ORDER XXXV

INTERPLEADER

1. Plaint in interpleader-suit.—In every suit of interpleader the plaint shall, in addition to the other statements necessary for plaints, state-

(a) That the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;

(b) The claims made by the defendants severally; and

(c) That there is no collusion between the plaintiff and any of the defendants.

2. Payment of thing claimed into Court.—Where the thing claimed is capable of being paid into Court or placed in the custody of the Court, the plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.

3. Procedure where defendant is suing plaintiff.—Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect the subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being informed by the Court in which the interpleader-suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but if, and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader-suit.

4. Procedure at first hearing.—(1) At the first hearing the Court may-

(a) Declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or

(b) If it thinks that justice or convenience so require, retain all parties until the final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed.

(3) Where the admissions of the parties do not enable the Court so to adjudicate, it may direct-

(a) That an issue or issues between the parties be framed and tried, and

(b)That any claimant be made a plaintiff in lieu of or in addition to the original plaintiff,

And shall proceed to try the suit in the ordinary manner.

5. Agents and tenants may not institute interpleader suits.—Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords.

ILLUSTRATIONS

(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C s debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute in interpleader-suit against A and C.

6. Charge for plaintiff’s costs.—Where the suit is properly instituted the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

ORDER XXXVI

SPECIAL CASE

1. Power to state case for Courts opinion.—(1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question, -

(a) A sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them; or

(b) Some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or

(c) One or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

(2) Every case stated under this Rule shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised thereby.

2. Where value of subject-matter must be stated.—Where the agreement is for the delivery of any property, or for the doing, or the refraining from doing, any particular act, the estimated value of the property to be delivered, or to which the act specified has reference, shall be stated in the agreement.

3. Agreement to be filed and registered as suit.—(1) The agreement, if framed in accordance with the Rules hereinbefore contained, may be filed ¹[with an application] in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject matter of the agreement.

(2) ²[The application] when so filed, shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of them as defendant or defendants; and notice shall be given to all the parties to the agreement, other than the party or parties by whom ³[the applications was presented.]

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

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

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

4. Parties to be subject to Court’s jurisdiction.—Where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained therein.

5. Hearing and disposal of case.—(1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suit so far as the same are applicable.

(2) Where the Court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit-

(a) That the agreement was duly executed by them,

(b) That they have a bona fide interest in the question stated therein, and

(c) That the same is fit to be decided,

It shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.

¹[6. No appeal from a decree passed under Rule 5 :- No appeal shall lie from a decree passed under Rule 5.]

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

ORDER XXXVII

SUMMARY PROCEDURE ¹[***]

1. The words “ON NEGOTIABLE INSTRUMENTS” omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

¹[1. Court and classes of suits to which the Order is to apply.—(1) This Order shall apply to the following Courts, namely.—

(a) High Courts, City Civil Courts and Courts of Small Causes: and

(b) Other Courts:

Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the official Gazette, further restrict, enlarge 6r vary, the categories of suits to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely.—

(a) Suits upon bills of exchange, hundies and Promissory notes:

(b) Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,-

(i) On a written contract, or

(ii) On an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) On a guarantee, Where the claim against the principal is in respect of a debt or liquidated demand only.]

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

¹[2. Institution of summary suits.—(1) A suit, to which this Order applies, may if the plaintiff proceed desires to desires hereunder, be instituted by presenting a plaint which shall contain,-

(a) A specific averment to the effect that the suit is filed under this Order;

(b) That no relief, which does not fall within the ambit of this Rule; has been claimed in the plaint; and

(c) The following inscription, immediately below the number of the suit in the title of the suit, namely.—

“(Under Order XXXVII of the Code of Civil Procedure, 1908).”

(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by Rules made in that behalf and such decree may be executed forthwith.]

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

¹[3. Procedure for the appearance of defendant.—(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under Rule 2, serve on the defendant a copy of the plaint and annexure thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an a address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.

(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff’s pleader, or, if tile plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff’s pleader or of the plaintiff, as the case may be.

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.

(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment.—

(a) If the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) If the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.]

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

4. Power to set aside decree.—After decree the Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to de, and on such terms as the Court thinks fit.

5. Power to order bill, etc., to be deposited with officer of Court.—In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.

6. Recovery of cost of noting non-acceptance of dishonoured bill or note.—The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment, or otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.

7. Procedure in suits.—Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.

ORDER XXXVIII

ARREST AND ATTACHMENT BEFORE JUDGEMENT

ARREST BEFORE JUDGEMENT

1. Where defendant may be called upon to furnish security for appearance.—Where at any stage of a suit, other than a suit of the nature referred to in Section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,-

(a) That the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,-

(i) Has absconded or left the local limits of the jurisdiction of the Court, or

(ii) Is about to abscond or leave the local limits of the jurisdiction of the Court, or

(iii) Has disposed of or removed from the local limit soft the jurisdiction of the Court his property or any part thereof, or

(b) That the defendant is About to leave ¹[India] under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

The Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs claim; and such sum shall be held in deposit by the Court until: the suit is disposed of or until the further order of the Court.

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

2. Security.—(1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have paid by the defendant under the proviso to the last preceding Rule.

(2) Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.

3. Procedure on application by surety to be discharged.—(1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.

(2) On such application being made, the Court shall summon the defendant to appear or, if it thinks fit may issue a warrant for his arrest in the first instance.

(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.

4. Procedure Where defendant fails to furnish security or find fresh security:- Where the defendant fails to comply with any order under Rule 2 or Rule 3, the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed a against the defendant, until the decree has been satisfied.—

Provided that no person shall be detained in prison under this Rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees :

Provided also that no person shall be detained in prison under this Rule after he has complied with such order.

ATTACHMENT BEFORE JUDGEMENT

5. Where. defendant may be called upon to furnish security for production of property.—(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-

(a) Is about to dispose of the whole or any part of his property, or

(b) Is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

The Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy, the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

¹[(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this Rule such attachment shall be void.]

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

6. Attachment where cause not shown or security not furnished.—(1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.

(2) Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.

7. Mode of making attachment.—Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

¹[8. Adjudication of claim to property attached before judgment.—Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudication of claims to property attached in execution of a decree for the payment of money.)

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

9. Removal of attachment when security furnished or suit dismissed.—Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed.

10. Attachment before judgment not to affect rights of strangers, nor bar decree -holder from applying for sale.—Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

11. Property attached before judgment not to be re-attached in execution of decree.—Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply, for a re-attachment of the property.

¹[11A. Provisions applicable to attachment.—(1) The provisions of this Code applicable to an attachment made in execution of a decree shall so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of Rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal, of the suit for default has been set aside and the suit has been restored.]

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

12. Agriculture produce not attachable before judgment.—Nothing in this order shall be deemed to authorise the plaintiff to apply for the attachment of any agriculture produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.

¹[13. Small Cause Court not to attach immovable property.—Nothing in this order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.]

1. Inserted by Act No. 1 of 1926.

ORDER XXXIX

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

TEMPORARY INJUNCTIONS

1. Cases in which temporary injunction may be granted:- Where in any suit it is proved by affidavit or otherwise

(a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) That the defendant threatens, or intends, to remove or dispose of his property with a view to ¹[defrauding] his creditors,

²(c) That the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any properly in dispute in the suit,]

The Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property ³[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until tile disposal of the suit or until further orders.

COMMENTS

Or. 39, Rule 1.

A suit by an unregistered firm for perpetual injunction to restrain the defendant not to pass off defendant’s goods is an action at common law and is not barred by S.69 (2). . (M/S Haldiram Bhujiawala M/S Anand Kumar Deepak Kumar, AIR 2000 SC 1287(1290).

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

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

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

2. Injunction to restrain repetition or continuance of breach.—(1) In any suit for restraining the defendant from committing a breach of’ contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract, or injury of a like kind arising cut of the same contract or relating to the same property or right.

(2) The Court may be order grant such injunction, on such terms as to the of the durations injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

¹[***]

1. Sub-rules (3) and (4) omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

¹[2A. Consequence of disobedience or breach of injunction.—(1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this Rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]

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

3. Before granting injunction, Court to direct notice to opposite party.—The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be give to the opposite party:

¹[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-

(a) To deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) A copy of the affidavit filed in support of the application;

(ii) A copy of the plaint; and

(iii) Copies of documents oil which the applicant relies, and

(b) To file on the day on which such injunction is granted or on the day immediately following, that day, an affidavit stating that the copies aforesaid have been so delivered or sent.]

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

¹[3A. Court to dispose of application for injunction within thirty days.—Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.]

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

4. Order for injunction may he discharged, varied or set abide.—Any order for an injunction may be discharged, or varied, or set aside by the Court, on an application thereto by any party dissatisfied with such order :

¹[Provided that if in an application for temporary injunction or in any affidavit supporting such application a party his knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is riot necessary so to do in the interests of justice :

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.]

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

5. Injunction to corporation binding on its officer.—An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.

INTERLOCUTORY ORDERS

6. Power to order interim sale.—The Court may, on the applicator of any party to a suit, order the sale, by an person named in such order, and in such manner and on such terms as it thinks fit, of any movable property being the subject–matter of such suit or attached before judgment in such suit which is subject to speedy and natural decay, or for any other just and sufficient cause it may be desirable to have sold at once.

7. Detention preservation, inspection, etc., of subject-matter of suit.—(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit,-

(a) Make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein;

(b) For all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of’ any other party to such suit; and

(c) For all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this: Rule.

8. Application for such orders to be after notice.—(1) An application by the plaintiff for an order under Rule 6 or Rule 7 may be made ²[***] at any time after institution of the suit.

(2) An application by the defendant for a like order may be made ³[***] at any time after appearance.

¹[(3) Before making an order under Rule 6 or Rule 7 on an application made for the purpose, the Court shall, except where it appears that the object of making such order would he defeated by the delay, direct notice thereof to be given to the opposite party.]

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

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

3. The words “after notice to the plaintiff” omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

9. When party may be put in immediate possession of land the subject-matter of suit.—Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a suit, if the party in possession of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be put in immediate possession of the land or tenure;

And the Court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the Court orders, in any adjustment of accounts which may be directed in the decree passed in the suit.

10. Deposit of money, etc. in Court.—Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.

ORDER XL

APPOINTMENT OF RECEIVERS

1. Appointment of receivers.—(1) Where it appears to the Court to be just and convenient, the Court may by order-

(a) Appoint a receiver of any property, whether before or after, decree;

(b) Remove any person from the possession or custody of the property;

(c) Commit the same to the possession, custody or management or the receiver; and

(d) Confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.

(2) Nothing in this Rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

2. Remuneration.—The Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver.

3. Duties.—Every receiver so appointed shall

(a) Furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property;

(b) Submit his accounts at such periods and in such form as the Court directs;

(c) Pay the amount due from him as the Court directs; and

(d) Be responsible for any loss occasioned to the property by his wilful default or gross negligence.

4. Enforcement of receiver’s duties.—Where a receiver-

(a) Fails to submit his accounts at such periods and in such form as the Court directs, or

(b) Fails to pay the amount due from him as the Court directs, or

(c) Occasions loss to the property by his wilful default or gross negligence,

The Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

5. When Collector may be appointed receiver.—Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector, appoint him to be receiver of such property.

ORDER XLI

APPEALS FROM ORIGINAL DECREES

1. Form of appeal. What to accompany memorandum.—(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf the memorandum shall be accompanied. by a copy of the ¹[judgment]:

²[Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.]

(2) Contents of memorandum- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

²[(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]

1. Substituted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

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

2. Grounds which may be taken in appeal.—The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this Rule:

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

3. Rejection or amendment of memorandums.—(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.

(2) Where the Court rejects any memorandum, it shall record the reasons for such rejection.

(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.

¹[3A. Application for condonation of delay.—(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for Pot preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1) the Court shall not make in order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal.]

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

4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.—Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiff or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiff or defendants, as the case may be.

STAY OF PROCEEDINGS AND OF EXECUTION

5. Stay by Appellate Court.—(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

¹[Explanation.—An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.]

(2) Stay by Court which passed the decree- Where an application is made for stay of execution of an appeal able decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied-

(a) That substantial loss may result to the party applying for stay of execution unless the order is made;

(b) That the application has been made without unreasonable delay; and

(c) That security has been given by the applicant far the due performance of such decree or order as may ultimately be binding upon him.

(4) ²[Subject to the provisions of sub-rule (3)], the Court may make an ex parte order for stay of execution pending the hearing of the application.

¹(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree.]

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

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

6. Security in case of order for execution of decree appealed from.—(1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.

(2) Where an order has been made for the sale of immovable property in execution of a decree and an appeal is pending from such decree, the sale shall, on the application of the debtor-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.

7. ¹[No security to be required front the Government or a public officer in certain cases.] Repealed by the A.O, 1937.

1. See Order XXVII, Rule 8A, supra.

8. Exercise of powers in appeal from order made in execution of decree.—The powers conferred by Rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.

PROCEDURE ON ADMISSION OF APPEAL

¹[9. Registry of memorandum of appeal.—(1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall be endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

(2) Such book shall be called the register of appeal.]

1. Substituted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

10. Appellate Court may require appellant to furnish security for costs.—(1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both:

Where appellant resides out of India-

Provided that the Court shall demand such security in all casts in which the appellant is residing out of ¹[India], and is not possessed of any sufficient immovable property within ¹[India] other than the property (if any) to which the appeal relates.

(2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.

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

11. Power to dismiss appeal without sending notice to Lower Courts.— ¹[(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.]

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed

(3) The dismissal of an appeal under this Rule shall be notified to the Court from whose decree the appeal is preferred.

²[(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub -Rule (1), it shall deliver a debtor, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the debtor.]

1. Substituted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

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

¹[11A.Time within which under Rule 11 should be concluded.—Every appeal shall be heard under Rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.]

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

12. Day for hearing appeal.—(1) Unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal.

¹[(2) Such day shall be fixed with reference to the current business of the court.]

1. Substituted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

13. Appellate Court to give notice to Court whose decree applied from.— ¹[* * *]

1. Omitted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

14. Publication and service of notice of day for hearing appeal.—(1) Notice of the day fixed under Rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

(2) Appellate Court may itself cause notice to be served- Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.

¹[(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.

(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.

(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.)

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

15. Contents of notice.— ¹[* * *]

1. Omitted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

PROCEDURE ON HEARING

16. Right to begin.—(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.

(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal and in such case the appellant shall be entitled to reply.

17. Dismissal of appeal for appellants’ default.—(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

¹[Explanation.—Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]

(2) Hearing appeal ex parte.—Where the appellant appears and the respondent does not appear the appeal shall be heard ex parte.

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

18. Dismissal of and where notice not served in consequence of appellant’s failure to deposit costs.— ¹[* * *]

1. Omitted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

19. Re-admission of appeal dismissed for default.—Where an appeal is dismissed under Rule 11, sub-rule (2) or Rule 17 ¹[* * *], the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

1. The words "or Rule 18" omitted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

20. Power to adjourn hearing and direct persons appearing interested to be made respondents.—¹[(1)] Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.

²[(2) No respondent shall be added under this Rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit.]

1. Rule 20 re-numbered as sub-rule (1) by Act No. 104 of 1976, w.e.f. 1st February, 1977.

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

21. Re-hearing on application of respondent against whom ex parte decree made.—Where an appeal is heard ex parte and debtor is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.

22. Upon hearing respondent may object to decree as if he had preferred a separate appeal.—(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree ¹[but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

²[Explanation.—A respondent aggrieved by a finding of the Court in the debtor on which the decree appealed against is based may, under this Rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit the decree, is, wholly or in part, in favour of that respondent.]

(2) Form of objection and provisions applicable thereto.—Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) ³[* * *].

(4) Where, in any case in which any respondent has under this Rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this Rule.

COMMENTS

Where in earlier appeal the High Court has recorded finding that the appointment of some candidates was tainted, but the said finding was not assailed by filing appeal, it is open to the non-selected candidates to challenge the said finding in appeal filed by them. (Anil Kumar Gupta v. Municipal Corporation of Delhi, AIR 2000 SC 659(602).

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

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

3. Omitted by Act No. 46 of 1999, S. 31 (w.e.f. 1-7-2002).

23. Remand of case by Appellate Court.—Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its debtor and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

¹[23A. Remand in other Cases.—Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.]

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

24. Where evidence on record sufficient Appellate Court may determine case finally.—Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce debtor, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the debtor of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.—Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;

And such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together its findings thereon and the reasons therefor ¹[within such time as may be fixed by the Appellate Court or extended by it from time to time].

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

26. Findings and evidence to be put on record. Objections to finding.—(1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.

(2) Determination of appeal.—After the expiration of the period so, fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.

¹[26A. Order of remand to mention date of next hearing.—Where the Appellate Court remands a case under Rule 23 or Rule 23A, or frames issues and refers them for trial under Rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the direction of that Court as to further proceedings in the suit.]

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

27. Production of additional in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

¹[(aa) The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was or)

(b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce debtor, or for any other substantial cause,

The Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

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

28. Mode of taking additional evidence.—Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

29. Points to be defined and recorded.—Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

JUDGEMENT IN APPEAL

30. Debtor when and where pronounced.—²[(1)] The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce debtor in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.

¹[(2) Where a written debtor is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole debtor, but a copy of the whole debtor shall be made available for the perusal of the parties or their pleaders immediately after the debtor is pronounced.]

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

2. Rule 30 renumbered as sub-rule (1) of that Rule by Act No. 104 of 1976, w.e.f. 1st February, 1977.

31. Contents, date and signature of Debtor.—The debtor of the Appellate Court shall be in writing and shall state-

(a) The points for determination;

(b) The decision thereon;

(c) The reasons for the decision; and

(d) Where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

32. What debtor may direct.—The debtor may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.

33. Power of Court of Appeal.—The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection ¹[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:

²[Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]

COMMENTS

Or. 41,R. 33,R.31

Long delay in delivery of judgment.

Long delay in the delivery of judgment by the Court, in the instance judgment was delivered by the High Court after five years of the conclusion of the arguments, alone is sufficient to set aside the judgment under appeal. Long delay in delivery of judgment gives rise to unnecessary speculations, the apprehension of the aggrieved that the arguments raised at the bar have not been reflected or appreciated while dictating the judgment is wholly justified. (Bhagwandas Fatehchand Daswani v. H.P.A. International, AIR 2000 SC 775(776).

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

2. Inserted by Act No of 1922, which under Section 1(2) thereof, may be brought into force in any State by the State Government on any specified date. The Act has been brought into force in Bombay, Bengal, U. P., Punjab, Bihar, C.P. Assam, Orissa and Tamil Nadu.

ILLUSTRATION

A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X. appeals and A and Y are respondents. The Appellate Court decides in favour of X. it has power to pass a decree against Y.

34. Dissent to be recorded.—Where the appeal is heard by more judges than one, any judge dissenting from the debtor of the Court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.

DECREE IN APPEAL

¹[35. Date and contents of decree.—(1) The decree of the Appellate Court shall bear date the day on which the debtor was pronounced.

(2) The decree shall contain the number of the appeal, the names and descriptions of the appellant and respondent, and a clear specification of the relief granted or other adjudication made.

(3) The decree shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be paid.

(4) The decree shall be signed and dated by the Judge or Judges who passed it:

Judge dissenting from debtor need not sign decree

Provided that where there are more Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the debtor of the Court to sign the decree.

1. This Rule is not applicable to the Chief Court of Oudh in the exercise of its appellate Jurisdiction; see the Oudh Courts Act., 1925.

36. Copies of Debtor and decree to be furnished to parties.—Certified copies of the debtor and decree in appeal shall be furnished to the parties on application to the Appellate their expense.

37. Certified copy of decree to be sent to Court whose decree appealed from.—A copy of the debtor and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit, and an entry of the debtor of the Appellate Court shall be made in the register of civil suits.

ORDER XLII

APPEALS FROM APPELLATE DECREES

1. Procedure.—The Rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

¹[2. Power of Court to direct that the appeal be heard on the question formulated by it.—At the time of making an order under Rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by Section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of Section 100

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

3. Application of Rule 14 of Order XLI.—Reference in sub-rule (4) of Rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.]

ORDER XLIII

APPEALS FROM ORDERS

1. Appeal from orders:-An appeal shall be from the following orders under the provisions of Section 104, namely.—

(a) An order under Rule 10 of Order VII returning a plaint to be presented to the proper Court ¹[except where the procedure specified in Rule 10 A of Order VII has been followed];

²[***]

(c) An order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) An order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

²[***]

(f) An order under Rule 21 of Order XI.;

²[***]

(i) An order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) An order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale;

¹[(ja) An order rejecting an application made under sub-rule (1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of Rule 105 of that Order is appealable.]

(k) An order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) An order under Rule 10 of Order XXII giving or refusing to give leave;

³[***]

(n) An order under Rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

¹[(na) An order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]

³[***]

(p) Orders in interpleader-suits under Rule 3, Rule 4 or Rule 6 of Order XXXV;

(q) An order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;

(r) An order under Rule 1, Rule [Rule 2A], Rule 4 or Rule 10 of Order XXXIX;

(s) An order under Rule 1 or Rule 4 of Order XL;

(t) An order of refusal under Rule 19 of Order XLI to re-admit, or under Rule 21 of Order XLI to re-hear, an appeal;

(u) An order under Rule 23 ¹[or Rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

³[***]

(w) An order under Rule 4 of Order XLVII granting an application for review.

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

2. Clauses (b), (e), (g) and (h) omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

3. Clause (m), (o) and (v) omitted Act by No. 104 of 1976, w.e.f. 1st February, 1977.

¹[1A. Right to challenge non-appealable orders in appeal against decrees.—(1) Where any order is made under this Code against a party and there upon any debtor is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the debtor should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

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

2. Procedure.—The Rules of Order XLI shall apply, so far as may be, to appeals from orders,

ORDER XLIV

¹[APPEALS BY INDIGENT PERSONS]

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

1. Who may appeal ¹[as an indigent person].—²[(1)] Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an ³[indigent person], subject, in all matters, including the presentation of such application, to the provisions relating to suits by ³[indigent persons], in so far as those provisions are applicable.

⁴[***]

⁵[***]

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

2. Rule1 re-numbered as sub-rule (1) of that Rule by Act No. 66 of 1956.

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

4. Proviso omitted by Act No. 66 of 1956.

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

¹[2. Grant of time for payment of Court-fee.—Where an application is rejected under Rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court or expended by it from time to time; and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had, been paid in the first, instance.

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

3. Inquiry as to whether applicant is an indigent person.—(1) Where an applicant, referred to in Rule 1, was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from; but if the Government pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of the Court.

(2) Where the applicant, referred to in Rule 11, is alleged to have become an indigent person since the date of the decree appealed from the inquiry into the question whether or not he is an indigent person shall be made by the Appellate Court or, under the orders of the Appellate Court, by an officer of that Court unless the Appellate Court considers it necessary in the circumstances of the case that the inquiry should he held by the Court from whose decision the appeal is preferred.]

ORDER XLV

APPEALS TO THE ¹[SUPREME COURT]

1. Substituted by the A.O. 1950, for the words “King-in-Council”.

1. “Decree” defined.—In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2. Application to Court whose decree complained of.—¹[(1)] Whoever desires to appeal ²[the Supreme Court] shall apply by petition to the Court whose decree is complained of.

³[(2) Every petition under sub-rule (1) shall be heard as expeditiously as possible and endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1).]

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

2. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

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

3. Certificate as to value or fitness.—¹[(1) Every petition shall state the grounds of appeal and pray for a certificate-

(i) That the case involves a substantial question of law of general importance, and

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

(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted.

²[***]

1. Substituted by Act No. 49 of 1973, for sub-rule (1).

2. Rules 4 & 5 repealed by the Code of Civil Procedure (Amendment) Act, 1973, w.e.f. 1st. February, 1977.

4. [Consolidation of suits] Omitted By the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973). Section 4 (w.e.f. 1-2-1977).

5. [Remission of dispute to Court of first instance]. Omitted By Section 4, ibid (w.e.f. 1-2-1077).

6. Effect of refusal of certificate:- Where such certificate is refused, the petition shall be dismissed.

7. Security and deposit required on grant of certificate.—(1) Where the certificate is granted, the applicant shall, within ¹[ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow;] from the date of the decree complained of, or within six weeks from the date of the grant of the certificate whichever is the later date,-

(a) Furnish security ²[in cash or in Government securities] for the costs of the respondent, and

(b) Deposit the amount required to defray the expense of translating, transcribing indexing ³[printing,] and transmitting to ³[the Supreme Court] a correct copy of the whole record of the suit, except-

(1) Formal documents directed to be excluded by any ⁴[Rule of the Supreme Court] in force for the time being;

(2) Papers which the parties agree to exclude;

(3) Accounts, or portions of accounts, which the officer empowered by the Court for that, purpose considers unnecessary, and which the parties have not specifically asked to be included, and

(4) Such other documents as the High Court may direct to be excluded:

(5) ⁵[Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished:

Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security.]

⁶[***]

1. Substituted by Act No. 26 of 1920, for the words “six months”.

2. Inserted by Act No. 26 of 1920.

3. Inserted by the A.O. 1950.

4. Substituted by the A.O. 1950, for the words “order of his Majesty in Council”.

5. Added by Act No. 26 of 1920.

6. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

8. Admission of appeal and procedure thereon.—Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall-

(a) Declare the appeal admitted,

(b) Give notice thereof to the respondent,

(c) Transmit to ¹[the Supreme Court] under the seal of the Court a correct copy of the said record, except as aforesaid, and

(d) Give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore and paying the reasonable expenses incurred in preparing them.

1. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

9. Revocation of acceptance of security.—At any time before the admission of the appeal the Court may, upon cause shown revoke the acceptance of any such security, and make further directions thereon.

¹[9A. Power to dispense with notices in case of deceased parties.—Nothing in these Rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court :

Provided that notices under sub-rule (2) of Rule 3 and under Rule 8 shall be given by affixing the same in some conspicuous place in the Court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct.]

1. Inserted by Act No. 26 of 1920.

10. Power to order further security or payment.—Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to ¹[the Supreme Court] such security appears inadequate,

Or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid,

The Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within like time, the required payment.

1. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

11. Effect of failure to comply with order.—Where the appellant fails to comply with such order, the proceedings shall be stayed,

And the appeal shall not proceed without an order in this behalf of ¹[the Supreme Court], and in the meantime execution of the decree appealed from shall not be stayed.

1. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

12. Refund of balance deposit.—When the copy of the record, except as aforesaid, has been transmitted to [the Supreme Court], the appellant may obtain a refund of the balance (if any) of the amount which he has deposited under Rule 7.

13. Powers of Court pending appeal.—(1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,-

(a) Impound any movable property in dispute or any part thereof, or

(b) Allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which ¹[the Supreme Court] may make on the appeal, or

(c) Stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of ²[any decree or order] which ¹[the Supreme Court] may make on the appeal, or

(d) Place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.

1. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

2. Substituted by the A.O. 1950, for the words “any order”.

14. Increase of security found inadequate.—(1) Where at any time during the pendency of the appeal the security furnished by either party appears inadequate, the Court may, on the application of the other party, require further security.

(2) In default of such further being furnished as required by the Court,-

(a) If the original security was furnished by the appellant, the Court may, on the application of the respondent, execute the decree, appealed from as if the appellant had furnished no such security;

(b) If the original security was furnished by the respondent, the Court shall, so far as may be practicable stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respecting the subject matter of the appeal as it thinks fit.

15. Procedure to enforce orders of the Supreme Court.—(1) Whoever desires to obtain execution of ²[any decree or order] of ¹[the Supreme Court] shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to ³[the Supreme Court] was preferred.

(2) Such Court shall transmit the ⁴[decree or order] of ¹[the Supreme Court] to the Court which passed the first decree appealed from, or to such other Court as ¹[the Supreme Court] by such ⁴[decree or order] may direct and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said ⁴[decree or order] is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.

⁵[***]

⁶[(4) ⁷[Unless the Supreme Court otherwise directs, no decree or order of that Court] shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.]

1. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

2. Substituted by the A.O. 1950, for the words “any order”.

3. Substituted by the A.O. 1950, for the words “His Majesty”.

4. Substituted by the A.O. 1950, for the words “order”.

5. Substituted Rule (3) omitted by the A.O. 1950.

6. Inserted by Act No. 26 of 1920.

7. Substituted by the A. O. 1950, for the words “Unless His Majesty in Council is pleased otherwise to direct, no order of His Majesty in Council”

16. Appeal from order relating to execution.—The orders made by the Court which executes the ²[decree or order] of ¹[the Supreme Court], relating to such execution, shall be appealable in the same manner and subject to the same Rules as the orders of such Court relating to the execution of its own decrees.

1. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

2. Substituted by the A.O. 1950, for the words “order”.

¹[17. Appeals to Federal Court]

1. Repealed by the Federal Court Act, 1941.

ORDER XLVI

REFERENCE

1. Reference of question to High Court.—Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any all the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.

2. Court may pass decree contingent upon decision of High Court.—The Court may either stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an order contingent upon the decision of the High Court on the point referred;

But no decree order shall be executed in any case in which such reference is made until the receipt of a copy of the debtor of the High Court upon the reference.

3. Debtor of High Court to be transmitted and case disposed of accordingly.—The High Court, after hearing the parties if they appear and desire to be heard,, shall decide the point so referred, and shall transmit a copy of its debtor, under the signature of the Registrar, to the Court by which the reference was made; and such Court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.

4. Costs of reference to High Court.—The costs (if any consequent on a reference for the decision of the High Court shall be costs in the case.

¹[4A. Reference to high Court under proviso to Section 113.—The provisions of Rules 2, 3 and 4 shall apply to any reference by the Court under the proviso to Section 113 as they apply to a reference under Rule 1.]

1. Inserted by Act No. 24 of 1951.

5. Power to alter, etc., decree, of Court making reference.—Where a case is referred to the High Court, under Rule 1 ¹[or under the proviso to Section 113], the High Court may return the case for amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose, and make such order as it thinks fit.

1. Inserted by Act No. 24 of 1951.

6. Power to refer to High Court questions as to jurisdiction in small causes.—(1) Where at any time before debtor a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the Court either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit.

7. Power to District Court to submit for revision proceeding had under mistake as to jurisdiction in small causes.—(1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous.

(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.

(3) With respect to any proceedings subsequent to decree in any case submitted to the High Court under this Rule, the High Court may make such order as in the circumstance appears to it to be just and proper.

(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this Rule.

ORDER XLVII

REVIEW

1. Application for review of debtor.—(1) Any person considering himself aggrieved-

(a) By a decree or order from which an appeal is allowed, but from no appeal has been preferred,

(b) By a decree or order from which no appeal is allowed, or

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

And who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of debtor to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of debtor notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

¹[Explanation.—The fact that the decision on a question of law on which the debtor of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such debtor.]

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

¹[2. To whom applications for review may be made.].—REPEALED

1. Repealed by the Code of Civil Procedure (Amendment) Act, 1956.

3. Form of applications for review.—The provisions as to the form of preferring appeals shall apply mutates mutandis, to applications for review.

4. Application where rejected.—(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) Application where granted.—Where the Court is of opinion that the application for review should be granted, it shall grant the same

Provided that.—

(a) No such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and

(b) No such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

5. Application for review in Court consisting of two or more judges.—Where the Judge or Judges, or any one of the judges, who passed the decree or made the order a review of which is applied for, continues or continued attaches to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.

6. Application where rejected.—(1) Where the application for a review is heard by more than one judge and the Court is equally divided, the application shall be rejected.

(2) Where there is a majority, the decision shall be according to the opinion of the majority.

7. Order of rejection not appealable. Objections to order granting application.—¹[(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.]

(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.

1. Substituted by Act No. 104 of 1976, for sub-rule (1), w.e.f. 1st February, 1977.

8. Registry of application granted, and order for re-hearing.—When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.

9. Bar of certain application.—No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.

ORDER XLVIII

MISCELLANEOUS

1. Process to he served at expense of party issuing.—(1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.

(2) Costs of service.—The Court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued.

2. Orders and notices how served.—All orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons.

3. Use of form in appendices.—The forms given in the appendices, with such variation as the circumstances or each case may require, shall be used for the purposes therein mentioned.

ORDER XLIX

CHARTERED HIGH COURTS

1. Who may serve processes of High Court.—Notice to produce documents, summonses to witnesses, and every other judicial process, issued in the exercise of the original civil jurisdiction of the High Court, and of its matrimonial, testamentary and interstate jurisdictions, except summonses to defendants, writs of execution and notices to respondents may be served by the attorneys in the suits, or by persons employed by them, or by such other persons as the High Court, by any Rule or order, directs.

2. Saying in respect of Chartered High Courts.—Nothing in this Schedule shall be deemed to limit or otherwise affect any Rules in force at the commencement of this Code for the taking of evidence or the recording of judgments and orders by a Chartered High Court.

3. Application of Rules.—The following Rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely: -

(1) Rule 10 and Rule 11, clauses (b) and (c), of Order VII;

(2) Rule 3 of Order X;

(3) Rule 2 of Order XVI;

(4) Rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII;

(5) Rules 1 to 8 of Order XX; and

(6) Rule 7 of Order XXXIII (so far as relates to the making of a memorandum);

And Rule 35of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction.

ORDER L

PROVINCIAL SMALL CAUSE COURTS

1. Provincial Small Cause Courts.—The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) ¹[or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes ²[under the said Act or Law] ³[or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction] that is to say-

(a) So much of this Schedule as relates to-

(i) Suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;

(ii) The execution of decrees against immovable property or the interest of a partner in partnership property;

(iii) The settlement of issues; and

(b) The following Rules and orders:-

Order II, Rule 1 (frame of suit);

Order X, Rule 3 (record of examination of parties);

Order XV, except so much of Rule 4 as provides for the pronouncement at once of debtor;

Order XVIII, Rules 5 to 12 (evidence);

Orders XLI to XLV (appeals);

Order XLVII, Rules 2, 3, 5, 6, 7 (review);

Order LI.

1. Inserted by Act No. 4 of 1941.

2. Substituted by Act no. 4 of 1940, for the words “under that Act”.

3. Inserted by Act No. 2 of 1951.

ORDER LI

PRESIDENCY SMALL CAUSE COURTS

1. Presidency Small Cause Courts.—Save as provided in Rules 22 and 23 of order V, Rules 4 and 7 of Order XXI, and Rule 4 of Order XXVI, and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), this Schedule shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.