THE CODE OF CIVIL PROCEDURE, 1908

[VOLUME – III]

ORDER XXII

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

1. No abatement by party’s death if right to sue survives.—The death of a plaintiff or defendant, shall not cause the suit to abate if the right to sue survives.

2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.—Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.—(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

4. Procedure in case of death of one of several defendants or of sole defendant.—(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

1[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where-

(a) The plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this Rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and

(b) The plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

The Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance, if proved.]

1. Ins. by Act 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

1[4A. Procedure where there is no legal representative.—(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.

(2) Before making an order under this Rule, the Court—

(a) May require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and

(b) Shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.]

1. Ins. by Act 104 of 1976, sec. 73 (w.e.f 1. -2-1977)

5. Determination of question as to legal representative.—Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

1[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]

1. See now the Limitation Act, 1963 (36 of 1963), Secs. 4 and 5.

6. No abatement by reason of death after hearing.—Notwithstanding anything contained in the foregoing Rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.

7. Suit not abated by marriage of female party.—(1) The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with to judgment, and, where the decree is against a female defendant, it may be executed against her alone.

(2)Where the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of the husband, where the husband is by law entitled to the subject-matter of the decree.

8. When plaintiffs insolvency bars suit.—(1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.

(2) Procedure where assignee fails to continue suit or give security.—Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiffs insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff s estate.

9. Effect of abatement or dismissal.—(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff m ay apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of Section 5 of the 1Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2).

1[Explanation.—Nothing in this Rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]

1. See now the Limitation Act, 1963 (36 of 1963), Secs. 4 and 5.

10. Procedure in case of assignment before final order in suit.—(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

1[10A. Duty of pleader to communicate to Court death of a party.—Whenever a pleader appearing for a party to the suit comes to know of the death of that part, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.]

1. Ins. by Act 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

11. Application of Order to appeals.—In the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant the word “defendant” a respondent, and the word “suit” an appeal.

12. Application of Order to proceedings.—Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.

ORDER XXIII

WITHDRAWAL AND ADJUSTMENT OF SUITS

1[1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied,-

(a) That a suit must fail by reason of some formal defect, or

(b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff-

(a) Abandons any suit or part of claim under sub-rule (1), or

(b) Withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

He shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this Rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]

1. Subs. by Act 104 of 1976, sec. 74, for Rule I (w.e.f. 1-2-1977).

1[1A. When transposition of defendants as plaintiffs may be permitted.—Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

2. Limitation law not affected by first suit.—In any fresh suit instituted on permission granted under the last preceding Rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.

3. Compromise of suit.—Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise 1[in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith 2[so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]:

1[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose f deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]

1[Explanation.—An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this Rule.]

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

2. Subs. by Act 104 of 1976, sec. 74, for certain words (w.e.f. 1-2-1977).

1[3A. Bar to suit.—No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

3B.No agreement or compromise to be entered in a representative suit without leave of Court.—(1) No agreement or compromise in a representative suit shall be entered into Without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

Explanation.—In this Rule, “representative suit” means,-

(a) A suit under Section 91 or Section 92,

(b) A suit under Rule 8 of Order 1,

(c) A suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family,

(d) Any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.]

4. Proceedings in execution of decrees not affected.-Nothing in this Order shall apply to any proceedings in execution of a decree or order.

ORDER XXIV

PAYMENT INTO COURT

1. Deposit by defendant of amount in satisfaction of claim.—The defendant in any suit to recover a debt or damages may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim.

2. Notice of deposit.—Notice of the deposit shall be given through the Court by the defendant to the plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application.

3. Interest on deposit not allowed to plaintiff after notice.—No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full of the claim or falls short thereof.

4. Procedure where plaintiff accepts deposit as satisfaction in part.—(1) Where the plaintiff accepts such amount as satisfaction in part only of his claim, he may prosecute his suit for the balance; and, if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiff’s claim, the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff’s claim.

(2) Procedure where he accepts it as satisfaction in full.—Where the plaintiff accepts such amount as satisfaction in full of his claim, he shall present to the Court a statement to that effect, and such statement shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.

ILLUSTRATIONS

(a) A owes B Rs. 100B sues A for the amount, having made no demand for payment and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into Court, B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part.

(b) B sues A under the circumstances mentioned in illustration (a). On the plaint being filed, A disputes the claim Afterwards A pays the money into Court. B accepts it in full satisfaction of his claim. The Court should also give B his cast of suit. A’s conduct having shown that the litigation was necessary.

(c) A owes B Rs. 100, and is willing to pay him that sum without suit. B claims Rs. 1150 and sues A for that amount. On the plaint being filed, A pays Rs. 100 into Court, and disputes only his liability to pay the remaining Rs. 50. B accepts the Rs.100 in full satisfaction of his claim. The Court should order him to pay A’s costs.

ORDER XXV

SECURITY FOR COSTS

1[1. When security for costs may be required front plaintiff.—(1) At any stage of a suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff, for reasons to be recorded, to give within the time fixed by it security for the payment of all costs incurred and likely to be incurred by any defendant.

Provided that such an order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing out of India and that such plaintiff does not posses or that no one of such plaintiffs possesses any sufficient immovable property within India other than the property in suit.

(2) Whoever leaves India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule (1)].

1. Substituted by Act No. 66 of 1956, for the original Rule 1.

2. Effect of failure to furnish security.—(1) In the event of such security not being furnished within the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw there from.

(2) Where a suit is dismissed under this Rule, the plaintiff may apply for an order to set the dismissal aside and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(3) The dismissal shall not be set aside unless notice of such application has been served on the defendant.

ORDER XXVI

COMMISSIONS

COMMISSIONS TO EXAMINE WITNESSES

1. Cases in which Court may issue commission to examine witness.—Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it:

1[Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation.—The Court may, for the purpose of this Rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical, practitioner as a witness.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

2. Order for commission.—An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

3. Where witness resides within Court’s jurisdiction.—A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.

4. Persons for whose examination commission may issue.—(1) Any Court may in any suit issue a commission 1[for the examination on interrogatories or otherwise of-]

(a) Any person resident beyond the local limits of its jurisdiction;

(b) Any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) 2any person in the service of the Government] who cannot in the opinion of the Court, attend without detriment to the public service

3Provided that where, under Rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.]

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission under this Rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

4[4A. Commission for examination of any person resident within the local limits of the jurisdiction of the Court.—Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.]

1. Substituted by Act No. 104 of 1976, for the words “for the examination of”, w.e.f. 1st. February, 1977.

2. Substituted by the A.O. 1937, for the words “any civil or military officer of the Government”.

3. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

4. Inserted by Act No. 46 of 1999, S. 29 (w.e.f. 1-7-2002).

5. Commission or request to examine witness not within India.—Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within 1[India] is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.

1. Substituted by Act No. 2 of 1951, for the words “the States”.

6. Court to examine witness pursuant to Commission.—Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

7. Return of commission with depositions of witnesses.—Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the returned thereto and the evidence taken under it shall 1[(subject to the provisions of Rule 8)] from part of the record of the suit.

1. Substituted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

8. When depositions may be read in evidence;- Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless-

(a) The person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a 1[person in the service of the Government] who cannot, in the opinion of the Court, attend without detriment to the public service, or

(b) The Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

1. Substituted by the A.O. 1937, for the words “civil or military officer of the Government”.

COMMISSIONS FOR LOCAL INVESTIGATIONS

9. Commissions to make local investigations.—In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made Rules as to the persons to whom such commission shall be issued, the Court shall be bound by such Rules.

10. Procedure of Commissioner.—(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. -

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

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

1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

10A. Commission for scientific investigations.—(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of Rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this Rule as they apply in relation to a Commissioner appointed under Rule 9.

10B. Commission for performance of a ministerial act.—(1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court.

(2) The provisions of Rule 10 of this Order shall apply in relation to a Commissioner appointed under this Rule as they apply in relation to a Commissioner appointed under Rule 9.

10C. Commission for the sale of movable property.—(1) Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the Court.

(2) The provisions of Rule 10 of this Order shall apply in relation to a Commissioner appointed under this Rule as they apply in relation to a Commissioner appointed under Rule 9.

(3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree.]

COMMISSIONS TO EXAMINE ACCOUNTS

11. Commission to examine or adjust accounts.—In any suit in which an examination or adjustment of the accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.

12. Court to give Commissioner necessary instructions.—(1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

(2) Proceedings and report to be evidence. Court may direct further inquiry.—The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.

COMMISSIONS TO MAKE PARTITIONS

13. Commission to make partition of immovable property.—Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by Section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

14. Procedure of Commissioner.—(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directly by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

GENERAL PROVISIONS

15. Expenses of commission to be paid into Court.—Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

16. Powers of Commissioners.—Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment,-

(a) Examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in, the matter referred to him;

(b) Call for and examine documents and other things relevant to the subject of inquiry;

(c) At any reasonable time enter upon or into any land or building mentioned in the order.

1[16A. Questions objected to before the Commissioner.—(1) Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting:

Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege.

(2) No answer taken down under sub-rule (1) shall be read as evidence in the suit except by the order of the Court.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

17. Attendance and examination of witnesses before Commissioner.—(1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of 1[India], and for the purposes of this Rule the Commissioner shall be deemed to be a Civil Court

2[Provided that when the Commissioner is not a Judge of a Civil Court he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.]

(2) A Commissioner may apply to any Court (not being a High Court) within the local limits or whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.

1. Substituted by Act No. 2 of 1951, for the words “the States”.

2. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

18. Parties to appear before Commissioner.—(1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

1[18A. Application of Order to execution proceedings.—The provisions of this Order shall apply, so far as may be, to proceedings in execution of a decree or order.

1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

18B. Court to fix a time for return of commission.—The Court issuing a commission shall fix a date on or before which the commission shall be returned to it. after execution, and the date so fixed shall not be extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date]

1[Commissions issued at the instance of foreign Tribunals

1. The heading and Rules 19 to 22 inserted by Act No. 10 of 1932.

19. Cases in which High Court may issue commission to examine witness.—(1) If a High Court is satisfied-

(a) That a foreign Court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,

(b) That the proceeding is of a civil nature, and

(c) That the witness is residing within the limits of the High Court’s appellate jurisdiction,

It may, subject to the provisions of Rule 20, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)—

(a) By a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or

(b) By a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government, or

(c) By a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding.

20. Application for issue of commission.—The High Court may issue a commission under Rule 19-

(a) Upon application by a party to the proceeding before the foreign Court, or

(b) Upon an application by a law officer of the State Government acting under instructions from the State Government.

21. To whom commission may be issued.—A commission under Rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or 1[***] the witness resides within the local limits of 2[the ordinary original civil jurisdiction of the High Court], to any person whom the Court thinks fit to execute the commission.

1. The words “the High Court is established under the Indian High Courts Act, 1861, or Government the of India Act, 1915, and” omitted by the A.O. 1937.

2. Substituted by the A.O. 1937, for the words “its ordinary original civil jurisdiction”.

22. Issue, execution and return of commissions, and transmission of evidence to foreign Court.—The provisions of Rules 6, 15, 1[Sub-rule (1) of Rule 16A, 17, 18 and 18B] of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign Court.]

1. Substituted by Act No. 104 of 1976, for the word and figures “16, 17 and 18”, w.e.f. 1st. February, 1977.

ORDER XXVII

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

1. Suits by or against Government.—In any suit by or against 1[the Government], the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.

1. Substituted by the A.O. 1937, for the words “the Secretary of State for India in Council”.

2. Persons authorised to act for Government.—Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.

3. Plaints in suits by or against Government.—In suits by or 1[against the Government], instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert 2[the appropriate name as provided in Section 79 3[***].

1. Substituted by the A.O. 1937, for the words “against the Secretary of State for India in Council”.

2. Substituted by the A.O. 1937, for the words “the Secretary of State for India in Council”.

3. The words “or” if the suit is against the Secretary of State, the words “the Secretary of State” omitted by the A.O. 1948.

1[4. Agent for Government to receive process.—The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court.]

1. Substituted by the A.O. 1937, for the original Rule.

5. Fixing of day for appearance on behalf of Government.—The Court, in fixing the day for 1[the Government] to answer to the plaint, shall allow a reasonable time for the necessary communication with the 2[Government through the proper channel, and for the issue of instructions to the Government pleader] to appear and answer on behalf of 3[the Government] 4[***], and may extend the time at its discretion 5[but the time so extended shall not exceed two months in the aggregate].

1. Substituted by the A.O. 1937, for the words “the Secretary of State for India in Council”.

2. Substituted by the A.O. 1950, for the words “Crown pleader” which had been substituted by the A.O. 1937, for the words “Government pleader”.

3. Substituted by the A.O. 1937, for the words “the said Secretary of State for India in Council.”

4. The words, “or the Government,” omitted by the A.O. 1948.

5. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

1[5A. Government to be joined as a party in a suit against a public officer.—Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.

1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.—(1) In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.

(3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn proceedings.]

6. Attendance of person able to answer questions relating to suit against Government.—The Court may also, in any case in which the 1[Government pleader] is not accompanied by any person on the part of 2[the Government] who may be able to answer any material questions relating to the suit, direct the attendance of such a parson.

1. Substituted by the A.O. 1950, for the words “Crown pleader” which had been substituted by the A.O. 1937, for the words “Government pleader”.

2. Substituted by the A.O. 1937, for the words “the Secretary of State for India in Council”.

7. Extension of time to enable public officer to make reference to Government.—(1) Where the defended is a public officer and, on receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel.

(2) Upon such application the Court shall extend the time for so long as appears to it to be necessary.

8. Procedure in suits against public officer.—(1) Where the Government undertakes the defence of a suit against a public officer, the 1[Government pleader], upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.

(2) Where no application under sub-rule (1) is made by the 1[Government pleader] on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties:

Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree.

1. Substituted by the A.O. 1950, for the words “Crown pleader” which had been substituted by the A.O. 1937, for the words “Government pleader”.

1[8A. No security to be required from Government or a public officer in certain cases.—No such security as is mentioned in Rules 5 and 6 to Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.

1. Inserted by the A.O. 1937.

8B. Definitions of “Government” and “Government pleader”.—In this Order 2[unless otherwise expressly, provided] “Government” and 1[“Government pleader”] mean respectively-

(a) In relation to any suit by or against 3[***] the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order;

(b) 4[***]

(c) In relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader 2[as defined in clause (7) of Section 2], or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.]

1. Substituted by the A.O. 1950, for the words “Crown pleader” which had been substituted by the A.O. 1937, for the words “Government pleader”.

2. Inserted by the A.O. 1950.

3. The words “the Secretary of State or” omitted by the A.O. 1948.

4. Clause (b) omitted by the A.O. 1948.

1[ORDER XXVIIA

SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE INTERPRETATION OF 2[THE CONSTITUTION] 3[OR AS TO THE VALIDITY OF ANY STATUTORY INSTRUMENT]

1. Order XXVIIA inserted by Act No. 23 of 1942.

2. Substituted by the A.O. 1950, for the words “the Government of India Act, 1935, or any Order-in-Council made thereunder”.

3. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

1. Notice to the Attorney General or the Advocate-General.—In any suit in which it appears to the Court that 1[any such question as is referred to 2[in clause (1) of Article 132, read with Article 147 of the Constitution,] is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government and to the Advocate. General of the State if the question of law concerns a State Government.

1. Substituted by the A.O. 1948, for the words and figures “substantial question of law as to the interpretation of the Government of India Act, 1935, or any Order-in-Council made thereunder”.

2. Substituted by the A.O. 1950, for the words, figures and brackets “In sub-section (1) of Section 205 of the Government of India Act, 1935”.

1[1A. Procedure in suits involving validity of any statutory instrument.—In any suit in which it appears to the Court that any question as to the validity of any statutory instrument, not being a question of the nature mentioned in Rule 1, is involved, the Court shall not proceed to determine that question except after giving notice-

(a) To the Government pleader, if the question concerns the Government, or

(b) To the authority which issued the statutory instrument, if the question concerns an authority other than Government.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

2. Court may add Government as party.—The Court may at any stage of the proceedings order that the Central Government or a State Government shall be added as a defendant in any suit involving 1[any such question as is referred to 2[in clause (1) of Article 132 read with Article 147, of the Constitution]], if 3[the Attorney General for India] or the Advocate-General of the State, as the case may be, whether upon receipt of notice under Rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.

1. Substituted by the A.O. 1948, for the words and figures “substantial question of law as to the interpretation of the Government of India Act, 1935, or any Order-in-Council made thereunder”.

2. Substituted by the A.O. 1950, for the words, figures and brackets “In sub-section (1) of Section 205 of the Government of India Act, 1935”.

3. Substituted for the words “the Advocate-General of India.”

1[2A. Power of Court to add Government or other authority as a defendant in a suit relating to the validity of any statutory instrument.—The Court may, at any stage of the proceedings in any suit involving any such question as is referred to in Rule 1A, order that the Government or other authority shall be added as a defendant if the Government pleader or the pleader appearing in the case for the authority which issued the instrument, as the case may be, whether upon receipt of notice under Rule 1A or otherwise, applies for such addition, and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question.]

1. Inserted by the A.O. 1950.

1[3.Costs.—Where, under Rule 2 or Rule 2A the Government or any other authority is added as a defendant, in a suit, the Attorney-General, Advocate-General, or Government Pleader or Government or other authority shall not be entitled to, or liable for, costs in the Court which ordered the addition unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.]

1. Substituted by Act No. 104 of 1976, for former Rule 3, w.e.f. 1st. February, 1977.

4. Application of Order to appeals.—In the application of this Order to appeals the word “defendant” shall be held to include a respondent and the word “suit” an appeal.]

1[Explanation.—In this Order, “statutory instrument” means a Rule, notification, bye-law, order, scheme or form made as specified under any enactment.]

1. Inserted by the A.O. 1950.

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