ORDER XXVIII

SUITS BY OR AGAINST MILITARY 1[OR NAVAL] MEN 2[OR AIRMEN]

1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorize any person to sue or defend for them.—(1) Where any officer, 3[soldier, sailor or airman] actual 4[serving under the Government] in 5[such] capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorize any person to sue or defend in his stead.

(2) The authority shall be writing and shall be signed by the officer, 3[soldier, sailor or airman] in the presence of (a) his commanding officer, or the next subordinate officer, if the party is himself the commanding officer, or (b) where the officer, 3[soldier, sailor or airman,] is serving in military, 1[naval 2[or air force] staff employment the head or other superior officer of the office in which he is employed. Such commanding or other officer shall countersign the authority, which shall be filed in Court.

(3) When so filed the countersignature shall be sufficient proof that the authority was duly executed, and that the officer, 6[soldier 1[, sailor] or airman] by whom it was granted could not obtain leave of absence for the purpose of prosecuting of defending the suit in person.

Explanation.—In this Order the expression “commanding officer” means the officer in actual command for the time being of any regiment, corps, 1ship,] detachment or depot to which the officer, 6[soldier 1[, sailor or airman] belongs.

1. Inserted by Act No. 35 of 1934.

2. Inserted by Act No. 10 of 1927.

3. The words “soldier or airman” substituted by Act No. 10 of 1927, for the words “or soldier” and for the words “or a soldier” and the word “sailor” inserted by Act No. 35 of 1934.

4. Substituted by the A.O. 1937, for the words “serving the Government”.

5. Substituted by Act No. 35 of 1934, for the words “a military or air force”.

6. Substituted by Act No. 10 of 1927, for the words “or soldier”.

2. Person so authorized may act personally or appoint pleader.—Any person authorized by an officer, 3[soldier 1[sailor] or airman] to prosecute or defend a suit in his stead may prosecute or defend it in person in the same manner as the officer, 2[soldier 1[, sailors] or airman] could do if present; or he may appoint a pleader to prosecute or defend the suit on behalf of such officer, 1[soldier 1[, sailor] or airman].

1. Inserted by Act No. 35 of 1934.

2. Substituted by Act No. 10 of 1927, for the words “or soldier”.

3. Substituted by Act No. 10 of 1927, for the words “or a soldier”.

3. Service on person so authorized, or on his pleader, to be good service.—Processes served upon any person authorized by an officer 2[soldier 1[, sailor] or airman] under Rule 1 or upon any pleader appointed as aforesaid by such person shall be as effectual as if they had been served on the party in person.

1. Inserted by Act No. 35 of 1934.

2. Substituted by Act No. 10 of 1927, for the words “or a soldier”.

ORDER XXIX

SUITS BY OR AGAINST CORPORATIONS

1. Subscription and verification of pleading.—In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

2. Service on corporation.—Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-

(a) On the secretary, or on any director, or other principal officer of the corporation, or

(b) By leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

3. Power to require personal attendance of officer of corporation.—The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.

ORDER XXX

SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN

1. Suing of partners in name of firm.—(1) Any two or more persons claiming or being liable as partners and carrying on business in, 1[India] may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.

(2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice such pleading or other document is signed, verified or certified by any one of such persons.

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

2. Disclosure of partners’ names.—(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demanding writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.

(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct.

(3) Where the names of the partners are declared in the manner referred to in sub-rule (1) the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint:

1[Provided that all proceedings shall nevertheless continue in the name of the firm, but the name of the partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree.]

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

3. Service.—Where persons are sued as partners in the name of their firm, the summons shall be served either-

(a) Upon any one or more of the partners, or

(b) At the principal place at which the partnership business is carried on within 1[India] upon any person having, at the time of service, the control or management of the partnership business, there, as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without 2[India]:

Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within 2[India] whom it is sought to make liable.

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

2. Substituted by Act No. 104 of 1976, for former Rule 10, w.e.f. 1st. February, 1977.

4. Rights of suit on death of partner.—(1) Notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.

(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the deceased may have-

(a) To apply to be made a party to the suit, or

(b) To enforce any claim against the survivor or survivors.

5. Notice in what capacity served.—Where a summons is issued to a firm and is served in the manner provided by Rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.

6. Appearance of partners.—Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

7. No appearance except by partners.—Where a summons is served in the manner provided by Rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.

1[8. Appearance under protest.—(1) Any person served with summons as a partner under Rule 3 may enter an appearance under protest, denying that he was a partner at any material time.

(2) On such appearance being made, either the plaintiff or the person entering the appearance may, at any time before the date fixed for hearing and final disposal of the suit, apply to the Court for determining whether that person was a partner of the firm and liable as such.

(3) If, on such application, the Court holds that he was a partner at the material time, that shall not preclude the person from filing a defence denying the liability of the firm in respect of the claim against the defendant,

(4) If the Court. however, holds that such person was not a partner of the firm and was not liable as such that shall not preclude the plaintiff from otherwise serving a summons on the firm and proceeding with the suit; but in that event, the plaintiff shall be precluded from alleging the liability of that person as a partner of the firm in execution of any decree that may be passed against the firm.]

1. Substituted by Act No. 10 of 1976, for former Rule 8, w.e.f. 1st. February, 1977.

9. Suits between co-partners.—This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.

1[10. Suit against person carrying on business in name other than his own.—Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all Rules under this Order shall apply accordingly.]

1. Substituted by Act No. 104 of 1976, for former Rule 10, w.e.f. 1st. February, 1977.

ORDER XXXI

SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

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

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

Provided that the executors who have not proved their testator’s will, and trustees, executors and administrators outside 1[India], need not be made parties.

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

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

ORDER XXXII

SUITS BY OR AGAINST MINORS ANT) PERSONS OF UNSOUND MIND

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

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

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

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

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

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

(2) Where such a suit is instituted by an indigent person, the security shall include the Court-fees payable to the Government.

(3) The provisions of Rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this Rule directing security to be furnished.]

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

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

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) Order shall be made on any application under this Rule except upon notice 2[***] to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, 3[upon notice to the father or where there is no father or mother, to other natural guardian], of the minor, or, where there is 3[no father, mother or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

1[(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]

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

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

2. The words “to the minor and” omitted by Act No. 104 of 1976, w.e.f 1st. February, 1977.

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

4. Inserted by Act No. 16 of 1937.

1[3A. Decree against minor not to be set aside unless prejudice has been caused to his interests.—(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.

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

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

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

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

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.

(3) No person shall without his consent 43[in writing] be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested 1[or out of the property of the minor], and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.

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

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

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

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

(a) By way of compromise before decree or order, or

(b) Under a decree or order in favour of the minor.

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

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

(a) Is the manager of a Hindu undivided family and the decree or order relates to the property or business of the family; or

(b) Is the parent of the minor]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.

(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:

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

(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.

(5) Any application under this Rule may be made ex parte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.

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

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

(3) The costs of all parties of such application, and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the Court directs.

(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.

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

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

1[15. Rules 1 to 14 (except Rule 2A) to apply to persons of unsound mind.—Rules 1 to 14 (except Rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.]

1. Substituted by Act No. 104 of 1976, for former Rule 15, w.e.f. 1st. February, 1977.

1[16. Savings.—(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing or being sued in the name of his State, or being sued by the direction of the Central Government in the name of an agent or in any other name.

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

1. Substituted by Act No. 104 of 1976, for former Rule 15, w.e.f. 1st. February, 1977.

1[ORDER XXXIIA

SUITS RELATING TO MATTERS CONCERNING THE FAMILY

1. Order XXXIIA inserted by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

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

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

(a) A suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;

(b) A suit or proceeding for a declaration as to legitimacy of any person;

(c) A suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;

(d) A suit or proceeding for maintenance;

(e) A suit or proceeding as to the validity or effect of an adoption;

(f) A suit or proceeding, instituted by a member of the family, relating to wills, intestacy and succession;

(g) A suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.

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

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

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

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

(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.

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

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

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

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

(ii) Any child or children, being issue of theirs; or of such man or such wife,

(iii) Any child or children being maintained by such man and wife;

(b) A man not having a wife or not living together with his wife, any child or children, being issue of his, and any child or children being maintained by him;

(c) A woman not having a husband or not living together with her husband, any child or children being issue of hers, and any child or children being maintained by her;

(d) A man or woman and his or her brother, sister, ancestor or lineal descendant living with him or her; and

(e) Any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or clause (d) of this Rule.

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

ORDER XXXIII

1[SUITS BY INDIGENT PERSONS]

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

1. Suits may be instituted by indigent person.—Subject to the following provisions, any suit may be instituted by an 1[indigent person].

2[Explanation I.—A person is an indigent person,-

(a) If he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

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

Explanation III.—Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.]

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

2. Substituted by Act No. 104 of 1976, for the former Explanation, w.e.f. 1st. February, 1977.

1[1A. Inquiry into the means of an indigent person.—Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the Court, unless the Court otherwise directs, and the Court may adopt the report of such officer as its own finding or may itself make an inquiry into the question.]

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

2. Contents of application.—Every application for permission to sue as an 1[indigent person] shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

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

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

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

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

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

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

5. Rejection of application.—The Court shall reject an application for permission to sue as 1[an indigent person]-

(a) Where it is not framed and presented in the manner prescribed by Rules 2 and 3, or

(b) Where the applicant is not an 1[indigent person], or

(c) Where he has, within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as 1[an indigent person]:

Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or

(d) Where his allegations do not show a cause of action, or

(e) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter, 2[or]

2[(f) Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or

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

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

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

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

17. Procedure at hearing.—(1) On the day so fixed or as soon thereafter as may be convenient the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make 2[a full record of their evidence].

3[(1A) The examination of the witnesses under sub-rule (1) shall be confined to the matters specified in clause (b), clause (c) and clause (e) of Rule 5 but the examination of the applicant or his agent may relate to any of the matters specified in Rule 5.]

(2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court 4[under Rule 6 or under this Rule], the applicant is or is not subject to any of the prohibitions specified in Rule 5.

(3) The Court shall then either allow or refuse to allow the applicant to sue as 5 [an indigent person].

1. The provisions of this Rule so far as it relates to the making of a memorandum are not applicable to the Chief Court of Oudh, see Oudh Courts Act, 1925 (U.P. Act No. 4 of 1925), Section 16(2).

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

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

4. Substituted by Act No. 21 of 1929, for the former Rule 15.

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

8. Procedure if application admitted.—Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any Court-fee 1[or fees payable for service of process] in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

1. Substituted by Act No. 21 of 1929, for the former Rule 15.

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

(a) If he is guilty of vexatious or improper conduct in the course of the suit;

(b) If it appears that his means are such that he ought not to continue to sue as 1[an indigent person];or

(c) If he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter.

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

1[9A. Court to assign a pleader to an un-represented indigent person.—(1) Where a person, who is permitted to sue as an indigent person, is not represented by a pleader, the Court may, if the circumstances of the case so require, assign a pleader to him.

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

(a) The mode of selecting pleaders to be assigned under sub-rule (1);

(b) The facilities to be provided to such pleaders by the Court;

(c) Any other matter which is required to be or may be provided by the Rules for giving effect to the provisions of sub-rule (1).]

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

10. Costs where indigent person succeeds.—Where the plaintiff succeeds in the suit, the Court shall calculate the amount of Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an 2[indigent person]; such amount shall be recoverable by the 1[State Government] from any party ordered by the decree to pay the same and shall be a first charge on the subject–matter of the suit.

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

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

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

(a) Because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fee or postal charges (if any) chargeable for such service 1[or to present copies of the plaint or concise statement], or

(b) Because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an 2 [indigent person].

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

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

1[11A. Procedure where indigent persons suit abates.—Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the Court shall order that the amount of Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an 2[indigent person] shall be recoverable by the State Government from the estate of the deceased plaintiff.]

1. Inserted by Act No. 24 of 1942.

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

12. State Government may apply for payment of Court-fees.—The 1[State Government] shall have the right at any time to apply to the Court to make an order for the payment of Court-fees under Rule 10, 2[Rule 11 or Rule 11 A].

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

2. Substituted by Act No. 24 of 1942, for the words and figures “or Rule 11”.

13. State Government to be deemed a party.—All matters arising between the 1[State Government] and any party to the suit under Rule 10, Rule 11, 2[Rule 11 A] or Rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of Section 47.

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

2. Substituted by Act No. 24 of 1942, for the words and figures “or Rule 11”.

1[14. Recovery of amount of Court-fees.—Where an order is made under Rule 10, Rule 11 or Rule 11A, the Court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of Court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.]

1. Substituted by Act No. 24 of 1942, for the former Rule.

15. Refusal to allow applicant to sue as indigent person to bar subsequent application of like nature.—An order refusing to allow the applicant to sue as an 3[indigent person] shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right; 1[Provided that the plaint shall be rejected if he does not pay, either at the time of the institution of the suit or within such time thereafter as the Court may allow,] the costs (if any) incurred by the 2[State Government] and by the opposite party in opposing his application for leave to sue as an 3[indigent person].

1. Substituted by Act No. 10 of 1976, w.e.f. 1st. February, 1977.

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

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

1[15A. Grant of time for payment of Court-fee.—Nothing contained in Rule 5, Rule 7 or Rule 15 shall prevent a Court, while rejecting an application under Rule 5 or refusing an application under Rule 7, from granting time to the applicant to pay the requisite Court-fee within such time as may be fixed by the Court or extended by it from time to time, and upon such payment and on payment of the costs referred to in 2[***] Rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.]

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

2. Omitted by Act No. 19 of 1988.

16. Costs.—The costs of an application for permission to sue as an 1[indigent person] and of an inquiry into indigency shall be costs in the suit.

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

1[17. Defence by an indigent person.—Any defendant, who desire to plead a set-off or counter-claim, may be allowed to set up such claim as an indigent person, and the Rules contained in this Order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint.

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

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

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

ORDER XXXIV

SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

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

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

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

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

(i) Principal and interest on the mortgage,

(ii) The costs of suit, if any, awarded to him, and

(iii) Other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon; or

(b) Declaring the amount so due at that date, and

(c) Directing-

(i) That, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a) or from the date on which such amount is declared. in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in Rule 10, together with subsequent interest on such sums respectively as provided in Rule 11, the plaintiff shall deliver up to the defendant, or to such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at his cost free from the mortgage and from all incumbrances created by the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title, by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property; and

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

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

(3) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or subrogated to the rights of, any such mortgagees are joined as parties, the preliminary decree shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10, as the case may be, of Appendix D with such variations as the circumstances of the case may require.

1. Substituted by Act No. 21 of 1929, for the original Rules 2 to 8.

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

(a) Ordering the plaintiff to deliver up the documents referred to in the preliminary decree,

And, if necessary, -

(b) Ordering him to re-transfer at the cost or the defendant the mortgaged property as directed in the said decree,

And also, if necessary,-

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

(2) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him or debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.

(3) On the passing of a final decree under sub-rule (2), all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.

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

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

(3) Power to decree Sale in foreclosure suit.—In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the Court may, at the instance of any party to the suit or of any other person interested in the mortgage-security or the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.

(4) Where, in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from, or subjugated to the rights of, any such mortgagees are joined as parties, the preliminary decree referred to in sub-rule (1) shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No. 11, as the case may be, of Appendix D with such variations as the circumstances of the case may require.

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

(a) Ordering the plaintiff to deliver up the documents referred to in the preliminary decree,

And, if necessary-

(b) Ordering him to transfer the mortgaged property as directed in the said decree,

And, also, if necessary,-

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

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

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

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

COMMENTS

If an appeal is pending against an order refusing to set aside the sale, the confirmation of sale as also the issuance of sale certificate would be in a nebulous state and consequently it would be open to the judgment-debtor to invoke the provisions of Or.34, Rule 5 and make the necessary deposits to save his property from being transferred to a third person, or may be to the decree-holder in execution of the decree passed in the mortgage suit. The sale does not become absolute or irrevocable merely on passing an order confirming the sale passed under O.21, Rule 92,but it would attain finality on the disposal of the appeal, if any, filed against an order refusing to set aside the sale. (Khairati Lal v. Raminder Kaur, AIR 2000 SC 1148(1150)

6. Recovery of balance due on mortgage in suit for sale.—Where the net proceeds of any sale held under 1[Rule 5] are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.

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

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

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

(i) Principal and interest on the mortgage,

(ii) The costs of suit, if any, awarded to him, and

(iii) Other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage-security, together with interest thereon; or

(b) Declaring the amount so due at that date; and

(c) Directing-

(i) That, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in Rule 10, together with subsequent interest on such sums respectively as provided in Rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him where the defendant claims by derived title, by those. under whom he claims, and shall also, if necessary put the plaintiff in possession of the property; and

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

(a) In the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgage property be, sold, or

(b) In the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid that the plaintiff be debarred from all right to redeem the property.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

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

(a) Ordering the defendant to deliver up the documents referred to in the preliminary decree,

And, if necessary, -

(b) Ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree,

And, also, if necessary, -

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

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

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

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

(a) In the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in Rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or

(b) In the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.]

2 [8A. Recovery of balance due on mortgage in suit for redemption.—Where the net proceeds of any sale held under 1[Rule 8] are found insufficient to pay the amount due to the defendant, the Court, 3[on application by him in execution], may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance.]

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

2. Inserted by Act No. 21 of 1929.

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

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

1[10. Costs of mortgagee subsequent to decree.—In finally adjusting the amount to be paid to a mortgagee in case Of a foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs, charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment

2[Provided that where the mortgagor, before or at the time of the institution of the suit, tenders or deposits the amount due on the mortgage, or such amount as is not substantially deficient in the opinion of the Court, he shall not be ordered to pay the costs of the suit to the mortgagee and the mortgagor shall be entitled to recover his own costs of the suit from the mortgagee, unless the Court, for reasons to be recorded, otherwise directs.]

1. Substituted by Act No. 21 of 1929, for the original Rules 10 and 11.

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

1[10A. Power of Court to direct mortgagee to pay mesne profits.—Where in a suit for foreclosure, the mortgagor has, before or at the time of the institution of the suit, tendered or deposited the sum due on the mortgage, or such sum as is not substantially deficient in the opinion of the Court, the Court shall direct the mortgage to pay to the mortgagor mesne profits for the period beginning with the institution of the suit.]

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

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

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

(i) On the principal amount found or declared due on the mortgage, at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable.

1[***], and

(iii) On the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the mortgage-money, at the rate agreed between the parties, or, failing such rate, 2[at such rate not exceeding six per cent. per annum as the Court deems reasonable]; and

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

1. Sub-clause (ii) omitted by Act No. 66 of 1956.

2. Substituted by Act No. 66 of 1956.

3. Substituted by Act No. 66 of 1956.

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

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

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

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

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

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

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

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

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

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

1[15. Mortgages by the deposit of title deeds and charges.—2[(1)] All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of Section 58, and to a charge within the meaning of Section 100 of the Transfer of Property Act, 1882 (4 of 1882);

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

1. Substituted by Act No. 21 of 1929, for the former Rule 15.

2. Renumbered as sub-rule (1) of Rule 15 by Act No. 104 of 1976, w.e.f. 1st. February, 1977.

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

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