.D., the defendant, have been for......................years [or months] past carrying on business together under articles of partnership in writing [or under a deed, or under a verbal agreement].
2. Several disputes and differences have arisen between the plaintiff and defendant as such partners whereby
it has become impossible to carry on the business in partnership with advantage to the partners, [Or the defendant has committed the following breaches of the partnership articles:—
(1)
(2)
(3) .]
[As in paras. 4 and 5 of Form No. 1.]
5. The plaintiff claims—
(1) dissolution of the partnership;
(2) that accounts be taken;
(3) 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).
(4) WRITTEN STATEMENTS
General
Defences
Denial—The defendant denies that (set out facts).
The defendant does not admit that (set out facts).
The defendant admits that..................but says that...............
The defendant denies that he is a partner in the defendant firm of........................
Protest—The defendant denies that he made the contract alleged or any contract with the plaintiff.
The defendant denies that he contracted with the plaintiff as alleged or at all.
The defendant admits assets but not the plaintiff’s claim.
The defendant denies that the plaintiff sold to him the goods mentioned in the plaintiff or any of them.
Limitation—The suit is barred by article.....................................or article...............of the Second
Schedule to the Indian
Limitation Act, 1877 (15 of 1877).
Jurisdiction—The Court has no jurisdiction to hear the suit on the ground that (set forth the grounds).
On the ........................................................................................day of ....................... a diamond ring was delivered by the defendant to and accepted by the plaintiff in discharge of the alleged cause of action.
Insolvency—The defendant has been adjudged an insolvent.
The plaintiff before the institution of the suit was adjudged an insolvent and the right to sue vested in the receiver.
Minority—The defendant was a minor at the time of making the alleged contract.
1. See now the Limitation Act, 1963 (36 of 1963).
Payment into Court—The defendant as to the whole claim (or as to Rs..........part of the money claimed, or as the case may be) has paid into Court Rs................................and says that this sum is enough to satisfy the plaintiff's claim (or the part aforesaid).
Performance remitted—The performance of the promise alleged was remitted on the date).
Rescission—The contract was rescinded by agreement between the plaintiff and defendant.
Res judicata—The plaintiff's claim is barred by the decree in suit (give the reference).
Estoppel—The plaintiff is estopped from denying the truth of (insert statement as to which estoppel is claimed) because (here state the facts relied on as creating the estoppel).
Ground of defence subsequent to institution of suit—Since the institution of the suit, that is to
say, on the...................... day of.................................. (set out facts).
No. 1
DEFENCE IN SUITS FOR GOODS SOLD AND DELIVERED
1. The defendant did not order the goods.
2. The goods were not delivered to the defendant.
3. The price was not Rs.
[or]
4. 1.
5.
Except as to Rs. , same as 2.
6. 3.
7. the defendant [or A. B., the defendant's agent] satisfied the claim by payment before suit to the plaintiff [or to C.D., the plaintiff's agent] on the day of 20,
8. The defendant satisfied the claim by payment after suit to the plaintiff on the day of 20
No. 2
D
EFENCE IN SUITS ON BONDS
1. The bond is not the defendant’s bond.
2. The defendant made payment to the plaintiff on the day according to the condition of the bond.
3. The defendant made payment to the plaintiff after the day named and before suit of the principal and interest mentioned in the bond.
No. 3
D
EFENCE IN SUITS ON GUARANTEES
1. The principal satisfied the claim by payment before suit.
2. The defendant was released by the plaintiff giving time to the principal debtor in pursuance of a binding agreement.
No. 4
DEFENCE IN ANY SUITS FOR DEBT
1. As to Rs. 200 of the money claimed, the defendant is entitled to set off for goods sold and delivered by the defendant to the plaintiff.
Particulars are as follows : Rs.
1907 January 25th. . . . . . . . . . . . . . . . . . . 150
,, February 1st . . . . . . . . . . . . . . . . . . . . . . . . . 50
Total 200
2. As to the whole [or as to Rs...................... , part of the money claimed] the defendant made tender before suit of Rs.........and has paid the same into Court.
N o . 5
D
EFENCE IN SUITS FOR INJURIES CAUSED BY NEGLIGENT DRIVING
1. The defendant denies that the carries mentioned in the plaint was the defendant's carriage, and that it was under the charge or control of the defendant's servants. The carriage belonged to....................... of.....................Street, Calcutta, livery stable keepers employed by the
defendant to supply him with carriages and horses and the person under whose charge and control the said carriage was, was the servant of the said.
2. The defendant does not admit that the said carriage was turned out of Middleton Street either negligently, suddenly or without warning, or at a rapid or dangerous pace.
3. The defendant says the plaintiff might and could, by the exercise of reasonable care and diligence, have seen the said carriage approaching him, and avoided any collision with it.
4. The defendant does not admit the statements contained in the third paragraph of the plaint.
No. 6
DEFENCE IN ALL SUITS FOR WRONGS
1. Denial of the several acts [or matters] complained of.
No. 7
D
EFENCE IN ALL SUITS FOR DETENTION OF GOODS
1. The goods were not the property of the plaintiff.
2. The good were detained for a lien to which the defendant was entitled.
Particulars are as follows:—
1907, May 3rd To carriage of the goods claimed from Delhi to Calcutta:—
45 maunds at Rs. 2 per maund.................Rs. 90.
No. 8
D
EFENCE IN SUITS FOR INFRINGEMENT OF COPYRIGHT
1. The plaintiff is not the author [assignee, etc.]
2. The book was not registered.
3. The defendant did not infringe.
No. 9
DEFENCE IN SUITS FOR INFRINGEMENT OF TRADE MARK
1. The trade mark is not the plaintiff’s.
2. The alleged trade mark is not a trade mark.
3. The defendant did not infringe.
No. 10
D
EFENCE IN SUITS RELATING TO NUISANCES
1. The plaintiff’s lights are not ancient [or deny his other alleged prescriptive rights].
2. The plaintiff’s lights will not be materially interfered with by the defendant’s buildings.
3. The defendant denies that he or his servants pollute the water [or do what is complained of].
[If the defendant claims the right by prescription or otherwise to do what is complained of, he must say so, and must state the grounds of the claim, i.e., whether by prescription, grant or what.]
4. The plaintiff has been guilty of laches of which the following are particulars:—
1870. Plaintiff 's mill began to work.
1871. Plaintiff came into possession.
1883. First complaint.
5. As to the plaintiff's claim for damages the defendant will rely on the above grounds of defence, and
says that the acts complain of have not produced any damage to the plaintiff [If other grounds are relied on, they must be stated, e.g., limitation as to past damage.]
No. 11
D
EFENCE TO SUIT FOR FORECLOSURE
1. The defendant did not execute the mortgage.
2. The mortgage was not transferred to the plaintiff (if more than one transfer is alleged, say which is denied).
3. The suit is barred by article................................................of the Second Schedule to the
Indian Limitation Act, 1877 (15 of 1877).
4. The following payment have been made, viz, :—
(Insert date)— Rs. 1,000
(Insert date)— Rs. 500
5. The plaintiff took possession on the .......... ............of ... ..............and has received the rents ever since.
6. The plaintiff released the debt on the ....... ...................of.............................................
7. The defendant transferred all his interest to A. B. by a document dated..........
No. 12
DEFENCE TO SUIT FOR REDEMPTION
1. The plaintiff’s right to redeem is barred by article of the Second Schedule to the
Indian Limitation Act 1877 (15 of 1877).
2. The plaintiff transferred all interest in the property to A. B.
3. The defendant, by a document dated the....................day of ..............transferred all his interest in the mortgage-debt and property comprised in the mortgage to A.B.
4. The defendant never took possession of the mortgaged property, or received the rents thereof.
(if the defendant admits possession for a time only, he should state the time and deny possession beyond what he admits.)
1. See now the Limitation Act, 1963 (36 of 1963).
No. 13
D
EFENCE TO SUIT FOR SPECIFIC PERFORMANCE
1. The defendant did not enter into the agreement.
2. A.B. was not the agent of the defendant (if alleged by plaintiff).
3. The plaintiff has not performed the following conditions—(Conditions).
4. The defendant did not—(alleged acts of part performance).
5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matter—(State why).
6. The agreement is uncertain in the following respects—(State them).
7. (or) The plaintiff has been guilty of delay.
8. (or) The plaintiff has been guilty of fraud (or misrepresentation).
9. (or) The agreement is unfair.
10. (or) The agreement was entered into by mistake.
11. The following are particulars of (7), (8), (9), (10) (or as the case may be).
12. The agreement was rescinded under Conditions of Sale, No. 11 (or by mutual agreement).
(In cases where damages are claimed and the defendant disputes his liability to damages, he must
deny the agreement Or the alleged breaches, or show whatever other ground of defence he intends to rely on, e.g., the
Indian Limitation Act, accord and satisfaction, release, fraud, etc.)
No. 14
DEFENCE IN ADMINISTRATION SUIT BY PECUNIARY LEGATEE
1. A.B. ‘s will contained a charge of debts; he died insolvent; he was entitled at his death to some immovable property which the defendant sold and which produced the net sum of Rs..................., and the testator had some movable property which the defendant got in, and which produced the net sum of Rs............
2. The defendant applied the whole of the said sums and the sum of Rs....................... ..........which the
defendant received from rents of the immovable property in the payment of the funeral and testamentary expenses and some of the debts of the testator.
3. The defendant made up his accounts and sent a copy thereof to the plaintiff on the.................. ..day of...................... 20......... , and offered to plaintiff free access to the vouchers to verify such accounts, but he declined to avail himself of the defendant’s offer.
4. The defendant submits that the plaintiff ought to pay the cost of this suit.
No. 15
P
ROBATE OF WILL IN SOLEMN FORM
1. The said will and codicil of the deceased were not duly executed according to the provisions of the
Indian Succession Act, 1865
(10 of 1865) [or of the Hindu Wills Act, 1870
(21 of 1870)].
2. The deceased at the time the said will and codicil respectively purport to have been executed, was not of sound mind, memory and understanding.
3. The execution of the said will and, codicil was obtained by the undue influence of the plaintiff [and others acting with him whose names are at present unknown to the defendant].
4. The execution of the said will and codicil was obtained by the fraud of the plaintiff, such fraud so far as is within the defendant’s present knowledge, being [state the nature of the fraud].
1. See now the Limitation Act, 1963 (36 of 1963).
2. See now the Indian Succession Act, 1925 (39 of 1925).
5. The deceased at the time of the execution of the said will and codicil did not know and approve the contents thereof [or of the contents of the residuary clause in the said will, as the case may be].
6. The deceased made his true last will, dated the 1st January, 1873, and thereby appointed the defendant sole executor thereof.
The defendant claims—
(1) that the Court will pronounce against the said will and codicil propounded by the plaintiff ;
(2) that the Court will decree probate of the will of the deceased, dated the 1st January, 1873, in solemn form of law.
No. 16
P
ARTICULARS (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.
S
UMMONS FOR DISPOSAL OF SUIT (O. 5, rr.1.5.)
(Title)
T o
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Name, description and place of residence.]
W
HEREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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........................20.................., 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.
G
iven under my hand and the seal of the Court, this..............day of................................. .......... 20
J u d g e 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.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
No. 2
S
UMMONS FOR SETTLEMENT OF ISSUES (O. 5, rr.1. 5.)
(Title)
T o . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [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 question relating to the suit, or who shall be
accompanied by some person able to answer all such questions, on the.........................................................day of............................20....................., at......................O'clock in the.............................noon, to answer the claim;
[and further you are hereby directed to file on that
day a written statement of your defence and to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counterclaim, and where you rely on
any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counterclaim, you shall enter such documents in a list to be annexed to the written statement].
Take note that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
G
IVEN under my hand and the seal of the Court, this .............. day of .................. 20 ...........
Judge.
N
OTICE—1. Should you apprehend your witnesses will not attend of their own accord, you can
have a summons from this Court to compel the attendance of any witness, and the production of any
document that you have a right to call on the witness to produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
No. 3
S
UMMONS TO APPEAR IN PERSON (O. 5, r. 3.)
(Title)
T o . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Name, description and place of residence.]
WHEREAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . has instituted a suit against you for...............you are hereby summoned to appear in this Court in person on the................................. day of ...................... 20........................................at O’clock in the....................................noon, to answer the
claim; and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
G
IVEN under my hand and the seal of the Court, this.......................... day of ............................. 20
J u d g e .
[No. 4
SUMMONS IN A SUMMARY SUIT
(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.................and interest, you are hereby summoned to cause and appearance to be
entered for you, within ten days from the service hereof, in default hereof the plaintiff will be entitled,
after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs....................and the sum of Rs..........................for costs, together with such interest, if any, as the Court may order.
If you cause an appearance to be entered for you, the plaintiff will thereafter server upon you a
summons for judgment at the hearing of which you will be entitle to move the Court for leave to defend the suit.
Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is defence to the suit on the merits or that it is reasonable that you should be allowed to defend.
Given under my hand and the seal of the Court, this............................day of...........................20...........
J u d g e .]
[No. 4A
SUMMONS FOR JUDGMENT IN A SUMMARY SUIT
(O. 37, r. 3)
(Title)
In the..............................Court, at..............................Suit No................................................of 20
XYZ Plaintiff
Versus
ABC Defendant Upon reading the affidavit of the plaintiff the Court makes the following order, namely:—
Let all parties concerned attend the Court or Judge, as the case may be, on the .....................day of
.................. 20 , at ..........................O’clock in the forenoon on the hearing of the application of the
plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs....................and for interest and costs.
Date the ......................day of.................. 20 .]
J u d g e .
No. 5
N
OTICE TO PERSON WHO, THE COURT CONSIDERS, SHOULD BE ADDED AS CO-PLAINTIFF
(O. 1, r. 10)
(Title)
To. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .[Name, description and place of residence.]
W
HEREAS.........................has instituted a suit against.........................for..............................and whereas
it appears necessary that you should be added as 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 ........................ 20, signify to this Court whether you consent to be so added.
Given under my hand and the seal of the Court, this ................. day of ...................... 20
J u d g e .
No. 6
S
UMMONS TO LEGAL REPRESENTATIVE OF A DECEASED DEFENDANT
(O. 22, r. 4)
(Title)
T o
W
HEREAS the plaintiff .................... ...........instituted a suit in this Court on the... ..........................day of.............../20....against the defendant........ who has since deceased, and whereas the said plaintiff has made an application to this Court alleging that you are the legal representative of the said, .. deceased,
and desiring that you be made the defendant in his stead;
You are hereby summoned to attend in this Court on the............ day of........... ......... ......20......., 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 ...................... 20
J u d g e .
No. 7
O
RDER FOR TRANSMISSION OF SUMMONS FOR SERVICE IN THE JURISDICTION OF ANOTHER COURT
(O. 5, r. 21)
(Title)
W
HEREAS it is stated that ................................................................................................
defendant in the above suit is at present residing in..........................................................
witness It is ordered that a summons returnable on the ....................day of...........................20....... , be forwarded to the ..............Court of ................for service on the said defendant/witness............ with a duplicate of this proceeding.
The court-fee of ............. chargeable in respect to the summons has been realised on this Court in stamps.
Dated ........................20 .........
J u d g e .
No. 8
O
RDER FOR TRANSMISSION OF SUMMIONS TO BE SERVED ON A PRISONER
(o. 5, r. 25.)
(Title)
T o
. . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . .
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 here with 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
O
RDER FOR TRANSMISSION OF SUMMONS TO BE SERVED ON A PUBLIC SERVANT OR SOLDIER
(O. 5, rr. 27, 28.)
(Title)
T o
UNDER the provisions of Order V, rule 27 (or 28, as the case may be), of the Code of Civil
Procedure, 1908, a summons in duplicate is herewith 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.
J u d g e .
N o . 1 0
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...............20 ........... 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.
N OTE .—This form will be applicable to process other than summons, the service of which may have to be effected in the same manner.
No . 1 1
A
FFIDAVIT OF PROCESS-SERVER TO ACCOMPANY RETURN OF A SUMMONS OR NOTICE
(O. 5, r. 18.)
(Title)
The affidavit of ...................................... , son of ...................................................................................................
I............................................................................................................................make oath
a f f i r m and say as follows :—
(1) I am a process-server of this Court.
(2)
On the day of......................................20...........I received a
summons
notice issued by the Court of ...........in Suit No. .............of............. 20..........., in the said Court, dated the day of ..........20..........., for service on
(3) The said...............was at the time personally known to me, and I served the said
Summons
notice him On the ..........day of........20........, at about....................O’clock in the ................
her
................noon at......................by tendering a copy thereof to him and requiring
her
His
her
Signature to the original notice
(a)
(b)
(a) Here state whether the person served signed or refused to sing the process, and in whose presence.
(b) Signature of process-server.
or,
(3) 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
Him
on the ......................day of...................20......., at about...............o’clock in the..........
her
noo
n at.....by tendering a copy thereof to him and requiring him
Signature to the original
summon
her her notice
(a)
(b)
(a) Here state whether the person served signed or refused to sing the process, and in whose presence.
(b) Signature of process-server.
or,
(3) The said.............and the house in which he ordinarily resides being personally known to me, I
went to the said house, in ................and thereon the .................day, of ......................19
at about.......................o’clock in the...............noon , I did not find the said....................
(a)
(b)
(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,
(3) One...........accompanied me to....................and there pointed out to me which he said was the house in which......................ordinarily resides. I did not find the said...............there.
(a)
(b)
(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.
S w o r n by the said............................................................................................................before me
affirmed this......................................................day of..................20..............
Empowered under section 139 of the
Code of Civil Procedure, 1908, to administer the oath to deponents.
No. 12
N
OTICE TO DEPENDANT
(O. 9, r. 6.)
(Title)
T o . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . [Name, description and place of residence.]
W
HEREAS 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..........................20....................................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.
G
IVEN under my hand and the seal of the Court, this .........................day of ............... 20.......
J u d g e .
No. 13
SUMMONS TO WITNESS
(O. 16, rr. 1, 5.)
(Title)
To. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .
WHEREAS your attendance is required to................................................................................................
on behalf of the...........................................................................................................................in the above suit, you are hereby required [personally] to appear before this Court on the................................... day of
............ 20..........., at....................O’clock in the forenoon, and to bring with you [or to send to this Court].
A sum of Rs................, being your travelling and other expenses and subsistence allowance for one day, is herewith sent. If you fail to comply with this order without lawful excuse, you will be subject to the consequences of non-attendance laid down in rule 12 of Order XVI of the Code of Civil Procedure,
1908.
G
IVEN under my hand and the seal of the Court, this............................day of.....................20...............
Judge.
NOTICE.—(1) If you are summoned only to produce a document and not to give evidence, you shall
be deemed to have complied with the summons if you cause such document to be produced in this Court on the day and hour aforesaid.
(2) If you are detained beyond the day aforesaid, a sum of Rs........................................will be tendered to you for each day's attendance beyond the day specified.
No. 14
PROCLAMATION REQUIRING ATTENDANCE OF WITNESS (O. 16, r. 10.)
(Title)
To
W
HEREAS 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................ 20......... 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 .......................... 20 ....
Judge.
No. 15
P
ROCLAMATION REQUIRING ATTENDANCE OF WITNESS
(O. 16, r. 10.)
(Title)
To
W
HEREAS 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.............. 20......... 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.
G
IVEN under my hand and the seal of the Court, this........................... day of......................................20
Judge.
No. 16
W
ARRANT OF ATTACHMENT OF PROPERTY OF WITNESS (O. 16, r. 10.)
(Title)
T o The Bailiff of the Court.
W
HEREAS the witness..........................................................................................................................cited by
....................................................................................................................................has not, after the
expiration of the period limited in the proclamation issued for his attendance, appeared in Court; You are hereby directed to hold under attachment................... property belonging to the said witness to the value................... of and to submit a return, accompanied with an inventory thereof, within .....................................days.
Given under my hand and the seal of the Court, this.................................. day of............................. 20
Judge.
No. 17
WARRANT OF ARREST OF WITNESS (O. 16, r. 10)
(Title)
T o 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...........................
20 ............ 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............................. 20
Judge.
No. 18
W
ARANT OF COMMITTAL (O. 16, r. 16)
(Title)
T o The Officer in charge of the Jail at ..........................................
W
HEREAS the plaintiff (or defendant) in the above-named suit has made application to this Court that security be taken for the appearance of...... give evidence (or to produce a document), on the day of
....................................................................................................... 20 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.
G
IVEN under my hand and the seal of the Court, this ................... day of ............... 20 ............
Judge.
No. 19
W
ARRANT OF COMMITTAL (O 16, r. 18)
(Title)
T o 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..................to-
give security for his appearance on the.............................day of................20................, 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................ 20
G
IVEN under my hand and the seal of the Court, this day of 20
J u d g e .
APPENDIX C
DISCOVERY, INSPECTION AND ADMISSION
No. 1
O
RDER FOR DELIVERY OF INTERROGATORIES (O. 11, r 1.)
In the Court of...........................................................
Civil Suit No.....................of ..........................20
A. B. ................................................................ Plaintiff,
against C.D.E.F. and G.H .............. Defendants.
Upon hearing ........................ and upon reading the affidavit of ................. filed the ............... day of............20..........; 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
I
NTERROGATORIES (O. 11, r. 4.)
(Title as in No. 1, supra)
Interrogatories on behalf of the above-named [Plaintiff or defendant C. D.] for the examination of the above-named [defendants E.F. and G. H. or Plaintiff].
1. Did not, etc.
2. Has not, etc.
etc., etc., etc.
[The defendant E.F. is required to answer the interrogatories numbered.........................]
[The defendant G. H. is required to answer the interrogatories numbered ......................]
No. 3
A
NSWER 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 of the said interrogatories, I, the above-named E. F., make oath and say as follows: —
2 . Enter answers to interrogatories in paragraphs numbered consecutively.
3. I object to answer the interrogatories numbered on the ground that [state grounds of objection].
No. 4
O
RDER FOR AFFIDAVIT AS TO DOCUMENTS (O. 11, r. 12.)
(Title as in No. 1, supra)
Upon hearing..................; It is ordered that the...........do within..............form 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
A
FFIDAVIT AS TO DOCUMENTS (O. 11, r. 13.)
(Title as in No. 1, supra)
I, the above-named defendant C. D., make oath and say as follows : —
1. have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.
2. object to produce the said documents set forth in the second part of the first schedule hereto
[stale grounds of objection]
3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.
4. The last-mentioned documents were last in my possession or power on. [State when and what has become of them and in whose possession they now are].
5. According to the best of my knowledge, information and belief I have not now, and never had,
in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or
in the possession custody or power of any other person on my behalf, any account, book of account,
voucher, receipt, letter memorandum, paper or writing, or any copy of or extract from any such
document, or any other documents whatsoever, relating to the matters in question in this suit or any of
them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto.
No. 6
O
RDER TO PRODUCE DOCUMENTS FOR INSPECTION (O. 11, r. 14.)
(Title as in No. 1, supra)
Upon hearing..................and upon reading the affidavit of.................... filed the..................
day of...............20...............; 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 produce the documents so produced, and to make notices of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the costs of this application be............................
No. 7
N
OTICE 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
................20............ ].
[Describe documents required.]
X. Y, pleader for the..............
To Z., pleader for the...........
No. 8
N
OTICE 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.................20........... [except the documents numbered ...................in that notice 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...........20............ , 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 [as 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
N
OTICE TO ADMIT FACTS (O. 12, r. 5.)
(Title as in No. 1, supra)
Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff] to admit,
for the purposes of this suit only, the several facts respectively hereunder specified; and the defendant [or
plaintiff] is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this suit.
G.H. pleader [or agent] for plaintiff [or defendant].
To E.F., pleader [or agent] for defendant [or plaintiff].
The facts, the admission of which is required, are—
1. That M. died on the 1st January, 1890.
2. That he died intestate.
3. That N. was his only lawful son.
4. That O. died on the 1st April, 1896.
5. That O. was never married.
No. 11
A
DMISSION 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].
A
PPENDIX 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 ...................................
2 0 . . .
J u d g e .
Costs of Suit
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........
Total Total
No. 2
S
IMPLE 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....................20
J u d g e .
Costs of Suit
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 exhibit........... 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 .....
7. Service of process..............
Total Total
[No. 3
PRELIMINARY DECREE FOR FORECLOSURE
(Order XXXIV, rule 2.—Where accounts are directed to be taken.)
(Title)
This suit coming on this................................. day, etc.; It is hereby ordered and decreed that it be referred to...................... as the Commissioner to take the accounts following:—
(i) an account of what is due on this date to the plaintiff for principal and interest on his
mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent. per annum or at such rate as the Court deems
reasonable);
(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 wilful 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.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged
due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid
by the plaintiff under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, debited in reduction of the amount due to the plaintiff on
account of interest on the principal sum adjudged due, and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court
with all convenient despatch after making all just allowances on or before the..............................................................day of........... and that upon such report of the Commissioner
being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed—
(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 fined 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 or 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.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff
shall be at liberty to apply to the Court for a final decree that the defendant shall thenceforth stand
absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in
the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable
possession of the said property; and that the parties shall be at liberty to apply to the Court from time to
time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property]
[No. 3A
PRELIMINARY DECREE FOR FORECLOSURE
(Order XXXIV, rule 2.—Where the Court declares the amount due.)
(Title)
This suit coming on this................................ day, etc.; It is hereby declared that the amount due to the plaintiff on his mortgage mentioned in the plaint calculated up to this .................................................day of...................... is the sum of Rs......................... for principal, the sum of Rs.................... for interest on the said principal, the sum of Rs. ........................ for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs........ for the costs of this suit awarded to the plaintiff, making in all sum of Rs............
2. And it is hereby ordered and decreed as follows:—
(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 (5 of 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.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff
may apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred
and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed
hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said
property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property]
[No. 4
F
INAL 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].
2. And it is hereby further declared that the whole of the liability whatsoever of the defendant up to
this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.
Schedule
(Description of the Mortgage Property).]
[No. 5
P
RELIMINARY DECREE FOR SALE
(Order XXXIV, rule 4.—Where accounts are directed to be taken.)
(Title)
This suit coming on this....................................day, etc; It is hereby ordered and 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 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 wilful 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.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged
due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by
the plaintiff under clause (iii), together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on
account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the...............day of.........., and
that upon such report of the Commissioner being received, it shall be confirmed and countersigned,
subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed—
(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
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 quite and peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may
apply to the Court for a final decree for the sale of the mortgaged property; and on such application being
made the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of
such sale the plaintiff shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.
6. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into
Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the
amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit
and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the
suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil
Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be
sufficient or payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at
liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law
for the time being in force) to apply for a personal decree against the defendant for the amount of the
balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule Description of the mortgaged property.]
[No. 5A
PRELIMINARY DECREE FOR SALE
(Order XXXIV, rule 4.—When the Court declares the amount 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 ............
2. And it is hereby ordered and decreed as follows:—
(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, re-convey or re-transfer the said property free from the
said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming
under him or any person under whom he claims and shall, if so required, deliver up to the defendant quite and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff
may apply to the Court for a final decree for the sale of the mortgaged property; and on such application
being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the
purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into
Court and shall be duly applied (after deduction herefrom of the expenses of the sale) in payment of the
amount payable to the plaintiff under this decree and under any further orders that may be passed in this
suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such
costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with
such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the
Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be
sufficient or payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at
liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law
for the time being in force) to apply for a personal decree against the defendant for the amount of the
balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule Description of the mortgaged property.]
[No. 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 power relating to the mortgaged property.
2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into
the Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of
the amount payable to the plaintiff under the aforesaid preliminary decree and under any further orders
that may have been passed in this suit and in payment of any amount which the Court may have adjudged
due to the plaintiff for such costs of the suit including the costs of this application and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent interest as may be payable
under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.]
[No . 7
PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE
FOR FORECLOSURE IS PASSED
(Order XXXIV, rule 7.—Where accounts are directed to be taken.)
(Title)
This suit coming on this......... day, etc.; It is hereby ordered and decreed that it be referred to............ as the Commissioner to take the account following:—
(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 property 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.
2. It is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due
under clause (iv) above together with interest thereon, shall be adjusted against any sums paid by the
defendant under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the defendant on
account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the.............................day of....................., and that upon such report of the Commissioner being received, it shall be confirmed
and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed—
(i) that the plaintiff do pay into Court on or before the ......... day of ........., or any later date up to
which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs. ......... for the costs of the suit awarded to the defendant;
(ii) that, 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 in-cumbrances 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.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant
shall be at liberty to apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely
debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule
annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the
said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property]
[No. 7A
PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR
DECREE 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 all sums of money property 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.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged
due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid
by the defendant under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money, or, as the case may be, be debited in reduction of the amount due to the defendant
on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the ............... day of................ , and that, upon such report of the Commissioner being received, it shall be confirmed and
countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed—
(i) that the plaintiff do pay into Court on or before the ................... day of .............. or any
later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs. ..................... for the costs of the suit awarded to the defendant;
(ii) that, or such payment and on payment thereafter before such date as the Court may fix of such
amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and
expenses as may be payable under rule 10, together with such subsequent interest as may be payable
under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the
defendant shall bring into Court all documents in his possession or power relating to the mortgaged
property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said
property free from the said mortgage and clear of and from all incumbrances created by the defendant
or any person claiming under him or any person under whom the claims and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant
may apply to the Court for a final decree for the sale of the mortgaged property; and on such application
being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the
purposes of such sale the defendant shall produce before the Court or such officer as it appoints, all documents in his possession of power relating to the mortgaged property.
6. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into
Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the
amount payable to the defendant under this decree and under any further orders that may be passed in his
suit and in payment of any amount which the Court may adjudge due to the defendant in respect of such
costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such
subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code
of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to receive the same.
7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be
sufficient for payment in full of the amount payable to the defendant as aforesaid, the defendant shall be
at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law
for the time being in force) to apply for a personal decree against the plaintiff for the amount of the
balance; and the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
(Description of the mortgaged property).]
[No. 7B
P
RELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE
FOR FORECLOSURE IS PASSED
(Order XXXIV, rule 7.—Where the Court declares the amount due.)
(Title)
This suit coming on this .............. day, etc.; It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this ........ day of ............ is the sum of Rs. ............. for principal, the sum of Rs. ............ for interest on the said principal, the sum of Rs. ............ for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of the mortgage-security together with interest thereon, and the sum of Rs. .............
for the costs of the suit awarded to the defendant, making in all the sum of Rs. ...............
2. And it is hereby ordered and decreed as follows:—
(i) that the plaintiff do pay into Court on or before the............... day of ............. or any later date up to which time for payment may be extended by the Court the said sum of Rs. ...............
(ii) that, on such payment and on payment thereafter before such date as the Court may fix of
such amount as the Court may adjudge due in respect of such cost of the suit and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent interest as may be
payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908,
the defendant shall bring into Court all documents 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.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant
may apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and
foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed
hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said
property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property]
[No. 7C
PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE
FOR SALE IS PASSED
(Order XXXIV, rule 7.—Where the Court declares the amount due.)
(Title)
This suit coming on this ............... day, etc.; It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this ............ day of ........... is the sum of Rs. .............. for principal, the sum of Rs. ............ for interest on the said principal, the sum of Rs. .............. for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of mortgage-security together with interest thereon, and the sum of Rs. ............ for the cost of this suit awarded to the defendant, making in all the sum of Rs. ...............
2. And it is hereby ordered and decreed as follows:—
(i) that the plaintiff do pay into Court on or before the ............ day of ............... or any later date up to which time for payment may he 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, re-convey or re-transfer the said property to the plaintiff
free from the said mortgage and clear of and from all incumbrances created by the defendant or any
person claiming under him or any person under whom he claims and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant
may apply to the Court for a final decree for the sale of the mortgaged property; and on such application
being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the
purposes of such sale the defendant shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into
Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the
amount payable to the defendant under this decree and under any further orders that may be passed in this
suit and in payment of any amount which the Court may adjudge due to the defendant in respect of such
costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such
subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code
of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to the same.
5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be
sufficient for the payment in full of the amount payable to the defendant as aforesaid, the defendant shall
be at liberty (where such remedy is open to him under the terms of the mortgage and is not barred by any
law for the time being in force) to apply for a personal decree against the plaintiff for the amount of the
balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property]
[No. 7D
FINAL DECREE FOR FORECLOSURE IN A REDEMPTION SUIT ON DEFAULT OF PAYMENT BY MORTGAGOR
(Order XXXIV, rule 8.)
(Title)
Upon reading the preliminary decree in this suit on the ................. day of .............. and further order (if any) dated the ................. day of .................. , and the application of the defendant dated the ............. day of ................. for a final decree and after hearing the parties, and it appearing that
the payment 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 the said
mortgaged property) that the plaintiff shall deliver to the defendant quit and peaceable possession of the said mortgaged property].
2. And it is hereby further declared that the whole of the liability whatsoever of the plaintiff up to this
day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharge and extinguished.
[No. 7E
F
INAL DECREE FOR SALE IN A REDEMPTION ON 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 order (if any) dated the ................. day of .................... , and the application of the defendant dated the .................. day of ................... for a final decree and after hearing the parties,
and it appearing that the payment directed by the said decree and orders has not been made by the
plaintiff or any person on his behalf or any other person entitled to redeem the mortgage;
It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree
mentioned or a sufficient part thereof be sold and that for the purposes of such sale the defendant shall
produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.
2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into
Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the
amount payable to the defendant under the aforesaid preliminary decree and under any further orders that
may have been passed in this suit and in payment of any amount which the Court may have adjudged due
to the defendant for such costs of this suit including the costs of this application and such costs, charges
and expenses as may be payable under rule l0, together with the subsequent interest as may be payable
under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to receive the same.]
[No. 7F
FINAL DECREE IN A SUIT FOR FORECLOSURE, SALE OR REDEMPTION WHERE THE MORTGAGOR PAYS THE
AMOUNT OF THE DECREE
(Order XXXIV, rule 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 re-conveyance 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 acknowledgement of the payment of the amount due in his favour;
(ii) the mortgagee do bring into Court all documents in his possession and power relating to the mortgaged property in the suit.
2. And it is hereby further ordered and decreed that upon the mortgagee executing the deed of re-
conveyance or acknowledgement 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 re-conveyance or the acknowledgement 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].
[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 realisation of the said sum, and the costs of this application.]
[No. 9
PRELIMINARY DECREE FOR FORECLOSURE OF SALE
[Plaintiff . . . . . . . . . . . 1st Mortgagee,
vs Defendant No. 1 . . . . . . . . . . . Mortgagor, Defendant No. 2 . . . . . . . . . . . 2nd Mortgagee.]
(Order XXXIV, rules 2 and 4)
(Title)
The suit coming on this ................ day, etc; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this day of .................. is the sum of Rs. ....................... for principal, the sum of Rs. ...................... for interest on the said principal, the sum of Rs. .................. for costs, charges and expenses (other than the costs of the suit) incurred by the plaintiff in respect of the mortgage-security with interest thereon and 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.)
2. It is further declared that the plaintiff is entitled to payment of the amount due to him in priority to defendant No. 2
*
[or (if there are several subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively:—].
3. And it is hereby ordered and decreed as follows:—
(i) (a) that defendants or one of them do pay into Court on or before the ............................ day of ................ or any later date up to which time for payment has been extended by the Court the said sum of Rs. ................. due to the plaintiff; and
(b) that defendant No. 1 do pay into Court on or before the day of ......................... or any later date up to which time for payment has been extended by the Court the said sum of Rs. ............... due to defendant No. 2; and
(ii) that, on payment of the sum declared to be due to the plaintiff 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).
4. And it is hereby further ordered and decreed that, in default of payment as aforesaid of the amount due to the plaintiff, the plaintiff shall be at liberty to apply to the Court for a final decree—
(i) *[in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is foreclosure and not sale] that the defendants jointly and
severally shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem
the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver to
the plaintiff quiet and peaceable possession of the said property; or
(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 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 therefrom of the expenses of
the sale) in payment of the amount payable to the plaintiff under this decree and under any further
orders that may have been passed in this suit and in payment of the amount which the Court may
adjudge due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as
may be payable under rule 10, together with such subsequent interest as may be payable under
rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to defendant No. 2; and that if any balance be left, it shall be paid to the defendant No. 1 or other persons entitled to receive the same;
and
(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.
* Words not required to be deleted.
5. And it is hereby further ordered and decreed—
(a) that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in the payment of the said amount, defendant No. 2 shall
be at liberty to apply to the Court to keep the plaintiff's mortgage alive for his benefit and to apply for a final decree (in the same manner as the plaintiff might have done under clause 4 above)—
*[(i) that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and
from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to defendant No. 2 quiet and peaceable possession of the said
property;] or
*[(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.
6. And it is hereby further ordered and decreed * [in the case where a sale is ordered under clause 5
above]—
(i) that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount paid by defendant No. 2 in respect
of the plaintiff's mortgage and the costs of the suit in connection therewith and in payment of the
amount which the Court may adjudge due in respect of subsequent interest on the said amount; and that the balance, if any, shall then be applied in payment of the amount adjudged due to defendant No. 2 in
respect of his own mortgage under this decree and any further orders that may be passed and in payment
of the amount which the Court may adjudge due in respect of such costs of this suit and such costs, charges and expenses as may be payable to defendant No. 2 under rule 10, together with such
subsequent interest as may be payable under rule 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 No. 1 for the amount of the balance.
7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court
from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property
[No. 10
PRELIMINARY DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND FORECLOSURE OR SALE ON
SUBSEQUENT MORTGAGE
[Plaintiff . . . . . . . 2nd Mortgagee, vs.
Defendant No. 1. . . . . . . Mortgagor, Defendant No. 2 . . . . . . 1st Mortgagee].
(Order XXXIV, rules 2, 4, and 7)
(Title)
The suit coming on this ......... day, etc.; It is hereby declared that the amount due to defendant No. 2
on the mortgage mentioned in the plaint calculated up to this ............ day of ............... is the sum of Rs. ................. for principal, the sum of Rs. ................ for interest on the said principal, the sum of Rs. .............. for costs, charges and expenses (other than the costs of the suit) 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 thereunder has become payable at the date of the suit.)
2. It is further declared that defendant No. 2 is entitled to payment of the amount due to him in
priority to the plaintiff *[or ( if there are several subsequent mortgages) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively :—]
3. And it is hereby ordered and decreed as follows:—
(i) (a) that the plaintiff or defendant No. 1 or one of them do pay into Court on or before the ....
day of ................... or any later date up to which time for payment has 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 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 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 made the payment), or to such person as he appoints, and defendant No. 2 shall, if so required, reconvey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by defendant No. 2 or any person claiming
under him or any person under whom he claims, and also free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff or defendant No. 1
(whoever has made the payment) quiet and peaceable possession of the said property.
(Similar declarations) to be introduced, if defendant No. 1 pays the amount found or declared due the plaintiff with such variations as may be necessary having regard to the nature of his mortgage.)
4. And it is hereby further ordered and decreed that, in default of payment as aforesaid, of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court that the suit be dismissed or a final decree—
(i) *[in the case of a mortgage by conditional sale or an anomalous mortgage where the or 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 required, deliver to the defendant No. 2 quiet and peaceable possession of the said property; or
*
Words not required to be deleted.
(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
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 such
sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of sale) in payment of the amount payable to defendant No. 2 under the decree and any further orders that may be passed in this suit and in payment of the amount which the Court may adjudge due to defendant No. 2 in
respect of such costs of the suit and such costs, charges and expenses as may be payable to 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 applied in
payment of the amount due to the plaintiff and that, if any balance be left, it shall be paid 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 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.
5. And it is hereby further ordered and decreed,—
(a) that, if the plaintiff pays into Court to the credit of this suit the amount adjudged due to defendant No. 2 but defendant No. 1 makes default in the payment of the said amount, the plaintiff shall be at liberty to apply to the Court to keep defendant No. 2’s mortgage alive for his benefit and to apply for 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.
6. And it is hereby further ordered and decreed (in the case where a sale is ordered under clause 5
above)—
(i) that the money realised by such sale shall be paid into Court and be duly applied (after
deduction therefrom of the expenses of the sale) first in payment of the amount paid by the plaintiff in respect of defendant No. 2’s mortgage and the cost 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 by payable to the plaintiff under rule 10, together with
such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No. 1 or
other persons entitled to receive the same; and
* Words not required to be deleted
(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.
7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court
from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property]
[No. 11
PRELIMINARY DECREE FOR SALE
Plaintiff . . . . . . . Sub or derivative mortgagee vs.
[Defendant No. 1 . . . . . . Mortgagor, Defendant No. 2 . . . . . . Original Mortgagee.]
(Order XXXIV, rule 4)
(Title)
This suit coming on the ..................... 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.)
2. And it is hereby ordered and decreed as follows:—
(i) that defendant No. 1 do pay into Court on or before the said ............ day of ............ or any later date of up to which time for payment may be extended by the Court the said sum of Rs. ..........
due to defendant No. 2;
(Similar declarations to be introduced with regard to the amount due to the plaintiff, defendant No. 2
being at liberty to pay such amount.)
(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 encumbrances 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 interests as may be payable under rule 11, of Order XXXIV of
the First Schedule to the Code of Civil Procedure, 1908; and that the balance, if any, shall then be paid to defendant No. 2; and that if the amount paid into the Court be not sufficient to pay in full the
sum due to the plaintiff, the plaintiff shall be at liberty (if such remedy is open to him by the terms of
the mortgage and is not barred by any law for the time being in force) to apply for a personal decree against as defendant No. 2 for the amount of the balance.
3. And it is further ordered and decreed that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, the plaintiff shall bring into the Court all documents, etc.,
[as in sub-clause (ii) of clause 2].
4. And it is hereby further ordered and decreed that, in default of payment by defendant Nos. 1 and 2
as aforesaid, the plaintiff may apply to the Court for a final decree for sale, and on such application being
made the mortgaged property or a sufficient part thereof shall be directed to be sold; and that for the purposes of such sale the plaintiff and defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in their possession or power relating to the mortgaged property.
5. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into
Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the
amount due to the plaintiff as specified in clause 1 above with such costs of the suit and other costs, charges
and expenses as may be payable under rule 10, together with such subsequent interest as may be payable
under rule 11, of order) XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to defendant No. 2; and that, if any balance be left, it shall be paid to defendant No. 1 or other persons entitled to receive the same.
6. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amounts payable to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2, or both of them, as the case may be, shall be at liberty (if such remedy is open under
their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 2 or defendant No. 1 (as the case may be) for the amount of the balance.
7. And it is hereby further ordered and decreed that, if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in payment of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court for a final decree for foreclosure or sale (as the case may be)—(declarations in the ordinary form to be introduced according to the nature of defendant No. 2’s mortgage and the remedies open to him thereunder).
8. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court as
they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
Schedule
Description of the mortgaged property]
No. 12
D
ECREE FOR RECTIFICATION OF INSTRUMENT
(Title)
IT is hereby declared that ................ , dated the ................ day of ............... 20 ....... , does not truly express the intention of the parties to such .........................
And it is decreed that the said .................... be rectified by .......................
Here insert name of proper officer.
No. 13
D
ECREE TO SET ASIDE A TRANSFER IN FRAUD OF CREDITORS
(Title)
IT is hereby declared that the ............... , dated the ............... day of .......... 20 ........ , and made between ............... and ........... , is void as against the plaintiff and all other the creditors, if any,
of the defendant No. 14
I
NJUNCTION 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
I
NJUNTION 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 ..................... 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
I
NJUNCTION RESTRAINING USE OF PRIVATE ROAD
(Title)
LET the defendant ................. his agents, servants and workmen, be perpetually restrained from using or permitting to be used and 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
P
RELIMINARY DECREE IN AN ADMINISTRATION-SUIT
(Title)
IT is ordered that the following accounts and inquiries be taken and made; that is to say :—
In creditor’s suit—
1. That an account be taken of what is due to the plaintiff and all other the creditors of the deceased.
In suits by legatees—
2. That an accounts be taken of the legacies given by the testators will, In suits by next-of-kin—
3. That an inquiry be made and account taken of what or of what share, if any, the plaintiff is entitled to as next-of-kin [or one of the next-of-kin] of the intestate.
[After the first paragraph, the decree will, where necessary, order, in a creditor’s suit, inquiry and accounts for legatees, heirs-at-law and next-of-kin. In suits by claimants other than creditors, after the
first paragraph, in all cases, an order to inquire and take an account of creditors will follow the first paragraph and such of the others as may be necessary will follow, omitting the first formal words. The form is continued as in a creditor's suit.]
4. An account of the funeral and testamentary expenses.
5. An account of the movable property of the deceased come to the hands of the defendant, or to the hands of any other person by his order or for his use.
6. An inquiry what part (if any) of the movable property of the deceased is outstanding and undisposed of.
7. And it is further ordered that the defendant do, on or before the day of next, pay into, Court
all sums of money which shall be found to have come to his hands, or to the hands of any person by his order or for his use.
8. And that if the .............. * shall find it necessary for carrying out the objects of the suit to sell
any part of the movable property of the deceased that the same be sold accordingly, and the proceeds paid into Court.
9. And that Mr. E. F. be receiver in the suit (or proceeding) and receive and get in all outstanding debts and outstanding movable property of the deceased, and pay the same into the hands of the ...........
*(and shall give security by bond for the due performance of his duties to the amount of ........... rupees).
10. And it is further ordered that if the movable property of the deceased be found insufficient for
carrying out the objects of the suit, then the following further inquiries be made, and accounts taken, that is to say—
(a) an inquiry what immovable property the deceased was seized of or entitled to at the time of
his death;
(b) an inquiry what are the encumbrances (if any) affecting the immovable property of the
deceased or any part thereof;
(c) an account, so far as possible, of what is due to the several incumbrancers, and to include a
statement of the priorities of such of the incumbrancers as shall consent to the sale hereinafter directed.
11. And that the immovable property of the deceased, or so much thereof as shall be necessary to
make up the fund in Court sufficient to carry out the object of the suit, be sold with the approbation of the
Judge, free from incumbrances (if any) of such incumbrancers as shall consent to the sale and subject to the incumbrances of such of them as shall not consent.
12. And it is ordered that G. H. shall have the conduct of the sale of the immovable property, and shall prepare the conditions and contracts of sale subject to the approval of the ............... * and that in case any doubt or difficulty shall arise the papers shall be submitted to the Judge to settle.
13. And it is further ordered that, for the purpose of the inquiries hereinbefore directed, the ..........
*shall advertise in the newspapers according to the practice of the Court, or shall make such inquiries in any other way which shall appear to the .................. *to give the most useful publicity to such inquiries.
14. And it is ordered that the above inquiries and accounts be made and taken, and that all other acts ordered to be done be completed, before the day of ................ and that the ..................* do certify
the result of the injuries, and the accounts, and that all other acts ordered are completed, and have his certificate in that behalf ready for the inspection of the parties on the ................ day of ..............
*
Here insert name of proper officer.
15. And, lastly, it is ordered that this suit [or proceedings] stand adjourned for making final decree to the day of .........................
[Such part only of this decree is to be used as is applicable to the particular case.]
No. 18
F
INAL DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE
(Title)
1. It is ordered that the defendant .............. do, on or before the .............. day of ............ pay into Court the sum of Rs. .............. , the balance by the said certificate found to be due from the said defendant on account of the estate of ................. , the testator and also the sum of Rs. ......... for interest, at the rate of Rs. ................ per cent. per annum, from the ................. day of .............. to the ............. day of ............, amounting together to the sum of Rs. ....................
2. Let the .....................* of the said Court tax the costs of the plaintiff and defendant in this suit, and let the amount of the said costs, when so taxed, be paid out of the said sum of Rs. ................
ordered to be paid into Court as aforesaid, as follows:—
(a) The costs of the plaintiff to Mr. ..................., his attorney [or pleader] or and the costs of the defendant to Mr. .................. , his attorney [or pleader].
(b) And (if any debts are due) with the residue of the said sum of Rs. ................. after payment
of the plaintiff’s and defendant's costs as aforesaid let the sums, found to be owing to the several creditors mentioned in the schedule to the certificate, of the .............. .*, 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.
3. And if there should then be any residue, let the same be paid to the residuary legatee.
No. 19
P
RELIMINARY DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE, WHERE AN EXECUTOR IS HELD
PERSONALLY LIABLE FOR THE PAYMENT OF LEGACIES
(Title)
1. IT is declared that the defendant is personally liable to pay the legacy of Rs. ............ bequeathed to the plaintiff. —
2. And it is ordered that an account be taken of what is due for principal and interest on the said legacy.
3. And it is also ordered that the defendant do, within ................. weeks after the date of the certificate of the .............. *, pay to the plaintiff the amount of what the ................... * shall certify to be due for principal and interest.
4. And it is ordered that the defendant do pay the plaintiff his costs of suit, the same to be taxed in case the parties differ.
* Here insert name of proper officer.
No. 20
F
INAL DECREE IN AN ADMINISTRATION-SUIT BY NEXT-OF-KIN
(Title)
1. L
ET the ................. * of the said Court tax the costs of the “plaintiff and defendant in this suit,
and let the amount of the said plaintiff’s costs, when so taxed, be paid by the defendant to the plaintiff out of the sum of Rs. ................ , the balance, by the said certificate found to be due from the said defendant on account of the personal estate of E.F., the intestate, within one week after the taxation of the said costs by the said .................... *and let the defendant retain for her own use out of such sum her costs, when taxed.
2. And it is ordered that the residue of the said sum of Rs. ..................... after payment of the plaintiff’s and defendant’s costs as aforesaid, be paid and applied by defendant as follows:—
(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-of-kin of the said E.F., the intestate.
(b) Let the defendant retain for her own use one other third share of said residue, as the mother and one of the next-of-kin of the said E.F., the intestate.
(c) And let the defendant, within one week after the taxation of the said costs 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
P
RELIMINARY DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE TAKING OF PARTNERSHIP
ACCOUNTS
(Title)
I
T is declared that the proportionate shares of the parties in the partnership are as follows:—
It is declared that this partnership shall stand dissolved [or shall be deemed to have been dissolved] as from the .............. day of ............ and it is ordered that the dissolution thereof as from that day be advertised in the ...................... Gazette, etc.
And it is ordered that .................. be the receiver of the partnership-estate and effects in this suit and do get in all the outstanding book-debts and claims of the partnership.
And it is ordered that the following accounts be taken:—
1. An account of the credits, property and effects now belonging to the said partnership;
2. An account of the debts and liabilities of the said partnership;
3. An account of all dealings and transactions between the plaintiff and defendant, from the foot of
the settled account exhibited in this suit and marked (A), and not disturbing any subsequent settled accounts.
And it is ordered that the goodwill of the business heretofore carried on by the plaintiff and defendant as in the plaint mentioned; and the stock-in-trade, be sold on the premises, and that the .............. *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 ............
* Here insert name of proper officer.
No. 22
F
INAL DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE TAKING OF PARTNERSHIP ACCOUNT
(Title)
IT is ordered that the fund now in Court, amounting to the sum of Rs. ............... , be applied as follows:—
1. In payment of the debts due by the partnership set forth in the certificate of the * .................
amounting the whole to Rs. ...............
2. In payment of the costs of all parties in this suit, amounting to Rs. .................... [These costs must be ascertained before the decree is drawn up.]
3. In payment of the sum of Rs. ............... to the plaintiff as his share of the partnership-assets, of the sum of Rs. ................. , being the residue of the said sum of Rs. ............. now in Court, to the defendant as his share of the partnership-assets.
[Or, And that the remainder of the said sum of Rs. ............... be paid to the said plaintiff (or defendant) in part payment of the sum of Rs. .................. certified to be due to him in respect of the partnership-accounts.]
4. And that the defendant [or plaintiff] do on or before the ............ day of ............. pay to the plaintiff [or defendant] the sum of Rs. ............ being the balance of the said sum of Rs .............
due to him, which will then remain due.
No. 23
D
ECREE FOR RECOVERY OF LAND AND MESNE PROFIT
(Title)
I
T is hereby decreed as follows:—
1. That the defendant do put the plaintiff in possession of the property specified in the schedule hereunto annexed.
2. That the defendant do pay to the plaintiff the sum of Rs. .............. with interest thereon at the rate of ............. per cent. per annum to the date of realization on account of mesne profits which have accrued due prior to the institution of the suit.
Or
2. That an inquiry be made as to the account of mesne profits which have accrued due prior to the institution of the suit.
3. That an inquiry be made as to the amount mesne profits from the institution of the suit until [the delivery of possession to the decree-holder] [the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court] [the expiration of three years from the date of the decree].
Schedule
*
Here insert name of proper officer.
A
PPENDIX E
E
XECUTION
No. 1
NOTICE TO SHOW CAUSE WHY A PAYMENT OR ADJUSTMENT SHOULD NOT BE RECORDED AS CERTIFIED
(O.21, to r.2.)
(Title)
W
HEREAS 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.
G
IVEN under my hand and the seal of the Court, this .................... day of 20.
Judge.
No. 2
P
RECEPT (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 ............... 20
Judge.
No. 3
O
RDER SENDING DECREE FOR EXECUTION TO ANOTHER COURT
(O.21, r. 6.)
(Title)
W
HEREAS the decree-holder in the above suit has applied to this Court for a certificate to be sent to the Court of ..................... at ..................... for execution of the decree in the above suit by the said Court, alleging that the judgment-debtor resides or has property within the local limits, for 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 .................. 20 .............
Judge.
No. 4
C
ERTIFICATE OF NON-SATISFACTION OF DECREE
(O.21, r. 6.)
(Title)
C
ERTIFIED that no
satisfaction of the decree of this Court in suit No ................ of ........20 ........ , a copy which is hereunto attached, has been obtained by execution within the jurisdiction of this Court.
Dated the .................day of .................. 20 ..............
Judge.
1. If partial, strike out “no” and State to what extent.
No. 5
C
ERTIFICATE OF EXECUTION OF DECREE TRANSFERRED TO ANOTHER COURT
(O. 21, r. 6.)
(Title)
Number
of suit
and the
Court by
which the
decree
was
passed
Names
of
parties
Date of
application
for execution
Number of
the
execution
case
Processes
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. N.P.
Rs. N.P.
Signature of Muharrir in charge.
Signature of Judge.
No. 6
A
PPLICATION 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 of adjustment made if any
Previous
application, if any, with date and result
Amount with interest due upon the decree or other r
elief
granted thereby together with particulars of any cr oss decree.
Amount of costs, if any, awarded
Against whom to be executed
Mode in which the assistance of the Court is required.
1 2 3 4 5 6 7 8 9 10
789 of 1897 A.B. —Plaintiff C.D. —Defendant October 11, 1897 No. None R.s 72-4-0 recorded on application, dated the 4th M
arch,
Rs. 314-8-2 principal [interest at 6 per cent, per
annum, from date of decree till payment].
Rs. a. p
As awarded in the decree 47
10 4
Subsequently incurred 8
2 0
Total
55 12 4
Against the defendant C.D.
[When attachment and sale of movable property is sought.
I, Pray that the total amount of Rs.
[together with interest on the principal
sum up to date of payment] and the
cost of taking out this execution, be
realised by attachment and sale of
defendant’s movable property as per annexed list and paid to me.
[When attachment and sale of immovable property is sought.]
I Pray that the total amount of Rs.
[together with interest on the principal
sum up to date of payment] and the cost
of taking out this execution, be realised
by the attachment and sale of
defendant’s immovable property
specified at the foot of this application and paid to me.]
I ..................... declare that what is stated herein is true to the best of my knowledge and belief.
Signed , decree-holder.
Dated the ....................... day of ................. 20
[When attachment and sale of immovable property is sought.]
Description and specification of property The undivided one-third share of the judgment-debtor in a house situated in the village of .............
value Rs. 40, and bounded as follows:—
East by G’s house; west by H’s house; south by public road; north by private lane and J’s house.
I .................... declare that what is stated in the above description is true to the best of my
knowledge and belief, and so far as I have been able to ascertain the interest of the defendant in the property therein specified.
Signed.................., decree-holder.
No. 7
N
OTICE TO SHOW CAUSE WHY EXECUTION SHOULD NOT ISSUE
[(O. 21, r.16.)]
(Title)
To
W
HEREAS ..................... has made application to this Court for execution of decree in Suit No. .................. of 20...... , on the allegation that the said decree has been transferred to him by
assignment
[or without assignment], this is to give you notice that you are to appear before this Court
................ on the .............. day of ...................... 20................... , to show cause why execution should not be granted.
G
IVEN under my hand and the seal of the Court, this.............day of..............20.........
J u d g e.
No. 8
WARRANT OF ATTACHMENT OF MOVABLE PROPERTY IN EXECUTION OF A DECREE
FOR MONEY (O.21. r. 30.)
(Title)
T o
The Bailiff of the Court
W
HEREAS .............. was ordered by decree of this Court passed on the day of ................... 20 .................. in Suit No. ................ of............20 ............ , to pay to the plaintiff the sum of Rs. .................. as noted in the margin; and whereas the said sum of Rs. .............. has not been paid;
These are to command you to attach the movable property of the said ............ as set forth in the schedule hereunto annexed, or which shall be pointed out to you by the said ............... , and unless the said .............. shall pay to you the said sum of Rs. .................. together with Rs. ................ , the cost of
this attachment, to hold the same until further orders from this Court.
Decree
Principal
Interest
Costs
Cost of execution
Further interest
Total
You are further commanded to return this warrant on or before the...............day of.............20....
with an endorsement certifying the day on which and manner in which it has been executed, or why it has not been executed.
G
IVEN under my hand and the seal of the Court, this............day of...........20.......
Schedule J u d g e .
No. 9
W
ARRANT FOR SEIZURE OF SPECIFIC MOVABLE PROPERTY ADJUDGED BY DECREE
(O. 21, r. 31.)
(Title)
T o
The Bailiff of the Court,
W
HEREAS......................was ordered by decree of this Court passed on the.................. day of............20............, in Suit No............of 20....., to deliver to the plaintiff the movable property (or a..........share in the movable property) specified in the schedule hereunto annexed, and whereas the said property (or share) has not been delivered.
These are to command you to seize the said movable property (or a.........share of the said movable property) and to deliver it to the plaintiff or to such person as he may appoint in his behalf.
G
IVEN under my hand and the seal of the Court, this...........day of..................20............
Schedule J u d g e .
No. 10
N
OTICE TO STATE OBJECTIONS TO DRAFT OF DOCUMENT
(O. 21, r. 34.)
(Title)
T o
T
AKE notice that on the........day of.........20......., ..............................the decree-holder in the above suit presented an application to this Court that the Court may execute on your behalf a deed of......
whereof a draft is hereunto annexed, of the immovable property specified hereunder, and that the........day of.................20......, is appointed for the hearing of the said application, and that you are
at liberty to appear on the said day and to state in writing any objections to the said draft.
Description of property
G
IVEN under my hand and the seal of the Court, this............day of .............20...........
Judge.
No. 11
WARRANT TO THE BAILIFF TO GIVE POSSESSION OF LAND, ETC.
(O.21, r. 35.)
(T i t l e)
T o The Bailiff of the Court.
W
HEREAS the undermentioned property in the occupancy of...........................has been decreed to
............, the plaintiff in this suit; you are hereby directed to put the said..................in possession of
the same, and you are hereby authorized to remove any person bound by the decree who may refuse to vacate the same.
GIVEN under my hand and the seal of the Court, this ...................................... day of ...................... 20...........
Schedule J u d g e .
No. 12
NOTICE TO SHOW CAUSE WHY WARRANT OF ARREST SHOULD NOT ISSUE
(O. 21, r. 37.)
(Title)
T o
W
HEREAS .............................................. has made application to this Court for execution of decree in Suit No.
....................................of 20 .......................... by arrest and imprisonment of your person, you are hereby required to appear before this Court on the ................................... day of ...................... 20 ............................ , to show cause why you should not be committed to the civil prison in execution of the said decree.
GIVEN under my hand and the seal of the Court, this ................................day of ...............................20........
J u d g e .
No. 13
WARRANT OF ARREST IN EXECUTION
(O. 21, r. 38.)
(Title)
T o The Bailiff of the Court.
WHEREAS .... ...........was adjudged by a decree of this Court in suit No .................. of ..................... 20.... , dated
Decree the.............day of...............20.............,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 judgement-debtor and unless the said judgment-debtor shall pay to you the said sum of Rs......
together with Rs...............for the cost of executing this process,
to bring the said defendant before the Court with all convenient speed.
You are further commanded to return this warrant on or before the..................day of....................20....................,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.
Principal
Interest
Costs
Execution
Total
Given under my hand and the seal of the Court, this ................................. day of ............................... 20...............
Judge.
No. 14
WARRANT OF COMMITTAL OF JUDGEMENT-DEBTOR TO JAIL
(O.21, r. 30.)
(Title)
T o
The Officer in charge of the Jail at
W
HEREAS............................................. who has been brought before this Court this.................................day
of...................20............, under a warrant in execution of a decree which was made and pronounced by the said Court on the ................................... day of .................................20............., and by which decree it was ordered that the said.......................... should pay ...............................; And whereas the said.................................has not obeyed
the decree nor satisfied the Court that he is entitled to be discharged from custody; You are hereby
***
commanded and required to take and receive the said.....................into the civil prison and keep him imprisoned therein for a period not exceeding..................or until the said decree shall be fully satisfied, or the said......................shall be otherwise entitled to be released according to terms and provisions of
section 58 of the Code of Civil Procedure, 1908; and the Court does hereby fix
*** per diem as the rate of the monthly allowance for the subsistence of the said...........during his confinement under this warrant of committal.
GIVEN under my signature and the seal of the Court, this............day of...............20........
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
U
NDER orders passed this day, you are hereby directed to set free.......................judgment-debtor now in your custody.
D a t e d J u d g e .
No. 16
A
TTACHMENT IN EXECUTION
PROHIBITORY ORDER, WHERE THE PROPERTY TO BE ATTACHED CONSISTS OF MOVABLE PROPERTY TO WHICH THE
DEFENDANT IS ENTITLED SUBJECT TO A LIEN OR RIGHT OF SOME OTHER PERSON TO THE IMMEDIATE POSSESSION THEREOF
(O. 21, r. 46.)
(Title)
T o
W
HEREAS..................................................................has failed to satisfy a decree passed against...............on the.....................day of.........................20..........., in Suit No.......of......
20..., 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.
G
IVEN under my hand and the seal of Court, this......................day of.............20...................
Judge.
[No. 16A
AFFIDAVIT OF ASSETS TO BE MADE BY A JUDGMENT-DEBTOR
ORDER XXI, RULE 41(2)]
In the Court of A.B................................ Decree-holder Vs.
C................................. Judgment-debtor
I of
state on
as follows:—
1. My full name is .......................................
(Block capitals)
2. I live at
*3. I am........................... married
single
widower (widow)
divorced
4. The following persons are dependent upon me:—
5. My employment, trade or profession is that of....................
carried on by me at ....................
I am a director of the following companies:—
6. My present annual/monthly/weekly income, after paying income-tax, is as follows:—
(a) From my employment, trade or profession Rs. ....................
(b) From other sources Rs. ....................
*7. (a) I own the house in which I live; its value is Rs. ....................
I pay as outgoings by way of rates, mortgage, interest, etc., the annual sum of Rs. ....................
(b) I pay as rent the annual sum of Rs. ....................
8. I possess the following:—
(a) Banking accounts;
(b) Stocks and shares;
(c) Life and endowment policies;
(d) House property; Give particulars
(e) Other property;
(f) Other securities;
9. The following debts are due to me:—
(give particulars)
(a) From of Rs.
(b) From of Rs. (etc.)
Sworn before me, etc.]
No. 17
A
TTACHMENT IN EXECUTION
PROHIBITORY ORDER WHERE THE PROPERTY CONSISTS OF DEBTS NOT SECURED
BY NEGOTIABLE INSTRUMENTS
(O. 21, r. 46.)
(Title)
T o
W
HEREAS..............................has failed to satisfy a decree passed against.................................on the................day of.........20..........., in Suit No..........of 20............., 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 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.
G
iven under my hand and the seal of the Court, this..............day of..........20............
Judge.
No. 18
A
TTACHMENT IN EXECUTION PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF SHARES IN THE
CAPITAL OF A CORPORATION
(O. 21, r. 46.)
(Title)
T o
Defendant and to........................., Secretary of Corporation.
W
HEREAS...........has failed to satisfy a decree passed against....................on the................day of.........20......, in Suit No...............of 20........, 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 and 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.
G
IVEN under my hand and the seal of the Court, this............day of............20........
J u d g e .
No. 19
ORDER TO ATTACH SALARY OF PUBLIC OFFICER OR SERVANT OF RAILWAY COMPANY OR LOCAL AUTHORITY
(O. 21, r. 48.)
(Title)
T o
WHEREAS........................, judgment-debtor in the above-named case; is a (describe office of judgment-debtor) receiving his salary (or allowances) at your hands; and whereas.................., decree-
holder in the said case, has applied in this Court for the attachment of the salary (or allowances)
of the said...............to the extent of............due to him under the decree; You are hereby required to
withhold the said sum of...........from the salary of the said........in monthly instalments of......and to remit the said sum (or monthly instalments) to this Court.
G
IVEN under my hand and the seal of the Court, this..........day of............20..............
J u d g e .
No. 20
ORDER OF ATTACHMENT OF NEGOTIABLE INSTRUMENT
(O. 21, r. 51.)
(Title)
To
The Bailiff of the Court,
W
HEREAS an order has been passed by this Court on the.................day of..........20..........., for the attachment of............; You are hereby directed to seize the said.....................and bring the same into Court.
G
IVEN under my hand and the seal of the Court, this.............day of...............20..........
J u d g e .
No. 21
A
TTACHMENT
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF MONEY OR OF ANY SECURITY IN THE CUSTODY
OF A COURT OF JUSTICE OR
[PUBLIC OFFICER]
(O. 21, r. 52.)
(Title)
To
Sir,
The plaintiff having applied, under rule 52 of Order XXI of the Code of Civil Procedure, 1908, for an
attachment of certain money now in yours hands (here state how the money is supposed to be in the hands of the person addressed, on what account, etc.), I request that you will hold the said money subject to the further order of this Court.
I have the honour to be,
Sir Your most obedient Servant.
Dated the..........day of.........20......... Judge.
No. 22
N
OTICE 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.....................20...........by................in Suit No............of 20.....................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.......20...........
No. 23
N
OTICE 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............20..............................., in the Court of...................in Suit No.......of 20.........., 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.
G
IVEN under my hand and the seal of the Court, this..........day of.............20.............
J u d g e .
No. 24
ATTACHMENT IN EXECUTION
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF IMMOVABLE PROPERTY
(O. 21, r. 54.)
(Title)
T o
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant
W
HEREAS you have failed to satisfy a decree passed against you on the....................................day of..............20..........., in Suit No..........of.........20.............. , 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, or gift otherwise.
[It is also ordered that you should attend Court on the....................................................day of ..............20........., to take notice of the date fixed for settling the terms of the proclamation of sale.]
GIVEN under my hand and seal of the Court, this............day of.........20.............
Schedule J u d g e .
No. 25
O
RDER FOR PAYMENT TO THE PLAINTIFF, ETC., OF MONEY, ETC., IN THE HANDS OF A THIRD PARTY
(O.21, r. 56.)
(Title)
T o
W
HEREAS the following property.....................................has been attached in execution of a decree in Suit No...................of 20........., passed on the...............day of 20......... , 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.............
G
IVEN under my hand and the seal of the Court, this........................day of.........20..........
J u d g e .
No. 26
N
OTICE TO ATTACHING CREDITOR
(O. 21, r. 58.)
(Title)
T o
W
HEREAS.................................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......... 20.........
this is to give you notice to appear before this Court on.............., the.............day of........20............, either in person or by a pleader of the Court duly instructed to support your claim, as attaching creditor.
G
IVEN under my hand and the seal of the Court, this...........day of..........20...........
J u d g e .
No . 2 7
WARRANT OF SALE OF PROPERTY IN EXECUTION OF A DECREE FOR MONEY
(O. 21, r. 66.)
(Title)
T o The Bailiff of the Court.
T
HESE are to command you to sell by auction, after giving............day's 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 20................ , in execution of a decree in favour of...............in Suit No.............of 20............, 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............. .......20
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.........20...........
J u d g e .
No. 28
N
OTICE OF THE DAY FIXED FOR SETTLING A SALE PROCLAMATION
(O. 21, r. 66.)
(Title)
T o
......................................................................................................... Judgment-debtor.
W
HEREAS in the above-named suit............................., the decree-holder, has applied for the sale of.................. You are hereby informed........................that the..............day of............ 20 , 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............20.........
J u d g e .
No. 29
P
ROCLAMATION OF SALE
(O. 21, r. 66)
(Title)
(1) Suit No......................of 20..........., decided by the...........of.........in which was plaintiff and was defendant.—Notice is hereby given that, under rule 64 of Order XXI of the Code of Civil
Procedure, 1908, an order has been passed by this Court for the sale of the attached property mentioned in the annexed schedule, in satisfaction of the claim of the decree-holder in the suit (1) mentioned in the margin, amounting with costs and interest up-to date of sale to the sum of...............................
The sale will be by public auction, and the property will be put up for sale in the lots specified in the schedule. The sale will be of the property of the judgment-debtors above-named as mentioned in the
schedule below; and the liabilities and claims attaching to the said property, so far as they have been ascertained, are those specified in the schedule against each lot.
In the absence of any order of postponement, the sale will be held by.................at the monthly sale commencing at........... O'clock on the...............at................, In the event, however, of the
debt above specified and of the costs of the sale being tendered or paid before the knocking down of any lot, the sale will be stopped.
At the sale the public generally are invited to bid, either personally or by duly authorized agent. No bid by, or on behalf of, the judgment-creditors above-mentioned, however, will be accepted, nor will any sale to them be valid without the express permission of the Court previously given. The following are the further.
Conditions of sale
1. The particulars specified in the schedule below have been stated to the best of the information of the Court, but the Court will not be answerable for any error, mis-statement or omission in this proclamation.
2. The amount by which the biddings are to be increased shall be determined by the officer conducting the sale. In the event of any dispute arising as to the amount bid, or as to the bidder, the lot shall at once be again put up to auction.
3. The highest bidder shall be declared to be the purchaser of any lot, provided always that he is
legally qualified to bid, and provided that it shall be in the discretion of the Court or officer holding the
sale to decline acceptance of the highest bid when the price offered appears so clearly inadequate as to make it advisable to do so.
4. For reasons recorded, it shall be in the discretion of the officer conducting the sale to adjourn it subject always to the provisions of rule 69 of Order XXI.
5. In the case of movable property, the price of each lot shall be paid at the time of sale or as soon
after as the officer holding the sale directs, and in default of payment the property shall forthwith be again put up and re-sold.
6. In the case of immovable property, the person declared to be the purchaser shall pay immediately after such declaration a deposit of 25 per cent. on the amount of his purchase-money to the officer
conducting the sale, and in default of such deposit the property shall forthwith be put up again and re-sold.
7. The full amount of the purchase-money shall be paid by the purchaser before the Court closes on
the fifteenth day after the sale of the property, exclusive of such day, or if the fifteenth day be a Sunday or other holiday, then on the first office day after the fifteenth day.
8. In default of payment of the balance of purchase-money within the period allowed, the property shall be re-sold after the issue of a fresh notification of sale. The deposit, after defraying the expenses of
the sale, may, if the Court thinks fit, be forfeited to Government and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.
Given under my hand and the seal of the Court, this.............day of..........20........
Judge.
Schedule of Property
Number of
lot Description of pro-
perty 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 encum-
brances to
which the
property is
liable
Claims, if any,
which have been put forward to the pro-
perty and any other
known particulars
bearing on its
nature and value
[The value of the pro-
perty as
stated by the
decree holder
The value of the
property as
stated by the judgment-
debtor.]
No. 30
O
RDER ON THE NAZIR FOR CAUSING SERVICE OF PROCLAMATION OF SALE
(O. 21, r. 66.)
(Title)
T o
The Nazir of the Court.
W
HEREAS 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.........20..........., 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..................20..........
Schedule Judge.
No. 31
C
ERTIFICATE 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 in the price of the said property amounting to Rs........................., and that the expenses attending such re-sale amounted to Rs....... , making a total of Rs..............., which sum is recoverable from the defaulter.
Dated the............. day of............ 20........
Officers holding the sale.
No. 32
N
OTICE TO PERSON IN POSSESSION OF MOVABLE PROPERTY SOLD IN EXECUTION
(O.21, r, 79.)
(Title)
T o
W
HEREAS...........................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............20........
J u d g e .
No. 33
P
ROHIBITORY ORDER AGAINST PAYMENT OF DEBTS SOLD IN EXECUTION
TO ANY OTHER THAN THE PURCHASER
(O. 21, r. 79.)
(Title)
T o
and to
W
HEREAS...............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 my hand and the seal of the Court, this............day of...........20........
J u d g e .
No. 34
P
ROHIBITORY ORDER AGAINST THE TRANSFER OF SHARE SOLD IN EXECUTION
(O. 21, r. 79.)
(Title)
T o
........................................and.................................., Secretary of.........................................Corporation.
W
HEREAS.............has become the purchaser at a public sale in execution of the decree, in the above suit, of certain shares in the above Corporation, that is to say, of.......................standing in the name of you...............; It is ordered that you...................be, and you are hereby, prohibited from making any transfer of the said shares to any person except the said....................., the purchaser aforesaid, or from receiving any dividends thereon; and you..............., Secretary of the said Corporation, from permitting any such transfer or making any such payment to any person except the said.................., the purchaser aforesaid.
Given under my hand and the seal of the Court, this...........day of ..............20.........
J u d g e .
No. 35
C
ERTIFICATE TO JUDGMENT-DEBTOR AUTHORISING HIM TO MORTGAGE LEASE OR SELL PROPERTY
(O. 21, r. 83.)
(Title)
T o
W
HEREAS in excecution of the decree passed in the above suit an order was made on the............day of.................20........, for the sale of the under-mentioned property of the judgment-debtor........, and whereas the Court has, on the application of the said judgment-debtor, postponed the said sale to enable
him to raise the amount of the decree by
mortgage, lease or private sale of the said property or of some
part thereof:
This is to certify that the Court doth hereby authorize the said judgment-debtor to make the proposed mortgage, lease or sale within a period of....... from the date of this certificate; provided that
all monies payable under such mortgage, lease or sale 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...........20.....
J u d g e .
No. 36
N
OTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE
(O. 21, rr. 90, 92.)
(Title)
T o
W
HEREAS the under-mentioned property was sold on the..........day of.................. 20....... ......, 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............20........., when the said application will be heard and determined.
Given under my hand and the seal of the Court, this............day of.............20......
Description of property J u d g e .
No. 37
N
OTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE
(O. 21, rr. 91, 92.)
(Title)
To
W
HEREAS...............the purchaser of the under-mentioned property sold on the.................. day of
......20........., 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............20........., when the said application will be heard and determined.
Given under my hand and the seal of the Court, this............day of............20.......
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.............20.........of....................in execution of decree in this 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............20......
Judge.
No. 39
O
RDER FOR DELIVERY TO CERTIFIED PURCHASER OF LAND AT A SALE IN EXECUTION
(O. 21, r. 95.)
(Title)
T o The Bailiff of the Court.
WHEREAS.........................................has become the certified purchaser of.......................at a sale in execution of decree in Suit No...............of.................20...........; 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............20........
Judge.
No. 40
SUMMONS TO APPEAR AND ANSWER CHARGE OF OBSTRUCTING EXECUTION OF DECREE
(O. 21, r. 97.)
(Title)
T o
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
W
HEREAS.................................,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...............20...............
at..................
A.M., to answer the said complaint.
Given under my hand and the seal of the Court, this...........................day of............20..........
Judge.
No. 41
WARRANT OF COMMITTAL
(O. 21, r. 98.)
(Title)
To The Officer in Charge of the Jail at.................................................................................
W
HEREAS 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 the Civil prison;
You are hereby commanded and required to take and receive the said........................ into the civil prison and to keep him imprisoned therein for the period of.............days.
G
IVEN under my hand and the seal of the Court, this.............day of........................20........
Judge.
No . 4 2
A
UTHORITY OF THE COLLECTOR TO STAY PUBLIC SALE OF LAND
(Section 72)
(Title)
To
..Collector of
S
IR, 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
W
ARRANT OF ARREST BEFORE JUDGMENT
(O. 38, r. 1.)
(Title)
To The Bailiff of the Court.
W
HEREAS............................, the plaintiff in the above suit, claims the sum of Rs. ............
G
IVEN under my hand and the seal of the Court, this......................... Day of ...............20...
Judge.
No. 2
S
ECURITY FOR APPEARANCE OF A DEFENDANT ARRESTED BEFORE JUDGMENT
(O. 38, r. 2.)
(Title)
WHEREAS at the instance of..................., the plaintiff in the above suit, the
defendant, has been arrested and brought before the Court;
And whereas on the failure of the said defendant to show cause why he should not furnish security for
his appearance, the Court has ordered him to furnish such security:
Therefore I.....................have voluntarily become surety and do hereby bind myself, my heirs and
executors, to the said Court, that the said defendant shall appear at any time when called upon while the
suit is pending and until satisfaction of any decree that may be passed against him in the said suit; and in
default of such appearance I bind myself, my heirs and executors, to pay to the said Court, at its order, any sum of money that may be adjudged against the said defendant in the said suit.
Witness my hand at..................this...............day of.............20........
(Signed.)
Witnesses.
1.
2.
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.
Principal
Interest
Costs
T
OTAL
No. 3
S
UMMONS TO DEFENDANT TO APPEAR ON SURETY’S APPLICATION FOR DISCHARGE
(O . 38, r. 3.)
(Title)
To
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
WHEREAS......................................., who became surety on the...........................day of..........
20....for your appearance in the above suit, has applied to this Court to be discharged from his obligation.
You are hereby summoned to appear in this Court in person on the.........................................day of..................20......at.......A. M., when the said application, will be heard and determined.
G
IVEN under my hand and the seal of the Court, this...............day of............20.....
Judge.
No. 4
O
RDER FOR COMMITTAL
(O. 38, r. 4.)
(Title)
T o
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
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 the civil prison until the decision of the suit; or, if judgment be pronounced against him, until satisfaction of the decree.
G
IVEN under my hand and the seal of the Court, this.............day of................20.........
Judge.
No. 5
A
TTACHMENT BEFORE JUDGMENT, WITH ORDER TO CALL FOR SECURITY FOR FULFILMENT OF DECREE
(O. 38, r. 5.)
(Title)
T o The Bailiff of the Court.
W
HEREAS.......................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......................20....................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....... 20....... , 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.
G
IVEN under my hand and the seal of the Court, this....................day of............20..........
J u d g e .
No. 6
SECURITY FOR THE PRODUCTION OF PROPERTY
(O. 38, r. 5.)
(Title)
W
HEREAS 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..........................20.........
(Signed.)
Witnesses.
1.
2.
No. 7
A
TTACHMENT BEFORE JUDGMENT, ON PROOF OF FAILURE TO FURNISH SECURITY
(O. 38, r. 6.)
(Title)
T o The Bailiff of the Court.
W
HEREAS........................, the plaintiff in this suit, has applied to the Court to call upon........
the defendant, to furnish security to fulfil any decree that may be passed against him in the suit, and whereas the Court has called upon the said...............................to furnish such security, which he has failed to do; these are to command you to attach.............., the property of the said.........., and keep the
same under safe and secure custody until the further order of the Court, and you are further commanded to return this warrant on or before the..............day of................20....................................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............20.........
Judge.
No. 8
T
EMPORARY INJUNCTIONS
(O. 39, r. 1.)
(Title)
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 a Taluk of.............. , and from selling the materials where of the said house is composed, until the hearing of this suit or until the further order of this Court.
Dated this......................day of.............20.......
J u d g e .
[Where the injunction is sought to restrain the negotiation of a note or bill, the ordering part of the order may run thus:—]
..................to restrain the defendant................. and..........................from parting without of
the custody of them or any of them or endorsing, assigning or negotiating the 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 maybe] upon the principle of the inventions in
the plaintiff's plaint [or petition, etc., or written statement, etc.,] mentioned, belonging to the plaintiffs, or either of
them, during the remainder of the respective terms of the patents in the plaintiff's plaint [or as the case may be]
mentioned, and from counterfeiting, imitating or resembling the same inventions, or either of them, or making any addition thereto, or subtraction therefrom, until the hearing, etc.
[In cases of Trade marks]...............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.
[9]
APPOINTMENT OF A RECEIVER
(O . 40, r. 1.)
(Title)
T o
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
WHEREAS...................has been attached in execution of a decree passed in the above suit on the...........
day of................20........, 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.
G
IVEN under my hand and the seal of the Court, this..............day of..........20
Judge.
No.
[10]
BOND TO BE GIVEN BY RECEIVER
(O. 40, r. 3.)
(Title)
K
NOW 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...............20...........
WHEREAS a plaint has been filed in the Court by..........against...............for the purpose of [here
insert the object of suit]:
1. The number of the Form, originally misprinted as 6, was corrected by Act 10 of 1914, s. 2 and the First Sch.
2. The number of the Form, originally misprinted as 7, was corrected by Act 10 of 1914, s. 2 and the First Sch.
And whereas the said...................has been appointed, by order of the above-mentioned Court, to
receive the rents and profits of the immovable property and to get in the outstanding movable property of.................in the said plaint named:
Now the condition of this obligation is such, that if the above-bounden.........shall duly account for
all and every the sum and sums of money which he shall so receive on account of the rents and profits of the immovable property, and in respect of the movable property, of the said..........at such periods as the said
Court shall appoint, and shall duly pay the balances which shall from time to time be certified to be due from him
as the said Court hath directed or shall hereafter direct, then this obligation shall be void, otherwise it shall remain in full force.
Signed and delivered by the above-bounden in the presence of........................
NOTE.—If deposit of money is made, the memorandum thereof should follow the terms of the condition of the bond.
A
PPENDIX 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................. 20......
dated the...................day of..................20.........,and sets forth the following grounds of objection to the decree appealed from, namely:—
No. 2
S
ECURITY 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............................20..................having sued
.................... , the defendant, in this Court and a decree having been passed on the...................day of..................20......, in favour of the plaintiff, and the defendant having preferred an appeal from the said decree in the......... Court, the said appeal is still pending.
Now the plaintiff decree-holder having applied to execute the decree, the defendant has made an application praying for stay of execution and has been called upon to furnish security. Accordingly I, of my own free will, stand security to the extent of Rs. ....................,mortgaging the properties specified in the schedule
hereunto annexed, and covenant that if the decree of the first Court be confirmed or varied by the Appellate
Court 'the said defendant shall duly act in accordance with the decree of the Appellate Court and shall pay
whatever may be payable by him thereunder, and if he should fail 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..................20..........
Schedule
(Signed.)
Witnessed by
1.
2.
No. 3
S
ECURITY BOND TO BE GIVEN DURING THE PENDENCY OF APPEAL
(O. 41, r. 6.)
(Title)
T o
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
T
HIS security bond on stay of execution of decree executed by witnesseth:—
That..................., the plaintiff in Suit No........................of........................20.......
having sued.................., defendant,, in this Court and a decree having been passed on the
......................day of ............................20......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 realised 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
...................20.......
Schedule
(Signed.)
Witnessed by
1.
2.
No. 4
S
ECURITY 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
.....................20......, 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 realised 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................20........
Schedule
Witnessed by
1.
2. (Signed.)
No. 5
I
NTIMATION TO LOWER COURT OF ADMISSION OF APPEAL
( O. 41 , r. 1 3. )
(Title)
T o
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
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.......................20.............
You are requested to send with all practicable despatch all material papers in the suit.
Dated the..................day of....................20...................
J u d g e .
No. 6
N
OTICE 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................20.........
T o
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.........
20........... 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.
G
IVEN under my hand and the seal of the Court, this............day of........................20......
Judge.
[N
OTE—If a stay of execution has been ordered intimation should be given of the fact on this notice.]
No. 7
N
OTICE 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)
T o
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
W
HEREAS you were a party in Suit No.........................of.....................20........., 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:
T his i s to g i ve yo u no t i ce th at t hi s Co ur t h as d i r ected yo u to b e mad e a r esp o nd e n t i n the said appeal and has adjourned the hearing thereof till the.........................day of.................20......., at........
A. M. If no appearance is made on your behalf on the said day and at the said hour the appeal will be heard and decided in your absence.
GIVEN under my hand and the seal of the Court, this..............day of................20....................
Judge.
N o . 8
M
EMORANDUM OF CROSS OBJECTION
(O. 41, r. 22.)
(Title)
WHEREAS the..................has preferred an appeal to the.....................Court...............
at............from the decree of............in Suit No...........................of...............20..........
dated the.................. day of................................20.................., and whereas notice of the day fixed for hearing the appeal was served......................................on the...............................day of........................20..........., 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:—
N o . 9
DECREE IN APPEAL
(O. 41, r. 35.)
(Title)
Appeal No. .........................of ...........20.................................from the decree of the Court of
....................dated the...................day of........................20..............
Memorandum of Appeal.
Plaintiff.
versus Defendant.
The.............................above-named appeals to the.........................Court at..................from the decree of......................in the above suit dated the............................day of...............
20............., for the following reasons, namely:—
This appeal coming on for hearing on the......................day of................20................., before in the presence of.............or the appellant and of............................for the respondent, it is ordered—
The costs of this appeal, as detailed below, amounting to Rs................................are to be paid by...........................The cost of the original suit are to be paid by.............................
G
IVEN under my hand this.............................day of...........................20.............
J u d g e .
Costs of Appeal
Appellant Amount Respondent Amount
1. Stamp for memorandum of appeal...
2. Do. for power............
3. Service of processes..........
4. Pleader's fee on Rs. ..............
Rs. A. P. Stamp for power.........
Do. for petition........
Service of processes.....
Pleader’s fee on Rs. ......
Rs. A. P.
TOTAL TOTAL
No . 1 0
A
PPLICATION 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 movable and immovable property belonging to me with the estimated value thereof.
Dated the.........................day of.......................20...................
(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
N
OTICE 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....................... 20.......................
and whereas the........................day of...............20.........................., 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.............................20....
Judge.
No. 12
NOTICE TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO THE
[SUPREME COURT] SHOULD NOT BE GRANTED
(O. 45, r. 3.)
(Ti tl e)
T o
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
[TAKE notice that...............................................................................has applied to this Court for a certificate—
(i) that the case involves a substantial question of law of general importance, and
(ii) that in the opinion of this Court the said question needs to be decided by the Supreme Court.]
The .................................day of.......................20..........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..............................20....
Registrar.
No. 13
N
OTICE TO RESPONDENT OF ADMISSION OF APPEAL TO THE
[SUPREME COURT]
(O. 45, r. 8.)
(Title)
T o
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
W
HEREAS.......................................
.
, the....................in the above case, has furnished the security
and made the deposit required by Order XLV, rule 7, of the Code of Civil Procedure, 1908:
Take notice that the appeal of the said...........................to
[the Supreme Court] has been admitted on the.....................day of.....................20.........
G
IVEN under my hand and the seal of the Court, this................. day of.............................20...
Registrar.
No. 14
N
OTICE TO SHOW CAUSE WHY A REVIEW SHOULD NOT BE GRANTED
(O. 47, r. 4.)
(Title)
T o
T
AKE notice that..............................has applied to this Court for a review of its decree passed on the...........................day of.................................. 20........................ in the above case. The
...................day of..........................20.....................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.........................20....
Judge.
A
PPENDIX 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............................20.........................and filed as Exhibit.............................in the said
suit, is or is not beyond the statute of limitation (or state the point at issue whatever it may be):
We therefore severally bind ourselves that, upon the finding of the Court in the negative [or affirmative]
of such issue,.........................will pay to the said..............the sum of Rupees......................
(or such sum as the Court shall hold to be due thereon), and I, the said.................. , will accept the said sum of Rupees....................(or such sum as the Court shall hold to be due) in full satisfaction of my claim on the bond aforesaid [or that upon such finding I, the said......................., will do or abstain from doing, etc., etc.]
Plaintiff.
versus Defendant.
Witnesses:—
1.
2.
Dated the.....................................day of........................20.................
No. 2
N
OTICE 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.......20.......
To
W
HEREAS an application, dated the......................day of............................20..............., has been made to this Court by................the...............................in Suit No..............................of
20...............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........................20.....................has been fixed for the hearing of the application, when you will be heard if you desire to offer any objection to it.
G
IVEN under my hand and the seal of the Court, this.............day of...........................20.........
Judge.
[No. 2A
LIST OF WITNESSES PROPOSED TO BE CALLED BY PLAINTIFF/DEFENDANT
(O. XVI, r. 1.)
Name of the party
which proposes to
call the witness
Name and address
of the witness
Remarks]
No. 3
N
OTICE 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.
X Y, Pleader for the defendant.
To Z., Pleader for the plaintiff.
No. 4
N
OTICE To SHOW CAUSE (GENERAL FORM)
(Title)
T o
W
HEREAS the above-named................................................has made application to this Court that............................;
Yo u ar e her eb y war ned to ap p ear in this Co ur t i n p er so n o r b y a p lead er d uly instr ucted o n the
.... . . . .. . .. . .. . .. . .. . .. . .. . .. . .. . .day of.....................20......, at........O’clock in the forenoon, to show cause against the application, failing wherein, the said application will be heard and determined ex parte.
G
IVEN under my hand and the seal of the Court, this..................day of..........20.............
J u d g e .
N o . 5
PLAINTIFF
LIST OF DOCUMENTS PRODUCED BY
(O. 13, r. 1.)
DEFENDANT
(Ti tl e)
No .
De s c r i pt i o n of d o c u me n t . Da t e , i f a n y wh i c h t h e d o c u me n t b e a rs .
Si gn a t u r e o f pa r t y o r pl e a d er .
1 2 3 4
No. 6
N
OTICE 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).
W
HEREAS 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.................................20............
Dated the............day of...........................................20..............
J u d g e .
No. 7
C
OMMISSION TO EXAMINE ABSENT WITNESS
(O. 26, rr. 4, 18.)
(Title)
W
HEREAS 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.
G
IVEN under my hand and the seal of the Court, this......................day of...................20.........
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.)
W
HEREAS a suit is now pending in the.........................................................in which A. B. is plaintiff and C.D. is defendant; And in the said suit the plaintiff claims.
(Abstract of claim.)
And whereas it has been represneted 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 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.
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
[the Ministry of External Affairs
of the Government of India] for transmission” should be inserted after the words “other witnesses” in the last line of this form.
No. 9
C
OMMISSION FOR A LOCAL INVESTIGATION, OR TO EXAMINE ACCOUNTS
(O. 26, rr. 9,11.)
(Title)
T o
W
HEREAS 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.
G
IVEN under my hand and the seal of the Court, this.............................day of............................20
Judge.
No. 10
C
OMMISSION TO MAKE A PARTITION
(O. 26, r. 13.)
(Title)
To
W
HEREAS 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.........................................20......................;You are
hereby 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 be several parties. You are hereby authorized to award sums to be paid to any party by any other party for the purpose of equalizing the value of the shares.
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, is herewith forwarded.
G
IVEN under my hand and the seal of the Court, this........................... day of............................ 20.
Judge.
[No.11
N
OTICE TO CERTIFICATED, NATURAL, OR, de facto GUARDIAN
(O. XXXII, r. 3.)
(Title)
(Certificated/Natural/de facto Guardian)
To
W
HEREAS an application has been presented on the part of the plaintiff*/on behalf of the minor
defendant*/in the above suit for the appointment of a guardian for the suit for the minor defendant............., you (insert the name of the guardian appointed or declared by Court, or natural
guardian, or the person in whose care the minor is) are hereby required to take notice that unless you
appear before this Court on or before the day appointed for the hearing of the case and stated in the
appended summons, and express your consent to act as guardian for the suit for the minor, the Court will proceed to appoint some other person to act as a guardian for the minor, for the purposes of the said suit.
G
IVEN under my hand and the seal of the Court, this........................... day of............................. 20.
Judge.
No. 11A
N
OTICE TO MINOR DEFENDANT
(Order XXXII, r. 3.)
(Title)
T o
Minor Defendant
W
HEREAS an application has been presented on the part of the plaintiff in the above suit for the appointment of..............................* as guardian for the suit for you, the minor defendant, you are hereby required to take notice to appear in this Court in person on the....................day of..........20......................at......................O’clock in the forenoon to show cause against the application, failing which the said application will be heard and determined ex parte.
G
IVEN under my hand and the seal of the Court, this ...................... day of ................... 20 .....
J u d g e .]
No. 12
N
OTICE TO OPPOSITE PARTY OF DAY FIXED FOR HEARING EVIDENCE OF PAUPERISM
(O. 33, r.6.)
(Title)
To
W
HEREAS .. .............................................................................................................................................
has applied to this Court for permission to institute a suit against..........................in forma pauper is under
Order XXXIII of the Code of Civil Procedure, 1908; and whereas the Court sees no reason to reject the application; and whereas the.........day of...........20.....................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 ................ 20 .
GIVEN under my hand and the seal of the Court, this ...................... day of ..................... 20 .
Judge.
*Strike off the words which are not applicable.
No. 13
N
OTICE TO SURETY OF HIS LIABILITY UNDER A DECREE
(Section 145)
(Title)
To
W
HEREAS 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..........................20...........................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............................ 20......
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.
G
IVEN under my hand and the seal of the Court, this........................... day of................ 20.
Judge.
No. 14 REGISTER OF
C
IVIL
S
UITS
(O. 4, R.2.)
COURT OF THE OF AT
R
EGISTER OF CIVIL SUITS IN THE YEAR
Return of Execution
Minute of other Return than Payment or Arrest, and date to every Return
N
OTE
.
—Where there are numerous plaintiffs, or numerous d
efendants, the name of the first Plaintiff only, or
the first defendant only, as the case may be, need be entered in the register.
Execution
Appeal
Judgment
Appearanc
e
Defendant
Plaintiff
Claim
No. 15
R
EGISTER OF
A
PPEALS
(O. 41, r.9.)
COURT (OR HIGH COURT) AT
R
EGISTER OF APPEALS FROM DECREES IN THE YEAR
20 .........
Judgment
Appearance
Decree appealed from
Respondent
Appellant
[APPENDIX-I
S
TATEMENT OF TRUTH
(Under First Schedule, Order VI- Rule 15A and Order XI- Rule 3)
I ----- the deponent do hereby solemnly affirm and declare as under:
1. I am the party in the above suit and competent to swear this affidavit.
2. I am sufficiently conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.
3. I say that the statements made in -----paragraphs are true to my knowledge and statements made in -
----paragraphs are based on information received which I believe to be correct and statements made in ---
paragraphs are based on legal advice.
4. I say that there is no false statement or concealment of any material fact, document or record and I
have included information that is according to me, relevant for the present suit.
5. I say that all documents in my power, possession, control or custody, pertaining to the facts and
circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed with the plaint, and that I do not have any other documents in my power, possession, control or custody.
6. I say that the above-mentioned pleading comprises of a total of ----- pages, each of which has been duly signed by me.
7. I state that the Annexures hereto are true copies of the documents referred to and relied upon by me.
8. I say that I am aware that for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force.
Place:
Date:
DEPONENT
VERIFICATION
I, ............................ do hereby declare that the statements made above are true to my knowledge.
Verified at [place] on this [date]
DEPONENT.]
THE SECOND SCHEDULE.—[Arbitration.] Rep. by the Arbitration Act, 1940 (10 of 1940), s. 49 (1) and the Third Sch.
THE THIRD SCHEDULE.—[Execution of Decrees by Collectors.] Rep by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 15.
THE FOURTH SCHEDULE.—[Enactments amended.] Rep. by the Repealing and Amending Act,
1952 (48 of 1952), s. 2 and the First Sch.
THE FIFTH SCHEDULE.—[Enactments repealed.] Rep. by the Second Repealing and Amending Act, 1914 (17 of 1914). s. 3 and the Second Sch.
ANNEXURE
THE CODE OF CIVIL PROCEDURE (AMENDMENT) ACT, 1976
(104
OF 1976)
*