Bare Act

THE CODE OF CIVIL PROCEDURE, 1908

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ARRANGEMENT OF SECTIONS

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PRELIMINARY

SECTIONS

  1. Short title, commencement and extent.
  2. Definitions.
  3. Subordination of Courts.
  4. Savings.
  5. Application of the Code to Revenue Courts.
  6. Pecuniary jurisdiction.
  7. Provincial Small Cause Courts.
  8. Presidency Small Cause Courts.

PART I

SUITS IN GENERAL

JURISDICTION OF THE COURTS AND Res judicata

  1. Courts to try all civil suits unless barred.
  2. Stay of suit.
  3. Res judicata.
  4. Bar to further suit.
  5. When foreign judgment not conclusive.
  6. Presumption as to foreign judgments.

PLACE OF SUING

  1. Court in which suits to be instituted.
  2. Suits to be instituted where subject-matter situate.
  3. Suits for immovable property situate within jurisdiction of different Courts. 18. Place of Institution of suit where local limits of jurisdiction of Courts are uncertain. 19. Suits for compensation for wrongs to person or movables.
  4. Other suits to be instituted where defendants reside or cause of action arises. 21. Objections to jurisdiction.

21A. Bar on suit to set aside decree on objection as to place of suing. 22. Power to transfer suits which may be instituted in more than one Court. 23. To what Court application lies.

  1. General power of transfer and withdrawal.
  2. Power of Supreme Court to transfer suits, etc.

INSTITUTION OF SUITS

  1. Institution of suits.

1

SUMMONS AND DISCOVERY

SECTIONS

  1. Summons to defendants.
  2. Service of summons where defendant resides in another State.
  3. Service of foreign summonses.
  4. Power to order discovery and the like.
  5. Summons to witness.
  6. Penalty for default.

JUDGMENT AND DECREE

  1. Judgment and decree.

INTEREST

  1. Interest.

COSTS

  1. Costs.

35A. Compensatory costs in respect of false or vexatious claims or defences. 35B. Costs for causing delay.

PART II

EXECUTION

GENERAL

  1. Application to orders.
  2. Definition of Court which passed a decree.

COURTS BY WHICH DECREES MAY BE EXECUTED

  1. Court by which decree may be executed.
  2. Transfer of decree.
  3. Transfer of decree to Court in another State.
  4. Result of execution proceedings to be certified.
  5. Powers of Court in executing transferred decree.
  6. Execution of decrees passed by Civil Courts in places to which this Code does not extend. 44. Execution of decrees passed by Revenue Courts in places to which this Code does not extend. 44A. Execution of decrees passed by Courts in reciprocating territory.
  7. Execution of decrees outside India.
  8. Precepts.

QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

  1. Questions to be determined by the Court executing decree.

LIMIT OF TIME FOR EXECUTION

  1. [Repealed.].

TRANSFEREES AND LEGAL REPRESENTATIVES

  1. Transferee.

2

SECTIONS

  1. Legal representative.

PROCEDURE IN EXECUTION

  1. Powers of Court to enforce execution.
  2. Enforcement of decree against legal representative.
  3. Liability of ancestral property.
  4. Partition of estate or separation of share.

ARREST AND DETENTION

  1. Arrest and detention.
  2. Prohibition of arrest or detention of women in execution of decree for money. 57. Subsistence-allowance.
  3. Detention and release.
  4. Release on ground of illness.

ATTACHMENT

  1. Property liable to attachment and sale in execution of decree.
  2. Partial exemption of agricultural produce.
  3. Seizure of property in dwelling house.
  4. Property attached in execution of decrees of several Courts.
  5. Private alienation of property after attachment to be void.

SALE

  1. Purchaser’s title.
  2. [Repealed.].
  3. Power for State Government to make rules as to sales of land in execution of decrees for payment of money.

DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES

AGAINST IMMOVABLE PROPERTY

  1. [Repealed.].
  2. [Repealed.].
  3. [Repealed.].
  4. [Repealed.].
  5. [Repealed.].

DISTRIBUTION OF ASSETS

  1. Proceeds of execution-sale to be rateably distributed among decree-holders. RESISTANCE TO EXECUTION
  2. Resistance to execution.

3

PART III

INCIDENTAL PROCEEDINGS

COMMISSIONS

SECTIONS

  1. Power of Court to issue commissions.
  2. Commission to another Court.
  3. Letter of request.
  4. Commissions issued by foreign Courts.

PART IV

SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN

THEIR OFFICIAL CAPACITY

  1. Suits by or against Government.
  2. Notice.
  3. Exemption from arrest and personal appearance.
  4. Execution of decree.

SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS,

AMBASSADORS AND ENVOYS

  1. When aliens may sue.
  2. When foreign States may sue.
  3. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers. 86. Suits against foreign Rulers, Ambassadors and Envoys.
  4. Style of foreign Rulers as parties to suits.

87A. Definitions of “foreign State” and “Ruler”

SUITS AGAINST RULERS OF FORMER INDIAN STATES

87B. Application of sections 85 and 86 to Rulers of former Indian States.

INTERPLEADER

  1. Where interpleader-suit may be instituted.

PART V

SPECIAL PROCEEDINGS

ARBITRATION

  1. Settlement of disputes outside the Court.

SPECIAL CASE

  1. Power to state case for opinion of Court.

PUBLIC NUISANCES AND OTHER WRONGFUL ACTS AFFECTING THE PUBLIC

  1. Public nuisances and other wrongful acts affecting the public.
  2. Public charities.
  3. Exercise of powers of Advocate-General outside presidency-towns.

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PART VI

SUPPLEMENTAL PROCEEDINGS

SECTIONS

  1. Supplemental proceedings.
  2. Compensation for obtaining arrest, attachment or injunction on insufficient ground. PART VII

APPEALS

APPEALS FROM ORIGINAL DECREES

  1. Appeal from original decree.
  2. Appeal from final decree where no appeal from preliminary decree.
  3. Decision where appeal heard by two or more Judges.
  4. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.

99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.

APPEALS FROM APPELLATE DECREES

  1. Second appeal.

100A. No further appeal in certain cases.

  1. Second appeal on no other grounds.
  2. No second appeal in certain cases.
  3. Power of High Court to determine issues of fact.

APPEALS FROM ORDERS

  1. Orders from which appeal lies.
  2. Other orders.
  3. What Courts to hear appeals.

GENERAL PROVISIONS RELATING TO APPEALS

  1. Powers of Appellate Court.
  2. Procedure in appeals from appellate decrees and orders.

APPEALS TO THE SUPREME COURT

  1. When appeals lie to the Supreme Court.
  2. [Omitted.].
  3. [Omitted.].

111A. [Omitted.].

  1. Savings.

PART VIII

REFERENCE, REVIEW AND REVISION

  1. Reference to High Court.

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SECTIONS

  1. Review.
  2. Revision.

PART IX

SPECIAL PROVISIONS RELATING TO THE HIGH COURTS NOT BEING THE COURT OF A JUDICIAL COMMISSIONER

  1. Part to apply only to certain High Courts.
  2. Application of Code to High Courts.
  3. Execution of decree before ascertainment of costs.
  4. Unauthorised persons not to address Court.
  5. Provisions not applicable to High Court in original civil jurisdiction.

PART X

RULES

  1. Effect of rules in First Schedule.
  2. Power of certain High Courts to make rules.
  3. Constitution of Rules Committees in certain States.
  4. Committee to report to High Court.
  5. Power of other High Courts to make rules.
  6. Rules to be subject to approval.
  7. Publication of rules.
  8. Matters for which rules may provide.
  9. Power of High Courts to make rules as to their original civil procedure.
  10. Power of other High Courts to make rules as to matters other than procedure. 131. Publication of rules.

PART XI

MISCELLANEOUS

  1. Exemption of certain women from personal appearance.
  2. Exemption of other persons.
  3. Arrest other than in execution of decree.
  4. Exemption from arrest under civil process.

135A. Exemption of members of legislative bodies from arrest and detention under civil process. 136. Procedure where person to be arrested or property to be attached is outside district. 137. Language of subordinate Courts.

  1. Power of High Court to require evidence to be recorded in English.
  2. Oath on affidavit by whom to be administered.
  3. Assessors in causes of salvage, etc.
  4. Miscellaneous proceedings.
  5. Orders and notices to be in writing.

6

SECTIONS

  1. Postage.
  2. Application for restitution.
  3. Enforcement of liability of surety.
  4. Proceedings by or against representatives.
  5. Consent or agreement by persons under disability.
  6. Enlargement of time.

148A. Right to lodge a caveat.

  1. Power to make up deficiency of court-fees.
  2. Transfer of business.
  3. Saving of inherent powers of Court.
  4. Amendment of judgments, decrees or orders.
  5. General power to amend.

153A. Power to amend decree or order where appeal is summarily dismissed. 153B. Place of trial to be deemed to be open Court.

  1. [Repealed.].
  2. [Repealed.].
  3. [Repealed.].
  4. Continuance of orders under repealed enactments.
  5. Reference to Code of Civil Procedure and other repealed enactments.

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THE FIRST SCHEDULE

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ORDER I

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Parties to Suits

RULES

  1. Who may be joined as plaintiffs.
  2. Power of Court to order separate trial.
  3. Who may be joined as defendants.

3A. Power to order separate trials where joinder of defendants may embarrass or delay trial. 4. Court may give judgment for or against one or more of joint parties.

  1. Defendant need not be interested in all the relief claimed.
  2. Joinder of parties liable on same contract.
  3. When plaintiff in doubt from whom redress is to be sought.
  4. One person may sue or defend on behalf of all in same interest.

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

  1. Misjoinder and non-joinder.
  2. Suit in name of wrong plaintiff.

Court may strike out or add parties.

Where defendant added, plaint to be amended.

10A. Power of Court to request any pleader to address it.

  1. Conduct of suit.
  2. Appearance of one of several plaintiffs or defendants for others.
  3. Objections as to non-joinder or misjoinder.

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ORDER II

Frame of Suit

  1. Frame of suit.
  2. Suit to include the whole claim.

Relinquishment of part of claim.

Omission to sue for one of several reliefs.

  1. Joinder of causes of action.
  2. Only certain claims to be joined for recovery of immovable property.
  3. Claims by or against executor, administrator or heir.
  4. Power of Court to order separate trials.
  5. Objections as to misjoinder.

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ORDER III

Recognized Agents and Pleaders

  1. Appearances, etc., may be in person, by recognised agent or by pleader.
  2. Recognised agents.
  3. Service of process on recognised agent.
  4. Appointment of pleader.
  5. Service of process on pleader.
  6. Agent to accept service.

Appointment to be in writing and to be filed in Court.

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ORDER IV

Institution of suits

RULES

  1. Suit to be commenced by plaint.
  2. Register of suits.

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ORDER V

Issue and Service of Summons

Issue of summons

  1. 1.
  2. Copy of plaint annexed to summons.
  3. Court may order defendant or plaintiff to appear in person.
  4. No party to be ordered to appear in person unless resident within certain limits. 5. Summons to be either to settle issues or for final disposal.
  5. Fixing day for appearance of defendant.
  6. Summons to order defendant to produce documents relied on by him.
  7. On issue of summons for final disposal, defendant to be directed to produce his witnesses. Service of Summons
  8. Delivery of summons by Court.

9A. Summons given to the plaintiff for service.

  1. Mode of service.
  2. Service on several defendants.
  3. Service to be on defendant in person when practicable, or on his agent.
  4. Service on agent by whom defendant carries on business.
  5. Service on agent in charge in suits for immovable property.
  6. Where service may be on an adult member of defendant’s family.
  7. Person served to sign acknowledgement.
  8. Procedure when defendant refuses to accept service, or cannot be found. 18. Endorsement of time and manner of service.
  9. Examination of serving officer.

19A. [Omitted.].

  1. Substituted service.

Effect of substituted service.

Where service substituted, time for appearance to be fixed.

20A. [Repealed.].

  1. Service of summons where defendant resides within jurisdiction of another Court. 22. Service within presidency-towns of summons issued by Courts outside. 23. Duty of Court to which summons is sent.

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RULES

  1. Service on defendant in prison.
  2. Service where defendant resides out of India and has no agent.
  3. Service in foreign territory through Political Agent or Court.

26A. Summonses to be sent to officers to foreign countries.

  1. Service on civil public officer or on servant of railway company or local authority. 28. Service on soldiers, sailors or airmen.
  2. Duty of person to whom summons is delivered or sent for service.
  3. Substitution of letter for summons.

ORDER VI

Pleadings Generally

  1. Pleading.
  2. Pleading to state material facts and not evidence.
  3. Forms of pleading.
  4. Particulars to be given where necessary.
  5. [Omitted.].
  6. Condition precedent.
  7. Departure.
  8. Denial of contract.
  9. Effect of document to be stated.
  10. Malice, knowledge, etc.
  11. Notice.
  12. Implied contract, or relation.
  13. Presumptions of law.
  14. Pleading to be signed.

14A. Address for service of notice.

  1. Verification of pleadings.
  2. Striking out pleadings.
  3. Amendment of pleadings.
  4. Failure to amend after order.

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ORDER VII

Plaint

  1. Particulars to be contained in plaint.
  2. In money suits.
  3. Where the subject-matter of the suit is immovable property.
  4. When plaintiff sues as representative.
  5. Defendant’s interest and liability to be shown.
  6. Grounds of exemption from limitation law.
  7. Relief to be specifically stated.

10

RULES

  1. Relief founded on separate grounds.
  2. Procedure on admitting plaint.
  3. Return of plaint.

Procedure on returning plaint.

10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.

10B. Power of appellate Court to transfer suit to the proper Court.

  1. Rejection of plaint.
  2. Procedure on rejecting plaint.
  3. Where rejection of plaint does not preclude presentation of fresh plaint.

Documents relied on in Plaint

  1. Production of document on which plaintiff sues or relies.
  2. [Omitted.].
  3. Suits on lost negotiable instruments.
  4. Production of shop-book.

Original entry to be marked and returned.

  1. [Omitted.].

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ORDER VIII

Written statement, set-off and counter-claim

  1. Written statement.

1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him. 2. New facts must be specially pleaded.

  1. Denial to be specific.
  2. Evasive denial.
  3. Specific denial.
  4. Particulars of set-off to be given in written statement.

Effect of set-off.

6A. Counter-claim by defendant.

6B. Counter-claim to be stated.

6C. Exclusion of counter-claim.

6D. Effect of discontinuance of suit.

6E. Default of plaintiff to reply to counter-claim.

6F. Relief to defendant where counter-claim succeeds.

6G. Rules relating to written statement to apply.

  1. Defence or set-off founded upon separate grounds.
  2. New ground of defence.

8A. [Omitted.].

  1. Subsequent pleadings.
  2. Procedure when party fails to present written statement called for by Court. _______

ORDER IX

Appearance of Parties and Consequence of non-Appearance

  1. Parties to appear on day fixed in summons for defendant to appear and answer.

11

RULES

  1. Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs. 3. Where neither party appears suit to be dismissed.
  2. Plaintiff may bring fresh suit or Court may restore suit to file.
  3. Dismissal of suit where plaintiff after summons returned unserved, fails for seven days to apply for fresh summons.
  4. Procedure when only plaintiff appears.

When summons duly served.

When summons not duly served.

When summons served but not in due time.

  1. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.
  2. Procedure where defendant only appears.
  3. Decree against plaintiff by default bars fresh suit.
  4. Procedure in case of non-attendance of one or more of several plaintiffs.
  5. Procedure in case of non-attendance of one or more of several defendants.
  6. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person.

Setting aside Decree ex parte

  1. Setting aside decree ex parte against defendant.
  2. No decree to be set aside without notice to opposite party.

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ORDER X

Examination of Parties by the Court

  1. Ascertainment whether allegations in pleadings are admitted or denied.

1A. Direction of the court to opt for any one mode of alternative dispute resolution.

1B. Appearance before the conciliatory forum or authority.

1C. Appearance before the court consequent to the failure of efforts of conciliation.

  1. Oral examination of party, or companion of party.
  2. Substance of examination to be written.
  3. Consequence of refusal or inability of pleader to answer.

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ORDER XI

Discovery and Inspection

  1. Discovery by interrogatories.
  2. Particular interrogatories to be submitted.
  3. Costs of interrogatories.
  4. Form of interrogatories.
  5. Corporations.
  6. Objections to interrogatories by answer.
  7. Setting aside and striking out interrogatories.
  8. Affidavit in answer, filing.
  9. Form of affidavit in answer.
  10. No exception to be taken.
  11. Order to answer or answer further.

12

RULES

  1. Application for discovery of documents.
  2. Affidavit of documents.
  3. Production of documents.
  4. Inspection of documents referred to in pleadings or affidavits.
  5. Notice to produce.
  6. Time for inspection when notice given.
  7. Order for inspection.
  8. Verified copies.
  9. Premature discovery.
  10. Non-compliance with order for discovery.
  11. Using answers to interrogatories at trial.
  12. Order to apply to minors.

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ORDER XII

Admissions

  1. Notice of admission of case.
  2. Notice to admit documents.

2A. Document to be deemed to be admitted if not denied after service of notice to admit documents. 3. Form of notice.

3A. Power of Court to record admission.

  1. Notice to admit acts.
  2. Form of admissions.
  3. Judgment on admissions.
  4. Affidavit of signature.
  5. Notice to produce documents.
  6. Costs.

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ORDER XIII

Production, Impounding and Return of Documents

  1. Original documents to be produced at or before the settlement of issues.
  2. [Omitted.].
  3. Rejection of irrelevant or inadmissible documents.
  4. Endorsements on documents admitted in evidence.
  5. Endorsements on copies of admitted entries in books, accounts and records.
  6. Endorsements on documents rejected an inadmissible in evidence.
  7. Recording of admitted and return of rejected documents.
  8. Court may order any document to be impounded.
  9. Return of admitted documents.
  10. Court may sent for papers from its own records or from other Courts.
  11. Provisions as to documents applied to material objects.

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ORDER XIV

settlement of issues and determination of suit on issues of law or on

Issues agreed upon

  1. Framing of issues.
  2. Court to pronounce judgment on all issues.

13

RULES

  1. Materials from which issues may be framed.
  2. Court may examine witnesses or documents before framing issues.
  3. Power to amend and strike out, issues.
  4. Questions of fact or law may by agreement be stated in form of issues.
  5. Court, if satisfied that agreement was executed in good faith, may pronounce judgment. _______

ORDER XV

Disposal of the Suit at the First Hearing

  1. Parties not at issue.
  2. One of several defendants not at issue.
  3. Parties at issue.
  4. Failure to produce evidence.

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ORDER XVI

Summoning and Attendance of Witnesses

  1. List of witnesses and summons to witnesses.

1A. Production of witnesses without summons.

  1. Expenses of witness to be paid into Court on applying for summons.

Experts.

Scale of expenses.

Expenses to be directly paid to witnesses.

  1. Tender of expenses to witness.
  2. Procedure where insufficient sum paid in.

Expenses of witnesses detained more than one day.

  1. Time, place and purpose of attendance to be specified in summons.
  2. Summons to produce document.
  3. Power to require persons present in Court to give evidence or produce document. 7A. Summons given to the party for service.
  4. Summons how served.
  5. Time for serving summons.
  6. Procedure where witness fails to comply with summons.
  7. If witness appears, attachment may be withdrawn.
  8. Procedure if witness fails to appear.
  9. Mode of attachment.
  10. Court may of its own accord summon as witnesses strangers to suit.
  11. Duty of persons summoned to give evidence or produce document.
  12. When they may depart.
  13. Application of rules 10 to 13.
  14. Procedure where witness apprehended cannot give evidence or produce document. 19. No witness to be ordered to attend in person unless resident within certain limits. 20. Consequence of refusal of party to give evidence when called on by Court. 21. Rules as to witnesses to apply to parties summoned.

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ORDER XVI-A

Attendance of WitnessesConfined or Detained in Prisons

RULES

  1. Definitions.
  2. Power to require attendance of prisoners to give evidence.
  3. Expenses to be paid into Court.
  4. Power of State Government to exclude certain persons from the operation of rule 2. 5. Officer in charge of prison to abstain from carrying out order in certain cases. 6. Prisoner to be brought to Court in custody.
  5. Power to issue commission for examination of witness in prison.

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ORDER XVII

Adjournment

  1. Court may grant time and adjourn hearing.

Costs of adjournment.

  1. Procedure if parties fail to appear on day fixed.
  2. Court may proceed notwithstanding either party fails to produce evidence, etc. _______

ORDER XVIII

Hearing of the Suit and Examination of Witnesses

  1. Right to begin.
  2. Statement and production of evidence.
  3. Evidence where several issues.

3A. Party to appear before other witnesses.

  1. Recording of evidence.
  2. How evidence shall be taken in appealable cases.
  3. When deposition to be interpreted.
  4. Evidence under section 138.
  5. Memorandum when evidence not taken down by Judge.
  6. When evidence may be taken in English.
  7. Any particular question and answer may be taken down.
  8. Questions objected to and allowed by Court.
  9. Remarks on demeanour of witnesses.
  10. Memorandum of evidence in unappealable cases.
  11. [Omitted.].
  12. Power to deal with evidence taken before another Judge.
  13. Power to examine witness immediately.
  14. Court may recall and examine witness.

17A. [Omitted.].

  1. Power of Court to inspect.
  2. Power to get statements recorded on commission.

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ORDER XIX

Affidavits

  1. Power to order any point to be proved by affidavit.

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RULES

  1. Power to order attendance of deponent for cross-examination.
  2. Matters to which affidavits shall be confined.

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ORDER XX

Judgment and Decree

  1. Judgment when pronounced.
  2. Power to pronounce judgment written by Judge’s predecessor.
  3. Judgment to be signed.
  4. Judgments of Small Cause Courts.

Judgments of other Courts.

  1. Court to state its decision on each issue.

5A. Court to inform parties as to where an appeal lies in cases where parties are not represented by pleaders.

  1. Contents of decree.

6A. Preparation of Decree.

6B. Copies of judgments when to be made available.

  1. Date of decree.
  2. Procedure where Judge has vacated office before signing decree.
  3. Decree for recovery of immovable property.
  4. Decree for delivery of movable property.
  5. Decree may direct payment by instalments.

Order, after decree, for payment by instalments.

  1. Decree for possession and mesne profits.

12A. Decree for specific performance of contract for the sale or lease of immovable property. 13. Decree in administration-suit.

  1. Decree in pre-emption-suit.
  2. Decree in suit for dissolution of partnership.
  3. Decree in suit for account between principal and agent.
  4. Special directions as to accounts.
  5. Decree in suit for partition of property or separate possession of a share therein. 19. Decree when set-off or counter-claim is allowed.

Appeal from decree relating to set-off or counter-claim.

  1. Certified copies of judgment and decree to be furnished.

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ORDER XXA

Costs

  1. Provisions relating to certain items.
  2. Costs to be awarded in accordance with the rules made by High Court.

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ORDER XXI

Execution of Decrees and Orders

Payment under decree

  1. Modes of paying money under decree.
  2. Payment out of Court to decree-holder.

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Courts executing decrees

RULES

  1. Lands situate in more than one jurisdiction.
  2. Transfer to Court of Small Causes.
  3. Mode of transfer.
  4. Procedure where Court desires that its own decree shall be executed by another Court. 7. Court receiving copies of decree, etc., to file same without proof.
  5. Execution of decree or order by Court to which it is sent.
  6. Execution by High court of decree transferred by other Court.

Application for execution

  1. Application for execution.
  2. Oral application.

Written application.

11A. Application for arrest to state grounds.

  1. Application for attachment of movable property not in judgment-debtor’s possession. 13. Application for attachment of immovable property to contain certain particulars. 14. Power to require certified extract from Collector’s register in certain cases.
  2. Application for execution by joint decree-holders.
  3. Application for execution by transferee of decree.
  4. Procedure on receiving application for execution of decree.
  5. Execution in case of cross-decrees.
  6. Execution in case of cross-claims under same decree.
  7. Cross-decrees and cross-claims in mortgage suits.
  8. Simultaneous execution.
  9. Notice to show cause against execution in certain cases.

22A. Sale not to be set aside on the death of the judgment-debtor before the sale but after the service of the proclamation of sale.

  1. Procedure after issue of notice.

Process for execution

  1. Process for execution.
  2. Endorsement on process.

Stay of execution

  1. When Court may stay execution.

Power to require security from, or impose conditions upon, judgment-debtor.

  1. Liability of judgment-debtor discharged.
  2. Order of Court which passed decree or of Appellate Court to be binding upon Court applied to. 29. Stay of execution pending suit between decree-holder and judgment-debtors.

Mode of execution

  1. Decree for payment of money.
  2. Decree for specific movable property.

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RULES

  1. Decree for specific performance for restitution of conjugal rights, or for an injunction. 33. Discretion of Court in executing decrees for restitution of conjugal rights.
  2. Decree for execution of document, or endorsement of negotiable instrument. 35. Decree for immovable property.
  3. Decree for delivery of immovable property when in occupancy of tenant.

37.Discretionary power to permit judgment-debtor to show cause against detention in prison. 38. Warrant for arrest to direct judgment-debtor to be brought up.

  1. Subsistence-allowance.
  2. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest. Attachment of property
  3. Examination of judgment-debtor as to his property.
  4. Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined.
  5. Attachment of movable property, other than agricultural produce, in possession of judgment debtor.

43A. Custody of movable property.

  1. Attachment of agricultural produce.
  2. Provisions as to agricultural produce under attachment.
  3. Attachment of debt, share and other property not in possession of judgment-debtor. 46A. Notice to garnishee.

46B . Order against garnishee.

46C. Trial of disputed questions.

46D. Procedure where debt belongs to third person.

46E. Order as regards third person.

46F. Payment by garnishee to be valid discharge.

46G. Costs.

46H. Appeals.

46I. Application to negotiable instruments.

  1. Attachment of share in movables.
  2. Attachment of salary or allowances of servant of the Government or railway company or local authority.

48A. Attachment of salary or allowances of private employees.

  1. Attachment of partnership property.
  2. Execution of decree against firm.
  3. Attachment of negotiable instruments.

52.Attachment of property in custody of Court or public officer.

  1. Attachment of decrees.
  2. Attachment of immovable property.
  3. Removal of attachment after satisfaction of decree.
  4. Order for payment of coin or currency notes to party entitled under decree.
  5. Determination of attachment.

Adjudication of claims and objections

  1. Adjudication of claims to, or objections to attachment, of property.

18

RULES

  1. Stay of sale.
  2. [Omitted.].
  3. [Omitted.].
  4. [Omitted.].
  5. [Omitted.].

Sale generally

  1. Power to order property attached to be sold and proceeds to be paid to person entitled. 65. Sales by whom conducted and how made.
  2. Proclamation of sales by public auction.
  3. Mode of making proclamation.
  4. Time of sale.
  5. Adjournment or stoppage of sale.
  6. [Omitted.].
  7. Defaulting purchaser answerable for loss on re-sale.
  8. Decree-holder not to bid for or buy property without permission.

Where decree-holder purchases, amount of decree may be taken as payment.

72A. Mortgagee not to bid at sale without the leave of the Court.

  1. Restriction on bidding or purchase by officers.

Sale of movable property

  1. Sale of agricultural produce.
  2. Special provisions relating to growing crops.
  3. Negotiable instruments and shares in corporations.
  4. Sale by public auction.
  5. Irregularity not to vitiate sale, but any person injured may sue.
  6. Delivery of movable property, debts and shares.
  7. Transfer of negotiable instruments and shares.
  8. Vesting order in case of other property.

Sale of immovable property.

  1. What Courts may order sales.
  2. Postponement of sale to enable judgment-debtor to raise amount of decree.
  3. Deposit by purchaser and re-sale on default.
  4. Time for payment in full of purchase-money.
  5. Procedure in default of payment.
  6. Notification on re-sale.
  7. Bid of co-sharer to have preference.
  8. Application to set aside sale on deposit.
  9. Application to set aside sale on ground of irregularity or fraud.
  10. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest. 92. Sale when to become absolute or be set aside.
  11. Return of purchaser-money in certain cases.
  12. Certificate to purchaser.
  13. Delivery of property in occupancy of judgment-debtor.
  14. Delivery of property in occupancy of tenant.

Resistance to delivery of possession to decree-holder or purchaser

  1. Resistance or obstruction to possession of immovable property.
  2. Orders after adjudication.
  3. Dispossession by decree-holder or purchaser.

19

RULES

  1. Order to be passed upon application complaining of dispossession.
  2. Question to be determined.
  3. Rules not applicable to transferee pendente lite.
  4. Orders to be treated as decrees.
  5. Orders under rule 101 or rule 103 to be subject to the result of pending suit.
  6. Hearing of application.
  7. Setting aside orders passed ex parte, etc.

______

ORDER XXII

Death, Marriage and Insolvency of Parties

  1. No abatement by party’s death if right to sue survives.
  2. Procedure where one of several plaintiffs or defendants dies and right to sue survives. 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. 4. Procedure in case of death of one of several defendants or of sole defendant. 4A. Procedure where there is no legal representative.
  3. Determination of question as to legal representative.
  4. No abatement by reason of death after hearing.
  5. Suit not abated by marriage of female party.
  6. When plaintiffs insolvency bars suit.

Procedure where assignee fails to continue suit, or give security.

  1. Effect of abatement or dismissal.

10.Procedure in case of assignment before final order in suit.

10A. Duty of pleader to communicate to Court death of a party.

  1. Application of Order to appeals.
  2. Application of Order to proceedings.

_________

ORDER XXIII

Withdrawal and Adjustment of Suits

  1. Withdrawal of suit or abandonment of part of claim.

1A.When transposition of defendants as plaintiffs may be permitted.

  1. Limitation law not affected by first suit.
  2. Compromise of suit.

3A. Bar to suit.

3B. No agreement or compromise to be entered in a representative suit without leave of Court. 4. Proceedings in execution of decrees not affected.

_________

ORDER XXIV

Payment into Court

  1. Deposit by defendant of amount in satisfaction of claim.
  2. Notice of deposit.
  3. Interest on deposit not allowed to plaintiff after notice.
  4. Procedure where plaintiff accepts deposit as satisfaction in part.

Procedure where he accepts it as satisfaction in full.

20

_________

ORDER XXV

Security for Costs

RULES

  1. When security for costs may be required from plaintiff.
  2. Effect of failure to furnish security.

_________

ORDER XXVI

Commissions

Commissions to examine witnesses

  1. Cases in which Court may issue commission to examine witness.
  2. Order for commission.
  3. Where witness resides within Court’s jurisdiction.
  4. Persons for whose examination commission may issue.

4A. Commission for examination of any person resident within the local limits of the jurisdiction of the Court.

  1. Commission or request to examine witness not within India.
  2. Court to examine witness pursuant to commission.
  3. Return of commission with depositions of witnesses.
  4. When depositions may be read in evidence.

Commissions for local investigations

  1. Commissions to make local investigations.
  2. Procedure of Commissioner.

Report and depositions to be evidence in suit.

Commissioner may be examined in person.

Commissions for scientific investigation, performance of ministerial act and sale of movable property

10A. Commission for scientific investigation.

10B. Commission for performance of a ministerial act.

10C. Commission for the sale of movable property.

Commissions to examine accounts

11.Commission to examine or adjust accounts.

12.Court to give Commissioner necessary instructions.

Proceedings and report to be evidence.

Court may direct further inquiry.

Commissions to make partitions.

13.Commission to make partition of immovable property.

  1. Procedure of Commissioner.

General Provisions

  1. Expenses of commission to be paid into Court.
  2. Powers of Commissioners.

16A. Questions objected to before the Commissioner.

  1. Attendance and examination of witnesses before Commissioner.
  2. Parties to appear before Commissioner.

18A. Application of order to execution proceedings.

18B. Court to fix a time for return of Commission.

21

Commissions issued of the instance of Foreign Tribunals

RULES

  1. Cases in which High Court may issue commission to examine witness.
  2. Application for issue of commission.
  3. To whom commission may be issued.
  4. Issue, execution and return of commissions, and transmission of evidence to foreign Court. _______

ORDER XXVII

Suits by or against the Government or Public Officers in their Official Capacity

  1. Suits by or against Government.
  2. Persons authorised to act for Government.
  3. Plaints in suits by or against Government.
  4. Agent for Government to receive process.
  5. Fixing of day for appearance on behalf of Government.

5A. Government to be joined as a party in a suit against a public officer.

5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.

  1. Attendance of person able to answer questions relating to suit against Government. 7. Extension of time to enable public officer to make reference to Government.
  2. Procedure in suits against public officer.

8A. No security to be required from Government or a public officer in certain cases. 8B. Definitions of “Government” and “Government pleader”.

_______

ORDER XXVII-A

Suits Involving a Substantial Question of Law as to the Interpretation of the Constitution or as to the Validity of any Statutory Instrument

  1. Notice to the Attorney General or the Advocate-General.

1A. Procedure in suits involving validity of any statutory instrument.

  1. Court may add Government as party.

2A. Power of Court to add Government or other authority as a defendant in a suit relating to the validity of any statutory instrument.

  1. Costs.
  2. Application of Order to appeals.

_______

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.
  2. Person so authorised may act personally or appoint pleader.
  3. Service on person so authorised, or on his pleader, to be good service.

_______

22

RULES

ORDER XXIX

Suits by or Against corporations

  1. Subscription and verification of pleading.
  2. Service on corporation.
  3. Power to require personal attendance of officer of corporation.

_______

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.
  2. Disclosure of partners’ names.
  3. Service.
  4. Rights of suit on death of partner.
  5. Notice in what capacity served.
  6. Appearance of partners.
  7. No appearance except by partners.
  8. Appearance under protest.
  9. Suits between co-partners.
  10. Suit against person carrying on business in name other than his own.

_________

ORDER XXXI

Suits by or Against Trustees, Executors and Administrators

  1. Representation of beneficiaries in suits concerning property vested in trustees, etc. 2. Joinder of trustees, executors and administrators.
  2. Husband of married executrix not to join.

_______

ORDER XXXII

Suits by or Against Minors and Persons of Unsound Mind

  1. Minor to sue by next friend.
  2. Where suit is instituted without next friend, plaint to be taken off the file. 2A. Security to be furnished by next friend when so ordered.
  3. Guardian for the suit to be appointed by Court for minor defendant.

3A. Decree against minor not to be set aside unless prejudice has been caused to his interest. 4. Who may act as next friend or be appointed guardian for the suit.

  1. Representation of minor by next friend or guardian for the suit.
  2. Receipt by next friend or guardian for the suit of property under decree for minor. 7. Agreement or compromise by next friend or guardian for the suit.
  3. Retirement of next friend.
  4. Removal of next friend.
  5. Stay of proceedings on removal, etc., of next friend.
  6. Retirement, removal or death of guardian for the suit.
  7. Course to be followed by minor plaintiff or applicant on attaining majority. 13. Where minor co-plaintiff attaining majority desires to repudiate suit.
  8. Unreasonable or improper suit.
  9. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind.

23

RULES

  1. Savings.

_______

ORDER XXXIIA

Suits Relating to Matters Concerning the Family

  1. Application of the Order.
  2. Proceedings to be held in camera.
  3. 3. Duty of Court to make efforts for settlement.
  4. Assistance of welfare expert.
  5. Duty to enquire into facts.
  6. “Family”—Meaning of.

_______

ORDER XXXIII

Suits by Indigent Persons

  1. Suits may be instituted by indigent persons.

1A. Inquiry into the means of an indigent person.

  1. Contents of application.
  2. Presentation of application.
  3. Examination of applicant.

If presented by agent, Court may order applicant to be examined by commission. 5. Rejection of application.

  1. Notice of day for receiving evidence of applicant’s indigency.
  2. Procedure at hearing.
  3. Procedure if application admitted.
  4. Withdrawal of permission to sue as an indigent person.

9A. Court to assign a pleader to an unrepresented indigent person.

  1. Costs where indigent person succeeds.
  2. Procedure where indigent person fails.

11A. Procedure where indigent person’s suit abates.

  1. State Government may apply for payment of court-fees.
  2. State Government to be deemed a party.
  3. Recovery of amount of court-fees.
  4. Refusal to allow applicant to sue as an indigent person to bar subsequent application of like nature.

15A. Grant of time for payment of court-fee.

  1. Costs.
  2. Defence by an indigent person.
  3. Power of Government to provide for free legal services to indigent persons. _______

ORDER XXXIV

Suits Relating to Mortgages of Immovable Property

  1. Parties to suits for foreclosure, sale and redemption.
  2. Preliminary decree in foreclosure-suit.
  3. Final decree in foreclosure-suit.
  4. Preliminary decree in suit for sale.

Power to decree sale in foreclosure-suit.

  1. Final decree in suit for sale.
  2. Recovery of balance due on mortgage in suit for sale.

24

RULES

  1. Preliminary decree in redemption suit.
  2. Final decree in redemption suit.

8A. Recovery of balance due on mortgage in suit for redemption. 9. Decree where nothing is found due or where mortgagee has been overpaid. 10. Costs of mortgagee subsequent to decree.

10A. Power of Court to direct mortgagee to pay mesne profits.

  1. Payment of interest.
  2. Sale of property subject to prior mortgage.
  3. Application of proceeds.
  4. Suit for sale necessary for bringing mortgaged property to sale. 15. Mortgages by the deposit of title-deeds and charges.

_______

ORDER XXXV

Interpleader

  1. Plaint in interpleader-suit.
  2. Payment of thing claimed into Court.
  3. Procedure where defendant is suing plaintiff.
  4. Procedure at first hearing.
  5. Agents and tenants may not institute interpleader-suits.
  6. Charge for plaintiff’s costs.

_______

ORDER XXXVI

Special Case

  1. Power to state case for Court’s opinion.
  2. Where value of subject-matter must be stated.
  3. Agreement to be filed and registered as suit.
  4. Parties to be subject to Court’s jurisdiction.
  5. Hearing and disposal of case.
  6. No appeal from a decree passed under rule 5.

_______

ORDER XXXVII

Summary Procedure

  1. Courts and classes of suits to which the Order is to apply.
  2. Institution of summary suits.
  3. Procedure for the appearance of defendant.
  4. Power to set aside decree.
  5. Power to order bill, etc., to be deposited with officer of Court. 6. Recovery of cost of noting non-acceptance of dishonoured bill or note. 7. Procedure in suits.

_______

ORDER XXXVIII

Arrest and Attachment before Judgment

Arrest before Judgment

  1. Where defendant may be called upon to furnish security for appearance. 2. Security.

25

RULES

  1. Procedure on application by surety to be discharged.
  2. Procedure where defendant fails to furnish security or find fresh security. Attachment before Judgment
  3. Where defendant may be called upon to furnish security for production of property. 6. Attachment where cause not shown or security not furnished.
  4. Mode of making attachment.
  5. Adjudication of claim to property attached before judgment.
  6. Removal of attachment when security furnished or suit dismissed.

10.Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale.

11.Property attached before judgment not to be re-attached in execution of decree. 11A. Provisions applicable to attachment.

  1. Agricultural produce not attachable before judgment.
  2. Small Cause Court not to attach immovable property.

ORDER XXXIX

Temporary Injunctions and Interlocutory Orders

Temporary injunctions

  1. Cases in which temporary injunction may be granted.
  2. Injunction to restrain repetition or continuance of breach.

2A. Consequence of disobedience or breach of injunction.

  1. Before granting injunction, Court to direct notice to opposite party.

3A. Court to dispose of application for injunction within thirty days.

  1. Order for injunction may be discharged, varied or set aside.
  2. Injunction to corporation binding on its officers.

Interlocutory orders

  1. Power to order interim sale.
  2. Detention, preservation, inspection, etc., of subject-matter of suit.
  3. Application for such orders to be after notice.
  4. When party may be put in immediate possession of land the subject-matter of suit. 10. Deposit of money, etc., in Court.

_______

ORDER XL

Appointment of Receivers

  1. Appointment of receivers.
  2. Remuneration.
  3. Duties.
  4. Enforcement of receiver’s duties.
  5. When Collector may be appointed receiver.

_______

ORDER XLI

Appeals from Original Decrees

  1. Form of appeal.

What to accompany memorandum.

Contents of memorandum.

26

RULES

  1. Grounds which may be taken in appeal.
  2. Rejection or amendment of memorandum.

3A. Application for condonation of delay.

  1. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.

Stay of proceedings and of execution

  1. Stay by Appellate Court.

Stay by Court which passed the decree.

  1. Security in case of order for execution of decree appealed from.
  2. [Repealed.].
  3. Exercise of powers in appeal from order made in execution of decree.

Procedure on admission of appeal

  1. Registry of memorandum of appeal.
  2. Appellate Court may require appellant to furnish security for costs.

Where appellant resides out of India.

  1. Power to dismiss appeal without sending notice to Lower Court.

11A. Time within which hearing under rule 11 should be concluded.

  1. Day for hearing appeal.
  2. [Omitted.].
  3. Publication and service of notice of day for hearing appeal.

Appellate Court may itself cause notice to be served.

  1. [Omitted.].

Procedure on hearing

  1. Right to begin.
  2. Dismissal of appeal for appellant’s default.

Hearing appeal ex parte.

  1. [Omitted.].
  2. Re-admission of appeal dismissed for default.
  3. Power to adjourn hearing and direct persons appearing interested to be made respondents. 21. Re-hearing on application of respondent against whom ex parte decree made. 22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. Form of objection and provisions applicable thereto.
  4. Remand of case by Appellate Court.

23A. Remand in other cases.

  1. Where evidence on record sufficient, Appellate Court may determine case finally. 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.
  2. Findings and evidence to be put on record.

Objections to findings.

Determination of appeal.

27

RULES

26A. Order of remand to mention date of next hearing

  1. Production of additional evidence in Appellate Court.
  2. Mode of taking additional evidence.
  3. Points to be defined and recorded.

Judgment in appeal

  1. Judgment when and where pronounced.
  2. Contents, date and signature of judgment.
  3. What judgment may direct.
  4. Power of Court of appeal.
  5. Dissent to be recorded.

Decree in appeal

  1. Date and contents of decree.

Judge dissenting from judgment need not sign decree.

  1. Copies of judgment and decree to be furnished to parties.
  2. Certified copy of decree to be sent to Court whose decree appealed from. _______

ORDER XLII

Appeals from Appellate Decrees

  1. Procedure.
  2. Power of Court to direct that the appeal be heard on the question formulated by it. 3. Application of rule 14 of Order XLL.

_______

ORDER XLIII

Appeals from Orders

  1. Appeals from orders.

1A. Right to challenge non-appealable orders in appeal against decrees. 2. Procedure.

_______

ORDER XLIV

Appeals by Indigent Persons

  1. Who may appeal as an indigent person.
  2. Grant of time for payment of Court-fee.
  3. Inquiry as to whether applicant is an indigent person.

_______

ORDER XLV

Appealsto the Supreme Court

  1. “Decree” defined.
  2. Application to Court whose decree complained of.
  3. Certificate as to value or fitness.
  4. [Repealed.].
  5. [Repealed.].
  6. Effect of refusal of certificate.
  7. Security and deposit required on grant of certificate.
  8. Admission of appeal and procedure thereon.

28

RULES

  1. Revocation of acceptance of security.

9A. Power to dispense with notices in case of deceased parties.

  1. Power to order further security or payment.
  2. Effect of failure to comply with order.
  3. Refund of balance deposit.
  4. Powers of Court pending appeal.
  5. Increase of security found inadequate.
  6. Procedure to enforce orders of the Supreme Court.
  7. Appeal from order relating to execution.
  8. [Repealed.].

ORDER XLVI

Reference

  1. Reference of question to High Court.
  2. Court may pass decree contingent upon decision of High Court.
  3. Judgment of High Court to be transmitted, and case disposed of accordingly. 4. Costs of reference to High Court.

4A. Reference to High Court under proviso to section 113.

  1. Power to alter, etc., decree of Court making reference.
  2. Power to refer to High Court questions as to jurisdiction in small causes.
  3. Power to District Court to submit for revision proceeding had under mistake as to jurisdiction in small causes.

_______

ORDER XLVII

Review

  1. Application for review of judgment.
  2. [Repealed.].
  3. Form of applications for review.
  4. Application where rejected.

Application where granted.

  1. Application for review in Court consisting of two or more Judges.
  2. Application where rejected.
  3. Order of rejection not appealable.

Objections to order granting application.

  1. Registry of application granted, and order for re-hearings.
  2. Bar of certain applications.

_______

ORDER XLVIII

Miscellaneous

  1. Process to be served at expense of party issuing.

Costs of service.

  1. Orders and notices how served.
  2. Use of forms in appendices.

_______

ORDER XLIX

Chartered High Courts

  1. Who may serve processes of High Court.

29

RULES

  1. Saving in respect of Chartered High Courts.
  2. Application of rules.

_______

ORDER L

Provincial Small Cause Courts

  1. Provincial Small Cause Courts.

_______

ORDER LI

Presidency Small Cause Courts

  1. Presidency Small Cause Courts.

APPENDIX — A. PLEADINGS.

APPENDIX — B. PROCESS.

APPENDIX—C. DISCOVERY, INSPECTION AND ADMISSION. APPENDIX —F. DECREES.

APPENDIX —G. EXECUTION.

APPENDIX —H. SUPPLEMENTAL PROCEEDINGS.

APPENDIX— I. MISCELLANEOUS.

THE SECOND SCHEDULE. — [Repealed].

THE THIRD SCHEDULE. [Repealed].

THE FOURTH SCHEDULE. — [Repealed].

THE FIFTH SCHEDULE. — [Repealed].

ANNEXURE I

30

THE CODE OF CIVIL PROCEDURE, 1908

ACT NO. 5 OF 19081

[21st March, 1908.]

An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.

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

PRELIMINARY

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

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

  1. This Act has been amended in its application to Assam by Assam Acts 2 of 1941 and 3 of 1953; to Tamil Nadu by Madras Act 34 of 1950, Madras A.O. 1950, and Tamil Nadu Act 15 of 1970; to Punjab by Punjab Act 7 of 1934; to Uttar Pradesh by U.P. Acts 4 of 1925, 35 of 1948, 24 of 1954, 17 of 1970, 57 of 1976 and 31 of 1978; to Karnataka by Mysore Act 14 of 1955; to Kerala by Kerala Act 13 of 1957; to Rajasthan by Rajasthan Act 19 of 1958; to Maharashtra by Maharashtra Act 22 of 1960 and 25 of 1970; It has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and, by notification under ss. 5 and 5A of the Schedule Districts Act, 1874 (14 of 1874), also to the following Scheduled Districts:—

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

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

(3) The Province of Kumaon and Garhwal and the Tarai Parganas (with modifications): U.P. Gazette, 1909, Pt. I, p. 3 and Gazette of India, 1909, Pt. I, p. 31.

(4) The Pargana of Jaunsar-Bawar in Dehradun and the Scheduled portion of the Mirzapur District : U.P. Gazette, 1909, Pt. I, p. 4 and Gazette of India, 1909, Pt. I, p. 32.

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

(6) Scheduled Districts in the Punjab: Gazette of India, 1909, Pt. I, p. 33.

(7) Sections 36 to 43 to all the Scheduled Districts in Madras, Gazette of India, 1909, Pt. I. , p. 152. (8) Scheduled Districts in the C.P., except so much as is already in force and so much as authorizes the attachment and sale of immovable property in execution of a decree, not being a decree directing the sale of such property: Gazette of India, 1909, Pt. I, p. 239.

(9) Ajmer-Merwara except ss. 1 and 155 to 158: Gazette of India, 1909, Pt. II, p. 480. (10) Pargana Dhalbhum, the Municipality of Chaibassa in the Kolhan and the Porahat Estate in the District of Singhbhum: Calcutta, Gazette of India, 1909, Pt. I, p. 453 and Gazette of India, 1909 , Pt. I, p. 443. Under s. 3(3)(a) of the Sonthal Parganas Settlement Regulation (3 o f 1872), ss. 38 to 42 and 156 and rules 4 to 9 in Order XXI in the First Schedule have been declared to be in force in the Sonthal Parganas and the rest of the Code for the trial of suits referred to in s. 10 of the Sonthal Parganas Justice Regulation, 1893 (5 of 1893): see Calcutta, Gazette, 1909, Pt. I, p. 45.

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

It has been extended to the District of Koraput and Ganjam Agency by Orissa Regulation (5 of 1951), s.2. It has been extended to the State of Manipur (w.e.f. 1-1-1957) by Act 30 of 1950, s. 3 to the whole of the Union Territory of Lakshadweep (w.e.f. 1-10-1967) by Regulation 8 of 1965, s. 3 and Sch.: to Goa, Daman and Diu (w.e.f. 15-6-1966) by Act 30 of 1965, s. 3; to Dadra and Nagar Haveli (w.e.f. 1-7-1965) by Reg. 6 of 1963, s. 2 and Sch. 1 and to the State of Sikkim (w.e.f. 1 -9-1984), vide Notification No. S.O. 599 (E), dated 13-8-1984, Gazette of India, Extraordinary., Part. II, s. 3.

31

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

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

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

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

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

  1. Definitions.—In this Act, unless there is anything repugnant in the subject or context,— (1) “Code” includes rules;

(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 3*** section 144, but shall not include—

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

(b) any order of dismissal for default.

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

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

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

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

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

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

5[(7A) “High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;

(7B) “India”, except in sections 1, 29, 43, 44, 6[44A,] 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir;]

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

  1. Subs. by Act 104 of 1976, s. 2, for sub-section (3) (w.e.f. 1-2-1977).
  2. Clause (a) omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10- 2019).
  3. The words and figures “section 47 or” omitted by s. 3, ibid. (w.e.f. 1-2-1977).
  4. Subs. by Act 2 of 1951, s. 4, for clause 5 (w.e.f. 1-4-1951).
  5. Ins. by s. 4, ibid. (w.e.f. 1-4-1951).
  6. Ins. by Act 42 of 1953, s. 4 and the Third Schedule (w.e.f. 23-12-1953).

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

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

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

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

(13) “movable property” includes growing crops;

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

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

(16) “prescribed” means prescribed by rules;

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

(b) every member of 1[an All-India Service];

(c) every commissioned or gazetted officer in the military 2[naval or air] forces of. 3[the Union] 4*** while serving under the Government;

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

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

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

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

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

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

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

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

  1. Subs. by Act 104 of 1976, s. 3, for “the Indian Civil Service” (w.e.f. 1-2-1977).
  2. Subs. by Act 35 of 1934, s. 2 and the Schedule, for “or naval”.
  3. Subs. by the A.O. 1950, for “his Majesty”.
  4. The words “including His Majesty’s Indian Marine Service” omitted by Act 35 of 1934, s. 2 and the Schedule.

33

1* * * * *

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

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

  1. 5. Application of the Code to Revenue Courts.—(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government 2*** may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government 3*** may prescribe.

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

  1. Pecuniary jurisdiction.—Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
  2. Provincial Small Cause Courts.—The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887(9 of 1887) 4[or under the Berar Small Cause Courts Law, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes 5[under the said Act or Law], 6[or to Courts in 7[any part of India to which the said Act does not extend] exercising a corresponding jurisdiction that is to say,—

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

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

(ii) the execution of decrees in such suits;

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

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

section 9,

sections 91 and 92,

sections 94 and 95 8[so far as they authorize or relate to]—

(i) orders for the attachment of immovable property,

(ii) injunctions,

  1. Clause (21) omitted by Act 2 of 1951, s. 4, Earlier Clause (21) ins. by the A.O. 1950. 2. The words “with the previous sanction of the G.G. in C”, omitted by Act 38 of 1920, s. 2 and the First Schedule Pt. I. 3. The words “with the sanction aforesaid” omitted by s. 2 and the First Schedule Pt. I, ibid.
  2. Ins. by Act 4 of 1941, s. 2 and the Third Schedule.
  3. Subs. by s. 2 and the Third Schedule., ibid., for “under that Act”.
  4. Ins. by Act 2 of 1951, s. 5.
  5. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part B States”.
  6. Subs. by Act 1 of 1926, s. 3, for “so far as they relate to injunctions and interlocutory orders” .

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

(iv) the interlocutory orders to in clause (e) of section 94], and sections 96 to 112 and 115.

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

2[Provided that—

(1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may be, may from time to time, by notification in the Official Gazette, direct3that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882 (15 of 1882), and with such modifications and adaptations as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court;

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

PART I

SUITS IN GENERAL

JURISDICTION OF THE COURTS AND Res Judicata

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

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

5[Explanation II].—For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]

STATE AMENDMENTS

Maharashtra.

Section 9A of the Code of Civil Procedure, 1908, in its application to the State of Maharashtra (hereinafter referred to as “the principal Act”), shall be deleted.

[Vide Maharashtra Act 61 of 2018, sec. 2.]

Notwithstanding the deletion of section 9A of the principal Act,—

(1) where consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 (hereinafter, in this section, referred to as “the Amendment Act”), the said issue shall be deemed to be an issue framed under Order XIV of the principal Act and shall be decided by the Court, as it deems fit, along with all other issues, at the time of final disposal of the suit itself :

Provided that, the evidence, if any, led by any party or parties to the suit, on the preliminary issue so framed under section 9A, shall be considered by the Court along with evidence, if any, led on other issues in the suit, at the time of final disposal of the suit itself ;

(2) in all the cases, where a preliminary issue framed under section 9A has been decided, holding that the Court has jurisdiction to entertain the suit, and a challenge to such decision is pending before a revisional Court, on the date of commencement of the Amendment Act, such revisional proceedings shall stand abated :

  1. Subs. by Act 104 of 1976, s. 4, for “77 and 155 to 158” (w.e.f. 1-2-1977).
  2. Added by Act 1 of 1914, s. 2.
  3. For instance of such direction, see Calcutta Gazette, 1910, Pt. I, p. 814.
  4. Explanation renumbered as Explanation I thereof by Act 104 of 1976, s. 5 (w.e.f. 1-2-1977).
  5. Ins. by s. 5, ibid. (w.e.f. 1-2-1977).

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Provided that, where a decree in such suit is appealed from any error, defect or irregularity in the order upholding jurisdiction shall be treated as one of the ground of objection in the memorandum of appeal as if it had been included in such memorandum;

(3) in all cases, where a preliminary issue framed under section 9A has been decided, holding that the Court has no jurisdiction to entertain the suit, and a challenge to such decision is pending before an appellate or revisional Court, on the date of commencement of the Amendment Act, such appellate or revisional proceedings shall continue as if the Amendment Act has not been enacted and section 9A has not been deleted :

Provided that, in case the appellate or revisional Court, while partly allowing such appeal or revision, remands the matter to the trial Court for reconsideration of the preliminary issue so framed under section 9A, upon receipt of these proceedings by the trial Court, all the provisions of the principal Act shall apply ;

(4) in all cases, where an order granting an ad-interim relief has been passed under sub-section (2) of section 9A prior to its deletion, such order shall be deemed to be an ad-interim order made under Order XXXIX of the principal Act and the Court shall, at the time of deciding the application in which such an order is made, either confirm or vacate or modify such order.

[Vide Maharashtra Act 61 of 2018, sec. 3.]

Maharashtra.

In section 3 of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018, for clause (1), the following clause shall be substituted and shall be deemed to have been substituted with effect from 27th June 2018, being the date of commencement of the said Act, namely:—

“(1) where consideration of a preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018 (hereinafter, in this section, referred to as “the Amendment Act”), the said issue shall be decided and disposed of by the Court under section 9A, as if the said section 9A has not been deleted;”.

[Vide Maharashtra Act 72 of 2018, sec. 2, (w.e.f. 27-6-2018.)]

  1. Stay of suit.—No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government 3***.] and having like jurisdiction, or before 4[the Supreme Court].

Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action.

  1. 11. Res No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
  1. Subs. by Act 2 of 1951, s. 3, for “the States”.
  2. Subs. by the A.O. 1937, for “the G.G. in C.”
  3. The words “or the Crown Representative” omitted by the A.O. 1948.
  4. Subs. by the A.O. 1950, for “His Majesty in Council”.

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

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

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

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

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

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

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

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

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

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

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

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 2[India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 2[India].

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

PLACE OF SUING

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

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

(b) for the partition of immovable property,

  1. Ins. by Act 104 of 1976, s. 6 (w.e.f. 1-2-1977).
  2. Subs. by Act 2 of 1951, s. 3, for “the States” (w.e.f. 1-4-1951).

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

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

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:

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

Explanation.—In this section “property” means property situate in 1[India].

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

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

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

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

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

  1. Suits for compensation for wrongs to person or movables.—Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.

  1. Other suits to be instituted where defendants reside or cause of action arises.—Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—

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

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

  1. Subs. by Act 2 of 1951, s. 3, for “the States” (w.e.f. 1-4-1951).

38

that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or

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

1* * * * *

2[Explanation].—A corporation shall be deemed to carry on business at its sole or principal office in 3[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.

  1. Objections to jurisdiction. 4[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

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

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

6[21A. Bar on suit to set aside decree on objection as to place of suing.— No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.

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

  1. Power to transfer suits which may be instituted in more than one Court.—Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.
  1. Explanation 1 omitted by Act 104 of 1976, s. 7 (w.e.f. 1-2-1977).
  2. Subs. by s. 7, ibid., for “Explanation II” (w.e.f. 1-2-1977).
  3. Subs. by Act 2 of 1951, s. 3, for “the States” (w.e.f. 1-4-1951).
  4. S. 21 renumbered as sub-section (1) by Act 104 of 1976, s. 8 (w.e.f. 1-2-1977).
  5. Ins. by s. 8, ibid. (w.e.f. 1-2-1977).
  6. Ins. by s. 9, ibid. (w.e.f. 1-2-1977).

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  1. To what Court application lies.—(I) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

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

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

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

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

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and— (i) try or dispose of the same; or

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

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

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

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

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

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

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

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

4[25. Power of Supreme Court to transfer suits, etc.—(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

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

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

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

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

  1. Subs. by Act 104 of 1976, s. 10, for “thereafter tries such suit” (w.e.f. 1-2-1977).
  2. Subs. by s. 10, ibid., for sub-section (3) (w.e.f. 1-2-1977).
  3. Ins. by s. 10, ibid. (w.e.f. 1-2-1977).
  4. Subs. by s. 11, ibid., for s. 25 (w.e.f. 1-2-1977).

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INSTITUTION OF SUITS

  1. Institution of suits. 1[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

2[(2) In every plaint, facts shall be proved by affidavit.]

*[Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of Rule 15A.]

SUMMONS AND DISCOVERY

  1. Summons to defendants.—Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed 3[on such day not beyond thirty days from date of the institution of the suit.]
  2. Service of summons where defendant resides in another State.—(1) A summons may be sent for service in another State to such Court and in such manner as may be prescribed by rules in force in that State.

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

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

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

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

5[29. Service of foreign summonses.—Summonses and other processes issued by—

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

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

(c) any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply,

may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.]

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

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

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

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

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

(a) issue a warrant for his arrest;

(b) attach and sell his property;

  1. S. 26 renumbered as sub-section (1) by Act 46 of 1999, s. 2 (w.e.f. 1-7-2002).
  2. Ins. by s. 3, ibid., (w.e.f. 1-7-2002).
  3. Ins. by s. 3, ibid., (w.e.f. 1-7-2002).
  4. Ins. by Act 104 of 1976, s. 12 (w.e.f. 1-5-1977).
  5. Subs. by Act 2 of 1951, s. 6, for section 29 (w.e.f. 1-4-1951).

* Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Schedule (w.e.f. 23-10-2015).

41

(c) impose a fine upon him 1[not exceeding five thousand rupees];

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

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

INTEREST

  1. Interest.— (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, 2[with further interest at such rate not exceeding six per cent. per annum as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:

3[Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent. per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

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

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

(2) Where such a decree is silent with respect to the payment of further interest 4[on such principal sum] from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.

COSTS

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

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

5* * * * *

*[35. Costs.— (1) In relation to any Commercial dispute, the Court, notwithstanding anything contained in any other law for the time being in force or Rule, has the discretion to determine:

(a) whether costs are payable by one party to another;

(b) the quantum of those costs; and

(c) when they are to be paid.

  1. Subs. by Act 46 of 1999, s. 4, for “not exceeding five hundred rupees” (w.e.f. 1-7-2002).`
  2. Subs. by Act 66 of 1956, s. 2, for certain words (w.e.f. 1-1-1957).
  3. Ins. by Act 104 of 1976, s. 13 (w.e.f. 1-7-1977).
  4. Subs. by Act 66 of 1956, s. 2, for “on such aggregate sum as aforesaid” (w.e.f. 1-1-1957).
  5. Sub-section (3) omitted by Act 66 of 1956, s. 3 (w.e.f. 1-1-1957).

*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Schedule (w.e.f. 23-10-2015).

42

Explanation.—For the purpose of clause (a), the expression “costs” shall mean reasonable costs relating to—

(i) the fees and expenses of the witnesses incurred;

(ii) legal fees and expenses incurred;

(iii) any other expenses incurred in connection with the proceedings.

(2) If the Court decides to make an order for payment of costs, the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party:

Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing.

Illustration

The Plaintiff, in his suit, seeks a money decree for breach of contract, and damages. The Court holds that the Plaintiff is entitled to the money decree. However, it returns a finding that the claim for damages is frivolous and vexatious.

In such circumstances the Court may impose costs on the Plaintiff, despite the Plaintiff being the successful party, for having raised frivolous claims for damages.

(3) In making an order for the payment of costs, the Court shall have regard to the following circumstances, including—

(a) the conduct of the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; (c) whether the party had made a frivolous counterclaim leading to delay in the disposal of the case;

(d) whether any reasonable offer to settle is made by a party and unreasonably refused by the other party; and

(e) whether the party had made a frivolous claim and instituted a vexatious proceeding wasting the time of the Court.

(4) The orders which the Court may make under this provision include an order that a party must pay–– (a) a proportion of another party’s costs;

(b) a stated amount in respect of another party’s costs;

(c) costs from or until a certain date;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating to a distinct part of the proceedings; and

(g) interest on costs from or until a certain date.]

STATE AMENDMENTS

Jammu and Kashmir and Ladakh (UTs).—

In Section 35, in sub-section (1) omit “Commercial”.

[Vide the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O. 1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated (23-10-2020)].

43

1[35A. Compensatory costs in respect of false or vexatious claims or defences.—(1) If in any suit or other proceedings 2[including an execution proceeding but 3[excluding an appeal or a revision] any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, 4[if it so thinks fit], may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the object or by the party by whom such claim or defence has been put forward, of cost by way of compensation.

*[(2) No Court shall make any such order for the payment of an amount exceeding 5[three thousand rupees] or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887), 6[or under a corresponding law in force in 7[any part of India to which the said Act does not extend] and not being a Court constituted 8[under such Act or law], are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees :

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

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

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

STATE AMENDMENTS

Jammu and Kashmir and Ladakh (UTs).—

In Section 35A, omit sub-section (2).

[Vide the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, notification No. S.O. 1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated (23-10-2020)].

9[35B. Costs for causing delay.—(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit—

(a) fails to take the step which he was required by or under this Code to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground,

the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on

  1. Section 35A ins. by Act 9 of 1922, s. 2, which, under section 1(2) thereof may be brought into force in any State by the State Government on any specified date. It has been so brought into force in Bombay, Bengal, U.P., Punjab, Bihar, C.P., Assam, Orissa and Madras.
  2. Subs. by Act 66 of 1956, s. 4, for “not being an appeal” (w.e.f. 1-2-1957).
  3. Subs. by Act 104 of 1976, s. 14, for “excluding an appeal” (w.e.f. 1-2-1977).
  4. Subs. by Act 66 of 1956, s. 4, for certain words (w.e.f. 1-2-1957).

*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Schedule (w.e.f. 23-10-2015). 5. Subs. by Act 104 of 1976, s. 14, for “one thousand rupees” (w.e.f. 1-2-1977).

  1. Ins. by Act 2 of 1951, s. 7.
  2. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “a Part B State”.
  3. Subs. by Act 2 of 1951, s. 7, for “under that Act” (w.e.f. 1-4-1951).
  4. Ins. by Act 104 of 1976, s. 15 (w.e.f. 1-2-1977).

44

the date next following the date of such order, shall be a condition precedent to the further prosecution of—

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

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

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

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

PART II

EXECUTION

GENERAL

1[36. Application to orders.—The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).]

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

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

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

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

COURTS BY WHICH DECREES MAY BE EXECUTED

  1. Court by which decree may be executed.—A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
  2. Transfer of decree.—(1) The Court which passed a decree may, on the application of the decree holder, send it for execution to another Court 3[of competent jurisdiction],—

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

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

  1. Subs. by Act 104 of 1976, s. 16, for section 36 (w.e.f. 1-2-1977).
  2. Ins. by s. 17, ibid. (w.e.f. 1-2-1977).
  3. Ins. by s. 18, ibid. (w.e.f. 1-2-1977).

45

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

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

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

1[(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.]

2[(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.]

  1. Transfer of decree to Court in another State.—Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.
  2. Result of execution proceedings to be certified.—The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.
  3. Powers of Court in executing transferred decree. — 3[(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons is disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had passed by itself.

4[(2) Without prejudice to the generality of the provisions of sub-section (1), the powers of the Court under that sub-section shall include the following powers of the Court which passed the decree, namely:—

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

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

(c) power to order attachment of a decree.

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

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

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

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

5[43. Execution of decrees passed by Civil Courts in places to which this Code does not extend.— Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends.]

  1. Ins. by Act 104 of 1976, s. 18, (w.e.f. 1-2-1977).
  2. Ins. by Act 22 of 2002, s. 2 (w.e.f. 1-7-2002).
  3. S. 42 renumbered as sub-section (1) by Act 104 of 1976, s. 19, (w.e.f. 1-2-1977).
  4. Ins. by s. 19, ibid., (w.e.f. 1-2-1977).
  5. Subs. by Act 2 of 1951, s. 8, for section 43 (w.e.f. 1-4-1951).

46

1[44. Execution of decrees passed by Revenue Courts in places to which this Code does not extend.—The State Government may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend, or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State.]

2[44A. Execution of decrees passed by Courts in reciprocating territory.—(1) Where a certified copy of a decree of any of the superior Courts of 3*** any reciprocating territory has been filed in a District Court, the decree may be executed in 4[India] as if it had been passed by the District Court.

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

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

5[Explanation 1.— “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2.— “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.]]

6[45. Execution of decrees outside India.—So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established 7*** by the authority of the Central Government 8[outside India] to which the State Government has by notification in the Official Gazette declared this section to apply.]

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

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

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

QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

  1. Questions to be determined by the Court executing decree.—(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
  1. Subs. by Act 2 of 1951, s. 9, for section 44 (w.e.f. 1-4-1951).
  2. Ins. by Act 8 of 1937, s. 2.
  3. The words “the United Kingdom or” omitted by Act 71 of 1952, s. 2.
  4. Subs. by Act 2 of 1951, s. 3, for “the States” (w.e.f. 1-4-1951).
  5. Subs. by Act 71 of 1952, s. 2, for Explanations 1 to 3.
  6. Subs. by the A.O. 1937, for section 45.
  7. The words “or continued” omitted by the A.O. 1948.
  8. Subs. by the A.O. 1950, for “in any Indian State”.

47

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

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

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

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

LIMIT OF TIME FOR EXECUTION

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

TRANSFEREES AND LEGAL REPRESENTATIVES

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

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

PROCEDURE IN EXECUTION

  1. Powers of Court to enforce execution.—Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree— (a) by delivery of any property specifically decreed;

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

(c) by arrest and detention in prison 3[for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section];

(d) by appointing a receiver; or

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

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

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

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

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

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

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

  1. Sub-section (2) omitted by Act 104 of 1976, s. 20 (w.e.f. 1-2-1977).
  2. Subs. by s. 20, ibid. for the Explanation (w.e.f. 1-2-1977).
  3. Ins. by ibid, s. 21, (w.e.f. 1-2-1977).
  4. Ins. by Act 21 of 1936, s. 2.

48

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

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

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

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

STATE AMENDMENT

Karnataka.

For Section 54, the following Section shall be substituted, namely.—

“54. Partition of estate or separation of share.—Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition or the separate possession of shares, and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the Court may appoint as Commissioner in that behalf.”

[Vide Karnataka Act 36 of 1998, sec. 2.]

ARREST AND DETENTION

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

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

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

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

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

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

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(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he 1[may be discharged] if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.

(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court 2[may release] him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him to the civil prison in execution of the decree.

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

(a) where the decree is for the payment of a sum of money exceeding 3[4[five thousand rupees], for a period not exceeding three months, and,]

5[(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks.]

6[(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed 7[two thousand rupees.]]

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

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

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

(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom— (a) by the State Government, on the ground of the existence of any infectious or contagious disease, or

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

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

ATTACHMENT

  1. 8 Property liable to attachment and sale in execution of decree.—(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other
  1. Subs. by Act 3 of 1921, s. 2, for “will be discharged”.
  2. Subs. by s. 2, ibid., for “shall release”.
  3. Subs. by Act 104 of 1976, s. 22, for certain words (w.e.f. 1-2-1977).
  4. Subs. by Act 46 of 1999, s. 5, “one thousand rupees” (w.e.f. 1-7-2002).
  5. Subs. by s. 5, ibid., by clause (b) (w.e.f. 1-7-2002).
  6. Ins. by Act 104 of 1976, s. 22 (w.e.f. 1-2-1977).
  7. Subs. by Act 46 of 1999, s. 5, for “five hundred rupees” (w.e.f. 1-7-2002).
  8. For amendments to s. 60, in its application to East Punjab, see the Punjab Relief of Indebtedness Act, 1934 (Pun. Act 7 of 1934), s. 35, as amended by Pun. Acts 12 of 1940 and 6 of 1942.

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saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:— (a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;

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

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to 1[an agriculturist or a labourer of a domestic servant] and occupied by him ;

(d) books of account ;

(e) a mere right to sue for damages ;

(f) any right of personal service ;

(g) stipends and gratuities allowed to pensioners of the Government 2[or of a local authority or of any other employer], or payable out of any service family pension fund 3notified in the Official Gazette by 4[the Central Government or the State Government] in this behalf, and political pensions;

5[(h) the wages of labourers and domestic servants, whether payable in money or in kind; 6***]

7[(i) salary to the extent of 8[the first 9[10[one thousand rupees]] and two third of the remainder] 11[in execution of any decree other than a decree for maintenance]:

12[Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that deeree.]]

11[(ia) one-third of the salary in execution of any decree for maintenance;]

13[(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;]

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 14[1925], (19 of 1925), for the time being applies in so far as they are declared by the said Act not to be liable to attachment;

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

  1. Subs. by Act 104 of 1976, s. 23, for “an agriculturist” (w.e.f. 1-2-1977)
  2. Ins. by s. 23, ibid. (w.e.f. 1-2-1977).
  3. For such a notification, see Gazette of India, 1909, Pt. I, p. 5.
  4. Subs. by the A.O. 1937, for “the G.G. in C.”
  5. Subs. by Act 9 of 1937, s. 2, for clauses (h) and (i). The amendments made by that section have no effect in respect of any proceedings arising out of a suit instituted before 1st June, 1937, see ibid., section 3.
  6. The words “and salary, to the extent of the first hundred rupees and one-half the remainder of such salary” omitted by Act 5 of 1943, s. 2.
  7. Subs. by s. 2, ibid., for clause (i) and the proviso.
  8. Subs. by Act 26 of 1963, s. 2, for “the first hundred rupees”.
  9. Subs. by Act 104 of 1976, s. 23, for “two hundred rupees and one-half the remainder” (w.e.f. 1-2-1977). 10. Subs. by Act 46 of 1999, s. 6, for “four hundred rupees” (w.e.f. 1-7-2002).
  10. Ins. by Act 66 of 1956, s. 6 (w.e.f. 1-1-1957).
  11. Subs. by Act 104 of 1976, s. 23, for “the proviso” (w.e.f. 1-2-1977).
  12. Subs. by s. 23, ibid., for clause (j) (w.e.f. 1-2-1977).
  13. Subs. by Act 9 of 1937, s. 2, for “1897”.
  14. Ins. by Act 104 of 1976, s. 23 (w.e.f. 1-2-1977).

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

(kc) the interest of a lessee of a residential of building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;]

1[(1) any allowance forming part of the emoluments of any 2[servant of the 3[Government]] or of any servant of a railway company or local authority which the 4[appropriate Government] may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to 5[any such servant] while under suspension;]

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest; (n) a right to future maintenance;

(o) any allowance declared by 6[any Indian law] to be exempt from liability to attachment or sale in execution of a decree; and

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

7[Explanation I. —The moneys payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), (j), (l) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable.]

8[9[Explanation II. —In clauses (i) and (ia)], “salary” means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.]

10[Explanation 11[III]In clause (1) “appropriate Government” means—

(i) as respects any 12[person] in the service of the Central Government, or any servant of 13[a Railway Administration] or of a cantonment authority or of the port authority of a major port, the Central Government; 14* * * * *

(iii) as respects any other 2[servant of the 3[Government]] or a servant of any other 15*** local authority, the State Government.]

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

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

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

(a) by his own labour, or

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

(c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both.]

16[(IA) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void.]

  1. Subs. by Act 9 of 1937, s. 2, for the original clause (l), see also footnote 3.
  2. Subs. by Act 5 of 1943, s. 2, for “public officer”.
  3. Subs. by the A.O. 1950 for “crown”.
  4. Subs. by the A.O. 1937, for “G.G. in C”.
  5. Subs. by Act 5 of 1943, s. 2, for “any such officer or servant”.
  6. Subs. by the A.O. 1937, for “any law passed under the Indian Councils Act 1861 and 1892”.
  7. Subs. by Act 104 of 1976, s. 23, for Explanation I (w.e.f. 1-2-1977).
  8. Added by Act 9 of 1937, s. 2, The amendments made by that section shall not effect in respect of any proceeding arising out of any suit instituted before 1st June, 1937, see ibid., section 3.
  9. Subs. by Act 104 of 1976, s. 23, “Explanation 2. in clauses (h) and (i)” (w.e.f. 1-2- 1977).
  10. Ins. by the A.O. 1937.
  11. Subs. by Act 104 of 1976, s. 23, for figur “3” (w.e.f. 1-2-1977).
  12. Subs. by Act 5 of 1943, s. 2, for “Public officer”.
  13. Subs. by the A.O. 1950, for “a Federal Railway”.
  14. Clause (ii) omitted by the A.O. 1948.
  15. The words “railway or” omitted by the A.O. 1950.
  16. Ins. by Act 104 of 1976, s. 23 (w.e.f. 1-2-1977).

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(2) Nothing in this section shall be deemed 1*** to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land 2***

3* * * * * STATE AMENDMENTS

Kerala.

In clause (g) of the Proviso to sub-section (1) of section 60, after the words “stipends and gratuities allowed by pensioners of the Government” the words “or of a local authority” shall be inserted. [Vide Kerala Act 13 of 1957, sec. 3.]

In the proviso to sub section (1) of section 60 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908), after clause (g), the following clause shall be inserted, namely:

“(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme for the employees of the Government of Kerala.”

[Vide Kerala Act 1 of 1988, sec. 2.]

STATE AMENDMENTS

Himachal Pradesh.

Amendment in section 60. (1) In Section 60 sub-section (1):

(i) at the end of clause (c), add the following:

or compensation paid for such houses and buildings (including compensation for the materials and the sites and the land referred to above) acquired for a public purpose;

(ii) after clause (c), the following clause shall be inserted, namely:

(cc) compensation paid for agricultural lands belonging to agriculturists and acquired for a public purpose;

[Vide Himachal Pradesh Act 6 of 1956, sec. 2.]

Tamil Nadu

Amendment of section 60, Central Act V of 1908.—In clause (g) of the proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908, after the words “stipends and gratuities allowed to pensioners of the Government”, the words “or of a authority” shall be inserted.

[Vide Tamil Nadu Act XXXIV of 1950, s. 2]

  1. Partial exemption of agricultural produce.—The State Government 4*** may, by general or special order published in the Official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of the judgment

debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in execution of a decree.

  1. Seizure of property in dwelling-house.—(1) No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise.

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

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving

  1. The brackets and letter “(a)”, rep. by Act 10 of 1914, s. 3 and the Second Schedule.
  2. The word “or” rep. by, s. 3, ibid., and the Second Schedule.
  3. Clause (b) rep. by, s. 3 ibid., and the Second Schedule.
  4. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, s. 2 and the First Schedule Pt 1.

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her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal. 63. Property attached in execution of decrees of several Courts.—(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

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

1[Explanation.—For the purposes of sub-section (2), “proceeding taken by a Court” does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.]

  1. Private alienation of property after attachment to be void. 2[(1)] Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

3[(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.]

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

S A L E

  1. Purchaser’s title.—Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
  2. [Suit purchase being on behalf of plaintiff.]Rep. by Act, 1988 (45 of 1988), s. 7 (w.e.f. 19-5- 1988).
  3. Power for State Government to make rules as to sales of land in execution of decrees for payment of money. — 4[(1)] The State Government 5*** may, by notification in the Official Gazette, make rules for any local area imposing conditions in respect of the sale of any class of interests in land in execution of decrees for the payment of money, where such interest are so uncertain or undetermined as, in the opinion of the State Government, to make it impossible to fix their value.

6[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of and in execution of decrees were in force therein, the State Government may, by notification in the Official Gazette declare such rules to be in force, or may 5*** by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this sub-section shall set out the rules so continued or modified.]

7[(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES

AGAINST IMMOVABLE PROPERTY

  1. [Power to prescribe rules for transferring to collector execution of certain decrees.]Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 7 (w.e.f. 1-1-1957).
  2. [Provisions of Third Schedule to apply.]Rep. by s. 7 ibid, (w.e.f. 1-1-1957).
  3. [Rules of Procedure.]Rep. by s. 7 ibid, (w.e.f. 1-1-1957).
  1. Explanation ins. by Act 104 of 1976, s. 24 (w.e.f. 1-2-1977).
  2. Section 64 renumbered as sub-section (1) by Act 22 of 2002, s. 3 (w.e.f. 1-7-2002).
  3. Ins. by, Act 22 of 2002, s. 3, (w.e.f. 1-7-2002).
  4. Section 67 renumbered as sub-section (1) by Act 1 of 1914, s. 3.
  5. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, s. 2 and the Schedule, Pt. 1. 6. Added by Act 1 of 1914, s. 3.
  6. Ins. by Act 20 of 1983, s. 2 and the Schedule (w.e.f. 15-3-1984).

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  1. [Jurisdiction of Civil Courts barred.]Rep. by s. 7 ibid, (w.e.f. 1-1-1957).
  2. [Collector to deemed to be acting judicially.]Rep. by s. 7 ibid, (w.e.f. 1-1-1957). DISTRIBUTION OF ASSETS
  3. Proceeds of execution-sale to be rateably distributed among decree-holders.—(1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons:

Provided as follows:—

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

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

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

First, in defraying the expenses of the sale;

Secondly, in discharging the amount due under the decree;

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

Fourthly, rateably among the holders of decrees for the payment of money against the judgment-debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have no obtained satisfaction thereof.

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

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

RESISTANCE TO EXECUTION

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

PART III

INCIDENTAL PROCEEDINGS

COMMISSIONS

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

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

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

  1. Ins. by Act 104 of 1976, s. 26 (w.e.f. 1-2-1977).

55

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

(g) to perform any ministerial act.]

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

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

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

2[78. Commissions issued by foreign Courts.—Subject to such conditions and limitations as may be prescribed the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of—

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or (b) Courts established or continued by the authority of the Central Government outside India; or (c) Courts of any State or country outside India.]

PART IV

SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY 3[79. Suits by or against Government.—In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be—

(a) in the case of a suit by or against the Central Government, 4[the Union of India], and (b) in the case of a suit by or against a State Government, the State.]

  1. Notice.5[(1)] 6[ Save as otherwise provided in sub-section (2), no suits 7[shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir)] or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been 8[delivered to, or left at the office of—]

(a) in the case of a suit against the Central Government, 9[except where it relates to a railway] a Secretary to that Government;

10[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

11[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;] (c) in the case of a suit against 12[any other State Government], a Secretary to that Government or the Collector of the district; 13***

14* * * * *

  1. Subs. by Act 2 of 1951, s. 3, for “the States”.
  2. Subs. by Act 2 of 1951, s. 11, for section 78 (w.e.f. 1-4-1951).
  3. Subs by the A.O. 1948, for section 79.
  4. Subs. by the A.O. 1950, for “the Dominion of India”.
  5. S. 80 renumbered as sub-section (1) by Act 104 of 1976, s. 27 (w.e.f. 1-2-1977).
  6. Subs. by s. 27, ibid., for “No suit shall be instituted” (w.e.f. 1-2-1977).
  7. Subs. by Act 26 of 1963, s. 3, for “shall be instituted against the Government” (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948, for “Instituted against the Crown”
  8. Subs. by the A.O. 1937, for “in the case of the Secretary of State in Council, delivered to, or left at the office of a Secretary to the L.G. or the Collector of the District”.
  9. Ins. by Act 6 of 1948, s. 2.
  10. Clause (aa) ins. by Act 6 of 1948, s. 2 and relattered as clause (b) and the Former clause (b) omitted by the A.O. 1948. 11. Ins. by Act 26 of 1963, s. 3 (w.e.f. 5-6-1964).
  11. Subs. by s. 3, ibid., for “a State Government” (w.e.f. 5-6-1964).
  12. The word “and” omitted by the A.O. 1948.
  13. Clause (d) omitted ibid.

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

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

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

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

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

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

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

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

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

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

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of 3[such decree].

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

(a) is passed or made against 5[the Union of India] or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; and

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

  1. Ins. by Act 104 of 1976, s. 27 (w.e.f. 1-2-1977).
  2. Subs. by s. 28, ibid., for sub-section (1) (w.e.f. 1-2-1977).
  3. Subs. by Act 104 of 1976, s. 28, for “such report” (w.e.f. 1-2-1977).
  4. Ins. by Act 32 of 1949, s. 2.
  5. Subs. by the A.O. 1950, for “the Dominion of India”.

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1[SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND ENVOYS]

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

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

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

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

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

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

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

  1. Suits against foreign Rulers, Ambassadors and Envoys.—(1) No. 2*** foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid 3[a foreign State] from whom he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which 4[the foreign State] may be sued, but it shall not be given, unless it appears to the Central Government that 4[the foreign State]—

(a) has instituted a suit in the Court against the person desiring to sue 5[it], or

(b) by 6[itself] or another, trades within the local limits of the jurisdiction of the Court, or

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

(d) has expressly or impliedly waived the privilege accorded to 5[it] by this section.

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

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

8[(a) any ruler of a foreign State;]

  1. Subs. by Act 2 of 1951, s. 12, for the former heading and sub-sections 83 to 87 (w.e.f. 1-4-1951). 2. The words “Ruler of a” omitted by Act 104 of 1976, s. 29 (w.e.f. 1-2-1977).
  2. Subs. by s. 29, ibid., for “a Ruler” (w.e.f. 1-2-1977).
  3. Subs. by s. 29, ibid., for “the Ruler (w.e.f. 1-2-1977).
  4. Subs. by s. 29, ibid., for “him” (w.e.f. 1-2-1977).
  5. Subs. by Act 104 of 1976, s. 29, for “himself” (w.e.f. 1-2-1977).
  6. Subs. by s. 29, ibid., for sub-section (3) (w.e.f. 1-2-1977).
  7. Ins. by s. 29, ibid. (w.e.f. 1-2-1977).

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

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

(c) any such member of the staff 2[of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf.

3[as they apply in relation to a foreign State].

4[(5) The following persons shall not be arrested under this Code, namely: —

(a) any Ruler of a foreign State;

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

(c) any High Commissioner of a Commonwealth country;

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

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

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

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

87A. Definitions of “Foreign State” and “Rulers”.— (1) In this Part,—

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

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

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

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

(b) that a person has or has not been recognized by the Central Government to be the head of a State. SUITS AGAINST RULERS OF FORMER INDIAN STATES

87B. Applications of sections 85 and 86 to Rulers of former Indian States.—5[(1) In the case of any suit by or against the Ruler of any former Indian State which is based wholly or in part upon a cause of action which arose before the commencement of the Constitution or any proceeding arising out of such suit, the provisions of section 85 and sub-sections (1) and (3) of section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign State.]

(2) In this section—

(a) “former Indian State” means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this ;6***

  1. Clause (a) re-lettered as clause (aa) by Act 104 of 1976, s. 29 (w.e.f. 1-2-1977).
  2. Subs. by s. 29, ibid, for “or retinue of the Ruler, Ambassador” (w.e.f. 1-2-1977).
  3. Subs. by s. 29, ibid, for “as they apply in relation to the Ruler of a foreign State” (w.e.f. 1-2-1977). 4. Ins. by s. 29, ibid. (w.e.f. 1-2-1977).
  4. Subs. by Act 54 of 1972, s. 3, for sub-section (1) (w.e.f. 9-9-1972).
  5. The word “and” omitted by s. 3, ibid. (w.e.f. 9-9-1972).

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1[(b) “Commencement of the Constitution” means the 26th day of January, 1950; and

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

INTERPLEADER

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

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

PART V

SPECIAL PROCEEDINGS

ARBITRATION

2[89. Settlement of disputes outside the Court.—(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:—

(a) arbitration;

(b) conciliation;

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

(d) mediation.

(2) Were a dispute has been referred—

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

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

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

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

SPECIAL CASE

  1. Power to state case for opinion of Court.—Where any person agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.
  1. Subs. by Act 54 of 1972, s. 3, for clause (b) (w.e.f. 9-9-1972).
  2. Ins. by Act 46 of 1999, s. 7 (w.e.f. 1-7-2002), Earlier rep by Act 10 of 1940, s. 49 or the Third Schedule.

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1[PUBLIC NUISANCES AND OTHER WRONGFUL ACTS AFFECTING THE PUBLIC]

  1. Public nuisances and other wrongful acts affecting the public.—2[(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,—

(a) by the Advocate-General, or

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

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

  1. 392. Public charities.—(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 4[leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree :—

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

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

(d) directing accounts and inquiries;

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

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

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

(2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863), 6[or by any corresponding law in force in 7[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

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

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

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

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

  1. Subs. by Act 104 of 1976, s. 30, for the former headings (w.e.f. 1-2-1977).
  2. Subs. by s. 30, ibid., for sub-section (1) (w.e.f. 1-2-1977).
  3. S. 92 shall not apply to any religious trust in Bihar, see Bihar Act 1 of 1951.
  4. Subs. by Act 104 of 1976, s. 31, for “consent in writing of the Advocate-General” (w.e.f. 1-2-1977). 5. Ins. by Act 66 of 1956, s. 9 (w.e.f. 1-1-1957).
  5. Ins. by Act 2 of 1951, s. 13 (w.e.f. 1-4-1951).
  6. Subs. by the A.O. (No. 2), 1956, for “a Part B State”.
  7. Ins. by Act 104 of 1976, s. 31 (w.e.f. 1-2-1977).

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

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

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

(e) where the original purposes, in whole or in part, have, since they were laid down:— (i) been adequately provided for by other means, or

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

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

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

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

PART VI

SUPPLEMENTAL PROCEEDINGS

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

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

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

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

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

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

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

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

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same,

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount 1[not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the 2[expense or injury (including injury to reputation) caused to him]:

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

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

  1. Subs. by Act 46 of 1999, s. 8, for “not exceeding one thousand rupees” (w.e.f. 1-7-2002).
  2. Subs. by Act 104 of 1976, s. 32, for “expense or injury caused to him” (w.e.f. 1-2-1977).

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PART VII

APPEALS

APPEALS FROM ORIGINAL DECREES

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

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

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

1[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed 2[ten thousand rupees.]]

  1. Appeal from final decree where no appeal from preliminary decree.—Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
  2. Decision where appeal heard by two or more Judges.—(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

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

Provided that where the Bench hearing the appeal is 3[composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

4[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters to patent of any High Court.]

  1. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 5[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

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

7[99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.—Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.]

APPEALS FROM APPELLATE DECREES

8[100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any

  1. Ins. by Act 104 of 1976, s. 33 (w.e.f. 1-2-1977).
  2. Subs. by Act 46 of 1999, s. 9, for “three thousand rupees” (w.e.f. 1-7-2002).
  3. Subs. by Act 104 of 1976, s. 34, for certain words (w.e.f. 1-2-1977).
  4. Ins. by Act 18 of 1928, s. 2 and the First Schedule.
  5. Ins. by Act 104 of 1976, s. 35 (w.e.f. 1-2-1977).
  6. Proviso Added by s. 35, ibid. (w.e.f. 1-2-1977).
  7. Ins. by s. 36, ibid. (w.e.f. 1-2-1977).
  8. Subs. by s. 37, ibid., for section 100 (w.e.f. 1-2-1977).

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other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

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

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

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

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

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

STATE AMENDMENT

Kerala.

In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely:

(d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question.

[Vide Kerala Act 13 of 1957 sec. 4.]

1[100A. No further appeal in certain cases.—Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge.]

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

2[102. No second appeal in certain cases.—No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.]

3[103. Power of High Court to determine issue of fact.—In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,—

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

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

APPEALS FROM ORDERS

  1. Orders from which appeal lies.—(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

4* * * * * 5[(ff) an order under section 35A;]

  1. Subs. by Act 22 of 2002, s. 4, for section 100 A (w.e.f 1-7-2002).
  2. Subs. by s. 5, ibid., for section 102 (w.e.f. 1-7-2002).
  3. Subs. by Act 104 of 1976, s. 40, for section 103 (w.e.f. 1-2-1977).
  4. Clauses (a) to (f) omitted by Act 10 of 1940, s. 49 and the Third Schedule.
  5. Ins. by Act 9 of 1922, s. 3, see also foot-note to section 35A, Supra.

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1[(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]

(g) an order under section 95;

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

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

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

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

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

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

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

GENERAL PROVISIONS RELATING TO APPEALS

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

(a) to determine a case finally;

(b) to remand a case;

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

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

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

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

(a) from appellate decrees, and

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

APPEALS TO THE SUPREME COURT

3[109. When appeals lie to the Supreme Court.—Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals

  1. Ins. by Act 104 of 1976, s. 41 (w.e.f. 1-2-1977).
  2. Words “made after the commencement of this Code” omitted by, s. 42, ibid., (w.e.f. 1-2-1977). 3. Subs. by Act 49 of 1973, s. 2, for section 109 (w.e.f. 29-11-1973).

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from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies—

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

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

  1. [Value of subject matters.] omitted by the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973), s. 3 (w.e.f. 29-11-1973).
  2. [Bar of certain appeals.] omitted by the A.O. 1950.

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

  1. Savings.—2[(1) Nothing contained in this Code shall be deemed—

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

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

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

PART VIII

REFERENCE, REVIEW AND REVISION

  1. Reference to High Court.—Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:

3[Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.

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

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

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

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

(c) by a decision on a reference from a Court of Small Causes,

may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

  1. Revision.4[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears—
  1. Ins. by the A.O. 1937.
  2. Subs. by the A.O. 1950, for the former sub-section (1).
  3. Added by Act 24 of 1951, s. 2 (w.e.f. 1-4-1951).
  4. Section 115 re-numbered as sub-section (1) by Act 104 of 1976, s. 43 (w.e.f. 1-2-1977).

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

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

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

1[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.]

2[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

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

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

STATE AMENDMENTS

Orrisa

Amendment of section 115.—In the Code of Civil Procedure, 1908 (5 of 1908) for section 115, the following section shall be substituted, namely:—

  1. Revision.—The High Court, in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees, and the District Court, in any other case including a case arising out of an original suit or other proceedings instituted before the commencement of the Code of Civil Procedure ( Orissa Amendment) Act, 1991, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears—

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

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

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

Provided that in respect of cases arising out of original suits, or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where—

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

  1. Subs. by Act 46 of 1999, s.12, for “proviso” (w.e.f. 1-7-2002).
  2. Ins. by Act 104 of 1976, s. 43 (w.e.f 1-2-1977).
  3. Ins. by Act 46 of 1999, s.12 (w.e.f. 1-7-2002).

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

  1. Saving.—The amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any jurisdiction already exercised, and any proceeding instituted or commenced in the High Court under section 115 of the Code of Civil Procedure, 1908 (5 of 1908) prior to the commencement of this Act shall, notwithstanding such amendment, continue to be heard and decided by such Court.

[Vide the Orissa Act 26 of 1991, s. 2]

Amendment of section 115.—In the Code of Civil Procedure, 1908 (5 of 1908), for section 115, the following section shall be substituted, namely:—

  1. Revision.—(1) The High Court, in cases arising out of original suits or other proceedings of the value exceeding five lakhs rupees and the District Court, in any other cases, including a case arising out of an original suit or other proceedings instituted before the commencement of the Code of Civil Procedure ( Orissa Amendment) Act, 2010, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears—

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

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

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

Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section.

(2) The High Court or the District Court, as the case may be, shall not under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceedings.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court or District Court, as the case may be.

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

[Vide the Orissa Act 14 of 2010, s. 2]

PART IX

SPECIAL PROVISIONS RELATING TO THE 1[HIGH COURTS 2[NOT BEING THE COURT OF A JUDICIAL COMMISSIONER ]

  1. Part to apply only to certain High Courts.—This Part applies only to High Courts 7[not being the court of a Judicial Commissioner].
  1. Subs. by Act 2 of 1951, s. 14, for “CHARTERED HIGH COURTS”.
  2. Subs. by the Adaptation of Laws (No. 2) Order, 1956 for “For Part A States and Part B States”.

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  1. Application of Code to High Courts.—Save as provided in this Part or in Part X or in rules, the provisions of this Court shall apply to such High Courts.
  2. Execution of decree before ascertainment of costs.—Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs;

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

119.Unauthorized persons not to address Court.—Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.

  1. Provisions not applicable to High Court in original civil jurisdiction.—(1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20.

1* * * * *

PART X

RULES

  1. Effect of rules in First Schedule.—The rules in a First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.
  2. 122. Power of certain High Courts to make rules.—2[High Courts 3[not being the Court of a Judicial Commissioner]] 4*** may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.
  3. Constitution of Rules Committees in certain States.—(1) A Committee, to be called the Rule Committee, shall be constituted at 5[the town which is the usual place of sitting of each of the High Courts 6*** referred to in section 122].

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

(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or 7*** a Divisional Judge for three years,

8[(b) two legal practitioners enrolled in that Court,]

9[(c) a Judge of a Civil Court subordinate to the High Court, 10***

  1. Sub-section (2) rep. by Act 3 of 1909, s. 127 and the Third Sch.
  2. Subs. by the A.O. 1950, for “Courts which are High Courts for the purposes of the Government of India Act, 1935”. 3. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “for Part A States and Part B States”. The words in italics were ins. by Act 2 of 1951, s. 15 (w.e.f. 1-4-1951).
  3. The words “and the Chief Court of Lower Burma” rep. by Act 11 of 1923, s. 3 and the Second Schedule. 5. Subs. by Act 13 of 1916, s. 2 and the Schedule, for “each of the towns of Calcutta, Madras, Bombay, Allahabad, Lahore and Rangoon”.
  4. The words “and of the Chief Court” omitted by the Act 11 of 1923, s. 3 and the Second Schedule. These words were again ins. by Act 32 of 1925, and subsequently omitted by the A.O. 1948.
  5. The brackets and words “(in Burma)” rep. by Act 11 of 1923, s. 3 and the Second Schedule.
  6. Subs. by Act 2 of 1951, s. 16, for clauses (b) and (c).
  7. Clauses (d) and (e) re-lettered as clauses (c) and (d) respectively by s. 16, ibid. (w.e.f. 1-4-1961). 10. The word “andomitted by Act 38 of 1978, s. 3 and the Second Schedule (w.e.f. 26-11-1978).

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1* * * * * (3) The members of each Committee shall be appointed by the 2[High Court], which shall also nominate one of their number to be President:

3* * * * * (4) Each member of any such Committee shall hold office for such period as may be prescribed by the 2[High Court] in this behalf; and whenever any member retires, resigns, dies or ceases reside in the State in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said 2[High Court] may appoint another person to be a member in his stead. (5) There shall be a secretary to each such Committee, who shall be appointed by the 2[High Court] and shall receive such remuneration as may be provided in this behalf 4[by the State Government]. STATE AMENDMENTS

Assam.

For clause (a) of sub-section (2) of section 123 the following shall be substituted— “(a) three Judges of the High Court established at the town at which such Committee is constituted, provided that the Chief Justice may appoint only two Judges of the High Court on the Committee if the number of Judges of the High Court does not exceed three.”

[Vide Assam Act 8 of 1953, sec. 2.]

Tamil Nadu

Amendment of section 123, Central Act V of 1908.—In section (2) of section 123 of the Code of Civil Procedure, 1908 ( Central Act V of 1908),-

(a) in clause (b), for the words “two legal practitioners”, the words “three legal practitioners” shall be substituted.

(b) in clause (d), the word “Madras” shall be omitted.

[Vide Tamil Nadu Act 15 of 1970, s. 2]

  1. Committee to report to High Court.—Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.
  2. 125. Power of other High Courts to make rules.—High Courts, other than the Courts specified in section 122, may exercise the powers conferred by that section in such manner and subject to such conditions 5[as 6[the State Government] may determine:]

Provided that any such High Court may, after previous publication, make a rule extending within the local limits of its jurisdiction any rules which have been made by any other High Court. 7[126. Rules to be subject to approval.—Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any State, to the previous approval of 8[Central Government.]] 127. Publication of rules.—Rules so made and 9[approved] shall be published in the 10[Official Gazette], and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.

  1. Clause (d) omitted by s. 3, ibid. and the Second Schedule.
  2. Subs. by Act 104 of 1976, s. 44, for “Chief Justice or Chief Judge” (w.e.f. 1-2-1977).
  3. Proviso omitted by s. 44, ibid. (w.e.f. 1-2-1977).
  4. Subs. by the A.O. 1937, for “by the G.G. in C. or by the L.G., as the case may be”.
  5. Subs. by Act 38 of 1920, s. 2 and the First Schedule, Pt. I, for “as the G.G. in C. may determine”. 6. Subs. by the A.O.1937, for “in the case of the Court of the Judicial Commissioner of Coorg, the G.G. in C., and, in other cases the L.G.”.
  6. Subs. by the A.O.1937, for section 126.
  7. Subs. by the A.O. 1950, for “Governor General”.
  8. Subs. by Act 24 of 1917, s. 2 and the First Schedule, for “sanctioned”.
  9. Subs. by the A.O. 1937, for “Gazette of India or in the local Official Gazette, as the case may be”. Strictly the substitution would read “Official Gazette or in the Official Gazette, as the case may be, but the latter words have been omitted as being redundant”.

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  1. Matters for which rules may provide.—(1) Such rules shall be not inconsistent with the provisions in the body of this code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts. (2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely:—

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

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

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

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

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

(f) summary procedure—

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

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

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

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

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

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

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

  1. Power of High Courts to make rules as to their original Civil procedure.—Notwithstanding anything in this Code, any High Court 1[not being the Court of a Judicial Commissioner] may make such rules not inconsistent with the Letters Patent 2[or order] 3[or other law] establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

4[130. Powers of other High Courts to make rules as to matters other than procedure.—A High Court 5[not being a High Court to which section 129 applies] may, with the previous approval of the State Government, make with respect to any matter other than procedure any rule which a High Court 6[for a 7*** State] might under 8[article 227 of the Constitution] make with respect to any such matter for any part of the territories under its jurisdiction which is not included within the limits of a presidency town.]

  1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “for a Part A State or a Part B State”.
  2. Ins. by the A.O. 1950.
  3. Ins. by Act 2 of 1951, s. 17 (w.e.f. 1-4-1951).
  4. Subs. by the A.O. 1937, for section 130.
  5. Subs. by the A.O. 1950, for “not constituted by His Majesty by Letters Patent”.
  6. Subs., ibid., for “so constituted”.
  7. The word and letter “Part A” omitted by the Adaptation of Laws (No. 2) Order, 1956.
  8. Subs. by the A.O. 1950, for “section 224 of the Government of India Act, 1935”.

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

PART XI

MISCELLANEOUS

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

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

  1. Exemption of other persons.—2[(1) The following persons shall be entitled to exemption from personal appearance in Court, namely:—

(i) the President of India;

(ii) the Vice-President of India;

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

(iv) the Ministers of the Union;

(v) the Judges of the Supreme Court;

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

(vii) the Speakers of the State Legislative Assemblies;

(viii) the Chairman of the State Legislative Councils;

(ix) the Ministers of States;

(x) the Judges of the High Courts; and

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

3* * * * *

(3) Where any person 4*** claims the privilege of such exemption, and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays such costs.

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

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

  1. Subs. by the A.O.1937, for “Gazette of India or in the Local Official Gazette, as the case may be”. Strictly the substitution would read “Official Gazette or in the Official Gazette, as the case may be,” but the latter words have been omitted as being redundant.
  2. Subs. by Act 66 of 1956, s. 12, for sub-section (1) (w.e.f. 1-1-1957).
  3. Sub-section (2) omitted by Act 66 of 1956, s. 12 (w.e.f. 1-1-1957).
  4. The words “so exempted” omitted by s. 12, ibid.

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

1[135A. Exemption of members of legislative bodies from arrest and detention under civil process.2[(1) No person shall be liable to arrest or detention in prison under civil process—

(a) if he is a member of—

(i) either House of Parliament, or

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

(iii) a Legislative Assembly of a Union territory,

during the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;

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

(i) either House of Parliament, or

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

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

(c) if he is a member of—

(i) either House of Parliament, or

(ii) a Legislative Assembly or Legislative Council of a State having both such Houses,

during the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or, Houses of the State Legislature, as the case may be, and during the forty days before and after such meeting, sitting or conference.]

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

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

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

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

(4) Where a person to be arrested or movable property to be attached under this section is within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Fort William in Bengal or at Madras or at Bombay, 3*** the copy of the warrant of arrest or of the order of attachment, and the probable amount of the costs of the arrest or attachment, shall be sent to the Court of Small-

  1. Ins. by Act 23 of 1925, s. 3.
  2. Subs. by Act 104 of 1976, s. 45, for sub-section (1) (w.e.f. 1-2-1977).
  3. The words or “of the Chief Court of Lower Burma”, omitted by the A.O. 1937.

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Causes of Calcutta, Madras 1[or Bombay], as the case may be, and that Court, on receipt of the copy and amount, shall proceed as if it were the District Court.

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

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

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

2[138. Power of High Court to require evidence to be recorded in English.—(1) The 3[High Court] may, by notification in the Official Gazette, direct with respect to any Judge specified in the notification, or falling under a description set forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.

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

  1. Oath on affidavit by whom to be administered.— In the case of any affidavit under this Code— (a) any Court or Magistrate, or

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

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

(c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf,

may administer the oath to the deponent.

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

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

  1. Miscellaneous proceedings.—The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

5[Explanation.— In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceedings under article 226 of the Constitution.]

  1. Orders and notices to be in writing.—All orders and notices served on or given to any person under the provisions of this Code shall be in writing.
  2. Postage.—Postage, where chargeable on a notice, summons or letter issued under this Code and forwarded by post, and the fee for registering the same, shall be paid within a time to be fixed before the communication is made:
  1. Subs. by the A.O. 1937, for “Bombay or Rangoon”.
  2. For s. 138, as applicable to Assam, see the Civil Procedure (Assam Amendment) Act 1941, (Assam 1 of 1941), s. 2.
  3. Subs. by Act 4 of 1914, s. 2 and the Schedule, Pt. I, for “L.G.”.
  4. Ins. by Act 104 of 1976, s. 46 (w.e.f. 1-2-1977).
  5. Ins. by, s. 47, ibid. (w.e.f 1-2-1977).

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Provided that the State Government 1*** may remit such postage, or fee, or both, or may prescribe a scale of court-fees to be levied in lieu thereof.

  1. Application for restitution.—(1) Where and in so far as a decree 2[or an order] is 3[varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree 4[or order] or 4[such part thereof as has been varied, reversed, set aside or modified]; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly 5[consequential on such variation, reversal, setting aside or modification of the decree or order].

6[Explanation.—For the purposes of sub-section (1), the expression “Court which passed the decree or order” shall be deemed to include,—

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

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

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

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

  1. Enforcement of liability of surety.—Where any person 7[has furnished security or given a guarantee]—

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

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

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

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

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

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

(iii) if the case falls both under clauses (i) and (ii) then to the extent specified in those clauses, and such person shall, be deemed to be a party within the meaning of section 47]: Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

  1. Proceedings by or against representatives.—Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.
  1. The words “with the previous sanction of the G.G, in C.” omitted by Act 38 of 1920, s. 2 and the First Schedule I, Pt. I 2. Ins. by Act 66 of 1956, s. 13 (w.e.f. 1-1-1957).
  2. Subs. by Act 104 of 1976. s. 48, for “varied or reversed, the Court of first instance” (w.e.f. 1-2-1977). 4. Subs. by s. 48, ibid., for “such part thereof as has been varied or reversed” (w.e.f. 1-2-1977).
  3. Subs. by s. 48, ibid., for “consequential on such variation or reversal” (w.e.f. 1-2-1977).
  4. Ins. by. s. 48, ibid. (w.e.f. 1-2-1977).
  5. Subs. by Act 104 of 1976, s. 49, for “has become liable as surety” (w.e.f. 1-2-1977).
  6. Subs. by s. 49, ibid., for certain words (w.e.f. 1-2-1977).

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

2[148A. Right to lodge a caveat.(1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

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

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

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

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

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

3[153A. Power to amend decree or order where appeal is summarily dismissed.—Where an Appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to amend, under section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.

  1. Ins. by Act 46 of 1999, s. 13 (w.e.f. 1-7-2002).
  2. Ins. by Act 104 of 1976, s. 50 (w.e.f. 1-5-1977).
  3. Ins. by Act 104 of 1976. s. 51 (w.e.f. 1-2-1977).

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

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

  1. [Saving of present right of appeal.] Rep. by the Repealing and Amending Act, 1952 (48 of 1952), s. 2 and the First Schedule.
  2. 155. [Amendment of certain Acts.] by s. 2 and the First Schedule., ibid.
  3. 156. [] Rep. by the Second Repealing and Amending Act, 1914 (17 of 1914). s. 3 and the Second Schedule.
  4. Continuance of orders under repealed enactments.—Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code,

have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf. 158. Reference to Code of Civil Procedure and other repealed enactments.—In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, section or rule.

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THE FIRST SCHEDULE

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ORDER I

Parties to Suits

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

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

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

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

1[3. Who may be joined as defendants.—All persons may be joined in one suit as defendants where—

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

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

2[3A. Power to order separate trials where joinder of defendants may embarrass or delay trial.—Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.]

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

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

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

  1. Defendant need not be interested in all the relief claimed.—It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.
  2. Joinder of parties liable on same contract.—The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, hundis and promissory notes.
  3. When plaintiff in doubt from whom redress is to be sought.—Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.
  1. Subs. by Act 104 of 1976, s. 52, for rules 1 and 3 respectively (w.e.f. 1-2-1977).
  2. Ins. by s. 52, ibid. (w.e.f. 1-2-1977).

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

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

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

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

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

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

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

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

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

2[8A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.— While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify.]

  1. Misjoinder and non-joinder.—No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

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

  1. Suit in name of wrong plaintiff.—(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose

  1. Subs. by Act 104 of 1976, s. 52, for rule 8 (w.e.f. 1-2-1977).
  2. Ins. by s. 52, ibid. (w.e.f. 1-2-1977).
  3. The proviso added by, ibid., s. 52 (w.e.f. 1-2-1977).

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presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

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

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

(5) Subject to the provisions of the 1[Indian Limitation Act, 1877 (XV of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

2[10A. Power of Court to request any pleader to address it.—The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader.]

  1. Conduct of suit.—The Court may give the conduct of 3[a suit] to such persons as it deems proper.
  2. Appearance of one of several plaintiffs or defendants for others.—(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

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

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

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ORDER II

Frame of suit

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

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

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

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

  1. See now the Limitation Act, 1963 (36 of 1963), s. 21.
  2. Ins. by Act 104 of 1976, s. 52 (w.e.f. 1-2-1977).
  3. Subs. by s. 52, ibid., for “the suit” (w.e.f. 1-2-1977).

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