NO. 47:SPECIFIC PERFORMANCE (NO.1)
(TITLE)
A. B., the above-named plaintiff, states as follows: -
1. By an agreement dated the __________ day of _______ and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and referred to, for the sum of rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.
[As in paras. 4 and 5 of Form No. 1.]
6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit.
NO. 48:SPECIFIC PERFORMANCE (NO. 2)
(TITLE)
A. B., the above-named plaintiff, states as follows: -
1. On the ________ day of ______ 19__, the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed.
The defendant was absolutely entitled to the immovable property described in the agreement.
2. On the _______ day of ______19____, the plaintiff tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.
3. On the ______ day of ______ 19 ____, the plaintiff again demanded such transfer. [Or the defendant refused to transfer the same to the plaintiff.]
4. The defendant has not executed any instrument of transfer.
5. The plaintiff is still ready and willing to pay the purchase-money of the paid property to the defendant
[As in paras 4 and 5 of Form No. 1.]
8. The plaintiff claims-
(1) That the defendant transfers the said property to the plaintiff by a sufficient instrument [following the terms of the agreement);
(2) _____________ Rupees compensation for withholding the same.
NO. 49:PARTNERSHIP
(TITLE)
A. B., the above-named plaintiff, states as follows: -
1. He and C. D., the defendant, have been for _________ years [or months] past carrying on business together under articles of partnership in writing [or under a deed, or under a verbal agreement].
2. Several disputes and differences have arisen between the plaintiff and defendant as such partners whereby it has become impossible to carry on the business in partnership with advantage to the partners, [Or the defendant has committed the following breaches of the partnership articles: -
(1) _________________
(2) _________________
(3) _________________.]
[As in paras. 4 and 5 of Form No. 1.]
5. The plaintiff claims-
(1) Dissolution of the partnership;
(2) That accounts be taken;
(3) That a receiver be appointed.
(N.B.—In suits for the winding-up of any partnership, omit the claim for dissolution; and instead insert a paragraph stating the facts of the partnership having been dissolved.)
GENERAL DEFENCES
Denial.—The defendant denies that (set out facts).
The defendant does not admit that (set out facts).
The defendant admits that _______ but says that
The defendant denies that he is a partner in the defendant firm of
Protest.—The defendant denies that he made the contract alleged or any contract with the plaintiff.
The defendant denies that he contracted with the plaintiff as alleged or at all.
The defendant admits assets but not the plaintiff’s claim.
The defendant denies that the plaintiff sold to him the goods mentioned in the plaint or any of them.
Limitation.—The suit is barred by article _______ or ________ article of the second schedule to the 1Indian Limitation Act, 1877 (15 of 1877).
Jurisdiction.—The Court has no jurisdiction to hear the suit on the ground that (set forth the grounds).
On the _______ day of _________ a diamond ring was delivered by the defendant to and accepted by the plaintiff in discharge of the alleged cause of action.
Insolvency.—The defendant has been adjudged an insolvent.
The plaintiff before the institution of the suit was adjudged an insolvent and the right to sue vested in the receiver.
Minority.—The defendant was a minor at the time of making the alleged contract.
Payment into Court.—The defendant as to the whole claim (or as to Rs. ______ part of the money claimed, or as the case may be) has paid into Court Rs. __________ and says that this sum is enough to satisfy the plaintiff’s claim (or the part aforesaid).
Performance remitted.—The performance of the promise alleged was remitted on the (date).
Rescission.—The contract was rescinded by agreement between the plaintiff and defendant.
Res judicata.—The plaintiff’s claim is barred by the decree in suit (give the reference).
Estoppel.—The plaintiff is estopped from denying the truth of (insert statement as to which estoppel is claimed) because (here state the facts relied on as creating the estoppel.)
Ground of defence subsequent to institution of suit-since the institution of the suit, that is to say, on the day of ________ (set out facts).
1. See now the Limitation Act, 1963.
NO. 1:DEFENCE IN SUITS FOR GOODS SOLD AND DELIVERED
1. The defendant did not order the goods.
2. The goods were not delivered to the defendant.
3. The price was not Rs.
[or]
| 4. | Except as to Rs. _______________, same as | 1. |
| 5. | 2. | |
| 6. | 3. |
7. The defendant [or A. B., the defendant’s agent] satisfied the claim by payment before suit to the plaintiff [or to C. D., the plaintiff’s agent] on the _________ day of ______ 19____.
8. The defendant satisfied the claim by payment after suit to the plaintiff on the ______ day of _______ 19____.
NO. 2:DEFENCE IN SUITS ON BONDS
1. The bond is not the defendant’s bond.
2. The defendant made payment to the plaintiff on the day according to the condition of the bond.
3. The defendant made payment to the plaintiff after the day named and before suit of the principal and interest mentioned in the bond.
NO. 3:DEFENCE IN SUITS ON GUARANTEES
1. The principal satisfied the claim by payment before suit.
2. The defendant was released by the plaintiff giving time to the principal debtor in pursuance of a binding agreement.
NO. 4:DEFENCE IN ANY SUIT FOR DEBT
1. As to Rs. 200 of the money claimed, the defendant is entitled to set off for goods sold and delivered by the defendant to the plaintiff.
Particulars are as follows:—
| |
|
| Rs. |
| 1907 January 25th | ---- | ---- | 150 |
| 1907 February 1st | ---- | ---- | 50 |
|
|
| Total | 200 |
2. As to the whole [or as to Rs. _____, part of the money claimed] the defendant made tender before suit of Rs. ______ and has paid the same into Court.
NO. 5:DEFENCE IN SUITS FOR INJURIES CAUSED BY NEGLIGENT DRIVING
1. The defendant denies that the carriage mentioned in the plaint was the defendant’s carriage, and that it was under the charge or control of the defendant’s servants. The carriage belonged to _______ of _________ Street, Calcutta, livery stable keepers employed by the defendant to supply him with carriages and horses; and the person under whose charge and control the said carriage was, was the servant of the said.
2. The defendant does not admit that the said carriage was turned out of Middleton Street either negligently, suddenly or without warning, or at a rapid or dangerous pace.
3. The defendant says the plaintiff might and could, by the exercise of reasonable care and diligence, have seen the said carriage approaching him, and avoided any collision with it.
4. The defendant does not admit the statements contained in the third paragraph of the plaint.
NO. 6:DEFENCE IN ALL SUITS FOR WRONG
1. Denial of the several acts [or matters] complained of.
NO. 7:DEFENCE IN SUITS FOR DETENTION OF GOODS
1. The goods were not the property of the plaintiff.
2. The goods were detained for a lien to which the defendant was entitled.
Particulars are as follows: -
1907, May 3rd. To carriage of the goods claimed from Delhi to Calcutta: -
45 maunds at Rs. 2 per maund Rs. 90.
NO. 8:DEFENCE IN SUITS FOR INFRINGEMENT OF COPYRIGHT
1. The plaintiff is not the author [assignee, etc.].
2. The book was not registered.
3. The defendant did not infringe.
NO. 9:DEFENCE IN SUITS FOR INFRINGEMENT OF TRADE MARK
1. The trade mark is not the plaintiff’s
2. The alleged trade mark is not a trade mark.
3. The defendant did not infringe.
NO. 10:DEFENCE IN SUITS RELATING TO NUISANCES
1. The plaintiff’s lights are not ancient [or deny his other alleged prescriptive rights].
2. The plaintiff’s lights will not be materially interfered with by the defendant’s buildings.
3. The defendant denies that he or his servants pollute the water [or do what is complained of].
[If the defendant claims the right by prescription or otherwise to do what is complained of, he must say so, and must state the grounds of the claim, i.e., whether by prescription, grant or what.]
4. The plaintiff has been guilty of laches of which the following are particulars: -
1870. Plaintiff’s mill began to work.
1871. Plaintiff came into possession.
1883. First complaint.
5. As to the plaintiff’s claim for damages the defendant will rely on the above grounds of defence, and says that the acts complained of have not produced any damage to the plaintiff [If other grounds are relied on, they must be stated, e.g., limitation as to past damage.]
NO. 11:DEFENCE TO SUIT FOR FORECLOSURE
1. The defendant did not execute the mortgage.
2. The mortgage was not transferred to the plaintiff (if more than one transfer is alleged, say which is denied).
3. The suit is barred by article _______ of the second schedule to the 1[Indian Limitation Act, 1877. (15 of 1877).
4. The following payments have been made, viz.: -
| (Insert date)- | ……………….. | Rs. 1,000 |
| (Insert date)- | ……………….. | Rs. 500 |
5. The plaintiff took possession on the ______ of _____, and has received the rents ever since.
6. The plaintiff released the debt on the _________ of ______.
7. The defendant transferred all his interest to A. B. by a document dated
1. See now the Limitation Act, 1963.
NO. 12:DEFENCE TO SUIT FOR REDEMPTION
1. The plaintiff’s right to redeem is barred by article _________ of the second schedule to the 4Indian Limitation Act, 1877 (15 of 1877).
2. The plaintiff transferred all interest in the property to A. B.
3. The defendant, by a document dated the __________ day of ________ transferred all his interest in the mortgage-debt and property comprised in the mortgage to A. B.
4. The defendant never took possession of the mortgaged property, or received the rents thereof.
(If the defendant admits possession for a time only, he should state the time and deny possession beyond what he admits.)
NO. 13:DEFENCE TO SUIT FOR SPECIFIC PERFORMANCE
1. The defendant did not enter into the agreement.
2. A. B. was not the agent of the defendant (if alleged by plaintiff).
3. The plaintiff has not performed the following conditions- (Conditions).
4. The defendant did not (alleged acts of part performance).
5. The plaintiff’s title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matter (State why).
6. The agreement is uncertain in the following respects-(State them).
7. (Or) The plaintiff has been guilty of delay.
8. (Or) The plaintiff has been guilty of fraud (or misrepresentation).
9. (Or) The agreement is unfair.
10. (Or) The agreement was entered into by mistake.
11. The following are particulars of (7), (8), (9), (10) (or as the case may be).
12. The agreement was rescinded under Conditions of Sale, No. 11 (or by mutual agreement).
(In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the agreement or the alleged breaches, or show whatever other ground of defence he intends to rely on, e.g. the 1Indian Limitation Act, accord and satisfaction, release, fraud, etc.)
1. See now the Limitation Act, 1963.
NO. 14:DEFENCE IN ADMINISTRATION SUIT BY PECUNIARY LEGATEE
1. A. B’s will contained a charge of debts; he died insolvent; he was entitled at his death to some immovable property which the defendant sold and which produced the net sum of Rs. _____, and the testator had movable property which the defendant got in, and which produced the net sum of Rs.________
2. The defendant applied the whole of the said sums and the sum of Rs. _______, which the defendant received from rents of the immovable property in the payment of the funeral and testamentary expenses and some of the debts of the testator.
3. The defendant made up his accounts and sent a copy thereof to the plaintiff on the _______ day of _____19____ , and offered to plaintiff free access to the vouchers to verify such accounts, but he declined to avail himself of the defendant’s offer.
4. The defendant submits that the plaintiff ought to pay the cost of this suit.
NO. 15:PROBATE OF WILL IN SOLEMN FORM
1. The said will and codicil of the deceased were not duly executed according to the provisions of the Indian Succession Act, 18651 (10 of 1865) [or of the Hindu Wills Act, 18701 (21 of 1870)].
2. The deceased at the time the said will and codicil respectively purport to have been executed, was not of sound mind, memory and understanding.
3. The execution of the said will and codicil was obtained by the undue influence of the plaintiff [and others acting with him whose names are at present unknown to the defendant].
4. The execution of the said will and codicil was obtained by the fraud of the plaintiff, such fraud so far as is within the defendant’s present knowledge, being [state the nature of the fraud].
5. The deceased at the time of the execution of the said will and codicil did not know and approve the contents thereof [or of the contents of the residuary clause in the said will, as the case may be].
6. The deceased made his true last will, dated the 1st January, 1873, and thereby appointed the defendant sole executor thereof.
The defendant claims-
(1) That the Court will pronounce against the said will and codicil propounded by the plaintiff ;
(2) That the Court will decree probate of the will of the deceased, dated the 1st January, 1873, in solemn form of law
1. See now the Indian Succession Act, 1925.
NO. 16:PARTICULARS (O. 6, R.5.)
(TITLE OF SUIT.)
Particulars.—The following are the particulars of (here state the matters in respect of which particulars have been ordered) delivered Pursuant to the order of ______ the ______ of ___
(Here set out the particulars ordered in paragraphs if necessary.)
PROCESS
No. 1:SUMMONS FOR DISPOSAL OF SUIT (O. 5, Rr. 1, 5.)
(TITLE)
To
[Name, description and place of residence.]
WHEREAS…………………………………………………………………………has instituted a suit against you for………..you are hereby summoned to appear in this Court in person or by a pleader duly instructed (and able to answer all material questions relating to the suit, or who shall be accompanied by some person, able to answer all such questions, on the day of 19...., at O’clock in the ……….noon, to answer the claim; and as the day fixed, for your appearance is appointed for the final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned the suit will be heard and determined in your absence.
Given under my hand and the seal of the Court, that………. day of……….19……….
Judge.
NOTICE.—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses. 2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
HIGH COURT AMENDMENTS
Allahabad.—In Appendix ‘B’, to the First Schedule to the Code of Civil Procedure, 1908, after Form No. I the following Form shall be inserted.
“FORM NO. 1-A
SUMMONS/NOTICE FOR SERVICE BY ADVERTISEMENT IN A NEWSPAPER
(O. V, RULE 20, C.P.C.)
(TITLE)
To
............................ (Name and address)
Where…………. has instituted the above Suit/filed an application, against you for………
you are hereby summoned to appear in this Court in person or by a pleader on the day of ………….of 19………., at O’clock, to answer the same, failing which the suit/application will be disposed of ex parte.
Given under may hand and the seat of the Court, this……….day of……….19…….
Judge.
[Vide Noti. No. 527/VIII-b-9, dated 27th October, 1986].
Andhra Pradesh.—Same as by the Madras High Court.
Bombay.—Add the following note in Form No. 1.
Notice.—Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence stuck out. [Vide P. O. 102/77 dated 15th September 1983 (w.e.f 1-10-1983)].
Calcutta.—Insert the following new Form IA. -
NO. 1A:SUMMONS TO DEFENDANT FOR ASCERTAINMENT WHETHER THE SUIT WILL BE CONTESTED (ORDER V, RULES 1 AND 5)
(TITLE)
To
……………..[Name, description and place of residence]
Whereas…………. has instituted a suit against you for………. you are here by summoned to appear in this Court in person or by a pleader duly instructed, and able to answer all material questions relating the suit on the day of ……..19…… at….. O’clock in the…… noon in order that on that day you may inform the Court whether you will or will not contest the claim either in whole or in part and in order that in the event of your deciding to contest the claim either in whole or in part, directions may be given to you as to the date upon which your written statement is to be filed and the witness or witnesses upon whose evidence you intend to rely in support of your defence are to be produced and also the document or documents upon which you intend to relay.
Take notice that, in default of your appearance on the day before mentioned the suit will be heard and determined in your absence and take further notice that in the event of your admitting the claim either in whole or in part the Court will forthwith pass judgment in accordance with such admissions.
Given under may hand and the seal of the Court this day of………. 19……….
Seal.
judge.
Notice.—If you admit the claim either in whole or in part you should come prepared to pay into Court the money due by virtue of such admission together with the costs of the suit to avoid execution of any decree which may be passed against you person or property, or both.”[2-5-8-1927].
Gauhati.—As by the Calcutta High Court.
Karnataka.—As by the Madras High Court. [30-3-1967].
Kerala.—As by the Madras High Court. [9-6-1959].
Madras.—Add the following new Form 1A.
NO. 1A
(ORDER V, RULES 1 AND 5)
(TITLE)
To
............................. [Name, description and place of residence]
Whereas has instituted a suit against you………. you are hereby summoned to appear in this Court in person or by a pleader duty instructed; and able to answer all material questions relating to the suit (or who shall be accompanied by some person able to answer all such questions) on the day of……… 19……., at…….. O'clock in the……… noon and to state whether you con test or do not contest the claim and, if you contest, to receive directions of Court as to the date on which you have to file the written statements, the date of trial and other matters.
Take notice that in the event of the claim not being contested the suit shall be decided at once.
Take further notice that in default of your appearance on the day and hour before mentioned, the suit will be heard and determined in your absence.
Given under may hand and the seal of the Court, this day of ………19……..
Seal.
Judge.
Notice.—If you admit the claim you should Pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property or both.”
[P. Dis. No. 7 of 1927]
No. 2
SUMMONS FOR SETFLEMENT OF ISSUE (0. 5, f r. 1, 5.)
(TITLE)
To
[Name, description and place of residence]
WHEREAS………………………………………………………………………….has instituted a suit against you for……. you are hereby summoned to appear in this Court in person, or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions, on the……….day of………. 19…., at……. O’clock in the………. noon, to answer the claim; 1[and further you are hereby directed to file on that day a written statement of your defence and to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counter-claim, and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counter-claim, you shall enter such documents in a list to be annexed to the written statement].
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
GIVEN under may hand and the seal of the Court, this………day of……..19…..
Judge.
NOTICE.—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.
2.If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
1. Subs. by Act 104 of 1976, sec. 94, for certain words (w.e.f. 1-2-1977).
No. 3
SUMMONS TO APPEAR IN PERSON (O. 5, r. 3.)
(TITLE)
To
[Name, description and place of residence]
WHEREAS ………………………………… has instituted a suit against you for…….. you arc hereby summoned to appear in this Court in person on the…….. day of …….. 19...., at ……….O’clock in the ............... noon, to answer the claim; and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
GIVEN— under may hand and the seal of the Court, that………day of……19….. .
Judge,
1[No. 4:SUMMONS IN A SUMMARY SUIT
(O. 37, R. 2)
(TITLE)
To
[Name, description and place of residence]
WHEREAS…….. has instituted a suit against you under Order 37 of the Code of Civil Procedure, 1908, for Rs……….. and interest, you are hereby summoned to cause an appearance to be entered for you, within ten days from the service hereof, in default whereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs ……….and the sum of Rs……….. for costs, together with such interest, if any, as the Court may order.
If you cause an appearance to be entered for you……….. the plaintiff will thereafter serve upon you a summons for judgment at the hearing of which you will be entitled to move the Court for leave to defend the suit.
Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend.
GIVEN under may hand and the sea] of the Court, this……. day of……. 19….. .
Judge.]
HIGH COURT AMENDMENT
Bombay.—Substitute the following form for the existing Form No. 1 in Appendix B :
1. Subs by Act 104 of 1976. sec. 94, for Form No. 4 (w.e.f. 1-2-1977).
NO. 4
(ORDER 37, RULE 2)
(TITLE)
To
(Name, description and place of residence)
“WHEREAS ………. has instituted a suit against you under Order XXXVII, of the Code of Civil Procedure, 1908, for Rs ……and interest, you are hereby summoned to make an application within 30 days from the service hereof, for leave to defend the suit in default where of the plaintiff will be entitled at any time after the expiration of such 30 days to obtain a decree for any sum not exceeding the sum of Rs. ……….and the cost of the suit together with such interest , if any, as the Court may order. Leave to defend may be obtained on an application to the Court supported by affidavit disclosing facts as may be sufficient to satisfy the Court that you are entitled to defend the suit.
GIVEN under may hand and seal of the Court, this……..day of…….. 19.... .
Judge.
Notice.—Take notice that in default of your filing an address of service along with your application for leave to defend, the said application will be liable to be rejected.” [Vide P. O./102/77, dated 15th September, 1983 (w.e.f. 1-10-1983)].
1 [No. 4A
SUMMONS FOR JUDGMENT IN A SUMMARY SUIT
(O. 37, R. 3)
(Title)
In the……….Court, at ……… Suit No. ………. of 19……. .XYZ ………………………………………………………………….Plaintiff
Versus
ABC…………………………………………………………………..Defendant
Upon reading the affidavit of the plaintiff the Court makes the following order, namely. -
Let all parties concerned attend the Court or Judge, as the case may be, on the……
day of …………19…., at……..O’clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs…….. and for interest and costs.
Dated the ………day of 19..... .
HIGH COURT AMENDMENT
Bombay.— Delete Form 4A. [Vide P.O. 102/77, dated 15th September, 1983 (w.e.f. 1-10.1983)].
1. Ins. by sec. 94, Act 104 of 1976, (w.e.f. 1-2-1977).
No. 5
NOTICE TO PERSON WHO, THE COURT CONSIDERS, SHOULD BE ADDED AS CO-PLAINTIFF (O. 1, r. 10.)
(TITLE)
To
[Name, description and place of residence]
WHEREAS ………. has instituted the above suit against ………….for…………
and, whereas it appears necessary that you should be added as a plaintiff in the said suit in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved. Take notice that you should on or before the……… day of …….. 19 …..,signify to this Court whether you consent to be so added.
Given under my hand and the seal of the Court, this……….day of …….19 ……
Judge.
HIGH COURT AMENDMENT
Bombay.— Add the following note in Form No. 5.
Notice.— Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence struck out. [Vide P. O./102/77, dated 15th September, 1983 (w.e.f. 1-10-1983)].
No. 6
SUMMONS TO LEGAL REPRESENTATIVE OF A DECEASED DEFENDANT
(O. 22, R. 4.)
(TITLE)
To
WHEREAS the plaintiff………. instituted a suit in this Court on the……………..day of………. 19...., against the defendant who has since deceased, and whereas the said plaintiff has made an application to this Court alleging that you are the legal representative of the said ……….deceased, and desiring that you be made the defendant in his stead;
You are hereby summoned to attend in this Court on the ……….. day of……….
19…… , at ……… A. M. to defend the said suit and, in default of your appearance
on the day specified, the said suit will be heard and determined in your absence.
GIVEN under my hand and the seal of the Court, this ……….. day of ……..19…. Judge.
No. 7
ORDER FOR TRANSMISSION OF SUMMONS FOR SERVICE IN THE JURISDICTION OF ANOTHER COURT (O. 5, r. 21.)
(TITLE)
WHEREAS it is stated that…………………………………………………………defendant/ witness in the above suit is at present residing in ………….: It is ordered that a summons returnable on the………. day of …… 19 ….. ,be forwarded to the……. Court of……for service on the said ……… defendant/ witness----------- with a duplicate of this proceeding.
The Court-fee of …..….. chargeable in respect to the summons has been realised in this Court in stamps.
Date ……… 19 …….
Judge.
No. 8
ORDER FOR TRANSMISSION OF SUMMONS TO BE SERVED ON A PRISONER
(O. 5, R. 25.)
(TITLE)
To
The Superintendent of the Jail at……………………………………………………..
UNDER the provisions of Order V, Rule 24, of the Code of Civil Procedure, 1908, a summons in duplicate is herewith forwarded for service on the defendant............... who is…….. a prisoner in jail. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.
Judge.
No. 9
ORDER FOR TRANSMISSION OF SUMMONS TO BE SERVED ON A PUBLIC SERVANT OR SOLDIER
(O. 5, Rr. 27, 28.)
(TITLE)
To
Under the provisions of Order V, Rule 27 (or 28, as the case may be), of the Code of Civil Procedure, 1908, a summons in duplicate is herewith forwarded for service on the defendant ……….. who is stated to be serving under you. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with statement of service endorsed thereon by you.
Judge.
HIGH COURT AMENDMENTS
Andhra Pradesh.— Same as in Madras High Court [29-8-19571.
Madras.— In the heading for the words “Public Servant” substitute the words, Public Officer”
No. 10
TO ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT
(O. 5, R. 23.)
(TITLE)
Read proceeding from the…………… forwarding……….for service on………..
in suit No ……….of 19…… of that Court.
Read Serving Officer’s endorsement stating that the……………..and proof of the above having been duly taken by me on the oath of……… ……and………….it is
ordered that the………. be returned to the………. with a copy of this proceeding.
Judge.
NOTE.— This form will be applicable to process other than summons, the service of which may have to be effected in the same manner.
HIGH COURT AMENDMENTS
Allahabad.— Form No. 10 cancelled. [24-8-1918].
Bombay.— In Appendix B, for the existing Form No. 10, substitute the following as Form No. 10. -
No. 10
To ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT
(ORDER V, RULE 23)
(TITLE)
Read proceeding from the……… forwarding for service on…………….. in Suit No……..of 19 ……..of that Court.
Read Serving Officer’s endorsement stating that the ………. and proof of the above having been duly taken by me on the oath of………………and it is ordered that the
.......................... be returned to the……..with a copy of this proceeding.
I hereby declare that the said summons on …………has been duly served.
Judge.
Note — This form will be applicable to process other than summons, the service of which may to be effected in the same manner. [Vide P.O./102/77, dated 15th September, 1983 (w.e.f. 1-10-1983)].
Calcutta.—
(i) In the heading after “summons” insert or notice.”
(ii) After the words "proof of the above having been taken by me on the oath of' insert the words "(or proof of the above having been duly made by the declaration of…….)”
Gauhati.— As in Calcutta High Court.
No. 11
AFFIDAVIT OF PROCESS-SERVER TO ACCOMPANY RETURN OF A SUMMONS OR NOTICE
(O. 5, R. 18.)
(TITLE)
The affidavit of …………….., son of ………………………………I make oath/ affirm and say as follows. -
(1) I am a process-server of this Court.
(2) the …….. day of ……… 19..… I received a summons/notice issued by the Court of ………….. in Suit No…….. of 19…… , in the said Court, dated the …………day of ………..19……., for service on……………. .
(3) The said……….was at the time personally known to me, and I served the said summons/notice on him/her on the………… day of……… 19…….., at about…….. O’clock in the……. noon at…….. by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice
(a)
(b)
(a) Here state whether the person served, signed or refused to sign the process, and in whose presence.
(b) Signature of process-server.
or,
(3) The said……….not being personally known to me…………accompanied me to………..and pointed out to me a person whom he stated to be the said............and I served the said summons/notice on him/her on the……. day of………..19...., at about …… O’clock in the noon at………………by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.
(a)
(b)
(a) Here state whether the person served, signed or refused to sign the process, and in whose presence.
(b) Signature of process-server.
or,
(3) The said ……….and the house in which he ordinarily resides being personally known to me, I went to the said house, in and thereon the………..day of……….. 19...., at about…….. O’clock in the noon, I did not find the said……..
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, Rules 15 and 17.
(b) Signature of process-server.
or,
(3)One……..accompanied me to……….and there pointed out to me ………. which he said was the house in which……….ordinarily resides. I did not find the said ………there.
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, Rules 15 and 17
(b) Signature of process-server.
or
If substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of the order for substituted service.
Sworn/Affirmed by the said……… before me this……………………………….. day of............... 19…. .
Empowered under Section 139 of the
Code of Civil Procedure, 1908, to
administer the oath to deponents.
HIGH COURT AMENDMENT
Calcutta.—Substitute the following for the existing Form No. 11. -
No. 11
DECLARATION OF PROCESS-SERVER TO ACCOMPANY RETURN OF A SUMMONS OF NOTICE
(ORDER V, RULE 18)
(TITLE)
I......................... a process-server of this Court, declare:
(1) On the……… day of…………19, 1 received a summons/notice issued by the Court of. …………in suit No……………… of 19, in the Court dated ………….day of………… 19, for service on………..
(2) The said…….. was at the time personally known to me, and I served the summons/notice on him/her on the…………. day of……….. 19...., at about ……….O’clock in the noon at ……….by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.
(a)
(b)
(a) [Here state whether the person served, signed or refused to sign the process and in whose presence].
(b) [Signature of process-server].
or,
(2) The said ……………not being personally known to me……….. pointed out to me a person whom he stated to be the said…………. and I served the said summons/notice on him/her on the ……………day of ………….19, at about …………..O’clock in the noon at ……………by tendering a copy thereof to him/her and requiring his/her signature………… to the original summons /notice.
(a)
(b)
(a) [Here state whether the person served, signed or refused to sign the process and in whose presence].
(b) [Signature of process-server].
or,
(2) The said ………… and the house in which he ordinarily resides being personally known to me, I went to the said house, in………… and there on the day of ………. 19………. at about O’clock in the ………..noon, I did not find the said……..
(a)
(b)
(a) [Here state whether the person served, signed or refused to sign the process and in whose presence].
(b) Signature of process-server.
or,
(3) The said………. not being personally known to me ……….. accompanied to………. and pointed out to me a person whom he stated to be the said and I served the said summon/notice on him/her on the………. day of 19..…., at about ……….O'clock in the ………..noon at………… by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.
(a)
(b)
(a) Here state whether the person served, signed or refused to sign the process, and in whose presence.
(b) [Signature of process-server.]
or,
(3) The said ……………and the house in which he ordinarily resides being personally know to me/pointed out to me by.
I went to the said house in………and there on the………day of ….19….. ,at…………O’clock in the force/after noon I did not fine and said…….I enquiry after.
(a) neighbours
(b)
I was told that…………….. had gone to…………………. and would not be back till……………………………………..
Signature of process-server
or,
(3) If substituted service has been ordered, state fully and exactly the manner in which the summons was served, with special reference to the terms of the order for substituted service.
Sworn/affirmed by the said……………. before me this……………………… day of …….. 19.....
Empowered under Section 139 of the Code of Civil Procedure, 1908 to administer the oath to deponents”[12-5-1909].
No. 12
(O. 9, R. 6.)
(TITLE)
To
[Name, description and place of residence]
WHEREAS this day was fixed for the hearing of the above suit and a summons was issued to you and the plaintiff has appeared in this Court and you did not so appear, but fr6m the return of the Nazir it has been proved to the satisfaction of the Court that the said summons was served on you but not in sufficing; time to enable you to appear and answer on the day fixed in the said summons ;
Notice is hereby given to you that the hearing of the suit is adjourned this day and that the……… day of ………19.…., is now fixed for the hearing of the same; in default of your appearance on the last mentioned the suit will be heard and determined in your absence.
GIVEN under my hand and the seal of the Court, this……..day of……….19.....
Judge.
HIGH COURT AMENDMENTS
Andhra Pradesh. —Same as by the Madras High Court.
Madras.—After Form No. 12, insert the following new Form 12A. -
No. 12-A
NOTICE TO THE PROPOSED GUARDIAN DEFENDANT OF A MINOR
(ORDER XXXII RULES 3 AND 4)
(TITLE)
To
[Name, description and place of residence of proposed guardian.]
Take notice X plaintiff/appellant in……… has presented a petition to the Court praying that you be appointed guardian ad litem to the minor ………..defendant (s)/respondents (s) and that the same will be heard on the day ………..19…… .
2. The affidavit of X has been filed in support of this application.
3. If you are willing to act as guardian for the said defendants(s)/respondents(s) you are required to sign (or affix your mark to) the declaration on the back of this notice.
4. In the event of your failure to signify your express consent in manner indicated above, take further notice that the Court may proceed under Order XXXII, Rule 4, Code of Civil Procedure, to appoint some other suitable person or one of its officers as guardian ad litem of defendants(s)/respondents(s) the minor aforesaid.
Dated the day of ………. 19…… .
(Signed)
(To be printed on the reverse),
I hereby acknowledge receipt of a duplicate of this notice and consent to act as guardian of the minor respondents(s)/defendants(s) therein mentioned.
(Signed) Y, Z”
Witnesses:
1
2.
No.13
(O. 16, Rr.1, 5)
(TITLE)
To
WHEREAS your attendance is required to ………………………………………….
on behalf of the……………………………………………………………………. in
the above suit, you are hereby required [personally to appear before this Court on the……….. day of………. 19……,…… at ………O’clock in the forenoon, and to bring with you for[or to send to this………. Court].
A sum of Rs………., being your travelling and other expenses arid subsistence allowance for one day, is herewith sent. If you fail to comply with this order without lawful excuse, you will be subject to the consequences of non-attendance laid down in Rule 12 of Order XVI of the Code of Civil Procedure, 1908.
GIVEN under my hand and the seal of the Court, this ………. day of ………19....
Judge.
NOTICE.—(1) If you are summoned only to produce a document and not to give evidence, you shall be deemed to have complied with the summons if you cause such document to be produced in this Court on the day and hour aforesaid.
(2) If you are detained beyond the day aforesaid, a sum of Rs………. will be tendered to you for each day’s attendance beyond the day specified.
HIGH COURT AMENDMENTS
Andhra Pradesh.—As by the Madras High Court except as under:
(i) For the words “Crown” substitute “Government”.
(ii) For the words “A Government servant for Province of (Name)”, substitute the words “a servant of Government of India or the Government (Names of the State)”.
(iii) For the words “the Government of the Provinces” substitute the words “Government of India/Government (Name of the State)”.(ROC NO. 6842/-5l-B-1, dated 9-8-1957)
Karnataka.—As by the Kerala High Court.
Kerala.—
(i) No. (i) of the Madras High Court.
(ii) Insert new Form No. 13A. -
NO. 13A
(ORDER XVI, RULE 4A)
(CAUSE TITLE)
This is to certify that……….. (name)………………………………………………(designation) being a Government servant from the State of ……………..(name) …………..was summoned to give evidence in his official capacity on behalf of the plaintiff/defendant in the above suit/matter and was in attendance in this Court from the ………….day of ………..to the…………day of…….. 19.... (inclusive) and that a sum of Rupees……….has been paid into Court by the plaintiff defendant towards his travelling and subsistence for……day according to the scale prescribed by the Government of the State of….. (name)….. and that the said amount has been/will be remitted to the Government Treasury…….. at to be credited to Government under the head “XXI (e) (ii) Administration of Justice………. Miscellaneous other Items.”
Dated the day of………..19……
Presiding Judge or
Chief Ministerial Officer.
(9-6-1959).
Madras.—(i) In Notice No. 1 add.
“If the document you are summoned to produce is an entry in a letter book or a shop book or other account in current use, and you are desirous of receiving back the document, you may furnish along with the document a copy of the entry”.
(ii) Add the following new Form No 13A. -
“No. 13-A
CERTIFICATE OF ARTENDANCE TO AN OFFICER OF GOVERNMENT SUMMONS AS A WITNESS IN A
SUIT TO WHICH THE GOVERNMENT IS A PARTY
(ORDER XVI, RULE 4-A)
(CAUSE TITLE)
This is to certify that…….. (Name)……….. (designation)…..being a servant of the Government of India/of the Government of (name of State)………was summoned to give evidence in his official capacity on behalf of the plaintiff/defendant……….in the above………and was in attendance in this Court from the day of to the day of 19 (inclusive) and that a sum of Rupees……… has been paid into Court by the plaintiff/defendant………… towards his travelling and subsistence allowance for ………..days according to the scale prescribed by Government of India/Government of (name of State) and that the said amount………. has been/will be remitted to the Government Treasury at……….to be credited to Government under the head XXI-D………Miscellaneous Fees and dated the………day of 19……
Presiding Judge or
Chief Ministerial Officer”
(2-3-1942 and 28-5-1985).
No. 14
PROCLAMATION REQUIRING ATFENDANCE OF WITNESS
(O.16, R. 10.)
(TITLE)
To
WHEREAS it appears from the examination on oath of the serving officer that the summons could not be served upon the witness in the manner prescribed by law; and whereas it appears that the evidence of the witness is material, and he absconds and keeps out of the way for the purpose of evading the service of the summons : This proclamation is, therefore, under Rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the............... day of….. 19.... at O’clock in the forenoon and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.
Given under my hand and the seal of the Court, this ……….day of ……19…… .
Judge.
No. 15
PROCLAMATION REQUIRING ATTENDANCE OF WITNESS
(O.16, R. 10.)
(TITLE)
To
WIIEREAS it appears from the examination on oath of the serving officer that the summons has been duly served upon the witness, and whereas it appears that the evidence of the witness is material and he has failed to attend in compliance with such summons : This proclamation is, therefore, under Rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the…….. day of …….19...., at O’clock in the forenoon, and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.
Given under my hand and the seal of the Court, this……….. day of ……..19…… .
Judge.
No. 16
WARRANT OF ATTACHMENT OF PROPERTY OF WITNESS
(O.16, R. 10.)
(TITLE)
To
The Bailiff of the Court.
WHEREAS the witness…………………………………………………………. Cited by…………………has not, after the expiration of the period limited in the proclamation issued for his attendance, appeared in Court; You are hereby directed to hold under attachment ............... property belonging to the said witness to the value of………….and to submit a return, accompanied with an inventory thereof, within………..days.
Given under my hand and the seal of the Court, this………..day of….. .19 ….
Judge
HIGH COURT AMENDMENT
Kerala.—Substitute ‘Amin’ for Bailiff.
No. 17
(O.16, R. 10.)
(TITLE)
To
The Bailiff of the Court.
WHEREAS………has been duly served with a summons but has failed to attend (absconds and keeps out of the way for the purpose of avoiding service of a summons); You are hereby ordered to arrest and bring the said……… before the Court.
You are further ordered to return this warrant on or before the …………..day of...............19.... with an endorsement certifying the day on and the manner in which it has been executed, or the reason why it has not been executed.
Given under my hand and the seal of the Court, this…….. day of……….19 …. .
Judge.
HIGH COURT AMENDMENT
Kerala.—Substitute ‘Amin’ for Bailiff.
No. 18
(O.16, R. 16)
(TITLE)
To
The Officer in charge of the Jail at………………
WHEREAS the plaintiff (or defendant) in the above-named suit has made application to this Court that security be taken for the appearance of…………….. to give evidence (or to produce a document), on the ……….day of……….19 ….; and here as the Court has called upon the said………… to furnish such security, which e has failed to do; This is to require you to receive the said……………..into your custody in the civil prison and to produce him before this Court at………….on the aid day and on such other day or days as may be hereafter ordered. given under my hand and the seal of the Court, this………… day of ……..19…. .
Judge.
No. 19
(O.16, R. 18.)
(TITLE)
To
The Officer in charge of the Jail at………….
Whereas whose attendance is required before this Court in the above-named case to give evidence (or to produce a document), has been arrested and brought before the Court in custody; and whereas owing to the absence of the plaintiff (or defendant), the said ……….cannot give such evidence (or produce such document); and whereas the Court has called upon the said…………to give security for his appearance on the………day of………19...., at………..which he has failed to do; This is to require you to receive the said……….into your custody in the civil prison and to produce him before this Court at………on the……….day of………19…. .
Given under my hand and the seal of the Court, this………day of……….19…. .
No. 20
APPLICATION FOR ISSUE OF SUMMONS TO A PARTY OR WITNESS.
| No. of Suit | ||||||
| Name of parties In the Court of the Date fixed for hearing | ||||||
| Number of witnesses to be summoned | Name and full address of each person to be summoned | Rank or occupation | Distance of residence from Court | Cash paid for | Name and address of person to whom unexpected traveling expenses and diet money should be returned | |
| | | | Rail Road | Travelling expenses- | Diet expenses | |
| 1. | 2. | 3. | 4. | 5. | 6. | |
Judge.
ISCOVERY, INSPECTION AND ADMISSION
No.1
ORDER FOR DELIVERY OF INTERROCATORIES
(O. 11, R. 1.)
In the Court of…………
Civil Suit No. ……….of………19…. .
A. B Plaintiff,
against
C. D. E. F and G. H. Defendants.
Upon hearing ………and upon reading the affidavit of………. filed the............. day o……..19…. ; It is ordered that the……… be at liberty to deliver to the………interrogatories in writing, and that the said………. do answer the interrogatories as prescribed by Order XI, Rule 8, and that the costs of this application be……………. .
No. 2
(O. 11, R. 4.)
(TITLE AS IN NO. 1, SUPRA.)
Interrogatories on behalf of the above-named [Plaintiff or defendant C D.] for
the examination of the above-named [defendants E.F. and G.H. or plaintiff].
1. Did not, etc.
2. Has not, etc. etc. etc. etc.
[The defendant E. F is required to answer the interrogatories numbered……….].
[The defendant G. H. is required to answer the interrogatories numbered……….].
No. 3
(O. 11, R. 9.)
(TITLE AS IN NO. 1, SUPRA.)
The answer of the above-named defendant E.F., to the interrogatories for his examination by the above-named plaintiff.
In answer to the said interrogatories, 1, the above-named E.F., make oath and say as follows. -
Enter answer to interrogatories in paragraphs numbered consecutively.
2.
3. I object to answer the interrogatories numbered ………….[state grounds of objection].
No. 4
ORDER FOR AFFIDAVIT AS TO DOCUMENTS
(O.11, R. 12.)
(TITLE AS IN NO. 1 SUPRA.)
Upon hearing ………..; It is ordered that the ………do within ……..days from the date of this order, answer on affidavit stating which documents are or have been in his possession or power relating to the matter in question in this suit, and that the costs of this application be……….. .
No. 5
(O.11, R. 13.)
(TITLE AS IN NO. 1, SUPRA.)
I, the above-named defendant C D., make oath and say as follows. -
1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.
2. I object to produce the said documents set forth in the second part of the first schedule hereto [state rounds of objection].
3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.
4. The last-mentioned documents were last in my possession or power on [state when and what has become of them and in whose possession they now are].
5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter memorandum, paper or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto.
No. 6
ORDER TO PRODUCE DOCUMENTS FOR INSPECTION
(O.11, R. 14
(TITLE AS IN NO. 1, SUPRA.)
Upon hearing ……….and upon reading the affidavit of……… filed the ............ day of ………..19…. . It is ordered that the do, at all reasonable times, on reasonable notice, produce at …………, situate at…………, the following documents, namely ………….., and that the…………. be at liberty to inspect and persue the documents so produced, and to make notes of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the cost of this application be………….. .
No. 7
(O.11, R. 16.)
(TITLE AS IN NO. 1, SUPRA.)
Take notice that the [plaintiff or defendant] requires you to produce for his inspection the following documents referred to in your [plaint or written statement
or affidavit, dated the……… day of ……….19 .... ].
[Describe documents required.]
X Y, Pleader for the
To Z, Pleader for the………..
No. 8
(O.11, R. 17.)
(TITLE AS IN NO. 1, SUPRA.)
Take notice that you can inspect the documents mentioned in your notice of the............... day of………..19.... [except the documents numbered……….. in that notice]at [insert place of inspection] on Thursday next, the instant, between the hours of 12 and 4 O’clock.
Or, that the [plaintiff or defendant] objects to giving you inspection of documents mentioned in your notice of the ……….day of ……..19...., on the ground that [state the ground].
No. 9
NOTICE TO ADMIT DOCUMENTS (O.12, r. 3.)
TITLE AS IN NO. 1, SUPRA.)
Take notice that the plaintiff [or defendant] in this suit proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant [or plaintiff], his pleader or agent at ………on………. between the hours of……… ; and the defendant for plaintiff is hereby required, within forty-eight hours form the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed or executed, as they purport respectively to have been ; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered, respectively, saving all just exceptions to the admissibility of all such documents as evidence in this suit.
G. H., pleader [or agent] for plaintiff
[or defendant].
To E. F., pleader [or agent] for defendant [or plaintiff].
[Here describe the documents and specify as to each document whether it is original or a copy.]
No. 10
(O. 12, R. 5.)
(TITLE AS IN NO. 1, SUPRA.)
Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff to admit, for the purposes of this suit only, the several facts respectively hereunder specified; and the defendant [or plaintiff is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this suit.
G. H. pleader for agent] for plaintiff [or defendant].
To E. F., pleader [or agent] for defendant [or plaintiff].
The facts, the admission of which is required, are: -
1. That M. died on the 1st January, 1890.
2. That he died intestate.
3. That N, was his only lawful son.
4. That O. died on the 1st April, 1896.
5. That O. was never married.
No. 11
ADMISSION OF FACTS PURSUANT TO NOTICE
(O. 12, R.5.)
(TITLE AS IN NO. 1, SUPRA.)
The defendant [or plaintiff in this suit, for the purposes of this suit only, hereby admits the several facts respectively hereunder specified, subject to the qualification or limitations, if any, hereunder specified, saving all just exceptions to the admissibility of any such facts, or any of them, as evidence in this suit :
Provided that this admission is made for the purposes of this suit only, and is not an admission to be used against the defendant [or plaintiff on any other occasion or by any one other than the plaintiff [or defendant or party requiring the admission].
E. F., pleader [or agent] for defendant
[Or plaintiff]
To G. H., pleader [or agent] for plaintiff [or defendant].
| Facts admitted | Qualifications or limitations, if any, subject to which they are admitted |
| 1. That M. died on the 1st January, 1890 | 1. |
| 2. That he died intestate | 2. |
| 3. That N. was his lawful son | 3. But not that he was his only lawful son. |
| 4. That O. died | 4. ButnotthathediedonthelstApril,1896. |
| 5. That O was never married | 5. |
No. 12
NOTICE TO PRODUCE GENERAL FORM
(O. 12, R. 8.)
(TITLE AS IN NO. 1, SUPRA.)
Take notice that you are hereby required to produce and show to the Court at the first hearing of this suit all books, papers, letters, copies of letters and other writings and documents in your custody, possession of power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly.
G. H., pleader [or agent] for plaintiff [or defendant].
To E. F., pleader for agent] for defendant for plaintiff].
DECREES
No. 1
(O. 20, Rr. 6, 7.)
(TITLE)
Claim for…………………………………………………………………………….
This suit coming on this day for final disposal before…………. in the presence of………..for the plaintiff and of………. for the defendant, it is ordered and decreed that………… and that the sum of Rs……….. be paid by the ... ........... to the...............on account of the costs of this suit, with interest thereon at the rate of...............per cent, per annum from this date to the date of realization.
Given-“N under my hand and the seal of the Court, this………day of …….19…. .
Judge.
Costs of Suit
| Plaintiff | Defendant | ||||||||
| 1. Stamp for plaint | Rs. | A | P | Stamp for power | Rs. | A | P | ||
| 2. Do. for power | | | | Do for petition | | | | ||
| 3. Do for exhibits | | | | Pleader’s fee | | | | ||
| 4 Pleader’s fee on Rs | | | | Subsistence for | | | | ||
| 5.Subsistence for witnesses | | | | Witnesses | | | | ||
| 6. Commissioner’s fee | | | | Service of process. | | | | ||
| 7. Service of process | | | | Commissioner’s fee. | | | | ||
| Total | | | | Total | | | | ||
HIGH COURT AMENTMENTS
Calcutta. -Cancel the table under the head “Costs of suit” in Form No. 1 and substitute therefore the following.—
| Plaintiff | Amount | Defendant | Amount |
| | Rs. A.P. | | Rs. A.P. |
| 1. Stamp for plaint. | | 1. Stamp for power. | |
| 2. Stamp for power. | | 2. Stamp for petitions and affidavits. | |
| 3 Stamp for petitions and affidavits. | | 3 Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891. | |
| 4. Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891. | | 4. Pleader’s fee. | |
| 5. Pleader’s fee on Rs. | | 5. Subsistence and travelling allowances of witness (including those of party, if allowed by Judge). | |
| 6. Subsistence and travelling allowance of witnesses (including those of party, if allowed by Judge). | | 6. Process fee. | |
| 7. Process fee. | | 7. Commissioner’s fees | |
| 8. Commissioner’s fees | | 8. Demi-paper. | |
| 9. Demi-paper. | | 9. Costs of transmission of records. | |
| 10. Cost of transmission of records. | | 10. Other costs allowed under the Code and General Rules Orders. | |
| 11. Other costs allowed under the Code and General Rules and Orders. | | 11. Adjournment costs not paid in case (to be deducted or added as the case may be). | |
| 12. Adjournment costs not paid in case (to be added or deducted as the case may be) | | | |
| Total | | Total | |
Gauhati.—As by the Calcutta High Court.
Orissa.—As by the Patna High Court.
Patna.—In the Form No. I for the schedule “Costs of Suit” substitute the following. -
| Plaintiff | Amount | Defendant | Amount |
| | Rs. A. P. | | Rs. A P. |
| 1 Stamp for plaint. | | 1. Stamp for power. | |
| 2. Stamp for power. | | 2. Stamp for petition or affidavit. | |
| 3. Stamp for petition affidavit. | | 3. Costs for exhibits. | |
| 4. Costs for exhibits. | | 4. Pleader's fee. | |
| 5. Pleader's fee on Rs. | | 5. Subsistence- (a) For defendant or his agent. (b) For witnesses. | |
| 6. Subsistence- (a) for plaintiff or his agent. ( b) for witnesses. | | 6. Commissioner’s fee. | |
| 7. Commissioner's fee. | | 7. Service of process. | |
| 8. Service for process. | | 8. Copying or typing charge. |
|
| 9. Copying or typing charge. | | | |
| Total | | Total | |
No. 2
(SECTION 34)
(TITLE)
Claim for……………………………………………………………………………
This suit coming on this day for final disposal before……… in the presence of...............for the plaintiff and of for the………defendant; It is ordered that the...............do pay to the ……..the sum of Rs…….with interest thereon at the rate of……….per cent per annum from……….to the date of realization of the said sum and do also pay Rs ………., the costs of this suit, with interest thereon at the rate of per cent per annum from this date to the date of realization.
GIVEN under my hand and the seal of this Court, this ……… Day of ………19….
Judge.
Costs of suit
| Plaintiff | Amount | Defendant | Amount | ||
| | Rs. A. P. | | Rs. A P. | ||
| 1. Stamp for plaint | | Stamp for power | | ||
| 2. Do. for power | | Do. for petition | | ||
| 3. Do. for exhibits | | Pleader’s fee | |||
| 4. Pleader’s fee on Rs.. | Subsistence for witnesses | ||||
| 5 Subsistence for witnesses | Service of process | ||||
| 6. Commissioner’s fee | Commissioner’s fee | ||||
| 7. Service of process | | ||||
| Total | | Total | | ||
HIGH COURT AMENDMENTS
Calcutta.—In Form No. 2 for the “Costs of Suits” substitute the following. -
Cancel the table under the head “Costs of Suit” in Form No. 2, and substitute
| Plaintiff | Amount | Defendant | Amount |
| | Rs. A. P |
| Rs. A. P |
| 1 Stamp for plaint, | | 1. Stamp for power. | |
| 2. Stamp for power. | | 2. Stamp for petition and affidavits. | |
| 3. Stamp for petitioners and affidavit. | | 3. Cost of exhibits including copies made under the Banker’s Books Evidence Act, 1891. | |
| 4. Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891. | | 4. Pleader’s fee. | |
| 5. Pleader’s fees on Rs. | | 5. Subsistence and travelling allowances of witnesses (including those of party if allowed by Judge). | |
| 6. Subsistence and travelling allowance, of witnesses (including those of party it allowed by Judge) | | 6. Process fees. | |
| 7. Process fees, | | 7. Commissioner’s fee. | |
| 8. Commissioner’s tees. | | 8. Demi paper, | |
| 9. Dime Paper. | | 9. Costs (if transmission of records | |
| 10. Cost of transmission of record | | 10. Other cost allowed under the Code and General Rules and Orders. | |
| 11 Other costs allowed under the Code and General Rules and Order. | | 11. Adjournment costs not paid in cash (to be, deducted or added as the case may be). | |
| 12. Adjournment costs not paid in cash (to be added or deducted as the case may be). | | | |
| Total | | Total | |
Gauhati.—As in Calcutta.
1[No 3
PRELIMINARY DECREE FOR FORECLOSURE
(ORDER XXXIV, RULE 2-WHERE ACCOUNTS ARE DIRECTED TO BE TAKEN.)
(TITLE),
This suit coming on this............... day, etc.; It is hereby ordered and decreed that it be referred to............... as the Commissioner to take the accounts following. -
(i) An account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);
(ii) An account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff of which without the wilful default of the plaintiff or such person might have been so received;
(iii) An account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent per annum);
(iv) An account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff of account of interest on the principal sum adjudged clue and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the………. day of……… and that upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modifications as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed-
(i) That the defendant do pay into Court on or before the………............or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due, and the sum of Rs ………….. for the costs of the suit awarded to the plaintiff.
(ii) That, on such payment and on pavement thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff shall be at liberty to apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
1. Subs. by Act 21 of 1929, sec. 8 and Sch., for the original Forms 3 to II.
DESCRIPTION OF THE MORTGAGED PROPERLY
No. 3A
PRELIMINARY DECREE FOR FORF-CLOSURF,
(ORDER XXXIV, RULE 2. -WHERE THE COURT DECLARES THE AMOUNT DUE.)
(TITLE)
This suit coming on this……….. day, etc. ; It is hereby declared that the amount due to the plaintiff on his mortgage mentioned in the plaint calculated up to this day of is the sum of Rs………. for principal, the sum of Rs……….. for interest on the said principal, the sum of Rs……….. for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs………. for the costs of this suit awarded to the plaintiff, making in all the sum of Rs………. .
2.And it is hereby ordered and decreed as follows: -
(i) That the defendant do pay into Court on or before the day of ............ or any later date up to which time for payment may be extended by the Court of the said sum of Rs……….;
(ii) That, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule lo, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
3.And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
HIGH COURT AMENDMENT
Kerala.—Omit No. 3A-
No. 4
(ORDER XXXIV, RULE 3.)
(TITLE)
Upon reading the preliminary decree passed in this suit on the ............... day of and further orders (if any) dated the……….. day of……….and the application of the plaintiff dated the………… day of………. for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the said mortgage:
It is hereby ordered and decreed that the defendant and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned: *[and (if the defendant be in possession of the said mortgaged property,) that the defendant shall deliver to the plaintiff quiet and peaceable possession of the said mortgaged property.]
2. And it is hereby further declared that the whole of the liability whatsoever of the defendant up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.
HIGH COURT AMENDMENT
Kerala.—For Form No. 4 substitute.
* Words not required to be deleted.
SCHEDULE
(DESCRIPTION OF THE MORTGAGED PROPERTY)
NO. 4
(ORDER XXXIV, RULE 2.)
(TITLE)
This suit coming on this … … …day, etc., it is hereby declared that the amount due to the plaintiff on his mortgage mentioned in the plaint calculated up to this… … …day of… … is the sum of Rs… … for principal, the sum of Rs … … …for interest on the said principal the sum of Rs… … …for costs, charges and expenses (other than the cost of the suit) property incurred by the plaintiff in respect of the mortgage security, together with interest thereon, and the sum of Rs… … for the cost of this suit award to the plaintiff, making in all the sum of Rs...
2. And it is hereby ordered and decreed as follows: -
(i) that the defendant do pay into Court on or before the day of or any later day up to which time for payment may be "tended by the Court of the said sum of Rs…………. .
(ii) that, no such payment and on payment thereafter before such date as the Court may fix, or such amount, with interest of any, as the Court may adjudge due in respect of such costs of the suit-and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure, Act V of 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over to the defendant or to such person as he appoints and the plaintiff shall if so required, re-convey or re-transfer the said property free from the said mortgage and clear of all encumbrance created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage of this suit and shall, if so required deliver up to the defendant quiet and peaceable possession of the said property.
3. And it is hereby further ordered, and decreed that, in default of payment as aforesaid, the defendant and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property described in the schedule annexed hereto (and if the defendant be in possession of the said mortgaged property) that the defendant shall deliver to the plaintiff quiet and peaceable possession of the said mortgaged property and that the whole of the liability whatsoever of the defendant upto the date mentioned in (2) (i) arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.
No. 5
(ORDER XXXIV, RULE 4-WHERE ACCOUNTS ARE DIRECTED TO BE TAKEN.)
(TITLE)
This suit coming on this ……….day, etc. ; It is hereby ordered and decreed that it be referred to as the Commissioner to take the accounts following. -
(i) An account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable) ;
(ii) An account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person might have been so received ;
(iii) An account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent per annum) ;
(iv) An account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii), together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient dispatch after making all just allowances on or before the……….. day of …………, and that upon such report of the Commissioner being received, it shall be confirmed and counter-signed, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed -
(i) That the defendant do pay into Court on or before the………. day of ............... or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs. …………for the costs of the suit awarded to the plaintiff ;
(ii) That, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit, and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the mortgage and clear of and from all encumbrances created by the plaintiff of any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.
6. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
DECEPTION OF MORTGAGED PROPERTY.
HIGH COURT AMENDMENT
Kerala.—Omit Form No. 5.
No. 5A
PRELIMINARY DECREE FOR SALE
(ORDER XXXIV, RULE 4-WHEN THE COURT DECREES AMOUNT US.
(TITLE)
This suit coming on this………. day, etc. ; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this …………day of ………..is the sum of Rs………… for principal, the sum of Rs…………. for interest on the said principal, the sum of Rs……….for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs ……….for the costs of the suit awarded to the plaintiff, making in all the sum of Rs………… .
2. And it is hereby ordered and decreed as follows. -
(i) That the defendant do pay into Court on or before the day of ............... or any later date up to which time for payment may be extended by the Court, the said sum of Rs………. ;
(ii) That, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required deliver up to the defendant quiet and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold ; and for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give directions as it thinks fit.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY.
HIGH COURT AMENDMENT
Kerala.—Omit Form No. SA. [13-1-1974].
No. 6
(ORDER XXXIV, RULE 5)
(TITLE)
Upon reading the preliminary decree passed in this suit on the ......... I and further orders (if any) dated the………… day of………..application of the plaintiff dated the…………. day of ………for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf of any other person entitled to redeem the mortgage; It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.
2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into the Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under the aforesaid preliminary decree and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the plaintiff for such costs of the suit including the costs of this application and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
HIGH COURT AMENDMENT
Kerala.—For Form No. 6 substitute
1:FORM
No. 6
(ORDER XYXIV, RULE 3)
(TITLE)
This suit coming on this …………day, etc., it is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this…………. Day………. and the ………..day of…………of is the sum of Rs…………. for principal, the sum of Rs…………. for interest on the said principal, the sum of Rs………….. for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon and the sum of Rs……….for the costs of the suit awarded to the plaintiff, making in all the sum of Rs…………..
2. And it is hereby ordered and decreed as follows. -
(i) That the defendant do pay into Court on or before the day of or any later date up to which time for payment may be extended by the Court, the said sum of Rs………
(ii) That, no such payment and on payment thereafter before such date as the Court may flex, of such amount, with interest, if any, as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, (Act V of 1908), the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the, plaintiff shall, if so required recovery or re-transfer the said property free from the said mortgage and clear of and all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the mortgaged property described in the Schedule annexed hereto or a sufficient part thereof be sold, and that for the purpose of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deducting therefrom the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and in payment of any amount, with interest, if any, which the Court may have adjudged due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 7 of Order XX-XIV, of the First Schedule to the Code of Civil Procedure (Act V of 1908) and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
5. And it is hereby further ordered and decree that, if the money raised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the balance, if legally recoverable from the defendant otherwise than out of the property sold, be paid by the defendant personally.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
No. 7
PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY
MORTGAGOR A DECREE FOR FORECLOSURE IS PASSED
(ORDER XXXIV, RULE 7- WHERE ACCOUNTS ARE DIRECTED TO BE TAKEN)
(TITLE)
This suit coming on this……….. day, etc. ; It is hereby ordered and decreed that it be referred to as the Commissioner to take the account following. -
(i) An account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to the computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);
(ii) An account of the income of the mortgaged property received up to this date by the defendant or by any other person by order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received;
(iii) An account of all sums of money properly incurred by the defendant up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent per annum);
(iv) An account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.
2.It is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall be adjusted against any sums paid by the defendant under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money, or, as the case may be, be debited in reduction of the amount due to the defendant on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
3.And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the………..day of …………,and that upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed: -
(i) That the plaintiff do pay into Court on or before the............... day of……….or any later date up to which time for the Court may extend payment, such sum as the Court shall find due and the sum of Rs….… for the costs of the suit awarded to the defendant;
(ii) That, on such payment, and on payment thereafter -before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the defendant or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant shall be at liberty to apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
No. 7A
(ORDER XXXIV, RULE 7. -WHERE ACCOUNTS ARE DIRECTED TO BE TAKEN.)
(TITLE)
This suit coming on this............... day, etc. ; It is hereby ordered and decreed that it be referred to.......... as the Commissioner to take the accounts following: -
(i) An account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);
(ii) An account of the income of the mortgaged property received up to this date by the defendant or by any other person by the order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received;
(iii) An account of all sums of money property incurred by the defendant up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent per annum);
(iv) An account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgaged-deed.
2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the defendant under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money, or, as the case may be, be debited in reduction of the amount due to the defendant on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the ………. day of ……….and that, upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed -
(i) That the plaintiff do pay into Court on or before the………..Court, such sum as the Court shall find due and the sum of Rs………. of the suit awarded to the defendant;
(ii) That, or such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff, or to such person as he appoint, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the defendant or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property of a sufficient part thereof shall be directed to be sold ; and for the purposes of such sale the defendant shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.
6. And it is hereby further ordered and decreed that the money realized by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the defendant in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to receive the same.
7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the defendant as aforesaid, the defendant shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being. in force) to apply for a personal decree against the plaintiff for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
HIGH COURT AMENDMENT
Kerala.—Omit Form No. 7A.
No. 7B
(ORDER XXXIV, RULE 7. -WHERE THE COURT DECLARES THE AMOUNT DUE.)
(TITLE)
This suit coming on this ………….day, etc. ; It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this …….day of……….. is the sum of Rs…….. for principal, the sum of Rs………. for interest on the said principal, the sum of Rs…………for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of the mortgage-security together with interest thereon, and the sum of Rs …………for the costs of the suit awarded to the defendant, making in all the sum of Rs……….
2. And it is hereby ordered and decreed as follows: -
(i) That the plaintiff do pay into Court on or before the…….. day of, ............or any later date up to which time for payment may be extended by the Court the said sum of Rs ;………..
(ii) That, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the defendant or any person claiming under him or any person under whom he claims, and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
HIGH COURT AMENDMENT
Kerala.—Omit Form No. 7B.
No. 7C
(ORDER XXXIV, RULE 7. -WHERE THE COURT DECLARES THE AMOUNT DUE.)
(TITLE)
This suit coming on this ……..day, etc.; It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this…….. day of………… is the sum of Rs……….. for principal, the sum of Rs …………for interest on the said principal, the sum of Rs………. for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of mortgage-security together with interest thereon, and the sum of Rs………. for the cost of this suit awarded to the defendant, making in all the sum of Rs…….. .
2. And it is hereby ordered and decreed as follows: -
(i) That the plaintiff do pay into Court on or before the……… day of…………….. or any later date up to which time the payment may be extended by the Court the said sum of Rs………. ;
(ii) That, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff or such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property to the plaintiff free from the said mortgage and clear of and from all encumbrances created by the defendant or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold ; and for the purposes of such sale the defendant shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the defendant in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to the same.
5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for the payment in full of the amount payable to the defendant as aforesaid, the defendant shall be at liberty (where such remedy is open to him under the terms of the mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the plaintiff for the amount of the balance ; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERLY
HIGH COURT AMENDMENT
Kerala.—Omit Form No. 7C.
No. 7D
FINAL DECREE FOR FORECLOSURE IN A REDEMPTION SUIT ON DEFAULT OF PAYMENT BY MORTGAGOR
(ORDER XXXIV, RULE 8)
(TITLE)
Upon reading the preliminary decree in this suit on the………. day of………and further orders (if any) dated the ……….day of……….and the application of the defendant dated the day of for a final decree and after hearing the parties, and it appearing that the payment as directed by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other person entitled to redeem the mortgage;
It is hereby ordered and decreed that the plaintiff and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of an from all right of redemption of and in the property in aforesaid preliminary decree mentioned 1[and (if the plaintiff be in possession of the said mortgaged property) that the plaintiff shall deliver to the defendant quiet and peaceable possession of the said mortgaged property].
2. And it is hereby further declared that the whole of the liability whatsoever of the plaintiff up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharge and extinguished.
HIGH COURT AMENDMENT
Kerala.—For Form No. 7-D. substitute the following
1. Words not required to be deleted.
No. 7D
DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR, A DECREE FOR FORECLOSURE IS PASSED
(ORDER XXXIV, RULE 4)
(TITLE)
This suit coming on this………. day, etc. it is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint-calculated upto this day of……… is the sum of Rs……… for principal the sum of Rs……….. for interest on the said principal, the sum of Rs……… for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of the mortgage-security together with interest thereon, and the sum of Rs………. for the costs of the suit awarded to the defendant making in all the sum of Rs…….. ,
2. And it is hereby ordered and decreed as follows: -
(i) that the plaintiff do pay into Court on or before the day of or any later date upto which time for payment may by extended by the Court the said sum of Rs……… .
(ii) that on such payment and on payment thereafter, before such date as the Court may fix, of such amount, with interest, if any, as the Court may adjudge due in respect of such costs as the suit and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, Act V 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant, shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the defendant or any person claiming under him or any person under whom he claims and from all liabilities whatsoever arising from the mortgage or from this suit and shall , if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of, and in the property described in the schedule annexed hereto and (if the plaintiff be in possession of the said mortgaged property) that the defendant shall deliver to the plaintiff quiet and peaceable possession of the said mortgaged property; and that the whole of the liability whatsoever of the plaintiff upto the date mentioned in (2)(i) arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
NO. 7E
FINAL DECREE FOR SALE IN A REDEMPTION SUIT ON DEFAULT OF PAYMENT BY MORTGAGOR
(ORDER XXXIV, RULE 8)
(TITLE)
Upon reading the preliminary decree passed in this suit on the……….. day of………. and further orders (if any) dated the…………. day of……….and the application of the defendant dated the ………day of for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other person entitled to redeem the mortgage;
It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold and that for the purposes of such sale the defendant shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.
2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under the aforesaid preliminary decree and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the defendant for such costs of this suit including the costs of this application and such costs, charges and expenses as may be payable under Rule 10, together with the subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to receive the same.
HIGH COURT AMENDMENT
Kerala.—For Form No. 7E substitute . -
No. 7E
DEFENCE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTCIAGOR A DECREE FOR SALE IS PASSED
(ORDER XXXIV, RULE 4)
(TITLE)
This suit coming on this ……..day, etc. it is hereby declared that the amount due to defendant on the mortgage mentioned in the plaint calculated up to this ……..day of………. is the sum of Rs……….for principal, the sum of Rs………. for interest on the said principal, the sum of Rs for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of the mortgage security together with interest thereon, and the sum of Rs………. for the costs of this suit awarded to the defendant, making in all the sum of Rs…………
2. And it is hereby ordered and decreed as follows: -
(i) that the plaintiff do pay into Court on or before the day of………or any later date up to which time for payment may be extended by the Court the said sum of Rs……..
(ii) that on such payment and on payment thereafter before such date as the Court may fix of such amount with interest, if any, as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 7, of Order XXXIV of the First Schedule to the Code of Civil Procedure, (Act V of 1908), the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents, shall be delivered over to the plaintiff, or to such person as he appoints and the defendant shall, if so required, re-convey or re-transfer the said property to the plaintiff free from the said mortgage and clear of and from all encumbrances created by the defendant or any person claiming under him or any person under whom he claims and shall, if so required deliver up to the plaintiff quiet peaceable possession of the said property.
3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the mortgaged property described in the schedule annexed hereto or a sufficient part thereof be sold, and that for the purpose of such sale the defendant shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by such sale be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under this decree and under any further orders that may have been passed in this suit and in payment of any amount with interest, if any, which the Court may have adjudged due to the defendant for such costs of the suit including the costs of this application and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure, (Act V of 1908) and that the balance, if any, shall be paid to the plaintiff or other persons entitled to receive the same.
5. And it is hereby further ordered and decreed that it the money realised by such sale shall not be sufficient for payment in full of the amount payable to the defendant as aforesaid the balance if legally recoverable from the plaintiff otherwise than out of the property sold, be paid by the plaintiff personally”.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERLY
NO. 7F
(ORDER XXXIV, RULES 3, 5 AND 8)
(TITLE)
This suit coming on this ……….day for further consideration and it appearing the that on the……… day of……….the mortgagor or……… the same being a person entitled to redeem, has paid into Court all amounts due the mortgagee under the preliminary decree dated the ……..day of………; It is hereby ordered and decreed that : -
(i) The mortgagee do execute a deed of re-conveyance of the property in the aforesaid preliminary decree mentioned in favour of the mortgagor 1[or, as the case may be……………………. who has redeemed the property] or an acknowledgment of the payment of the amount due in his favour;
(ii) The mortgagee do bring into Court all documents in his possession and power relating to the mortgaged property in the suit.
And it is hereby further ordered and decreed that, upon the mortgagee executing the deed of re-conveyance or acknowledgment in the manner aforesaid, -
(i) The said sum of Rs……… be paid out of Court to the mortgagee……;
(ii) The said deeds and documents brought into the Court be delivered out of Court to the mortgagor 1[or the person making the payment] and the mortgagee do, when so required, concur in registering, at the cost of the mortgagor 1 [or other person making the payment], the said deed of re-conveyance or the acknowledgment in the office of the Sub-registrar of……………… ; and
(iii) 1[If the mortgagee, plaintiff or defendant, as the case may be, is in possession of the mortgaged property] that the mortgagee do forthwith deliver possession of the mortgaged property in the aforesaid preliminary decree mentioned to the mortgagor 1 for such person as aforesaid who has made the payment].
HIGH COURT AMENDMENT
Kerala.—Omit Form No. 7-F.
1. Words not required to be deleted.
No. 8
DECREE AGAINST MORTGAGOR PERSONALLY FOR BALANCE AFTER THE SALE OF THE ORTGAGED PROPERTY
(ORDER XXXIV, RULES 6 AND 8A)
(TITLE)
Upon reading the application of the mortgagee (the plaintiff or defendant, as the case may be) and reading the final decree passed in the suit on the……….day of………. and the Court being satisfied that the net proceeds of the sale held under the aforesaid final decree amounted to Rs………. and have been paid to the applicant out of the Court on the………… day of …….and that the balance now due to him under the aforesaid decree is Rs……….;
And whereas it appears to the Court that the said sum is legally recoverable from the mortgagor (plaintiff or defendant, as the case may be) personally;
It is hereby ordered and decreed as follows . -
That the mortgagor (plaintiff or defendant, as the case may be) do pay to the mortgagee (defendant or plaintiff, as the case may be) the said sum of Rs……..with further interest at the rate of six per cent per annum from the……….day of……….. (the date of payment out of Court referred to above) up to the date of realisation of the said sum, and the costs of this application.
HIGH COURT AMENDMENT
Kerala.—Omit From No. 8.
No. 9
PRELIMINARY DECREE FOR FORECLOSURE OF SALE
| [Plaintiff | | | | 1st Mortgagee, |
| | | VS. | | |
| Defendant No. 1 | | | | Mortgagor, |
| Defendant No. 2 | | | | 2nd Mortgagee.] |
(ORDER XXXIV, RULES 2 AND 4)
(TITLE)
The suit coming on this…….. day, etc ; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this ......... day of is the sum of Rs…………. for principal, the sum of Rs………….. for interest on the said principal, the sum of Rs…………. for costs, charges and expenses (other than the costs of the suit) incurred by the plaintiff in respect of the mortgage-security with interest thereon and the sum of Rs……… for the costs of this suit awarded to the plaintiff, making in all the sum of Rs…………..
(Similar declarations to be introduced with regard to the amount due to defendant No. 2 in respect of his mortgage if the mortgage-money due thereunder has became payable at the date of the suit.)
2.It is further declared that the plaintiff is entitled to payment of the amount due to him in priority to defendant No. 2 1[or (if there are. several subsequent mortgagees) that the several parties hereto are entitled in, the following order to the payment of the sums due to them respectively.]
3.And it is hereby ordered and decreed as follows:
(i) (a) That defendants or one of them do pay into Court on or before the……..day of……………. or any later date up to which time for payment has been extended by the Court the said sum of Rs …………due to the plaintiff ; and
(b) That defendant No. I do pay into Court on or before the………. day of………or any later date up to which time for payment has been extended by the Court the said sum of Rs………due to defendant No. 2; and
(ii) That, on payment of the sum declared to be due to the plaintiff by defendants or. either of them in the manner prescribed in clause (i)(a) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expanses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mort aged property in the plaint mentioned, and all such documents shall be delivered over to the defendant No……. (who has made the payment), or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims, and also free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant No ………(who has made the payment) quiet and peaceable possession of the said property.
(Similar declarations to be introduced, if defendant No. 1 pays the amount found or declared to be due to defendant No. 2 with such variations as may be necessary having regard to the nature of his mortgage.)
4. And it is hereby further ordered and decreed that, in default of payment as aforesaid of the amount due to the plaintiff, the plaintiff shall be at liberty to apply to the Court for a final decree-
(i) 1[In the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is foreclosure and not sale] that the defendants jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required deliver to the plaintiff quiet and peaceable possession of the said property; or
(ii) 1[In the case of any other mortgage] that the mortgaged property or a sufficient party thereof shall be sold ; and that for the purposes of such sale the plaintiff shall produce before Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and
(iii) 1[In the case where a sale is ordered under clause 4(ii) above] that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may have been passed in this suit and in payment of the amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to defendant No. 2, and that if any balance be left, it shall be paid to the defendant No. I or other persons entitled to receive the same; and
(iv) That, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2 or both of them, as the case may be, shall be at liberty (when such remedy is open under the terms of their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amounts remaining due to them respectively.
5. And it is hereby further ordered and decreed -
(a) That if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in the payment of the said amount, defendant No. 2 shall be at liberty to apply to the Court to keep the plaintiffs mortgage alive for his benefit and to apply for a final decree (in the same manner as the plaintiff might have done under clause 4 above) -
1[(i) That defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to defendant No. 2 quiet and peaceable possession of the said property;] or
1[(ii) That the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale defendant No. 2 shall produce before the Court or such office ' r as it appoints, all documents in his possession or power relating to the mortgaged property;] and
(b) (If on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.
6. And it is hereby further ordered and decreed 1[in the case where a sale is ordered under clause 5 above] -
(i) That the money realised by such sale shall be paid into Court and be duty applied (after deduction therefrom of the expenses of the sale) first in payment of the amount paid by defendant No. 2 in respect of the plaintiff's mortgage and the costs of the suit in connection therewith and in payment of the amount which the Court may adjudge due in respect of subsequent interest on the said amount; and that the balance, if any, shall then be applied in payment of the amount adjudged due to defendant No. 2 in respect of his own mortgage under this decree and any further orders that may be passed and in payment of the amount which the Court may adjudge due in respect of such costs of this suit and such costs, charges and expenses as may be payable to defendant No. 2 under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No. I or other persons entitled to receive the same ; and
(ii) that, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of the plaintiffs mortgage or defendant No. 2's mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against No. 1 for the amount of the balance.
7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
1 Words not required to be deleted.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
HIGH COURT AMENDMENT
Kerala.—For Form No. 9 substitute . -
NO. 9
DECREE FOR FORECLOSURE OF SALE
| Plaintiff | | | | 1st Mortgagee |
| | | Vs | | |
| Defendant No. 1 | | | | Mortgagor |
| Defendant No. 2 | | | | 2nd Mortgagor |
(ORDER XXXIV, RULES 2 AND 3)
(TITLE)
The suit coming on this…….. day, etc. it is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this…….. day of……… in the sum of Rs………. for principal, the sum of Rs …….for interest on the sale principal, the sum of Rs…….. for costs, (charges and expenses, other than the costs of the suit) incurred by the plaintiff in respect of the mortgage-security with interest thereon and the sum of Rs ……….for the costs of this suit awarded to the plaintiff, making in all the sum of Rs.. .. ..
(Similar declaration to be introduced with regard to the amount due to defendant No. 2 in respect of his mortgage if the mortgage-money due thereunder has become payable at the date of the suit).
2. It is further declared that the plaintiff is entitled to payment of the amount due to him in priority to defendant No. 2 of (if there are several subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively.
3. And it is hereby ordered and decreed as follows. -
(i)(a) that defendants or one of them do pay into Court on or before the ……..day of ……or any later date up to which time for payment has been extended by the Court the said sum of Rs…………. due to the plaintiff ; and
(b) that defendants No. I do pay into Court on or before the………. day of ……….or any later date up to which time for payment has been extended by the Court the said sum of Rs…..due to defendant No. 2; and
(ii) that, on payment of the sum declared to be due to the plaintiff by defendants or either of them in the manner prescribed in Clause (i)(a) and on payment thereafter before such date as the Court may fix of such amount, with interest if any as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure, (Act V of 1908), the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over to the defendant No (who has made the payment) or to such person as he appoints and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and also free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant No……(who has made the payment) quiet and peaceable possession of the said property. Similar declarations to be introduced if defendant No. 1 pays the amount found or declared to be due to defendant No. 2 with such variations as may be necessary having regard to the nature of his mortgage).
4. And, it is hereby ordered and decreed, that in default of payment as aforesaid of the amount due to the plaintiff: -
(i) (In the case of a mortgage by conditional sale or an anomalous mortgage where the Only remedy provided for in the mortgage deed is foreclosure and not sale) that the defendants jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and form all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver to the plaintiff quiet and peaceable possession of the said property ; or
(ii) (In the case of any other mortgage) that the mortgaged property or a sufficient part thereof shall be sold and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property: and
(iii) [In cases where a sale is ordered under Clause 4 (ii) above] that the money realised by such sale shall be paid into Court and be duly applied (after deducting therefrom the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may have been passed after decree and in payment of amount with interest, if any, which the Court may have adjudged due to the plaintiff in respect of such costs of this suit and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 1908) and that the balance, if any, shall be applied in payment of the amount due to defendant No. 2 and that, if any further balance be left it shall be paid to the defendant No. 1 or other persons entitled to receive the same; and
(iv) That, if the money realised by such sales shall not be sufficient for payment in full of the amount due to the plaintiff and defendant No. 1 otherwise than out of the property sold be paid by the defendant No. 1 personally to the plaintiff or defendant No. 2 or both of them, as the case may be.
5. And it is hereby further ordered and decreed-
(a) that if defendant No. 2 pays, into Court to the credit of this suit the amount adjudged due to plaintiff, but defendant No. 1 makes default in the payment of the said amount, defendant No. 2 shall be entitled to keep the plaintiffs mortgage alive for his benefit, and he shall be entitled to benefits similar to those conferred upon the plaintiff as per clause 4 above . -
(i) That defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to defendant No. 2 quiet and peaceable possession of the said property; or
(ii) That the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property; and
(b) (In the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage deed is foreclosure and not sale), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.
6. And it is hereby further ordered and decreed in the case where a sale is ordered under clause 5 above)-
(i) That the money realised by such sale shall be paid into Court and be duly applied (after deducting therefrom the expenses of the sale) first in payment of the amount paid by defendant No. 2 in respect of the plaintiffs mortgage and the costs of the suit in connection therewith, and that the balance, if any, shall then be applied in payment of the amount adjudged due to defendant No. 2 in respect of his own mortgage under this decree and any further orders that may be passed after decree and in payment of the amount with interest, if any, which the Court may have adjudged due in respect of such costs of the suit and such costs, charges and expenses as may be payable to defendant No. 2 under Rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure (Act V of 1908) and that the further balance if any, shall be paid to defendant No. 1 Or other persons entitled to receive the same ; and
(ii) That, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of the plaintiffs mortgage or defendant No. 2’s mortgage, the balance, if legally recoverable from defendant No. 1 otherwise than out of the property sold, be paid by the defendant No. I personally to defendant No. 2.”
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
NO. 10
PRELIMINARY DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND FORECLOSURE OR SALE ON SUBSEQUENT MORTGAGE
| [Plaintiff | | | | 2nd Mortgagee, |
| | | Vs | | |
| Defendant No. 1 | | | | Mortgagor, |
| Defendant No. 2 | | | | 1st Mortgagee.] |
(ORDER XXXIV, RULES 2, 4 AND 7)
(TITLE)
The suit coming on this…….. day, etc. ; It is hereby declared that the amount due to defendant No. 2 on the mortgage mentioned in the plaint calculated up to this ............... day of is the sum of Rs…………….. for principal, the sum of Rs ……… for interest on the said principal, the sum of Rs ………. for costs, charges and expenses (other than the costs of the suit) properly incurred by defendant No: 2 in respect of the mortgage-security with interest thereon and the sum of Rs………….. for the costs of this suit awarded to defendant No. 2, making in all the sum of Rs…………
(Similar declarations to be introduced with regard to the amount due from defendant No. 1 to the plaintiff in respect of his mortgage if the mortgage-money due thereunder has become payable at the date of the suit.)
2. It is further declared that defendant No. 2 is entitled to payment of the amount due to him in priority to the plaintiff 1[or (if there are several subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively. -].
3. And it is hereby ordered and decreed as follows. -
(i)(a) That the plaintiff or defendant No. 1 or one of them do pay into Court on or before the…………day of………. or any later date up to which time for payment has been extended by the Court the said sum of Rs……….. and due to defendant No. 2;
(b) That defendant No. 1 do pay into Court on or before the……… day of………….or any later date up to which time for payment has been extended by the Court the said sum of Rs ………. due to the plaintiff ; and
(ii) That, on payment of the sum declared due to defendant No. 2 by the plaintiff and defendant No I or either of them in the manner prescribed in clause (i)(a) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, defendant No. 2 shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff or defendant No. 1 ( whoever has made the payment) or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by defendant No. 2 or any person claiming under him or any person under whom he claims, and also free from all liability, whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff or defendant No. 1 (whoever has made the payment) quiet and peaceable possession of the said property.
(Similar declarations to be introduced, if defendant No. 1 pays the amount found, or declared due to the plaintiff with such variations as may be necessary having regard to the nature of his mortgage.)
4. And it is hereby further ordered and decreed that, if default of payment as aforesaid, of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court that the suit be dismissed or for a final decree-
(i) 1 [In the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is foreclosure and not sale] that the plaintiff and defendant No. 1 jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all rights to redeem the mortgaged property described in the Schedule annexed hereto and shall; if so required, deliver to the defendant No. 2 quiet and peaceable possession of the said property; or
(ii) 1[In the case of any other mortgage] that the mortgaged property or a sufficient part thereof shall be sold ; and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and
(iii) 1[In the case where a sale is ordered under clause 4(ii) above] that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to defendant No. 2 under the decree and any further orders that may be passed in this suit and in payment of the amount which the Court may adjudge due to defendant No. 2 in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under Rule 10, together with such subsequent interest as may be payable under Rule 11, or Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908; and that the balance, if any, shall be applied in payment of the amount due to the plaintiff and that, if any balance be left, it shall be paid to defendant No. 1 or other persons entitled to receive the same; and
(iv) That, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to defendant No. 2 and the plaintiff, defendant No. 2 or the plaintiff or both of them, as the case may be, shall be at liberty (when such remedy is open under the terms of their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amounts remaining due to them respectively.
5. And it is hereby further ordered and decreed,-
(a) That, if the plaintiff pays into Court to the credit to this suit the amount adjudged due to defendant No. 2 but defendant No. 1 makes default in the payment of the said amount, the plaintiff shall be at liberty to apply to the Court to keep defendant No. 2’s mortgage alive for his benefit and to apply for a final decree (in the same manner as the defendant No. 2 might have done under clause 4 above)-
1[(i) That defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property] ; or
1[(ii) That the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property;] and
(b) (If on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.
6. And it is hereby further ordered and decreed (in the case where a sale is ordered under clause 5 above)
(i) That the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount paid by the plaintiff in respect of defendant No. 2’s mortgage and the costs -of the suit in connection therewith and in payment of the amount which the Court may adjudge due in respect of subsequent interest on the said amount; and that the balance, if any, shall then be applied in payment of the amount adjudged due to the plaintiff in respect of his own mortgage under this decree and any further orders that may be passed and in payment of the amount which the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No. 1 or other persons entitled to receive the same; and
(ii) That, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of defendant No. 2’s mortgage or the plaintiffs mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amount of the balance.
7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
HIGH COURT AMENDMENT
Kerala.—For Form No. 10 Substitute. -
1. Words not required to be deleted.
NO. 10
DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND FORECLOSURE OR SALE ON SUBSEQUENT MORTGAGE
| [Plaintiff | | | | 2nd Mortgagee |
| | | Vs | | |
| Defendant No. 1 | | | | Mortgagor |
| Defendant No. 2 | | | | 1st Mortgagee] |
(ORDER XXXIV, RULES 2,3 AND 4)
(TITLE)
The suit coming on this……….day etc., it is hereby declared that the amount due to defendant No. 2 on the mortgage in the plaint calculated up to this day of………..is the sum of Rs………. for principal, the sum of Rs ………..for interest on the said principal, the sum of Rs ……..for costs, charges and expenses (other than the costs of the suit) properly incurred by defendant No. 2 in respect of the mortgage security with interest thereon and the sum of Rs………. for the costs of this suit awarded to defendant No. 2 making in all the sum of Rs…………
(Similar declarations to be introduced with regard to the amount due from defendant No. I to the plaintiff in respect of his mortgage if the mortgage-money due thereunder has become payable at the date of the suit.)
2. It is further declared that defendant No. 2 is entitled to payment of the amount due to him in priority to the plaintiff of (if there are several subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively……..
3. And it is hereby ordered and decreed as follows
(i)(a) That the plaintiff or defendant No. 1 or one of them do pay into Court on or before the …………day of…………. or any later date up to which time for payment has been extended by the Court the said sum of Rs……………. due to defendant No. 2; and
(b) That defendant No. 1 do pay into Court on or before the……… day of …………or any later date up to which time for payment has been extended by the Court the said of Rs ……….due to the plaintiff; and
(ii) that, on payment of the sum declared due to defendant No. 2 by the plaintiff and defendant No.1 or either of them in the manner prescribed in Clause (i) (a) and on payment thereafter, before such date as the Court may fix of such amount, with interest, if any, as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 1908) defendant No. 2 shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff or defendant No. 1 (whoever has made by the payment); or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by defendant No. 2 or any person claiming under him or any person under whom he claims, and also free from all liabilities whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff of defendant No. 1 (whoever has made the payment) quiet and peaceable possession of the said property.
(Similar declarations to be introduced, if defendant No. 1 pays the amount found or declared due to the plaintiff with such variations as may be necessary having regard to the nature (of his mortgage).
4. And it is hereby further ordered and decreed that, in default of payment as aforesaid, of the amount due to defendant No. 2.
(i) (In the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage deed is foreclosure and not sale) that the plaintiff and defendant No. 1 jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver to the defendant No. 2 quiet and peaceable possession of the said property ; or
(ii) (In the case of any other mortgage) that the mortgaged property or a sufficient part thereof shall be sold, and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property; and
(iii) [In the case where a sale is ordered under Clause 4 (ii) above] that the money realised by such sale shall be paid into Court and be duly applied (after deducting therefrom the expenses of the sale) in payment of the amount payable to defendant No. 2 under the decree and any further orders that may have been passed after decree and in payment of the amount with interest, if any, which the Court may have adjudged due to defend ant No. 2 in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under Rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure (Act V of 1908) and that the balance, if any, shall be applied in payment of the amount due to the plaintiff, and that, if any further balance be left, it shall be paid to defendant No. 1 or other person entitled to receive the same; and
(iv) That, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to defendant No. 2 and the plaintiff, the balance, if legally recoverable otherwise than out of the property sold, be personally paid by defendant No. 1 to defendant No. 2 or the plaintiff or both of them, as the case may be.
5. And it is hereby further ordered and decreed. -
(a) That if the plaintiff pays into Court to the credit of this suit the amount adjudged due to defendant No. 2 but defendant No. 1 makes default in the payment of the said amount, the plaintiff shall be entitled to keep defendant No. 2’s mortgage alive for his benefit and he shall be entitled to benefits similar to those conferred upon defendant No. 2 as per Clause 4 above.
(i) That the defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all rights to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property) ; or
(ii) That the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property); and
(b) (In the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is foreclosure and note sale), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage and from the mortgage of defendant No. 2 or from this shall be deemed to have been discharged and extinguished.
6. And it is hereby further ordered and decreed (in the case where a sale is ordered under clause 5 above)-
(i) That the money realised by such sale shall be paid into Court and be only applied (after deduction therefrom of the expenses of the sale) first in payment of the amount paid by the plaintiff in respect of defendant No. 2's mortgage and the costs of the suit in connection therewith, and that the balance, if any, shall then be applied in payment of the amount adjudged due to the plaintiff in respect of his own mortgage under this amount and any further orders that may be passed after decree and in payment of the amount with interest if any, which the Court may have adjudged due in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under Rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, (Act V or 1908) and that the further balance, if any, shall be paid to the defendant No. 1 or other persons entitled to receive the same, and
(ii) That, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of defendant No. 2’s mortgage or the plaintiff's mortgage, the balance if legally recoverable otherwise than out of the property sold, be personally paid by defendant No.1 to defendant No. 2.
SCHEDULE
DECEPTION OF THE MORTGAGE PROPERTY
NO. 11
| Plaintiff | | | | Sub or derivative mortgagee, |
| | | VS. | | |
| Defendant No. 1 | | | | Mortgagor, |
| Defendant No. 2 | | | | Original Mortgagee.] |
(ORDER XXXIV, RULE 4)
(TITLE)
This suit coming on this………….day, etc. ; It is hereby declared that the amount due to defendant No. 2 on his mortgage calculated up to this ……………. day of ............... is the sum of Rs …………. for principal, the sum of Rs……………for interest on the said principal, the sum of Rs……….. for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon and the sum of Rs …….. for the costs of the suit awarded to defendant No. 2, making in all the sum of Rs……..
(Similar declarations to be introduced with regard to the amount due from defendant No. 2 to the plaintiff in respect of his mortgage.)
2. And it is hereby ordered and decreed as follows . --
(i) that defendant No. 1 do pay into Court on or before the said ………day of ............... or an later date up to which time for payment may be extended by the Court the said sum of Rs ……..due to defendant No. 2;
(Similar declarations to be introduced with regard to the amount due to the plaintiff, defendant No. 2 being at liberty to pay such amount.)
(ii) That, on payment of the sum declared due to defendant No. 2 by defendant No. 1 in the manner prescribed in clause 2 (i) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff and defendant No. 2 shall bring into Court all documents in their possession or power relating to the mortgaged property in the plaint mentioned, and all such documents (except such as relate only to the sub-mortgage) shall be delivered over to defendant No. 1, or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the property to defendant No. 1 free from the said mortgage clear of and from all encumbrances created by defendant No. 2, or any person claiming under him or any person under whom he claims, and free from all liability arising from the mortgage or this suit and shall, if so required, deliver up to defendant No. 1 quiet and peaceable possession of the said property; and
(iii) That, upon payment into the Court by defendant No. 1 of the amount due to defendant No. 2, the plaintiff shall be at liberty to apply for payment to him of the sum declared due to him together with any subsequent costs of the suit and other costs, charges and expenses, as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908; and that the balance, if any, shall then be paid to defendant No. 2; and that if the amount paid into the Court be not sufficient to pay in full the sum due to the plaintiff, the plaintiff shall be at liberty (if such remedy is open to him by the terms of the mortgage and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 2 for the amount of the balance.
3. And it is further ordered and decreed that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, the plaintiff shall bring into the Court all documents, etc. [as in sub-clause (ii) of clause 2].
4. And it is hereby further ordered and decreed that, in default of payment by defendant Nos. 1 and 2 as aforesaid, the plaintiff may apply to the Court for a final decree for sale, and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold ; and that for the purposes of such sale the plaintiff and defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in their possession or power relating to the mortgaged property.
5. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount due to the plaintiff as specified in clause 1 above with such costs of the suit and other costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to defendant No. 2; and that, if any balance be left, it shall be paid to defendant No. I or other person entitled to receive the same.
6. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amounts payable to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2, or both of them, as the case may be, shall be at liberty (if such remedy is open under their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 2 or defendant No. 1 (as the case may be) for the amount of the balance.
7. And it is hereby further ordered and decreed that, if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No.. 1 makes default in payment of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court for a final decree for foreclosure or sale (as the case may be)-(declarations in the ordinary form to be introduced according to the nature of defendant No. 2’s mortgage and the remedies open to him thereunder).
8. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY
HIGH COURT AMENDMENT
Kerala.—For Form No. 11 Substitute: -
NO. 11
| Plaintiff | | | | Sub or derivative mortgagee |
| | | Vs | | |
| Defendant No. 1 | | | | Mortgagor |
| Defendant No. 2 | | | | Original Mortgagee |
(ORDER XXXIV, RULE 4)
(TITLE)
The suit coming on this……….. day, etc., it is hereby declared that the amount due to defendant No. 2 on his mortgage calculated up to this day of is the sum of Rs............ for principal, the sum of Rs……… for interest on the said principal, the sum of Rs……… for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage security together with interest thereon and the sum of Rs ………for the costs of the suit awarded to defendant No. 2 making in all the sum of Rs.
(Similar declarations to be introduced with regard to the amount due from defendant No. 2 to the plaintiff in respect of his mortgage.)
2. And it is hereby ordered and decree as follows. -
(i) That defendant No. 1 do pay into Court on or before the said day of or any later date up to which time for payment may he extended by the Court the said sum of Rs or to defendant No. 2.
(Similar declarations to be introduced with regard to the amount due to the plaintiff defendant No. 2 being at liberty to pay such amount.)
(ii) That on payment of the sum declared due to defendant No. 2 by defendant No. I in the manner prescribed in clause (2) (i) and on payment thereafter before such date as the Court may fix, of such amount, with interest if any as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, (Act V of 1908) the plaintiff and defendant No. 2, shall bring into Court all documents in their possession or power relating to the mortgaged property in the plaint mentioned and all such documents (except such as relate only to the, sub-mortgage) shall be delivered over to defendant No. 1, or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the property to defendant No. 1 free from the said mortgage clear of and from all encumbrances created by defendant No. 2 or any person claiming under him or any person under whom he claims and free from all liability arising from the mortgage or his suit and shall, if so required, deliver up to defendant No. 1 quiet and peaceable possession of the said property, and
(iii) That upon payment into the Court by defendant No. 1 of the amount due to defendant No. 2 the sum declared due to the plaintiff together with subsequent costs of the suit and other costs, charges and expenses as may be payable under Rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, (Act V of 1908) be paid to him and that the balance if any, shall then be paid to defendant No. 2 and that if the amount paid into the Court be not sufficient to in full the sum due to the plaintiff, the balance if legally recoverable otherwise than out of the property sold be personally paid by defendant No. 2 to the plaintiff.
3. And it is further ordered and decreed that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff the plaintiff shall bring into the Court all documents, etc. [as in sub-clause (ii) of clause (2).]
4. And it is hereby further ordered and decreed that, in default of payment by defendants Nos. 1 and 2 as aforesaid the mortgaged property or a sufficient part thereof shall be directed to be sold and that for the purposes of such sale the plaintiff and defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in their possession or power relating to the mortgaged property.
5. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and be duly applied (after deducting therefrom the expenses of the sale) first in payment of the amount due to the plaintiff as specified in clause (i) of para 2 above with such costs of the suit and other costs, charges and expenses as may be payable under Rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, (Act V of 1908), and that the balance, if any, shall be applied in payment of the amount due to the defendant No. 2- and that, if any further balance be left it shall be paid to defendant No. 1 or other persons entitled to receive the same.
6. And it is hereby further ordered and decreed that if the money realised by such sale shall not be sufficient for payment in full of the amounts payable to the plaintiff and defendant No. 2, the balance, if legally recoverable otherwise than out of the property sold, be personally paid by defendant No. 2 or defendant No. 1 (as the case may be) to the plaintiff or defendant No. 2, or both of them as the case may be.
7. And it is hereby further ordered and decreed that, if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff but defendant No. 1 makes default in payment of the amount due to defendant No. 2.
(i) (in the case of a mortgage by the conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage deed is foreclosure and not sale) that the defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required deliver to the defendant No. 2 quiet and peaceable possession of the said property; or (ii) (in the case of any other mortgage) that the mortgaged property or a sufficient part thereof shall be sold, and that for the purpose of such sale defendant No. 2 shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property; and
(iii) [In the case where a sale is ordered under Clause 7 (ii) above] that the money realised by such sale shall be paid into the Court and be duly applied (after deducting therefrom the expenses of the sale) in payment of the amount of payable to defendant No. 2 under the decree and any further orders that may be passed after decree and in payment of the amount with interest, if any, which the Court may have adjudged due to defendant No. 2 in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 1908) and the balance, if any, shall be applied in payment of the amount due to the plaintiff and that if any balance be left, it shall be paid to defendant No. 1 or other persons Entitled to receive the same; and
(iv) That, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to defendant No. 2 the balance, if legally recoverable otherwise than out of the property sold, be personally paid by defendant No. 1 to defendant No. 2.
SCHEDULE
DESCRIPTION OF THE MORTGAGED PROPERTY (15-1-1974)
[Kerala Gazette 15-1-1974, No. 3 Part III-G, 347/S.]
NO. 12
DECREE FOR RECTIFICATION OF INSTRUMENT
(TITLE)
IT is hereby declared that the………. , dated the………. day of ……. 19...., does not truly express the intention of the parties to such………. .
And it is decreed that the said be rectified by…………… .
NO. 13
DECREE TO SET ASIDE A TRANSFER IN FRAUD OF CREDITORS
(TITLE)
IT is hereby declared that the……… dated the……… day of ………19...., and made between …………and ………..is void as against the plaintiff and all other the creditors, if any, of the defendant……………. ,
NO. 14
INJUNCTION AGAINST PRIVATE NUISANCE
(TITLE)
LET the defendant ………… , his agents, servants and workmen, be perpetually restrained from burning, or causing to be burnt, any bricks on the defendant’s plot of land marked B in the annexed plan, so as to occasion a nuisance to the plaintiff as the owner or occupier of the dwelling-house and garden mentioned in the plaint as belonging to and being occupied by the plaintiff.
NO. 15
INJUNCTION AGAINST BUILDING HIGHER THAN OLD LEVEL
(TITLE)
LET the defendant …………, his contractors, agents and workmen, be perpetually restrained from continuing to erect upon his premises in………….. any house or building of a greater height than the buildings which formerly stood upon his said premises and which have been recently pulled down, so or in such manner as to darken, injure or obstruct such of the plaintiffs windows in his said premises as are ancient lights.
No. 16
INJUNCTION RESTRAINING USE OF PRIVATE ROAD
(TITLE)
LET the defendant…………,his agents, servants and workmen, be perpetually restrained from using or permitting to be used any part of the lane at……….. the soil of which belongs to the plaintiff, as a carriage-way for the passage of carts, carriages or other vehicles, either going to or from the land marked B in the annexed plan or for any purpose whatsoever.
NO. 17
PRELIMINARY DECREE IN AN ADMINISTRATION-SUIT
(TITLE)
IT is ordered that the following accounts and inquiries be taken and made; that is to say-
In creditor’s suit-
1. That an account be taken of what is due to the plaintiff and all other the creditors of the deceased.
In suits by legatees-
2. That an account be taken of the legacies given by the testator’s will.
In suits by next-of-kin-
3. That an inquiry be made and account taken of what or of what share, if any, the plaintiff is entitled to as next-of-kin [or one of the next-of-kin] of the intestate.
[After the first paragraph, the decree will, where necessary, order, in a creditor’s suit, inquiry and accounts for legatees, heirs-at-law and next-of-kin. In suits by claimants other than creditors, after the first paragraph, in all cases, an order to inquire and take an account of creditors will follow the first paragraph and such of the others as may be necessary will follow, omitting the first formal words. The form is continued as in a creditor’s suit.]
4. An account of the funeral and testamentary expenses.
5. An account of the movable property of the deceased come to the hands of the defendant, or to the hands of any other person by his order or for his use.
6. An inquiry what part (if any) of the movable property of the deceased is outstanding and undisposed of.
7. And it is further ordered that the defendant do, on or before the……… day of………next, pay into Court all sums of money which shall be found to have come to his hands, or to the hands of any person by his order or for his use.
8. And that if the………*shall find it necessary for carrying out the objects of the suit to sell any part of the movable property of the deceased, that the same be sold accordingly, and the proceeds paid into Court.
* Here insert name of proper officer.
9. And that Mr. E.F. be receiver in the suit (or proceeding) and receive and get in all outstanding debts and outstanding, movable property of the deceased, and pay the same into the hands of the………*(and shall give security by bond for the due performance of his duties to the amount of……… rupees).
10. And it is further ordered that if the movable property of the deceased be found insufficient for carrying out the objects of the suit, then the following further inquiries be made, and accounts taken, that is to say-
(a) An inquiry what immovable property the deceased was seized of or entitled to at the time of his death ;
(b) An inquiry what are the encumbrances (if any) affecting the immovable property of the deceased or any part thereof ;
(c) An account, so far as possible, of what is due to the several incumbrancers, and to include a statement of the priorities of such of the incumbrancers as shall consent to the sale hereinafter directed.
11. And that the immovable property of the deceased, or so much thereof as shall be necessary to make up the fund in Court sufficient to carry out the object of the suit, be sold with the approbation of the Judge, free from encumbrances (if any) of such incumbrancers as shall consent to the sale and subject to the encumbrances of such of them as shall not consent.
12. And it is ordered that G.H. shall have the conduct of the sale of the immovable property, and shall prepare the conditions and contracts of the sale subject to the approval of the………… *and that in case any doubt or difficulty shall arise the papers shall be submitted to the Judge to settle.
13. And it is further ordered that, for the Purpose of the inquiries hereinbefore directed, the…………… *shall advertise in the newspapers according to the practice of the Court, or shall make such inquiries in any, other way which shall appear to the............... *,to give the most useful publicity to such inquiries.
14. And it is ordered that the above inquiries and accounts be made and taken, and that all other acts ordered to be done be completed, before the………day of………… and that the……………*do certify the result of the injuries, and the accounts, and that all other acts ordered are completed, and have his certificate in that behalf ready for the inspection of the parties on the……….day of…………. .
15. And, lastly, it is ordered that this suit [or proceedings] stand adjourned for making final decree to the………. day of………. .
[Such part only of this decree is to be used as is applicable to the particular case.]
* Here insert name of proper officer.
NO. 18
FINAL DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE
(TITLE)
1. It is ordered that the defendant…………do, on or before the………day of ………… pay into Court the sum of Rs…………I the balance by the said certificate found to be due from the said defendant on account of the estate of………..,the testator and also the sum of Rs……….for interest, at the rate of Rs……….per cent per annum, from the……….. day of…………. to the……….. day of ……….,amounting together to the sum of Rs………,
2. Let the……….*of the said Court tax the costs of the plaintiff and defendant in this suit, and let the amount of the said costs, when so taxed, be paid out of the said sum of Rs ………..ordered to be paid into Court as aforesaid, as follow. -
(a) The costs of the plaintiff to Mr…………,his attorney [or pleader] or and the costs of the defendant to Mr………., his attorney [or leader].
(b) And (if any debts are due) with the residue of the said sum of Rs. ………..after payment of the plaintiffs and defendant’s costs as aforesaid let the sums, found to be owing to the several creditors mentioned in the………, schedule to the certificate, of the………*, together with subsequent interest or) such of the debts as bear interest, be paid; and, after making such payments, let the amount coming to the several legatees mentioned in the schedule, together with subsequent interest (to be verified as aforesaid), be paid to them.
3. And if there should then be any residue, let the same be paid to the residuary legatee.
* Here insert name of proper officer.
NO. 19
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