Civil Procedure Codes, 1908

 

Civil Procedure Codes, 1908

 

CONTENTS

PRELIMINARY

1. Short title, commencement and extent

2. Definitions

3. Subordination of Courts

4. Savings

5. Application of the code to Revenue Courts

6. Pecuniary jurisdiction

7. Provincial Small Cause Courts

8. [Omitted]

PART I SUITS IN GENERAL
9. Courts to try all civil suits unless barred
10. Stay of suit
11. Res Judicata
12. Bar to further suit
13. When foreign judgment not conclusive
14. Presumption as to foreign judgments

Place of suing
15. Court in which suits to be instituted
16. Suits to be instituted where subject-matter situate
17. Suits for immovable property situate within jurisdiction of difference Courts
18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain
19. Suits for compensation for wrongs to person or movables
20. Other suits to be instituted where defendants reside or cause of action arises
21. Objections to jurisdiction
22. Power to transfer suits which may be instituted in more than one Court
23. To what Court application lies
24. General power of transfer and withdrawal
24-A. Appearance of parties on transfer of suit, etc.
25. [Omitted}
Institution of suits
26. Institution of suits
Summons and Discovery
27. Summons to defendants
28. Service of summons where defendant resides in another Province
29. Service of foreign summonses
30. Power to order discovery and the like
31. Summons to witness
32. Penalty for default Judgment and Decree

33. Judgment and decree Interest
34. Interest
34-A. Interest on public dues
34-B. Interest, etc. on dues of Banking Company
Costs
35. Costs
35-A. Compensatory costs in respect of false or vexatious claims or defences

PART IIEXECUTION General Code of Civil Procedure
36. Application to orders
37. Definition of Court which passed a decree
Courts by which decrees may be executed
38. Courts by which decree may be executed
39. Transfer of decree
40. Transfer of decree to Court in another Province
41. Result of execution proceedings to be certified
42. Powers of Court in executing transferred decree
43. Execution of decrees passed by British Courts in places to which this Part does not extend or in foreign territory
44. Execution of decrees passed by Courts of Acceding States. [Omitted by Ord. XXVII of 1981]
44-A. Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory
45. Execution of decrees in foreign territory. [Omitted by Ord. XXVII of 1981]
46. Precepts
Questions to be determined by Court executing decree
47. Questions to be determined by the Court executing decree
Limit of time for execution
48. Execution barred in certain cases
Transferees and legal representatives
49. Transferee
50. Legal representative
Procedure in execution
51. Power of Court to enforce execution
52. Enforcement of decree against legal representative
53. Liability of ancestral property
54. Partition of estate or separation of shares
Arrest and detention
55. Arrest and detention
56. Prohibition of arrest or detention of women in execution of decree for money
57. Subsistence allowance. [Omitted by Ord. X of 1980]
58. Release from detention
59. [Omitted}
Attachment
60. Property liable to attachment and sale in execution of decree
61. Partial exemption of agricultural produce
62. Seizure of property in dwelling-house
63. Property attached in execution of decrees of several Courts
64. Private alienation of property after attachment to be void
Sale
65. Purchaser’s title
66. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff
67. Power of Provincial Government to make rules as to sales of land in execution of decrees for payment of money
Delegation to Collector of power to execute decrees against immovable property
68. Power to prescribe rules for transferring to Collector execution of certain decrees
69. Provisions of Third Schedule to apply
70. Rules of Procedure; Jurisdiction of Civil Courts barred.
71. Collector deemed to be acting judicially
72. Where Court may authorise Collector to stay public sale of land
Distribution of assets
73. Proceeds of execution sale to be rateably distributed among decree-holders
Resistance to Execution
74. Resistance to execution

PART III – INCIDENTAL PROCEEDINGS Commissions – Code of Civil Procedure 
75. Power of Court to issue Commissions
76. Commission to another Court
77. Letter of request
78. Commissions issued by foreign Courts

PART IV
79. Suit by or against the Government
80. Notice.
81. Exemption from arrest and personal appearance
82. Execution of decree
Suits by Aliens and by or against Foreign Rulers, Ambassadors and Envoys
83. When aliens may sue
84. When foreign States may sue
85. Persons specially appointed by Government to prosecute or defend for Rulers of Foreign States
86. Suits against Rulers. [Omitted by Ord. 1981)
86-A. Suits against diplomatic agents
87. Style of Rulers as parties to suits [Omitted by Ord. 1981]
Suits against Rulers of Acceding and Merged States
87-A. [Omitted]
Interpleader
88. Where interpleader suits may be instituted

PART VSPECIAL PROCEEDINGS Arbitration 
Special Case
90. Power to state case for opinion of Court
Suits relating to public matters
91. Public nuisances
92. Public charities
93. Exercise of powers of Advocate-General

PART VISUPPLEMENTAL PROCEEDINGS
95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds

PART VIIAPPEALSAppeals from Original Decrees
97. Appeal from final decree where no appeal from preliminary decree
98. Decision where appeal heard by two or more Judges
99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction
Appeals from Appellate Decrees
100. Second appeal
101. Second appeal on no other grounds
102. No second appeal in certain suits
103. Power of High Court to determine issues of fact
Appeals from Orders
104. Orders from which appeal lies
105. Other orders
106. What Courts to hear appeals
General Provisions relating to Appeals
107. Powers of Appellate Court
108. Procedure in appeals from appellate decrees and orders
Appeals to the Supreme Court
109. When appeals lie to Supreme Court
110. [Omitted by P.O. 4 of 1975}
111. Bar of certain appeals
111-A. [Repealed}
112. Savings

PART VIIIREFERENCE, REVIEW AND REVISION
114. Review
115. Revision

PART XRULES
122. Power of certain High Courts to make rules
123. Constitution of Rule Committees in certain Provinces
124. Committee to report to High Court
125. [Omitted}
126. Rules to be subject to approval
127. Publication of rules
128. Matters for which rules may provide
129. Power of High Courts to make rules as to their original civil procedure
130. [Omitted]
131. Publication of rules

PART XIMISCELLANEOUS
133. Exemption of other persons
134. Arrest other than in execution of decree
135. Exemption from arrest under civil process
135-A. Exemption of members of legislative bodies from arrest and detention under civil process
136. Procedure where person to be arrested or property to be attached is outside district
137. Language of subordinate Courts
138. Power of High Court to require evidence to be recorded in English
139. Oath on affidavit by whom to be administered
140. Assessors in causes of salvage, etc.
141. Miscellaneous proceedings
142. Orders and notices to be in writing
143. Postage
144. Application for restitution
145. Enforcement of liability of surety
146. Proceedings by or against representatives
147. Consent or agreement by persons under disability
148. Enlargement of time
149. Power to make up deficiency of Court-fees
150. Transfer of business
151. Saving of inherent powers of Court
152. Amendment of judgments, decrees or orders
153. General power to amend
154. Saving of present right of appeal [Omitted by Ord. 1981]
155. Amendment of certain Acts [Omitted ibid]
156. [Omitted]
157. Continuance of orders under repealed enactments
158. Reference to Code of Civil Procedure and other repealed enactments

ORDER I – PARTIES TO SUITS Rules

1. Who may be joined as plaintiffs
2. Power of Court to order separate trials
3. Who may be joined as defendants
4. Court may give judgment for or against one or more of joint parties
5. Defendant need not be interested in all the reliefs claimed
6. Joinder of parties liable on same contract
7. When plaintiff in doubt from whom redress is to be sought
8. One person may sue or defend on behalf of all in same interest
9. Misjoinder and non-joinder
10. Suit in name of wrong plaintiff. Court may strike out or add parties. Where defendant added, plaint to be amended
11. Conduct of suit
12. Appearance of one of several plaintiffs or defendants for others
13. Objections as to non-joinder or misjoinder

ORDER II  FRAME OF SUIT

1. Frame of suit
2. Suit to include the whole claim, Relinquishment of part of claim, Omission to sue for one of several reliefs
3. Joinder of causes of action
4. Only certain claims to be joinder for recovery of immovable property
5. Claims by or against executor, administrator or heirs
6. Power of Court to order separate trials
7. Objection as to misjoinder

ORDER III  RECOGNIZED AGENTS AND PLEADERS

1. Appearance, etc. may be in person, by recognized agent or by pleader
2. Recognized agent
3. Service of process on recognized agent
4. ppointment of pleader
5. Service of process on pleader
6. Agent to accept service. Appointment to be in writing and to be filed in Court

ORDER IV  INSTITUTION OF SUITS

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

 

ORDER V – ISSUE AND SERVICE OF SUMMONS

 

Issue of Summons
1. Summons
2. Copy of statement annexed to summons
3. Court may order defendant or plaintiff to appear in person
4. No party to be ordered to appear in person unless resident within certain limits
5. Summons to be either to settle issues or for final disposal
6. Fixing day for appearance of defendant
7. Summons to order defendant to produce documents relied on by him
8. On issue of summons for final disposal, defendant to be directed to produce his witnesses
Service of Summons
9. Delivery of transmission of summons for Service
10. Mode of service 10-A. Service by post
11. Service on several defendants
12. Service to be on defendant in person when practicable, or on his agent
13. Service on agent by whom defendant carries on business
14. Service on agent in charge in suits for immovable property…
15. Where service may be on male member of defendant’s family…
16. Persons served to sign acknowledgment…
17. Procedure when defendant refuses to accept service, or cannot be found
18. Endorsement of time and manner of service
19. Examination of serving officer
20. Substituted service. Effect of substituted services, Where service substituted, time for appearance to be fixed
21. Service of summons where defendant resides within jurisdiction of another Court
22. [Omitted]
23. Duty of Court to which summons is sent
24. Service on defendant in prison
25. Service where defendant resides out of Pakistan, etc., and has no agent
26. Service in foreign territory through Political Agent or Court …
26-A.Service on civil public officer or on servant of Railway company or local authority, in India
27. Service on civil public officer or on servant of Railway company or local authority
28. Service on soldiers, sailors or airmen
29. Duty of person to whom summons is delivered or sent for service
30. Substitution of letter for summons

ORDER VI – PLEADINGS GENERALLY

1. Pleading
2. Pleading to state material facts and not evidence
3. Forms of pleading
4. Particulars to be given where necessary
5. Further and better statement, or particulars
6. Condition precedent
7. Departure
8. Denial of contract
9. Effect of document to be stated
10. Malice, knowledge, etc.
11. Notice
12. Implied contract, or relation
13. Presumptions of law
14. Pleading to be signed
15. Verification of pleadings
16. Striking out pleadings
17. Amendment of pleadings
18. Failure to amend after order

ORDER VII – PLAINT

1. Particulars to be contained in plaint
2. In money suits
3. Where the subject-matter of the suit is immovable property
4. When plaintiff sues as representative
5. Defendant’s interest and liability to be shown
6. Grounds of exemption from limitation law
7. Relief to be specifically stated
8. Relief founded on separate grounds
9. Procedure of admitting plaint; Concise statement
10. Return of plaint. Procedure on returning plaint
11. Rejection of plaint
12. Procedure on rejecting plaint
13. Where rejection of plaint does not preclude presentation of fresh plaint
Documents Relied on in Plaint
14. Production of document on which plaintiff sues. List of other documents
15. Statements in case of documents not in plaintiff’s possession or power
16. Suits on lost negotiable instruments
17. Production of shop-book. Original entry to be marked and returned
18. Inadmissibility of document not produced when plaint tiled
19. Address to be filed with plaint
20. Nature of address to be filed
21. Consequences of failure to file address
22. Procedure when party not found at the place of address
23. Service on pleader
24. Change of address
25. Service by other modes
26. List of legal representatives of plaintiff

ORDER IX – APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

1. Parties to appear on day fixed in summons for defendants to appear and answer
2. Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs
3. Where neither party appears, suit to be dismissed
4. Plaintiff may bring fresh suit or Court may restore suit to file
5. Dismissal of suit where plaintiff after summons returned unserved, fails for three months to apply for fresh summons
6. Procedure when only plaintiff appears. When summons duly served, When summons served but not in due time
7. Procedure where defendant appears on day of adjourned hearing assigns good cause for previous non-appearance
8. Procedure where defendant only appears
9. Decree against plaintiff by default bars fresh suit
10. Procedure in case of non-attendance of one or more of several plaintiffs
11. Procedure in case of non-attendance of one or more of several defendants
12. Consequence of non-attendance, without sufficient cause shown, of party, ordered to appear in person
Setting Aside Decrees Ex Parte
13. Setting aside decree ex pane against defendant
14. No decree to be set aside without notice to opposite party

ORDER X – EXAMINATION OF PARTIES BY THE COURT

1. Ascertainment whether allegations in pleadings are admitted or denied

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

ORDER XI – DISCOVERY AND INSPECTION

 

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

12. Application for discovery of documents
13. Affidavit of documents
14. Production of documents
15. Inspection of documents referred to in pleadings or affidavits
16. Notice to produce 17. Time for inspection when notice given
18. Order for inspection
19. Verified copies
20. Premature discovery
21. Non-compliance with order for discovery
22. Using answers to interrogatories at trial
23. Order to apply to minors

ORDER XII – ADMISSIONS

1. Notice of admission of case
2. Notice of admit documents
3. Form of notice
4. Notice to admit facts
5. Form of admissions
6. Judgment on admissions
7. Affidavit of signature
8. Notice to produce documents
9. Costs

 

ORDER XIII – PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

1. Documentary evidence to be produced at first hearing
2. Effect of non-production of documents
3. Rejection of irrelevant or inadmissible documents
4. Endorsements on documents admitted in evidence
5. Endorsements on copies of admitted entries in books, account and records
6. Endorsements on documents rejected as inadmissible in evidence
7. Recording of admitted and return of rejected documents
8. Court may order any document to be impounded
9. Return of admitted documents
10. Court may send for papers form its own records or from other Courts
11. Provisions as to documents applied to material objects

ORDER XIV – SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT

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

ORDER XV

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

ORDER XVI

1. Summons to attend to give evidence or produce documents
2. Expenses of witness to be paid into Court on applying for summons
3. Tender of expenses to witness
4. Procedure where insufficient sum paid in. Expenses of witnesses detained for more than one day
5. Time, place and purpose of attendance to be specified in summons
6. Summons to produce document
7. Power to require persons present in Court to give evidence or produce document
7-A.Service of summons by panics
8. Service of summons by Court
9. Time for serving summons
10. Procedure where witness fails to comply with summons
11. If witness appears, attachment may be withdrawn
12. Procedure if witness fails to appear
13. Mode of attachment
14. Court may of its own accord summon as witnesses strangers to suit
15. Duty of persons summoned to give evidence or produce document
16. When they may depart
17. Application of rules 10 to 13
18. Procedure where witness apprehended cannot give evidence or produce document
19. No witness to be ordered to attend in person unless resident within certain limits
20. Consequence of refusal of party to give evidence when called on by Court.
21. Rules as to witnesses to apply to parties summoned

ORDER XVII – ADJOURNMENTS

1. Court may grant time and adjourn hearing. Costs of adjournment

2. Procedure if parties fail to appear on day fixed
3. Court may proceed notwithstanding either party fails to produce evidence,etc.
4. Appearance of parties on the day next after holiday
5. Appearance of parties on the day when the presiding officer is absent

ORDER XVIII – HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
1. Right to begin
2. Statement and production of evidence
3. Evidence where several issues
4. Witnesses to be examined in open Court
5. How evidence shall be taken in appealable cases
6. When deposition to be interpreted
7. Evidence under section 138
8. Memorandum when evidence not taken down by Judge
9. When evidence may be taken in English
10. Any particular question and answer may be taken down
11. Questions objected to and allowed by the Court
12. Remarks on demeanour of witnesses
13. Memorandum of evidence in unappealable cases
14. Judge unable to make such memorandum to record reasons of his inability
15. Power to deal with evidence taken before another Judge
16. Power to examine witness, immediately
17. Court may recall and examine witness
18. Power of Court to inspect

ORDER XIX – AFFIDAVITS
1. Power to order any point to be proved by affidavit
2. Power to order attendance of dependent for cross-examination
3. Matters to which affidavits shall be confined

ORDER XIX – AFFIDAVITS

1. Power to order any point to be proved by affidavit. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable :
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
2. Power to order attendance of deponent for cross examination. (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.
3. Matters to which affidavits shall be confined. (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay argumentative matter or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.

ORDER XX

1. Judgment when pronounced
2. Power to pronounce judgment written by Judge’s predecessor
3. Judgment to be signed
4. Judgments of Small Cause Courts, Judgment of other Courts
5. Court to state its decision on each issue
6. Contents of Decree
7. Date of decree
8. Procedure where Judge has vacated office before signing decree
9. Decree for recovery of immovable property
10. Decree for delivery of movable property
11. Decree may direct payment by instalments. Order, after decree, for payment by instalments
12. Decree for possession and mesne profits
13. Decree in administration suit
14. Decree in pre-emption suit
15. Decree in suit for dissolution of partnership
16. Decree in suit for account between principal and agent
17. Special directions as to accounts
18. Decree in suit for partition of property or separate possession of a share therein
19. Decree when set-off is allowed. Appeal from decree relating to set off
20. Certified copies of judgment and decree to be furnished

ORDER XXI
Investigation of Claims and Objections

58. Investigation of claims to, and objections to attachment of, attached property. Postponement of sale
59. Evidence to be adduced by claimant
60. Release of property from attachment
61. Continuance of attachment subject to claim of encumbrancer
62. Questions relating to rights, etc. of claimant in attached property to decided by Court
63. [Omitted}
Sale Generally
64. Power to order property attached to be sold and proceeds to be paid to person entitled
65. Sales by whom conducted and how made
66. Proclamation of sales by public auction
67. Mode of making proclamation
68. Time of sale
69. Adjournment or stoppage of sale
70. Saving of certain sales
71. Defaulting purchaser answerable for loss on re-sale
72. Decree-holder not to bid for or buy property without permission, Where decree-holder purchases, amount of decree may be taken as payment
73. Restriction on bidding or purchase by officers
Sale of Movable Property
74. Sale of agricultural produce
75. Special provisions relating to growing crops
76. Negotiable instruments and shares in corporations
77. Sale by public auction
78. Irregularity not to vitiate sale, but any person injured may sue
79. Delivery of movable property, debts and shares
80. Transfer of negotiable instruments and shares
81. Vesting order in case of other property
Sale of Immovable Property
82. What Courts may order sales
83. Postponement of sale to enable judgment debtor to raise amount of decree
84. Deposit by purchase and re-sale on default
85. Time for payment in full of purchase-money
86. Procedure in default of payment
87. Notification on re-sale
88. Bid of co-sharer to have preference
89. Application to set aside sale on deposit
90. Application to set aside sale on ground of irregularity of fraud
91. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest
92. Sale when to become absolute or be set aside
93. Return of purchase-money in certain cases
94. Certificate to purchaser
95. Delivery of property in occupancy of judgment-debtor
96. Delivery of property in occupancy of tenant
Resistance to delivery of possession to Decree-holder or purchaser
97. Resistance or obstruction to possession of immovable property
98. Resistance or obstruction by judgment-debtor
99. Resistance or obstruction by bonafide claimant
100. Dispossession by decree-holder or purchaser
101. Bonafide claimant to be restored to possession
102. Rules not applicable to transferee pendente lite
103. Certain orders conclusive and suit barred

ORDER XXII – DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

1. No abatement by party’s death if right to sue survives
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff
4. Procedure in case of death of one of several defendants or of sole defendant
5. Determination of question as to legal representative
6. No abatement by reason of death after hearing
7. Suit not abated by marriage of female party
8. When plaintiff’s insolvency bars suit. Procedure where assignee fails to continue suit or give security
9. Effect of dismissal
10. Procedure in case of assignment before final order in suit
11. Application of Order to appeals
12. Application of Order to proceedings

ORDER XXIII – WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal r f suit or abandonment of part of claim
2. Limitation law not affected by first suit
3. Compromise of suit
4. Proceedings in execution of decrees not affected

ORDER XXIV – PAYMENT INTO COURT
1. Deposit by defendant of amount in satisfaction of claim
2. Notice of deposit
3. Interest on deposit not allowed to plaintiff after notice.
4. Procedure where plaintiff accepts deposit as satisfaction in part/Procedure where he accepts it as satisfaction in full

ORDER XXV – SECURITY FOR COSTS
1. When security for costs may be required from plaintiff, Residence out of Pakistan, etc.
2. Effect of failure to furnish security

ORDER XXVI – COMMISSIONS
Commissions to Examine Witnesses
1. Cases in which Court may issue commission to examine witness
2. Order for commission
3. Where witness resides within Court’s jurisdiction
4. Persons for whose examination commission may issue
5. Commission or request to examine witness not within Pakistan
6. Court to examine witness pursuant to commission
7. Return of commission with depositions of witnesses
8. When depositions may be read in evidence
9. Commissions to make local investigations
10. Procedure of Commissioner, Report and depositions to be evidence in suit, Commissioner may be examined in person
Commission to examine Accounts
11. Commission to examine or adjust accounts
12. Court to give Commissioner necessary instructions Proceedings and report to be evidence; Court may direct further inquiry
Commissions to make partitions
13. Commission to make partition of immovable property
14. Procedure of Commissioner
General Provisions
15. Expenses of commission to be paid into Court
16. Powers of Commissioners
17. Attendance and examination of witnesses before Commissioner
18. Parties to appear before Commissioner
Commissions issued at the instance of foreign Tribunals
19. Cases in which High Court may issue commission to examine witness
20. Application for commission
21. To whom commission may be issued
22. Issue, execution and return of commissions, and transmission of evidence to foreign Court 

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

1. Suits by or against Government
2. Persons authorised to Act for Government
3. Plaints in suits by or against Government
4. Agent for Government to receive process
5. Fixing of day for appearance on behalf of Government
6. Attendance of person able to answer questions relating to suit against Government
7. Extension of time to enable public officer to make reference to Government
8. Procedure in suits against public officer
8-A. No security to be required from Government or a public officer in certain cases
8-B. Definitions of ‘Government’ and ‘Government pleader”

ORDER XXVII A – SUITS INVOLVING ANY SUBSTANTIAL QUESTION AS TO THE INTERPRETATION OF CONSTITUTIONAL LAW

1. Notices to the Advocate-General
2. Court may add Government as party
3. Costs when Government added as party
4. Application of order to appeals

ORDER XXVIII – SUITS BY OR AGAINST MILITARY OR
NAVAL MEN OR AIRMEN

1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorise any person to sue or defend for them

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

ORDER XXIX – SUITS BY OR AGAINST CORPORATIONS

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

ORDER XXX

1. Suing of partners in name of firm

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

ORDER XXXI – SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

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

ORDER XXXII – SUITS BY OR AGAINST MINORS

AND PERSONS OF UNSOUND MIND

1. Minor to sue by next-friend

2. Where suit is instituted without next friend, plaint to be taken off the file
3. Guardian for the suit to be appointed by Court for minor defendant
4. Who may act as next friend or be appointed guardian for the suit
5. Representation of minor by next-friend or guardian for the suit
6. Receipt by next-friend or guardian for the suit of property under decree for minor
7. Agreement or compromise by next-friend or guardian for the suit
8. Retirement of next-friend
9. Removal of next-friend
10. Stay of proceedings on removal, etc., of next-friend
11. Retirement, removal or death of guardian for the suit
12. Course to be followed by minor plaintiff or applicant on attaining majority
13. Where a minor co-plaintiff attaining majority desires to repudiate suit
14. Unreasonable or improper suit ,
15. Application of rules to persons of unsound mind
16. Certain laws not to be affected

ORDER XXXIII – SUITS BY PAUPERS
1. Suits may be instituted in forma pauperis
2. Contents of application
3. Presentation of application
4. Examination of applicant, if presented by agent. Court may order applicant to be examined by commission
5. Rejection of application
6. Notice of day for receiving evidence of applicant’s pauperism
7. Procedure at hearing
8. Procedural if application admitted
9. Dispaupering
10. Costs where pauper succeeds
11. Procedure where pauper fails
11-A Procedure where pauper suit abates
12. Provincial Government may apply for payment of Court-fees
13. Provincial Government to be deemed a party
14. Recovery of amount of Court-fees
15. Refusal to allow applicant to sue as pauper to bar subsequent application of like nature
16. Costs

ORDER XXXIV – SUITS RELATING TO MORTGAGES

OF IMMOVABLE PROPERTY

1. Parties to suits for foreclosure, sale and redemption
2. Preliminary decree in foreclosure suit
3. Final decree in foreclosure suit
4. Preliminary decree in suit for sale. Power to decree sale in foreclosure suit
5. Final decree in suit for sale
6. Recovery of balance due on mortgage in suit for sale
7. Preliminary decree in redemption suit
8. Final decree in redemption suit
8-A. Recovery of balance due on mortgage in suit for redemption
9. Decree where nothing is found due or where mortgagee has been overpaid
10. Costs of mortgagee subsequent to decree
11. Payment of interest
12. Sale of property subject to prior mortgage
13. Application of proceeds
14. Suit for sale necessary for bringing mortgaged property to sale
15. Mortgages by the deposit of title-deeds and charges

ORDER XXXV – INTERPLEADER

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

ORDER XXXVI – SPECIAL CASE

1. Power to state case for Court’s opinion
2. Where value of subject-matter must be stated
3. Agreement to be filed and registered as suit
4. Parties to be subject to Court’s jurisdiction
5. Hearing and disposal of case

ORDER XXXVII – SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS
1. Application of Order

2. Institution of summary suits upon bills of exchange, etc.
3. Defendant showing defence on merits to have leave to appear
4. Power to set aside decree
5. Power to order bill, etc., to be deposited with officer of Court
6. Recovery of cost of noting non-acceptance of dishonoured bill or note
7. Procedure in suits

ORDER XXXVIII – ARREST AND ATTACHMENT BEFORE JUDGMENT

Arrest Before Judgment
1. Where defendant may be called upon to furnish security for appearance
2. Security
3. Procedure on application by surety to be discharged
4. Procedure where defendant fails to furnish security or find fresh security
Attachment before Judgment
5. Where defendant may be called upon to furnish security for production .on property
6. Attachment where cause not shown or security not furnished
7. Mode of making attachment
8. Investigation of claim to property attached before judgment
9. Removal of attachment when security furnished or suit dismissed
10. Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale
11. Property attached before judgment not to be re-attached in execution of decree
12. Agricultural produce not attachable before judgment
13. Small Cause Court not to attach immovable property

ORDER XXXIX – TEMPORARY INJUNCTION AND
INTERLOCUTORY ORDERS Temporary Injunctions
1. Cases in which temporary injunction may be granted
2. Injunction to restrain repetition or continuance of breach
3. Before granting injunction. Court to direct notice to opposite party
4. Order for injunction may be discharged, varied or set aside
4-A. Injunction to cease to be in force after certain period
5. Injunction to corporation binding on its officers
6. Power to order interim sale
7. Detention, preservation, inspection, etc. of subject-matte’ of suit
8. Application for such orders to be after notice
9. When party may be put in immediate possession of land the subject-matter of suit
10. Deposit of money, etc., in Court

ORDER XL – APPOINTMENT OF RECEIVERS

1. Appointment of receivers

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

ORDER XLI – APPEALS FROM ORIGINAL DECREES

1. Form of appeal: What to accompany memorandum. Contents of memorandum
2. Grounds which may be taken in appeal

3. Rejection or amendment of memorandum
4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all
Stay of Proceedings and of Execution
5. Stay by Appellate Court, Stay by Court which passed the decree
6. Security in case of order for execution of decree appealed from
7. [Omitted]
8. Exercise of powers in appeal from order made in execution of decree.
Procedure on Admission of Appeal
9. Registry of memorandum of appeal. Register of appeals
10. Appellate Court may require appellant to furnish security for costs, where appellant resides out of Pakistan
11. Power to dismiss appeal without sending notice to Lower Court
12. Day for hearing appeal
13. Appellate Court to give notice to Court whose decree appealed from. Transmission of papers to Appellate Court, Copies of Exhibits in Court whose decree appealed from
14. Publication and service of notice of day for hearing appeal, Appellate Court may itself cause notice to be served
15. Contents of notice
Procedure on Hearing
16. Right to begin
17. Dismissal of appeal for appellant’s default, Hearing appeal ex parte
18. Dismissal of appeal where notice not served in consequence of appellant’s failure to deposit costs
19. Re-admission of appeal dismissed for default
20. Power to adjourn hearing and direct persons appearing interested to be made respondents
21. Re-hearing on application of respondent against whom ex parte decree made
22. Upon hearing, respondent may object to decree as if he had preferred separate appeal, Form of objection and provisions applicable thereto
23. Remand of case by Appellate Court
24. Where evidence on record sufficient. Appellant Court may determine case finally
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from
26. Findings and evidence to be put on record. Objections, to finding. Determination of Appeal
27. Production of additional evidence in Appellate Court
28. Mode of taking additional evidence
29. Points to be defined and recorded
Judgment in Appeal
30. Judgment when and where pronounced
31. Contents, date and signature of judgment
32. What judgment may direct
33. Power of Court of Appeal
34. Dissent to be recorded
Decree in Appeal
35. Date and contents of decree. Judge dissenting from judgment need not sign decree
36. Copies of judgment and decree to be furnished to parties
37. Certified copy of decree to be sent to Court whose decree appealed from

ORDER XLII – APPEALS FROM APPELLATE DECREES

 

1. Procedure

ORDER XLIII – APPEALS FROM ORDERS

1. Appeals from orders

2. Procedure
3. Notice before presentation of appeal
4. Application of rule 3

ORDER XLIV – PAUPER APPEALS

1. Who may appeal as pauper. Procedure on application for admission of appeal
2. Inquiry into pauperism

ORDER XLV APPEALS TO THE SUPREME COURT

 

1. ‘Decree’ defined

2. Application to Court whose decree complained of
3. Certificate as to value of fitness
4. Consolidation of suits
5. Remission of dispute to Court of first instance
6. [Repealed}
7. Security and deposit required on grant of certificate
8. Admission of appeal and procedure thereon
9. Revocation of acceptance of security
9-A. Power to dispense with notices in case of deceased parties [Omitted by P. 0. 4 of 1975}
10. Power to order further security or payment
11. Effect of failure to comply with order
12. Refund of balance deposit
13. Powers of Court pending appeal
14. Increase of security found inadequate
15. Procedure to enforce orders of the Supreme Court
16. Appeal from orders relating to execution
17. [Omitted}

ORDER XLVI – REFERENCE

1. Reference of question to High Court
2. Court may pass decree contingent upon decision of High Court
3. Judgment of High Court to be transmitted, and case disposed of accordingly
4. Costs of reference to High Court
5. Power to alter, etc., decree of Court making reference
6. Power to refer to High Court questions as to jurisdiction in small causes
7. Power to District Court to submit for revision proceedings had under mistake as to jurisdiction in small causes

XLVII – REVIEW

1. Application for review of judgment
2. To whom applications for review may be made
3. Form of applications for review
4. Application where rejected. Application where granted
5. Application for review in Court consisting of two or more Judges
6. Application where rejected
7. Order of rejection not appealable : Objections to order granting application
8. Registry of application granted, .and order for re-hearing
9. Bar of certain applications

ORDER XLVIII – MISCELLANEOUS

1. Process to be served at expense of party issuing ; Costs of service
2. Orders and notices who served
3. Use of forms in appendices

ORDER XLIX – HIGH COURTS

1. Who may serve processes of High Courts

2. Saving in respect of High Court
3. Application of rules

ORDER L – PROVINCIAL SMALL CAUSE COURTS

1. Provincial Small Cause Courts

ORDER LI

1. [Omitted]

ORDER LII

Applicability of Rule 38 of Order 41 to proceedings u/s. 115 [Applies to Sindh only]

THE CODE OF CIVIL PROCEDURE, 1908

[Act No. V of 1908]

[21st March, 1908}

 

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

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

PRELIMINARY

1.  Short title, commencement and extent. (1) This Act may be cited as the Code of Civil Procedure, 1908.
(2) It shall come into force on the first day of January, 1909.
(3) It extends to the whole of Pakistan.

2. Definitions. In this Act, unless there is anything repugnant in the subject or context:

(1) ‘Code’ includes rules

(2) ‘decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of Order XXI] but shall not include: –

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

(b) any order of dismissal for default.

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

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

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

(5) ‘foreign Court’ means a Court situate beyond the limits of Pakistan which has no authority in Pakistan and is not established or continued by the Federal Government ;

(6) ‘foreign judgment’ means the judgment of a foreign Court :

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

(8) ‘Judge’ means the Presiding Officer of a Civil Court;

(9) ‘judgment’ means the statement given by the Judge of .the grounds of a decree or order ;

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

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

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

(13) ‘movable property’ includes growing crops:

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

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

(16) ‘prescribed’ means prescribed by rules ;

(17) ‘public officer’ means a person falling under any of the following descriptions, namely ;

(a) every Judge ;

(b) every person in Service of Pakistan] ;

(c) every commissioned or gazetted officer in the military, naval or air forces of ^Pakistan while in the service of the State];

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

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

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

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

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

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

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

(20) ‘signed’, save in the case of judgment or decree, includes stamped.

3. Subordination of Courts. For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.

4. Savings. (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

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

5. Application of the Code to Revenue Courts. (1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the Provincial Government may, by notification in the official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the Provincial Government may prescribe.
(2) ‘Revenue Court’ in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

6. Pecuniary jurisdiction. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. Provincial Small Cause Courts. The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act, that is to say,-

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

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

(ii) the execution of decrees in such suits;

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

(b) the following sections, that is to say,-
section 9 ; .
sections 91 and 92 ;
sections 94 and 95 so far as they authorize or relate to-

(i) orders for the attachment of immovable property,

(ii) injunctions,

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

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

8. Presidency Small Cause Courts. [Omitted by A. 0., 1949. ]

PART I

SUITS IN GENERAL JURISDICTION OF THE COURTS AND RES JUDICATA

9civil suits unless barred. civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

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

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

Explanation. The pendency of a suit in a foreign Court does not preclude the Courts in Pakistan from trying a suit founded on the same cause of action.

11. Res Judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or, any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

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

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

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

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

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

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

12. Bar to further suit. (1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

[(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit].

13. When foreign judgment not conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

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

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

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

(d) where the proceedings in which the judgment was obtained are opposed to natural justice ;

(e) where it has been obtained by fraud ;

(f) where it sustains a claim founded on a breach of any law in force in Pakistan.

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

PLACE OF SUING

15.  Court in which suits to be instituted.  Every suit shall be instituted in the Court of the lowest grade competent to try it.

16. Suits to be instituted where subject-matter situate. Subject to the pecuniary or other limitations prescribed by any law, suits: –

(a) for the recovery of immovable property with or without rent or profits ;
(b) for the partition of immovable property ;

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

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

(e) for compensation for wrong to immovable property ;

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

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate [, or, in the case of suits referred to in clause (C), at the place where the cause of action has wholly or partly arisen] :

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate [, or, in case of suits referred to in clause (C), at the place where cause of action has wholly or partly arisen], or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation. In this section ‘property’ means property situate in Pakistan.

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

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

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

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

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

Illustrations
(a) A, residing in Karachi, beats B in Quetta. B may sue A either in Quetta or in Karachi.

(b) A, residing in Karachi publishes in Quetta statements defamatory of B. B may sue ‘A either in Quetta or in Karachi.

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

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

(b) any of the defendants, where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution ; or

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

Explanation I. Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.

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

Illustrations

(a) A is a tradesman in Lahore. B carries on business in Karachi. B, by his agent in Lahore, buys goods of A and requests A to deliver them to the Pakistan International Airways. A delivers the goods accordingly in Lahore. A may sue B for the price of the goods either in Lahore where the cause of action has arisen or in Karachi where B carries on business.

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

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

22. Power to transfer suits which may be instituted in more than one Court. Where a suit may be instituted in any one of two or more Courts and .is instituted in one of such Courts, any defendant after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.

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

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

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

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

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

(b) withdraw any suit, ‘appeal or other proceeding pending in any Court subordinate to it, and:

(i) try or dispose of the same ; or

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

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

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

(3) For the purposes of this section. Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

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

[24-A. Appearance of parties on transfer of suit, etc. (1) Where any suit is transferred under section 22, or any suit, appeal or other proceeding is transferred or withdrawn under subsection (1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred.

(2) Where any suit, appeal or other proceedings is transferred from one Court to another, otherwise than on the application of any party, the parties thereto shall appear before the Court from which the suit, appeal or other proceedings is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located].

25. [Section 25 as amended by A.O., 1937, omitted by the Central Laws (Statute Reforms) Ord., 1960 (21 of 1960), S. 3 and Second Sch. (with effect from the 14th October, 1955)].

INSTITUTION OF SUITS

26. Institution of suits. Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

27. Summons to defendants. Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed.

28. Service of summons where defendant resides in another Province. (1) A summons may be sent for service in another Province to such Court and in such manner as may be prescribed by rules in force in that Province.

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

29. Service of foreign summonses. Summonses and other processes issued by any Civil or Revenue Court situate outside Pakistan may be sent to the Courts in Pakistan and served as if they were summonses issued by such Courts :
Provided that the Courts issuing such summonses or processes have been established or continued by the authority of the Federal Government or that the

Provincial Government of the Province in which such summonses or processes are to be served has by notification in the official Gazette declared the provisions of this section to apply to such Courts.

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

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

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

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

31. Summons to witness. The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

32. Penalty for default. The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may :-

(a) issue a warrant for his arrest ;

(b) attach and sell his property ;

(c) impose a fine upon him not exceeding ‘[two thousand] rupees ;

(d) order him to furnish security for his appearance and in default commit him to the [xxx] prison.

JUDGMENT AND DECREE

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

INTEREST

 

34. Interest. (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any, period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

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

 

[34-B. Interest, etc., on dues of banking company. Where and in so far as a decree is for payment of money due to a banking company in repayment of a loan advanced by it, the Court shall, in the decree, provide for interest or return, as the case may be, on the judgment debt from the date of decree till payment-

(a) in the case of interest bearing loans, for interest at the contracted rate or at the rate of two per cent above the bank rate, whichever is the higher ;

(b) in the case of loans given on the basis of mark-up in price, lease, hire-purchase or service charges, for the contracted rate of mark-up, rental, hire or service charges, as the case may be, or at the latest rate of the banking company for similar loans, whichever is the higher ; and

(c) in the case of loans given on the basis of participating in profit and loss, for return at such rate, not being less than the annual rate of profit for the preceding six months paid by the banking company on term deposits of six months accepted by it on the basis of participation in profit and loss, as the Court may consider just and reasonable in the circumstances of the case, keeping in view the profit-sharing agreement entered into between the banking company and the judgment-debtor when the loan was contracted.

Explanation. In this section in clause (a) ‘bank rate’ has the same meaning as in section 34-A].

COSTS

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

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

(3) The Court may give interest on costs at any rate not exceeding six per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

35-A.  Compensatory costs in respect of false or vexatious claims or defences.  (1) If in any suit or other proceeding [(including an execution proceeding)], not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.

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

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (IX of 1887), and not being a Court constituted under that Act, are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

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

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

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

PART II – EXECUTION GENERAL

36. Application to general.  The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

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

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

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

COURTS BY WHICH DECREE MAY BE EXECUTED
38. Court by which decree may be executed. A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

39. Transfer of decree. (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court, –

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

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

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

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

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

40. Transfer of decree to Court in another Province. Where a decree is sent for execution in another Province, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that Province.

41. Result of execution proceedings to be certified. The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

42. Powers of Court in executing transferred decree. [(l)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

(2) Without prejudice to the generality of the foregoing provision, the Court executing a decree sent to it shall have the following powers, namely: –

(a) power under section 39 to transfer the decree to another Court, if necessary;

(b) power under sub-section (1) of section 50 to permit execution to proceed against the legal representatives of a deceased judgment-debtor;

(c) power under section 152 to correct clerical or arithmetical errors;

(d) power under rule 16 of Order XXI to recognise the assignment of a decree;

(e) power under sub-rule (2) of rule 50 of Order XXI to ,,rant leave to a decree-holder to proceed against a person not already recognised as a partner in a firm in an execution proceeding against the firm;

(f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of attachment of decree passed by another Court.]

43. Execution of decrees passed by British Courts in places to which this Part does not extend or in foreign territory. Any decree passed by Civil Court established in any area in Pakistan to which the provisions relating to execution do not extend, ‘[x x x] may if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in Pakistan.

44. Execution of decree passed by Courts of Acceding States. [Omitted by Ordinance XXVII of 1981}

44-A. (1) Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory. (1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, decree may be executed in Pakistan as if it had been passed by the District Court.

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

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

Explanation 1. ‘Superior Courts’ with reference to the United Kingdom, means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham.

Explanation 2. ‘Reciprocating territory’ means the [United Kingdom and such other country or territory as] the Federal Government may, from time to time, by notification in the official Gazette, declare to be reciprocating territory for the purposes of this section, and ‘superior Courts’, with reference to any such territory, mean such Courts as may be specified in the said notification.

Explanation 3. ‘Decree’, with reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and

(a) with reference to superior Courts in the United Kingdom, includes judgments given and decrees made in any Court in appeals against such decrees or judgments ; but

(b) in no case includes an arbitration award, even if such award is enforceable as a decree or judgment.

45. Execution of decrees in foreign territory. [Omitted by Ordinance XXVII of1981].

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

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

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

QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

47. Questions to be determined by the Court executing decree. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees.

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

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

LIMIT OF TIME FOR EXECUTION

48. Execution barred in certain cases. (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of [six years] from-

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed-

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of [six years,] where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within [six years] immediately before the date of the application ; or

(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Limitation Act, 1908 (IX of 1908).

TRANSFEREES AND LEGAL REPRESENTATIVES

49. Transferee. Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

50. Legal representative. (1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

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

PROCEDURE IN EXECUTION

51. Power of Court to enforce execution. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder order execution of the decree-

(a) by delivery of any property specifically decreed;

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

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

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

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

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

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

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

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

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

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

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

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

53. Liability of ancestral property. For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

54. Partition of estate or separation of share. Where the decree is for the partition of undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

ARREST AND DETENTION

55. Arrest and detention. (1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, ‘[which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year]:

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

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

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

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

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

(3) A judgment-debtor detained in prison under sub-section (1.) shall not, merely by reason of undergoing such imprisonment be discharged from his liability under the decree, but he shall not be liable to be re-arrested under the execution of which he was so detained in prison.

56. Prohibition of arrest or detention of women in execution of decree for money. Notwithstanding anything in this Part, the Court shall not order the arrest or detention in the [x x x] prison of a woman in execution of a decree for the payment of money.

57. Subsistence allowance. [Omitted by S. 7 of Ord. X of 1980.}

[58. Release from detention. Every person detained in prison in execution of a decree shall be released from such detention, before the expiry of the period of detention, if-

(a) the amount mentioned in the warrant for his detention is paid to the officer-in-charge of the prison ; or

(b) the decree against him is otherwise fully satisfied; or

(c) the person on whose application he has been detained so requests:

Provided that he shall not be released from such detention without the order of the Court.]

59. [Omitted by S. 9 of Ord. X of 1980.]

ATTACHMENT

60. Property liable to attachment and sale in execution of decree. (1) The following property is liable to attachment and sale in execution of .a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds.or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in me name of the judgment-debtor or by another person in trust for him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:-

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman ;

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

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him ;

(d) books of account ;

(e) a mere right to sue for damages ;

(f) any right of personal service ;

(g) stipends and gratuities allowed to pensioners of the Government, or payable out of any service family pension fund notified in the official Gazette by the Federal Government or the Provincial Government in this behalf, and political pensions ;

(h) the wages of labourers and domestic servants, whether payable in money or in kind ;

(i) salary to the extent of the first hundred rupees and one-half the remainder:

Provided that, where such salary is the salary of a [servant of the State] or a servant of a railway [x x x] or local authority, and the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and’ the same decree, shall be finally exempt from attachment in execution of that decree ;

(j) the pay and allowances of persons to whom the ^Pakistan Army Act, 1952 (XXXIX of 1952)] applies, or of persons other than Commissioned Officer to whom the ‘[Pakistan Navy Ordinance, 1961 (XXXV of 1961)] applies;

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

(l) any allowance forming part of the emoluments of any ”[servant of the State] or of any servant of a railway [x x x] or local authority which the appropriate Government may by ”notification in the official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to any such servant while under suspension ;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest ;

(n) a right to future maintenance ;

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

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

Explanation 1. The particulars mentioned in clauses (g), (h), (i), (/’), (/) and (o) are exempt from attachment or sale whether before or after they are actually payable, and in the case of salary other than salary of a servant of the State or a servant of a railway [x x x] or local authority the attachable portion thereof is exempt from attachment until it is actually payable.

Explanation 2. In clauses (h) and ((‘), ‘salary’ means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.

Explanation 3. In clause (1) ‘appropriate’ Government’ means:

(i) as respects any person in the service of the Federal Government, or any servant [of railway or] [x x] of a Cantonment authority or of the port authority of a major port, the Federal Government;

(ii) [x x x x] ;

(iii) as respects any other [servant of the State] or a servant of any [x x x] local authority, the Provincial Government.

(2) Nothing in this section shall be deemed:-

[to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.]

61. Partial exemption of agricultural produce. The Provincial Government may, by general or special order published in the official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the Provincial Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in execution of a decree.

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

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

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who according to the customs of the country does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw, and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

63. Property attached in execution of decrees of several Courts. (1) Where property no( in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

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

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

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

SALE

65. Purchaser’s title. Where immovable property is sold in execution of a decree and such sale has become absolute, the property-shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

66. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff. (1) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.

67. Power for Provincial Government to make rules as to sales of land in execution of decrees for payment of money. (1) The Provincial Government may by notification in the official Gazette, make rules for any local area imposing conditions in respect of the sale of any class of interest in. land in execution of decrees for the payment of money, where such interests are so uncertain or undetermined as, in the opinion of the Provincial Government, to make it impossible to fix their value.

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

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

DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES AGAINST IMMOVABLE PROPERTY

68. Power to prescribe rules for transferring to Collector execution of certain decrees. The Provincial Government may, declare, by notification in the official Gazette, that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in, immovable property, shall be transferred to the Collector.

69. Provisions of Third Schedule to apply. The provisions set forth in the Third Schedule shall apply to all cases in which the execution of a decree has been transferred under the last preceding section.

70. Rules of procedure. (1) The Provincial Government may make rules consistent with the aforesaid provisions-

(a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for re-transmitting the decree from the Collector to the Court;

(b) conferring upon the Collector or any gazetted subordinate of the Collector all or any of the powers which the Court might exercise in the execution of the decree if the execution thereof had not been transferred to the Collector;

(c) providing for orders made by the Collector or any gazetted subordinate of the Collector, or orders made on appeal with respect to such orders, being subject to appeal to, and revision by, superior revenue authorities as nearly as may be as the orders made by the Court, or orders made on appeal with respect to such orders would be subject to appeal to, and revision by, appellate or revisional Courts under this Code or other law for the time being in force if the decree had not been transferred to the Collector.

(2) Jurisdiction of Civil Courts barred. A power conferred by rules made under sub-section (1) upon the Collector or any gazetted subordinate of the Collector or upon any appellate or revisional authority, shall not be exercisable by the Court or by any Court in exercise of any appellate or revisional jurisdiction which it has with respect to decrees or orders of the Court.

71. Collector deemed to be acting judicially. In executing a decree transferred to the Collector under section 68 the Collector and his subordinates shall be deemed to be acting judicially.

72. Where Court may authorise Collector to stay public sale of land. (1) Where in any local area in which no declaration under section 68 is in force the property attached consists of land or of a share in land, and the Collector represents to the Court that the public sale of the land or share is objectionable and that satisfaction of the decree may be made within a reasonable period by a temporary alienation of the land or share, the Court may authorise the Collector to provide for such satisfaction in the manner recommended by him instead of proceeding to a sale of the land or share.

(2) In every such case the provisions of sections 69 to 71 and of any rules made in pursuance thereof shall apply so far as they are applicable.

DISTRIBUTION OF ASSETS

73. Proceeds of execution-sale to be rateably distributed among decree-holders. (1) Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be rateably distributed among all such persons:

Provided as follows: –

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

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

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

secondly, in discharging the amount due under the decree ;

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

fourthly, rateably among the holders of decrees for the payment of money against the judgment-debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.

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

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

RESISTANCE TO EXECUTION

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

(2) Notwithstanding anything contained in sub-section (1), where a judgment-debtor or any other person resists or obstructs the execution of a decree, the Court may direct the officer-in-charge of the police-station within whose jurisdiction the judgment-debtor or such other person resides or where the property to which the decree relates is situate to provide the necessary police assistance for the execution of decree.]

PART III – INCIDENTAL PROCEEDINGS Commissions – Code of Civil Procedure

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

(a) to examine any person;

(b) to make a local investigation ;

(c) to examine or adjust accounts ; or

(d) to make a partition.

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

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

77. Letter of, request. In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within Pakistan.

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

(a) Courts situate beyond the limits of Pakistan and established or continued by the authority of the Federal Government; or

(b) [ xxx].;

(c) Courts of any State or country outside Pakistan.

PART IV – SUITS IN PARTICULAR CASES
Suits by or against the Government or Public Officers in their official capacity

 

79. Suits by or against the Government. [x x x ] In a suit by or against the Government the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Federal Government, Pakistan;

 

(b) in the case of a suit by or against a Provincial Government, the Province;

(c) [x x x x].

[80. Notice. (1) A suit may be instituted against the Government or against a public officer, in respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office of, –

(a) in the case of a suit against the Federal Government, a Secretary to that Government;

(b) (i) in the case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the Collector of the District; and

(ii) in the case of a suit against the [Federal Government] relating to the affairs of a Railway, the General Manager of the Railway concerned, and in the case of a public officer, delivered to him or left at his office stating the cause of action, the name, description of place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shall not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiff’s claim, within the period of two months from the date of the institution of the suit :

Provided that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written statement].

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

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

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

82. Execution of decree. (1) Where the decree is against the Government or against a public officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied; and, if the decree is not satisfied within the time so specified the Court shall report the case for the orders of the Provincial Government.

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

SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND ENVOYS

83. When aliens may sue. (1) Alien enemies residing in Pakistan with the permission of the Federal Government, and alien friends, may sue in the Courts in the Provinces, as if they were ”[citizens of Pakistan].

(2) No alien enemy residing in Pakistan without such permission, or residing in a foreign country, shall sue in any of such Courts.

Explanation. Every person residing in a foreign country the Government of which is at war with 9f [, or engaged in military operations against] Pakistan, and carrying on business in that country without a licence in that behalf under the hand of a Secretary to the Federal Government shall, for the purpose of sub-section (2), be deemed to be an alien enemy residing in a foreign country.

84. When foreign States may sue. (1) A foreign State may sue in any Court in the Provinces:

Provided that such State has been-recognised by [x x] the Federal Government:

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

(2) Every Court shall take judicial notice of the fact that a foreign State has or has not been recognised by [x x] the Federal Government.

85. Persons specially appointed by Government to prosecute or defend for Ruler of foreign State. (l) Persons specially appointed by order of the Federal Government at the request of the ruler of any foreign State, or at the request of any person competent, in the opinion of the Federal Government, to act on behalf of such Ruler, to prosecute or defend any suit on his behalf, shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Ruler.]
[x x x x x]

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

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

86. Suits against Rulers. [Omitted by State Immunity Ord. of 1981.}

[86-A. Suits against diplomatic agents. (1) No proceeding in any Court shall lie against a diplomatic agent except in a case relating to –

(a) any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission ;

(b) a succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State ;

(c) any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his official functions.

(2) No measures of execution shall be taken in respect of a diplomatic agent except in cases which come under clauses (a), (b) and (c) of sub-section (1) and in which such measures can be taken without infringing the inviolability of his person or of his residence.

(3) The initiation of any proceedings in a Court by a diplomatic agent shall preclude him from invoking immunity from jurisdiction under this section in respect of any counter-claim directly connected with the principal claim.

(4) The immunity of a diplomatic agent under sub-section (1) or sub-section (2) may be waived by the sending State; and any such waiver shall be express.

(5) Waiver of immunity in respect of any proceedings shall not be held to’ imply waiver of immunity in respect of any measure of execution for which a separate waiver shall be necessary.

(6) In this section, ‘diplomatic agent’ in relation to a State means the head of the mission in Pakistan of that State and includes a member of the staff of that mission having diplomatic rank.]

87. Style of Rulers as parties to suit. [Omitted by State ImmunityOrd., 1981].

87-A. [Heading and S. 87-A omitted by C.P.C. {Amdt.} Act, 7972.]

INTERPLEADER

88. Where interpleader suit may be instituted. Where two or more persons claim adversely to one another the same debt, sum of money or other property movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

PART V SPECIAL PROCEEDINGS ARBITRATION

89. Arbitration. [Omitted by the Arbitration Act, 1940 (X of 1940), S. 49 and Third Schedule.]

SPECIAL CASE

90. Power to state case for opinion of Court. Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

SUITS RELATING TO PUBLIC MATTERS

 

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

(a) removing any trustee ;

(b) appointing a new trustee ;

(c) vesting any property in a trustee ;

(d) directing accounts and inquiries ;

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

(f) authorising the whole or any part of the trust-property to be let, sold, mortgaged or exchanged ;

(g) settling a scheme; or

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

(2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863), no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

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

PART VI – SUPPLEMENTAL PROCEEDINGS

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

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

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

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

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

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

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

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

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same,the defendant may apply to the Court, and the Court may, upon such application, award against the, plaintiff by its order such amount, not exceeding [ten thousand] rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him, for this reason, the san diego injury lawyers had to step up into the case :

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

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

PART VII – APPEALS FROM ORIGINAL DECREES

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

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

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

97. Appeal from final decree where no appeal from preliminary decree. Where any party aggrieved by a preliminary decree, passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98. Decision where appeal heard by two or more Judges. (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed :
Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

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

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

APPEALS FROM APPELLATE DECREES

100. Second appeal. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:

(a) the decision being contrary to law or to some usage having the force of law ;

(b) the decision having failed to determine some material issue of law or usage having the force of law ;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

(2) [Omitted byS.ll of Ord. Xofl 980}.

101. Second appeal on no other grounds. No second appeal shall lie except on grounds mentioned in section 100.

[102. No second appeal in certain suits. No second appeal shall lie: –

(a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [twenty-five thousand rupees ; and

(b) in any other suit, when the amount or value of the subject- matter of the original suit does not exceed ‘[two hundred fifty thousand] rupees.]

103. Power of High Court to determine issues of fact. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of section 100.

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

(f) an order under section 35A ;

(ff) an order under section 47 ;] .

(g) an order under section 95 ;

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

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

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

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

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

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

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

GENERAL PROVISIONS RELATING TO APPEALS

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

(a) to determine a case finally ;

(b) to remand a case ;

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

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

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

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

(a) from appellate decrees, and

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

APPEALS TO THE [SUPREME COURT]

[109. When appeals lie to the Supreme Court. An appeal from a judgment, decree or final order of a High Court shall lie to the Supreme Court-

(a) if the amount or value of the subject-matter of the dispute in the Court of first instance was and also in appeal is (unless varied by an Act of Parliament) fifty thousand rupees or upward and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below ; or

(b) if the judgment, decree or final order involves, directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below ; or

(c) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.]

110. Value of subject-matter. [Omitted by Federal Adaptation of Laws Order, 1975 (P.O. 4 of 1975.)}

111. Bar of certain appeals. Notwithstanding anything contained in section 109 no appeal shall lie to [the Supreme Court]-

(a) from the decree or order of one Judge of a High Court [x x x] or of one Judge of a Division Court, or of two or more Judges of such High Court, or of a Division Court, constituted by two or more Judges of such High Court, where such Judges are equally divided in opinion and do not amount in number to a majority of the whole of the Judges of the High Court at the time being ; or

(b) from any decree from which under section 102 no second appeal lies.

111-A.Appeals to Federal Court. [Omitted by the Federal Court Act, 1941 (XXI of 1941), S. 2.]

112. Savings. [(1) Nothing contained in this Code shall be deemed-

(a) to affect the powers of the Supreme Court under Article ^91 of the Constitution or any other provision thereof] ; or ‘ ‘

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

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

PART VIII – REFERENCE, REVIEW AND REVISION

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

[114. Review. (1) Subject as aforesaid, any person considering himself aggrieved –

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

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

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

(2) Nothing contained in sub-section (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court].

115. Revision. [(I) The High Court may call for the record of any case which has been decided by any Court subordinate] to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

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

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

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

[Provided that where a person makes an application under this sub-section he shall, in support of such application furnish copies of the pleadings, documents and Order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court :]

[Provided further that such application shall be made within ninety days of the decision of the subordinate Court] [which shall provide a copy of such decision within three days thereof and the High-Court shall dispose of such application within six months,

(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Court].

PART IX – SPECIAL PROVISIONS RELATING TO HIGH COURTS

116. Part to apply only to certain High Courts. -This Part applies only to High Courts.

117. Application of Code to High Courts. -Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to [x x x] High Courts.

118. Execution of decree before ascertainment of costs. -Where any [ x x x ] High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs ; and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.

119. Unauthorised persons not to address Court. -Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorised him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.

120. Provisions not applicable to High Court in original civil jurisdiction. -(1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20.

PART X – RULES

121. Effect of rules in First Schedule. -The rules in the First Schedule shall have effect as, if enacted in the body of this Code until annulled or-altered in accordance with the provisions of this part.

122. Power of certain High Courts to make rules. [The High Courts] may from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.
123. Constitution of Rule Committees in certain Provinces. -(1) A Committee to be called the Rule Committee, shall be constituted at the town which is the usual place of sitting of each of the High Courts referred to in Section 122. .

(2) Each such Committee shall consist of the following persons, namely :

(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or a Divisional Judge for three years,

[(b) x x x x x x]

[(c) Two advocates practicing in that Court, and]

(d) a Judge of a Civil Court subordinate to the High Court.

(e) [x x xxxxxx]

(3) The members of each such Committee shall be appointed by the Chief Justice [x x x], who shall also nominate one of their member to be president :
Provided that, if the Chief Justice [x x x] elects to be himself a member of a Committee, the number of other Judges appointed to be members shall be two, and the Chief Justice [x x x] shall be the President of the Committee.

(4) Each member of any such Committee shall hold office for such period as may be prescribed by the Chief Justice [\ x x] in this behalf : and whenever any member retires, resigns, dies or ceases to reside in the Province in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said Chief Justice [x x x] may appoint another person to be a member in his stead.

(5) There shall be a Secretary to each such Committee, who shall be appointed by the Chief Justice [x x x] and shall receive such remuneration as may be provided in this behalf by the Provincial Government.

124. Committee to report to High Court. -Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.

125. [Omitted by the Central Laws (Statute Reform) Ord., 1960 (21 of 1960), S. 3 and Second Sch. (with effect from 14th October, 1955)}.

126. Rules to be subject to approval.-Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the Province in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any Province, to the previous approval of the Federal Government.]

127. Publication of Rules. -Rules so made and approved shall be published in the official Gazette, and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.

128. Matters for which rules may provide.-(1) Such rules shall not be inconsistent with the provisions in the body of this Code but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.

(2) In particular, and without prejudice to the generality of the powers conferred by subsection (1), such rules may provide for all or any of the following matters, namely :–

(a) the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service ;

(b) the maintenance and custody, while under attachment, of live-stock and other movable property, the fees payable for such maintenance and custody, the sale of such livestock and property, and the proceeds of such sale ;

(c) procedure in suits by way of counter-claim, and the valuation of such suits for the purposes of jurisdiction;

(d) procedure in garnishee and charging orders either in addition to, or in substitution for, the attachment and sale of debts ;

(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not ;

(f) summary procedure :-

(i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising —
on a contract express or implied ; or

on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty ; or

on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only ; or

on a trust ; or

(ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for nonpayment of rent, or against persons claiming under such tenant;

(g) procedure by way of originating summons ;

(h) consolidation of suits, appeals and other proceedings;

(i) delegation to any Registrar, Prothonotary or master or other official of the Court of any judicial, quasi-judicial and non-judicial duties ; and

(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of Civil Courts.

129. Power of High Court to make rules as to their original civil procedure. – Notwithstanding anything in this Code, any High Court [x x x] may make such rules not inconsistent with [its Letters Patent] to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

130. [Omitted by the P.O., 1961 (I of 1961), Art. 2 and Sch. (with effect from the 23rd March, 1956)}.

131. Publication of rules.-Rules made in accordance with section 129 [x x x] shall be published in the official Gazette and shall from the date of publication or from such other date as may be specified have the force of law.

PART XI – MISCELLANEOUS

132. Exemption of certain women from personal appearance. -(1) Women who according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.
133. Exemption of other persons. -(1) The Provincial Government may, by notification in the official Gazette, exempt from personal appearance in Court any person whose rank, in the opinion of such Government, entitles him to the privilege of exemption.

(2) The names and residences of the persons so exempted shall, from time to time, be forwarded to the High Court by the ^Provincial Government] and a list of such persons shall be kept in such Court, and a list of such persons as reside within the local limits of the jurisdiction of each Court subordinate to the High Court shall be kept in such subordinate Court.

(3) Where any person so exempted claims the privilege of such exemption, and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays such costs.

134. Arrest other than in execution of decree. –The provisions of sections 55, 57 and 59 shall apply, so far as may be, to all persons arrested under this Code.

135. Exemption from arrest under civil process. –(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court.

(2) Where any matter is pending before a Tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenue agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such Tribunal for contempt of Court while going to or attending such Tribunal for the purpose of such matter, and while returning from such Tribunal.

(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to prison-in execution of a decree.

135-A.Exemption of members of legislative bodies from arrest and detention under civil process. -(1) No person shall be liable to arrest or detention in prison under civil process-

(a) if he is member of a Legislature [x x] during the continuance of any meeting of such Legislature ;

(b) if he is member of any committee of such Legislature, during the continuance of any meeting of such committee ;[x x xx x x] and during the fourteen days before and after such meeting or sitting.

(2) A person released from detention under sub-section (1) shall, subject to the provisions of the said sub-section, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1).

136. Procedure where person to be arrested or property to be attached is outside district.-(1) Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment, and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situate, a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment.

(2) The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself, and shall inform the Court which issued or made such warrant or order of the arrest or attachment.

(3) The Court making an arrest under this section shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the latter Court, or unless he furnishes sufficient security for his appearance before the latter Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.

137. Language of subordinate Courts. -(1) The language which, on the commencement of this Code, is the language of any Court subordinate to a High Court shall continue to be the language of subordinate Court until the Provincial Government otherwise directs.

(2) The Provincial Government may declare what shall be the language of any such Court and in what character applications to and proceedings in such Courts shall be written.

(3) Where this Code requires or allows anything other than the recording of evidence to be done in writing in any such Court, such writing may be in English; but if any party or pleader is unacquainted with English a translation into the language of the Court shall, at his request, be supplied to him; and the Court shall make such order as it thinks fit in respect of the payment of-the cost of such translation.

138. Power of High Court to require evidence to be recorded in English. -(1) The High Court may, by notification in the official Gazette, direct with respect to any Judge specified in the notification, or falling under a description set forth therein, that evidence in case in which an appeal is allowed shall be taken down by him in the English language in manner prescribed.

(2) Where a Judge is prevented by any sufficient reason from complying with a direction under sub-section (1) he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.

PART XI
MISCELLANEOUS

139. Oath on affidavit by whom to be administered.-In the case of any affidavit under this Code –

(a) any Court or Magistrate ; or

(b) any officer or other person whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other Court which the Provincial Government has generally or specially empowered in this behalf, may administer the oath to the deponent.

140. Assessors in causes of salvage, etc.-(l) In any Admiralty or Vice-Admiralty cause of salvage, towage or collision, the Court, whether it be exercising its original or its appellate jurisdiction, may, if it thinks fit and shall upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed, two competent assessors; and such assessors shall attend and assist accordingly.

(2) Every such assessor shall receive such fees for his attendance, to be paid by such of the parties as the Court may direct or as may be prescribed.

141. Miscellaneous proceedings. –The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

142. Orders and notices to be in writing. -All orders and notices served on or given to any person under the provisions of this Code shall be in writing.

143. Postage.-Postage, where chargeable on a notice, summons or letter issued under this Code and forwarded by post, and the fee for registering the same, shall be paid within a time to be fixed before the communication is made :
Provided that the Provincial Government may remit such postage, or fee, or both, or may prescribe a scale of Court-fees to be levied in lieu thereof.

144. Application for restitution.-(1) Where and in so far as a decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed ; and, for this purpose the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

145. Enforcement of liability of surety.-Where any person has become liable as surety:-

(a) for the performance of any decree or any part thereof ; or

(b) for the restitution of any property taken in execution of a decree ; or

(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon,

the decree or order may be executed against him to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall for the purposes of appeal be deemed a party within the meaning of section 47 :

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

146. Proceedings by or against representatives.-Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him.

147. Consent or agreement by persons under disability.-In all suits to which any person under disability is a party, any consent or agreement as to any proceeding shall, if given or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such person, were under no disability and had given such consent or made such agreement.

148. Enlargement of time.-Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

149. Power to make up deficiency of Court-fees.-Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fee has not been paid, the Court may, in its discretion at any stage, allow the person by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee and upon such payment, the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

150. Transfer of business.-Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.

151. Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit pr otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

152. Amendment of judgments, decrees or orders.-Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of ‘the parties.

153. General power to amend.-The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

154. [Omitted by Ord. XXVII of 1981}

155. Amendment of certain Act. [Omitted, Ibid.}

156. [Rep. by the Second Repealing and Amending Act, 1914 (XVII of 1914), S. 3 and Second Schedule}.

157. Continuance of orders under repealed enactments.-Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf.

158. Reference to Code of Civil Procedure and other repealed enactments.-In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, section or rule.

THE CODE OF CIVIL PROCEDURE [ACT V OF 1908]

THE FIRST SCHEDULE ORDER I – PARTIES TO SUITS
1. Who may be joined as plaintiffs. – All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of case or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.

2. Power of Court to order separate trials. Where it appears to the Court that any joinder of plaintiff may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

3. Who may be joined as defendants. All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.

4. Court may give judgment for or against one or more of joint parties. Judgment may be given without any amendment: –

(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to ;

(b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities.

5. Defendant need not be interested in all the reliefs claimed. It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.

6. Joinder of parties liable on same contract. The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, Hundis and promissory notes.

7. When plaintiff in doubt from whom redress is to be sought. Where the plaintiff is in doubt as, to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.

8. One person may sue or defend on behalf of all in same interest. (1) Where there are numerous persons having the same interest in-one suit, one or more of such poisons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiffs expense, notice of the institution of the suit for all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the Court to be made a party to such suit.

9. Misjoinder and non-joinder. No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

10. Suit in name of wrong plaintiff. (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, and Ion such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended. Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the ‘Limitation Act, 1908 (IX of 1908), section 22, the proceedings against any person added as defendant shall be deemed to have begun only on the service of the summons.

11. Conduct of suit. The Court may give the conduct of the suit to such person as it deems proper.

12. Appearance of one of several plaintiffs or defendants for others. (1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other, in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.

13. Objections as to non-joinder or misjoinder. All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

ORDER II – FRAME OF SUIT

1. Fame of Suit. – Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

 

2. Suit to include the whole claim. – (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. o

(3) Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation. For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Illustration

A lets a house of B at yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1905.

3. Joinder of causes of action. (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, .the jurisdiction of the Court as regards the suit shall depend on the amount of value of the aggregate subject-matters at the date of instituting the suit.

4. Only certain claims to be joined for recovery of immovable property. No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except

(a) claims for mesne profits or arrears of rent in respect of the property, claimed or any part thereof; .

(b) claims for damages for breach of any contract under which the property or any part thereof is held ; and

(c) claims in which the relief sought is based on the same cause of action :

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.

5. Claims by or against executor, administrator or heirs. No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator jointly with the deceased person whom he represents.

6. Power of Court to order separate trials. Where it appears to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient.

7. Objection as to mis-joinder. All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

HIGH COURTS AMENDMENTS
LAHORE

Insert the following as rule 8 :-

II-88. (1) Where an objection, duly taken, has been allowed by the Court, the plaintiff shall be permitted to select the cause of action with which he will proceed, and shall, within a time to be fixed by the Court, amend the plaint by striking the remaining causes of action.

(2) When the plaintiff has selected the causes of action with which he will proceed, the Court shall pass an order.giving him time within which to submit amended plaints for me remaining causes of action and for making up the Court-fees that may be necessary. Should the plaintiff not comply with the Court’s order, the Court shall proceed as provided in rule 18 of Order VI and as required by the provisions of the Court-Fees Act. [12.5.1909].
N.-W.F.P. Same as in Lahore.

ORDER III – RECOGNIZED AGENTS AND PLEADERS
1. Appearance, etc., may be in person, by recognized agent or by pleader. Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf :

Provided that any such appearance shall, if the Court so directs, .be made by the party in person.

2. Recognized agents. The recognized agents of parties by whom such appearances, applications and acts may be made or done are :–
(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties ;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only where no other agent is expressly authorized to make and do such .appearances, applications and acts.

3. Service of process on recognized agent. (1) Processes served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs. .

(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent.

4. Appointment of pleader. (1) No pleader shall act for any person in any Court, unless he had been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client of the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

(3) For the purposes of sub-rule (2) an application for review of judgment an application, under section 144 or section 152 of this Code, any appeal from any decree or order in the suit and any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.

(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to writ his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the; order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance-signed by himself and stating :–

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, an’-.

(c) the name of the person by whom he is authorised to appear :

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

5. Service of process on pleader. Any process served on the pleader of any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated-and made known to the party whom the pleader represents, and, unless the Court otherwise directs all be as effectual for all purposes as if the same had been given to or served on the party in person.

6. Agent to accept service. (1) Besides the recognized agents described in rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process.

(2) Appointment to be in writing and to be filed in Court. Such appointment may be special or general and shall be made by an instrument in writing signed by principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.

HIGH COURTS AMENDMENTS N.-W.F.P.

In rule 5 add at the end.-‘ Provided that the pleader is acting and not merely pleading for the party ‘.

SINDH

In rule 6, add the following as sub-rule (3) : ‘(3) The Court may at any stage of a suit and whether upon application made to it, or of its own motion direct any party to the suit not having a recognized agent residing within the jurisdiction of the Court, to appoint within a time to be specified, an agent within the jurisdiction of the Court to accept service of process on his behalf. To every appointment made under the sub-rule, the provisions of sub-rule (2) shall be applicable’.

ORDER IV – INSTITUTION OF SUITS

1. Suit to be commenced by plaint. (1) Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

2. Register of suits. The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.

ORDER V – THE CODE OF CIVIL PROCEDURE [ACT V OF 1908]
THE FIRST SCHEDULE-RULES OF PROCEDURE –

ISSUE AND SERVICE OF SUMMONS
1. Summons. (1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified:
Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs’ claim.

(2) A defendant, to whom a summons has been issued under sub-rule (1) may appear :-

(a) in person ; or

(b) by a pleader duly instructed and able to answer all material questions relating to the suit ; or

(c) by a pleader accompanied by some person able to answer all such questions.

(3) Every such summons shall be signed by the Judge or such officer has he appoints, and shall be sealed with the seal of the Court.

2. Copy of statement annexed to summons. Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement.

3. Court may order defendant or plaintiff to appear in person. (1) Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.

(2) Where the Court sees reason to require, the personal appearance of the plaintiff on the same day, it shall make an order for such appearance.

4. No party to be ordered to appear in person unless resident within certain limits. No party shall be ordered to appear in person unless he resides:–

(a) within the local limits of the Court’s ordinary original jurisdiction; or

(b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixth of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court-house.

5. Summons to be either to settle issues or for final disposal. The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:
Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.

6. Fixing day for appearance of defendant. The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons: and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day.

7. Summons to order defendant to produce documents relied on by him. The summons to appear and answer shall order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case.

8. On issue of summons for final disposal, defendant to be directed to produce his witnesses. Where the summons is for the final disposal of the suit it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case.

Service of Summons
9. Delivery or transmission of summons for service. (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.

(2) The proper officer may be an office of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct.

[(3) Unless the Court otherwise directs, the proper officer or an officer authorised by him in this behalf shall cause the service of summons and return it to the Court within fifteen days of issues of summons].

10. Mode of service. Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer, as he appoints in this behalf, and sealed with the seal of the Court.

[10-A. Service by post. (1) Simultaneously with the issue of summons under Rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant, by registered post, acknowledgement due, another copy of the summons singed and sealed in the manner provided in rule 10. ‘

(2) An acknowledgement purporting to be signed by the defendant of the receipt of the registered communication or endorsement by a postal employees that the defendant refused to take delivery of the same shall be deemed by the Court issuing the summons to be prima facie proof of service of summons.]

11. Service on several defendants. Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.

12. Service to be on defendant in person when practicable, or on his agent. Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.

13. Service on agent by whom defendant caries on business. (1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.

(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or character.

14. Service on agent in charge in suits for immovable property. Where in a suit to obtain relief respecting, or compensation for wrong to immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.

15. Where service may be on male member of defendant’s family. Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him.

Explanation. A servant is not a member of the family within the meaning of this rule.

16. Persons served to sign acknowledgement. Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.

17. Procedure when defendant refuses to accept service, or cannot be found. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicious part of the house in which the defendant ordinarily resides or carries on business or personally works of gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has no affixed the copy, the circumstances under which he did so, and the name and address of the person (if any), by whom the house was identified and in whose presence the copy was affixed.

18. Endorsement of time and manner of service. The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.

19. Examination of serving officer. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit.

20. Substituted service. [(I) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of summons by-

(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or

(b) any electronic device of communication which may include telegram, phonogram, telex, fax, radio and television; or

(c) urgent mail service or public courier services ; or

(d) beat of drum in the locality where the defendant resides; or

(e) publication in press; or

(f) any other manner or mode as it may think fit :

Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously].

(2) Effect of substituted services. Service substituted by order of the Court shall be as effectual if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed. Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require. [Which shall not ordinarily exceed fifteen days].

21. Service of summons where defendant resides within jurisdiction of another Court. A summons may be sent by the Court by which it is issued, whether within or without the Province, either by one of its officers or by post to any Court,,(not being the High Court) having jurisdiction in the place where the defendant resides.

22. [Service within Presidency-town of summons Issued by Courts outside.}. Omitted by the A.O., 1949.

23. Duty of Court to which summons is sent. The Court to which a summons is sent under rule 21 [x x x x] shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regard thereto.

24. Service on defendant in prison. Where the defendant is confined in a prison, the summons shall be delivered or sent by post or otherwise to the officer-in-charge of the prison for service on the defendant.

25. Service where defendant resides out of Pakistan, etc., and has no agent in Pakistan. Where the defendant resides out of Pakistan and has no agent in Pakistan empowered to accept service, the summons shall [except in the cases mentioned in rule 26-A] be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situate.

26. Service in foreign territory through Political Agent or Court. Where: —

(a) in the exercise of any foreign [or extra-provincial jurisdiction vested in the Central Government], a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons issued by a Court under this Code in any-foreign territory in which the defendant resides ; or

(b) the Provincial Government has, by notification in the official Gazette, declared, [in respect of any Court] situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid that service by such Court of any summons issued under this Code by a Court of the Province shall be deemed to be valid service; the summons may be sent to such Political Agent or Court, by post or otherwise, for the purpose of being served upon the defendant; and, if the Political Agent or Court returns the summons-with an endorsement signed by such Political Agent or by the Judge or other Officer of the Court that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.

[26-A. Service on civil public officer, or on servant of railway company or local authority, in India. Where the defendant is servant (not belonging to the military, naval or air forces) of any Government in India, or a servant of a railway company or local authority in India, the summons together with a copy of it to be retained by the defendant shall be sent, with a request that it may be served on the defendant: –

(a). in the case of a defendant serving in connection with the affairs of the Government of India or a Railway in India, to the Secretary to the Government of India in the Ministry of Home Affairs ; and

(b) in the case of a defendant serving in connection with the affairs of any other Government in India, or in the case of a servant of a local authority in India to the Home Secretary to the Government, or, as the case may be, to the Home Secretary to the Government in whose territories the local authority has its jurisdiction.]

27. Service on civil public officer or on servant of railway company or local authority. Where the defendant is a public officer (not belonging to the armed forces of Pakistan or is the servant of a railway or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on thee defendant to the head of the office in which he is employed, together with a copy to be retained by the defendant.

28. Service on soldiers, sailors or airmen. Where the defendant is a soldier, sailor or airman, the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant.

29. Duty of person to whom summons is delivered or sent of service. (1) Where a summons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, such person shall be bound to serve it, if possible, and to return it under his signature, with the written acknowledgment of the defendant, and such signature shall be deemed to be evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.

30. Substitution of letter for summons. (1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter singed by the Judge or such officer as he may appoint in this behalf, where the defendant is, in the opinion of the Court, of a rank entitling him to such mark of consideration.

(2) A letter substituted under sub-rule (1) shall contain the particulars required to be stated in a summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as summons.

(3) A letter so substituted may be sent to the defendant by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent.

HIGH COURTS AMENDMENTS LAHORE
0. V, R. 7. Delete present rule and substitute therefore: -‘The summons to appear and answer shall order the defendants to produce all documents in his possession or power upon which he bases his defence or any claim for set-off and shall further order that where he relies on any other document (whether in his possession or power or not) as evidence in support of his defence or claim or set-off, he shall enter such document in a list to be added or annexed to the written statement’. Add the following proviso to R. 10: –

‘Provided that in any case, if the plaintiff so wishes, the Court may serve the summons in the first instance by registered post (acknowledgement due), instead of in the mode of service laid down in this rule.’ In R. 15 after the words ‘where in any suit the defendant cannot be found’ insert the words ‘or is absent from his residence’.

N.-W.F.P. Add the following proviso to R. 10

‘Provided that in any case the Court in its discretion may attempt to serve the summons in the first instance by registered post instead of in the mode of service laid down in this rule; and provided always that should the defendant not appear in answer to the summons so issued, the Court shall have service effected in accordance with the provisions of this Order.’ In Rule 15 for the words ‘where in any suit the defendant cannot be found’ substitute ‘Where the defendant is absent from his usual place of residence’.

SINDH

Insert the following as rule 21-A: – ‘Rule 21-A. Service of summons by pre-paid post wherever the defendant may be residing if plaintiff so desires. Where the plaintiff so desires, the Court, may notwithstanding anything in the foregoing rules and whether the defendant resides within the jurisdiction of the Court or not cause the summons to be addressed to the defendant at the place where he is residing and sent to him by registered post pre-paid acknowledgment, provided, that such place is at a town or village in (the Provinces and the Capital of the Federation) which is the headquarters of a district or a recognised subdivision of a district such as a taluk, or to which the provisions of this rule may, from time to time be extended by a notification by the Court of the Judicial Commissioner of Sindh published in the Sindh Official Gazette. An acknowledgment purporting to be signed by the defendant shall be deemed by the Court issuing the summons to be prima fade proof of service. It all other cases the Court shall hold such enquiry as it thinks fit and either declare the summons to have been duly served or order such further service as may in its opinion be necessary.’-

ORDER VI – THE CODE OF CIVIL PROCEDURE [ACT V OF 1908]

THE FIRST SCHEDULE-RULES OF PROCEDURE – PLEADINGS GENERALLY

1.  Pleading. –‘Pleading’ shall remain plaint or written statement.

2. Pleading to state material facts and not evidence. Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, and the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs numbered consecutively. Dates, sums and numbers shall be expressed in figures.
3. Forms of pleading. The forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings.
4. Particulars to be given where necessary. In all cases in which the party pleading relies on any misrepresentation fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items of necessary) shall be stated in the pleading.
5. Further and better statement, or particulars. A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.
6. Condition precedent. Any condition precedent the performance or occurrence of which is intended to e contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions shall be implied in his pleading.

7. Departure. No pleading shall, except by way of amendment, raise any new ground of aim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

8. Denial of contract. Where a contract is alleged in any pleading, a bare denial of the same by the opposite-party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which thee same may be implied, and not as a denial of the legality or sufficiency in law of such contract.

9. Effect of document to be stated. Wherever the contents of any document are material, it shall be sufficient in any leading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

10. Malice, knowledge, etc. Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

11. Notice. Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, are material.

12. Implied contract, or relation. Whenever any contract or any relation between any person is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.

13. Presumption of law. Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g. consideration for a bill of exchange where the plaintiff sues only on the bill and not for the considerations as a substantive ground of claim).

14. Pleading to be singed. Every pleading shall be signed by the party and his pleader (if any): Provided that where a party to pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

15. Verification of pleadings. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the same.

(2) The person verifying shall specify, by reference to the numbered paragraph of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

16. Striking out pleadings. The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.

17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

18. Failure to amend after order. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.

THE CODE OF CIVIL PROCEDURE [ACT V OF 1908]

– THE FIRST SCHEDULE – ORDER VII – PLAINT

1. Particulars to be contained in plaint. The plaint shall contain the following particulars :-

(a) the name of the Court in which the suit is brought ;

(b) the name, description and place of residence of the plaintiff;

(c) the name, description and place of residence of the defendant, so far as they can be ascertained;

(d) where the plaintiff or the defendant is a minor or a person of unsound mind a statement y to that effect ;

(e) the facts constituting the cause of action and when it arose ;

(f) the facts showing that the Court has jurisdiction ;

(g) the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and’

(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees so far as the case admits.

2. In money suits. Where the plaintiff seeks the recovery of money the plaint shall state the precise amount claimed;

but where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for.

3. Where the subject-matter of the suit is immovable property. Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers.

4. When plaintiff sues as representative. Where the plaintiff sues in representative character the plaint shall show not only has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.

5. Defendant’s interest and liability to be shown. The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the demand.

6. Grounds of exemption from limitation law. Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.

7. Relief to be specifically stated. Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may thing just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

8. Relief founded on separate grounds. Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.

9. Procedure of admitting plaint; Concise statement. [(I) The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced alongwith it.]

[(lA) The plaintiff shall present with his plaint :-

(a) as many copies on plain paper of the plaint was’ there are defendants, plus two extra copies, unless the Court, by reason of the length of the plaint or the number of the defendant’s or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claim made, or of the relief claimed in the suit, in which case he shall present such statements ; and

(b) draft forms of summons and fees for the service thereof.]

(2) Where the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, such statements shall show in what capacity the plaintiff or defendant sues or is sued.

(3) The plaintiff may be leave of the Court, amend such statements so as to make them correspond with the plaint.
(4) The chief ministerial officer of the Court shall sign such list and copies or statements if, on examination, he finds them to be correct.

10. Return of plaint. (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

(2) Procedure on returning plaint. On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

11. Rejection of plaint. The plaint shall be rejected in the following cases: –

(a) where it does not disclose a cause of action ;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so ;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so ; and

(d) where the suit appears from the statement in the plaint to be barred by any law.

12. Procedure on rejecting plaint. Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.

13. Where rejection of plaint does not preclude presentation of fresh plaint. The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
Documents relied on in plaint.

14. Production of document on which plaintiff sues. (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) List of other documents. Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

15. Statement in case of documents not in plaintiff’s possession or power. Where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose possession or power it is.

16. Suits on lost negotiable instruments. Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented and had at the same time delivered a copy of the instrument to be filed with the plaint.

17. Production of shop-book. (1) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891, where the document or which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.

(2) Original entry to be marked and returned. The Court, or such officer as it appoints in this behalf, shall forthwith marks the document for the purpose of identification; and after examining the comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.

18. Inadmissibility of document not produced when plaint filed. (1) A document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received on his behalf at the hearing of the suit.

(2) Nothing in this rule applies to documents produced for cross-examination of the defendant’s witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory.

[19. Address to be filed with plaint. (1) Every plaint or original petition shall be accompanied by a proceeding giving an address at which service of notice, summons or other process may be made on the plaintiff or petitioner.

(2) Plaintiffs or petitioners subsequently added shall immediately on being so added file a proceeding of this nature.

(3) The address filed under this rule shall be entered in the Register of suits maintained under Order IV, rule 2.

20. Nature of address to be filed. An address for service field under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or of the District within which the party ordinarily resides.

21. Consequence of failure to file address. Where a plaintiff or petitioner fails to file an address of service, he shall be liable to have his suit dismissed or his petition rejected by the Court suo moto or any party may apply for an order to that effect, and the Court may make such order as it thinks just.

22. Procedure when party not found at the place of address. (1) Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice, summons or other process can be served is present, a copy of the notice, summons or other process shall be fixed to the outer door of the house.

(2) If, on the date fixed, such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall sent to said address by registered post, and such service shall be deemed to be as effectual as if the notice, summons or other process had been personally served.

23. Service on pleader. Where a party engages as pleader, notices, summons or other processes for service on him shall be served in the manner prescribed by Order III, rule 5, unless the Court directs service at the address for service given by the party.

24. Change of address. A party who desires to change the address for service given by him as aforesaid shall file a verified petition* and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.

25. Service by other modes. Nothing in these rules shall prevent the Court from directing the service of a notice, summons or other process in any other manner, if, for any reasons, it thinks fit to do so.

26. List of legal representatives of plaintiff. (1) In every suit of the nature referred to in rule 3, Order XXII, the plaint shall be accompanied by a statement giving: –

(a) the names and addresses of the persons who, in the event of the death of the plaintiff, may be made a party as his legal representatives ;

(b) the name and address of the person who, in the event of the death of the plaintiff, shall intimate such fact to the Court, furnish the Court with the names particulars and addresses of the legal representatives of the plaint to be made a party.

(2) A plaintiff may at any time :–

(a) file in the Court an amended list, of his presumptive legal representatives ;

(b) nominate another person, in the place of the. person nominated under clause (b) of sub-rule (1), for the purpose of that clause.

(3) A nomination made under cause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefrom, including appeal, revision and review.]

HIGH COURTS AMENDMENTS LAHORE

R. 2. In the second para. of rule 2 after ‘defendant’ insert :– ‘or for movables in the possession of the defendant, or of debts of which the value he cannot, after the exercise of reasonable diligence, estimate’, and after the word ‘amount’ where it last occurs, insert ‘or value’.

R. 17. Add the following Explanation after 0. 7, R. 17, sub-rule (2);

‘Explanation. When a shop-book or other account written in a language other than English or the language of the Court is produced with a translation or transliteration of the relevant entry, the party producing it shall not be required to present a separate affidavit as to the correctness of the translation or transliteration, but shall add a certificate on the document itself that it is a full and true translation or transliteration of the original entry, and no examination or comparison by the ministerial officer shall be required except by a special order of the Court’. Add the following rules: –

19. Every plaint or original petition shall be accompanied by a proceeding giving an address at which service of notice, summons or other process may be made on the plaintiff or petitioner. Plaintiff or petitioners subsequently added shall, immediately on being so added, file a proceeding of this nature.

20. An address for service filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or of the District Court within which the party ordinarily resides, if within the limits of the territorial jurisdiction of the Lahore High Court.

21. Where a plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or his petition rejected by the Court suo moto or any party may apply for an order to that effect, and the Court may make such order as it thinks just.

22. Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice, summons or other process can be served is present, a copy of the notice, summons or other process shall be affixed to the outer door of the house. If on the date fixed such party is not present another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address by registered post, and such service shall be deemed to be as effectual as if the notice, summons or other process had been personally served.

23. Where a party engages a pleader, notices, summons or other processes for service on him shall be served in the manner prescribed by 0. 3, R. 5, unless the Court directs service at the address for service given by the party.

24. A party who desires to change the address for service given by him as aforesaid shall file a verified petition, and Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.

25. Nothing in these rules shall prevent the Court from directing the service of a notice, summons or other process in any other manner, if for any reasons, it thinks fit to do so (24-11-1927).

N.-W.F.P.
In the second paragraph of rule 2 after the word ‘defendant’ insert ‘or for movables in the possession of the defendant, or for debts of which the value he cannot after the exercise of reasonable diligence, estimate’ and after the word ‘amount’ where it last occurs insert ‘or value’.
R. 14. Add to sub-rule (2) of rule 14 the words ‘and shall also produce such document as are in his possession or power’.
Add to following new rules 19-22.
19. Same as rule 19 in Lahore.
20. Same as R. 20 in Lahore, except that for the words ‘of the territorial jurisdiction of the High Court of Judicature at Lahore’ occur the words ‘of the North-West Frontier Province’.
21. Same as R. 21 in Lahore.
22. Same as R. 24 in Lahore.
SINDH

R. 9. In sub-rule (1) of rule 9 for the words ‘and if the plaint is admitted… present such statements’ substitute the following: – ‘and shall present alongwith the plaint as many copies of it on plain paper as there are defendants; on application made the Court may by reason of the length of the plaint or the number of the defendants or for any other sufficient reason accept instead a like number of concise statement of the nature of the claim made, or of the relief claimed in the suit, presented alongwith the plaint. Add the following new rules 19-26 :–
19. Address to be filed with plaint or original petition. Every plaint or original petition shall be accompanied by a memorandum in writing giving an address at which service of notice, or summons or other process may be made on the plaintiff or petitioner. Plaintiffs or petitioners subsequently added shall, immediately on being so added, file a memorandum in writing of this nature.
20. Nature of address to be filed. An address for service filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or if cannot conveniently give an address as aforesaid, at a place where a party ordinarily resides.
21. Consequences of failure to file address. Where a plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or his petitioner rejected by the Court suo moto or any party may apply for an order to that effect, and the Court may make such order as it thinks just.

22. Procedure when party not found at the place of address. Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice or process can be served is present, a copy of the notice or process shall be affixed to the outer door of the house If on the date fixed such party is not present another date shall be fixed and a copy of the notice, summons or other process shall be sent to the address supplied by that party by registered post pre-paid of acknowledgment (which pre-payment shall be made within one month from the date originally fixed for a hearing) and such service shall be deemed to be as effectual as if the notice or process had been personally served.
23. Service of notice on pleaders. Where party engages a pleader, notice or process on him shall be served in the manner prescribed by Order 3, rule 5, unless the Court directs service at the address for service given by the party.
24. Change of address. A party who desires to change the address for service given by him as aforesaid shall file a fresh memorandum in writing to this effect and the Court may direct the amendment of the record accordingly. Notice of such memorandum shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be served either upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.
25. Rules not binding on Court. Nothing in these rules shall prevent the Court from directing the service of a notice or process in any other manner, if for any reasons, it thinks fit to do so.
26. Applicability to notice under Order 21, rule 22. Nothing in the rules shall apply to the notice prescribed by Order 21, rule 22.

THE CODE OF CIVIL PROCEDURE [ACT V OF 1908] – THE FIRST SCHEDULE – ORDER VIII – WRITTEN STATEMENT AND SET-OFF

1. Written Statement. The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence:

[Provided that the period allowed for filing the written statement shall not ordinarily exceed [thirty] days].

2. New facts must be specially pleaded. The defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite-party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance fraud, limitation, release, payment, performance or fact showing illegality.

3. Denial to be specific. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of the fact of which he does not admit the truth except damages.

4. Evasive denial. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it alongwith those circumstances.

5. Specific denial. Every allegation of fact in the plaints if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

6. Particulars of set-off to be given in written statement. (1) Where in suit for the recovery of money the defendant claims to set-off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff’s suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

(2) Effect of set-off. The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall note effect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in a answer to a claim of set-off.

Illustrations

(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B’s effects. C pays Rs. 1,000 as surety for D; then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of the Rs. 1,000.

(b) A dies intestate and in debt to B. C takes out administration to A’s effects ad B buys parts of the effects from C. In a suit for the purchase money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vender to B, in which he sues B, and the other as representative to A.

(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B’s goods and is liable to him in compensation which he claims to set-off. The amount nor being ascertained cannot be set-off.

(d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The two claims being both definite pecuniary demands may be set-off.

(e) A sues B for compensation on account of trespass. B holds a promissory note for Rs. 1,000, from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so, for, as soon as A recovers, both sums are definite pecuniary demands.

(f) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone.

(g) A sues B and C for Rs. 1,000 B cannot set-off a debt due to him alone by A.

(h) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving.

A sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000.

7. Defence or set-off founded on separate grounds. Where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts they shall be stated, as far as may be, separately and distinctly.

8. New ground of defence. Any ground of defence which has arisen after the institution of the suit or the presentation of a written, statement claiming a set-off may be raised by the defendant or plaintiff as the case may be, in his written statement.

9. Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.

10. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is so required fails to present .the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation. to the suit as it thinks fit.

11. Address for service. (1) Every party, whether original added or substituted, who appears in any suit or other proceeding, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service.

(2) Such address shall be entered in the Register of suits to be maintained under Order IV, rule 2.

(3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be to addresses for service filed under this rule.

12. Consequence of failure to file address. (1) Where a party fails to file an address for service as provided in the preceding rule, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended.

(2) The Court may pass an order under sub-rule (1) suo moto or on the application of any party.

13. List of legal representatives of defendant. (1) In every suit of the nature referred to in rule 4, Order XXII, the written statement shall be accompanied by a statement giving: –

(a) the names and addresses of the persons who, in the event of the death of the defendant, may be made a party as his legal representatives ;

(b) the name and address of the person, who in the event of the death of the defendant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the defendant and make an application for the legal representatives to be made a party;

(2) A defendant may at any time ;

(a) file in the Court an amended list of his presumptive legal representatives ; and

(b) nominate another person in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.

(3) A nomination made under clause (b) of sub-rule (1) shall unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefrom including appeal, revision or review.]

HIGH COURTS AMENDMENTS LAHORE

The following be added to rule 1: ‘and with such written statement, or if there is no written statement, at the first hearing shall produce in Court all documents in his possession or power on which he bases his defence or any claim for set-off.’

(2) Where he relies on any other documents as evidence in support of his defence or claim for set-off he shall enter such documents in a list to be added or annexed to the written statement, or where there is no written statement to be presented at the first hearing. If no such list is so annexed or presented, the defendant shall be allowed a further period of ten days to file this list .of documents.

(3) A document which ought to be entered in the list referred to in sub-clause (2) but which has not been so entered, shall not, without the leave of the Court, be received in evidence on the defendant’s behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents produced for cross-examination of plaintiff’s witnesses or headed to a witness merely to refresh his memory.’

Add the following rules:

11. Every party whether original, added or substituted, who appears in any suit or other proceedings shall on or before the date fixed in the summons, notice or other process served on him as the date of hearing, file in Court a proceeding statement his address for service; and if he fails to do so, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motii or on the application of any party for an order to such effect and the Court may make such order as it thinks just.

12. Rules 20, 22, 23, 24 and 25 of 0. 7 shall apply so far as may be, to address for service filed under the preceding rule. (24-11.1927)

SINDH

Add the following rules :

11. Every party whether original, added or substituted, who appears in any suit or other proceedings shall on or before the date fixed in the summons or notice served on him, as the date of hearing, file in Court, as a memorandum in writing stating his address for service and if he fails to do he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu on the application of any party for an order to such effect, and the Court may make such order as it thinks just :

Provided that this rule shall not apply to a defendant who has not filed a written statement, but who is examined by the Court under S. 7 of the Dekhan Agriculturist’s Relief Act, 1879, or otherwise, or in any case where the Court permits the address for service to be given by a party on a date later than that specified in this rule.

12. Rules 20, 22, 23, 24, 25 and 26 of 0. 7, shall apply so ‘far as may be, to addresses for service filed under the last preceding rule.

N.-W.F.P.

Add the following as sub-rule (2) of rule 1: ‘The defendant at the time of presenting written statement shall, where he relies on any documents (whether in his possession or not), enter such documents in a list and produce these documents which are in his possession or power.’

Add the following rules :

11. Every party, whether original, added or substituted, who intends to appear and defend any suit or original petition shall on or before the date fixed in the summons or notice served on him as the date of hearing, file in Court a proceeding stating his defence, if any, struck out and be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application or any party for an order to such effect, and the Court may make such order as it thinks just.

12. Rules 20 and 22 of 0. 7, shall apply, so far as may be, to addresses for service, filed under the preceding rule.

ORDER IX – APPEARANCE OF PARTIES AND

CONSEQUENCE OF NON-APPEARANCE

1. Parties to appear on day fixed in summons for defendant to appear and answer. On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court house in person or by their respective pleaders, and the suit Shall then be heard unless the hearing is adjourned to a future day fixed by the Court

2. Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs. Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the plaintiff to pay the Court-fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed :

Provided that no such order shall be made although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent.

3. Where neither party appears, suit to be dismissed. Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

4. Plaintiff may bring fresh suit or suit or Court may restore suit to file. Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply of an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the Court-fee and postal charges (if any) required within the time fixed before the issue for the summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with suit.

5. Dismissal of suit where plaintiff after summons returned unserved, fails for three months to apply for fresh summons. (1) Where, after a summons has been issued to the defendant, or to one of several defendants and returned unserved, the plaintiff fails, for a period of three months from the date of the returned made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that :

(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served ; or

(b) such defendant is avoiding service of process ; or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it -thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

6. Procedure when only plaintiff appears: When summons duly served : When summons not duly served: When summons served but not in due time. (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then :

(a) if it is proved that the summons was duly served, the Court may proceed ex pate [and pass decree without recording evidence];

(b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;

(c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court and shall direct .notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

7. Procedure where defendant appears on day of adjourned hearing assigns good cause for previous non-appearance. Where the Court has adjourned (he hearing of the suit ex parte, and the defendant at or before such hearing, appears and assigns good cause for his previous non-appearance, he may upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

8. Procedure where defendant-only appears. Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9. Decree against plaintiff by default bars fresh suit. (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from brining a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

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

(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1).]

10. Procedure in case of non-attendance of one or more of several plaintiffs. Where there are more plaintiffs than one and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit. –

11. Procedure in case of non-attendance of one or more of several defendants. Where there are more defendants than one and one or more of them appear, arid the others do not appear, the suit shall proceed, and the Court shall at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.

12. Consequence of non-attendance, without sufficient cause shown, of party, ordered to appear in person. Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants respectively, who do not appear.

Setting aside Decrees Ex Porte
13. Setting aside decree ex parte against defendant. (1) In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside against all or any of the other defendants also:

Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.]

(2) The provision of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1).]

14. No decree to be set aside without notice to opposite party. No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite-party.

HIGH COURTS AMENDMENTS
LAHORE

To sub-rule (1), of rule 9 add the following proviso:

‘Provided that the plaintiff shall not be precluded from bringing another suit for redemption of mortgage, although a former suit may have been dismissed for default.’ .

N.-W.F.P.

Add the following proviso to sub-rule (1) of rule 9:

‘Provided that the plaintiff shall not be precluded from bringing another suit for redemption of mortgage, although a former suit may have been dismissed for default.’

Add following farther proviso to sub-rule (1), rule 13 :

‘Provided further that no decree passed ex parte shall be set aside merely on the ground of an irregularity in the service of summons, if the Court is satisfied for reasons to be recorded that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.’

SINDH

Add the, following further proviso to sub-rule (1) of rule 13: –

‘Provided also that a decree passed exparte shall not in the absence of good cause be set aside on the ground merely of irregularity in the service of the summons unless upon the facts provided the Court is satisfied that the defendant did not have notice of the date of hearing in sufficient time to appear and answer the plaintiff’s claim.’

ORDER X – EXAMINATION OF PARTIES BY THE COURT

1. Ascertainment whether allegations in pleadings are admitted or denied. At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite-party, and as are not expressly or by necessary implication admitted or denied by the party against whom thy are made. The Court shall recorded such admissions and denies.

 

2. Oral examination of party or companion of party. At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied, [shall] be examined orally by the Court; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party

3. Substance of examination to be written. The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record.

4. Consequence of refusal or inability of Pleader to answer. (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer and is likely to be able to answer if interrogated in person, .the Court may postpone the hearing of the suit to a future day and direct that such party shall appearing person on each such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

ORDER XI – DISCOVERY AND INSPECTION

 

1. Discovery by interrogatories. In any suit the plaintiff or defendant by leave of the Court may deliver, interrogatories in writing for the examination of the opposite-parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purposes:

Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

 
2. Particular interrogatories to be submitted. On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.

3. Costs of interrogatories. In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories, have been exhibited unreasonably, vexatiously or at improper length, the costs occasioned by the said interrogatories and the answers shall be paid in any event by the party in fault.

4. Form of interrogatories. Interrogatories shall be in Form No. 2 in Appendix C, with such variation as circumstances may require.

5. Corporation. Where any party to a suit is corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.
‘
6. Objections to interrogatories by answer. Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficient material at the stage, or on any other ground, may be taken in the affidavit in answer.

7. Setting aside and striking out interrogatories. Any interrogatories may be set side on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories.

8. Affidavit in answer, filing. Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the Court may allow.

9. Form of affidavit in answer. An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with such variations as circumstances may require.

10. No exception to be taken. No exception shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court.

11. Order to answer or answers further. Where any person interrogated omits to answer or answers unsufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answers further, either by affidavit or by viva voce examination, as the Court may direct.

12. Application for discovery of documents. Any party may, without filing any affidavit, apply tot eh Court for an order direction any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit:

Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

13. Affidavit of documents. The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.

14. Production of documents. It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto upon oath of such of the documents in his possession or power, relating to any matter in question in such suit as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

15. Inspection of documents referred to in pleadings or affidavits. Every party to a-suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy Court that such document relates only to his own title, he being defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put tin evidence on such terms as to costs and otherwise as the Court shall think fit.

16. Notice- to produce. Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require.

17. Time for inspection when notice given. The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of this pleading, or in the case of bankers’ book or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C, with such variations as circumstances may require.

18. Order for inspection. (1) Where the party served with notice under rule 14 omits to give such notice of time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit:

Provided that the order shall not be made when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents except such as are referred to in the pleading, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an, affidavit showing of what documents’ inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such’ documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

19. Verified copies. (1) Where inspection of any business books is applied for, the Court may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished, and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations:

Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.

(3) The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state, by affidavit whether any one or more specific documents, to be specified in the application, is or are, or have at any time been, in his possession or power; and, if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent that party against whom the application is made has, or has at some time had, in his possession or power the document or documents specified in the application and that they relate to the matters in question in the suit, or of some of them.

20. Premature discovery. Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discover or inspection.

21. Non-compliance with order for discovery. Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution and, if a defendant, -to have his defence, if any, struck out, and to be placed in the same position as if he had not defended and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made accordingly.

22. Using answers to interrogatories at trial. Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the while of such answer.

Provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them arc so connected with those put in that the last-mentioned answers ought not to be used without them, it may direct them to be put in:

23. Order to apply to minors. This order shall apply to minor plaintiffs and defendants, and to the next-friends and guardians for the suit of persons under disability.

ORDER XII – ADMISSIONS

1. Notice of admission of case. Any party to a suit may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

2. Notice to admit documents. Either party may call upon the other party to admit any document, saving all just exception, and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice, is given, except where omission to give the notice is, in the opinion of the Court, a saving of expense.

3. Form of notice. A notice to admit document shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.

4. Notice to admit facts. Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing call on any other party to admit, for the purposes of the suit only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect for admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs:

Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes so the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice:

Provided also that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just.

5. Form of admission. A notice to admit facts shall be in Form No. 10 in Appendix C, and admissions of facts shall be in Form No. 11 in Appendix C, with such variations as circumstances may require.

6. Judgment on admissions. Any party may, a any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Courts may upon such application make such order, or give such judgment, as the Court may think just.

7. Affidavit of signature. An affidavit of the pleader or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents or facts, shall be sufficient evidence ot such admissions, if evidence thereof is required.

8. Notice to produce documents. Notice to produce documents shall be in Form No. 12 in Appendix C, with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.

9. Costs. If a notice to admit or produce specified documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.

ORDER XIII – PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

1. Documentary evidence to be produced at first hearing. (1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

(2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

(3) On production of documents under this rule, the Court may call upon the parties to admit or deny the documentary produced in the Court and record their admission or, as the case may be, denial.]

 

2. Effect of non-production of documents. No documentary evidence in the possession or power of any part which should have been but has not been produced in accordance with the requirements of rule I shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.

3.  Rejection of irrelevant or inadmissible documents. The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

 

4. Endorsements on documents admitted in evidence. (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence the following particulars, namely:-

(a) the number and title of the suit,

(b) the name of the person producing the document,

(c) the date on which it was produced, and

(d) a statement of its having been so admitted; and the endorsement shall be signed or initialed by the Judge.

(2) Where a document so admitted is an entry in a book account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge.

5. Endorsements-on copies of admitted entries in books, accounts and record. (1) Save in so far as is otherwise provided by the Bankers’ Books Evidence Act, 1891, where a document admitted in evidence in the suit is an entry in a letter-book or a shop book or other account in current use, the party on whose behalf the book or account is produced may furnish a copy of the entry. .

(2) Where such a document is an entry in a public record produced from a public .officer or by a public officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced, the Court may require a copy of the entry to be furnished:- .

(a) where the record, book or account is produced on behalf of a party, then by that party,

(b) where the record, book or .account is produced in obedience to an order of the Court acting of its own motion, then by either of any party.

(3) Where a copy of an entry is furnished under the foregoing provisions of this rule, the Court shall after causing the copy to be examined, compared and certified in manner mentioned in rule 17 of Order VII, mark the entry and cause the book, account or record in which it occurs to be returned to the person producing it.

6. Endorsements on documents rejected as inadmissible in evidence. Where a document relied on as evidence by either party is considered by the Court to be admissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of rule 4, sub-rule (1), together with a statement of its having been rejected, and the endorsement shall be signed or initialed by the Judge.

7. Recording of admitted and return of rejected documents. (1) Every document which has been admitted in evidence, or copy thereof where a copy has been substituted for the original under rule 5, shall form part of the record of the suit.
(2) Documents, not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.

8. Court may order any document to be impounded. Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17 Order VII, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court thinks fit. .

9. Return of admitted documents. (1) Any person-whether a party to the suit or not desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the documents is impounded under rule 8, be entitled to receive back the same-

(a) where the suit is one in which an appeal is not allowed, when the suit has-been disposed of, and

(b) where the suit is one in which an appeal is allowed when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of :

Provided that a documentary may be returned at any time earlier than that prescribed by this rule if the person applying therefor delivers to the proper officer a certified copy to be substituted for the original and undertakes to produce the original if required to do so:

Provided also that no document shall be returned which, by force of the decree, has become wholly void or useless.

(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.

10. Court may send for papers from its own records or from other Courts. (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from ay other Court, the record of any other suit or proceedings, and inspect the same.

(2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the application cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.

(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit.

11. Provisions as to documents applied to material objects. The provisions herein contained, as to documents shall, so far as may be apply to all other material objects produced as evidence.

HIGH COURTS AMENDMENTS
LAHORE

To sub-rule (1) of rule 9 add the following further proviso:

‘Provided further that the cost of such certified copy shall be recoverable as a fine from the party at whose instance the original document has been produced’. (24.11.1927).

N.-W.F.P.

The following rule is substituted :

‘All documentary evidence shall be produced by the parties or their pleaders in the method and at the time prescribed in Orders 7 and 8 : provided that after the settlement of issues the Court may fix a date not being more than 30 days after such settlement, within which the parties may present supplementary lists of documents on which they rely. ”

ORDER XIV – SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON

 

1. Framing of issues. (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

(4) Issues are of two kinds : (1) issues of fact, (b) issues of law.

(5) At the first hearing of the suit the Court shall/; after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.

2. Issues of law and of fact. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.

3. Materials from which issues may be framed. The Court may frame the issues from all or any of the following materials: –

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties ;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents produced by either party.

4. Court may examine witnesses or documents before framing issues. Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.

5. Power to amend and strike out issues. (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

6. Questions of fact or law may by agreement be stated in form of issues. Where the parties to a suit are agreed as to the question of fact or of law to be decided between them they may state the same in the form of an issue, and enter into an agreement in writing that, upon the finding of the Court in the affirmative or the negative of such issues:

(a) a sum of money specified in the agreement or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some right or subject to some liability specified in the agreement;

(b) some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct; or

(c) one or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute.

7. Court, if satisfied that agreement was executed in good faith, may pronounce judgment. Where the Court is satisfied, after making such inquiry as it deems proper: –

(a) that the agreement was duly executed by the parties;

(b) that they have a substantial interest in the decision of such question as aforesaid; and

(c) that the same is fit to be tried and decided,it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by the Court ; and shall, upon the finding or decision on such issue, pronounce judgment according to the terms of the agreement and, upon the judgment so pronounced, a decree shall follow.

ORDER XV – DISPOSAL OF THE SUIT AT FIRST HEARING

 

1. Parties not at issue. Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or fact; the Court may at once pronounce judgment.

2. One of several defendants not at issue. Where there are more defendants than one, and one of the defendants is not at issue with the plaintiff on any question of law or fact, the Court may at once pronounce Judgment for or against such defendant and the suit shall proceed only against the other defendants.

3. Parties at issue. (1) Where the parties are at issue on some question of law or of fact, and issuer have been framed by the Court as hereinbefore provided if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and if, the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summon has been issued for the settlement of issues only or for the final disposal of the suit :

Provided that where the summons has been issued for settlement of issues only, the parties or their pleaders are present and none of them objects.

(2) Where the finding is not sufficient for decision, the Court shall postpone the further-hearing of the suit, and shall fix a day for production of such further evidence, or for such further argument as the case requires.

4. Failure to produce evidence. Where, the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies, the Court may at once pronounce judgment, or may, if it thinks fit, after framing and recording issues adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues. (1) Not later than seven days after the settlement of issues, the parties shall present in Court a list of witnesses whom they propose to-call either to give evidence or to produce documents.

(2) A party shall not be permitted to call witnesses other than those contained in the said list except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.

(3) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court:

ORDER XVI – SUMMONING AND ATTENDANCE OF WITNESSES

1. Summons to attend to give evidence or produce documents. (1) Not later than seven days after the settlement of issues, the parties shall present in Court a list of witnesses whom they propose to-call either to give evidence or to produce documents.

(2) A party shall not be permitted to call witnesses other than those contained in the said list except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.

(3) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court:

Provided that no summons shall be issued for service on a person under rule 8 unless an application in the behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited.]

2. Expenses of witness to be paid into Court on applying for summons. (1) The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the persons summoned in passing to and from the Court in which he is required to attend, and for one day’s attendance.

(2) Experts. In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.

(3) Scale of expenses. Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf.

3. Tender of expenses of witness. The sum so paid into Court shall be tendered to the person summoned at the time of serving the summons, if it can be served personally.

4. Procedure where insufficient sum paid in. (1) Where it appears to the Court or to such Officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

(2) Expenses of witnesses detained more than one day. Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

5. Time, place and purpose of attendance to be specified in summons. Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy.

6. Summons to produce document. Any person may be summoned to produce a document, without being summoned to g’ve evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.

7. Power to require persons present in Court to give evidence or produce document. Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.

[7A. Service of summons by parties. (1) Except, where it appears to the Court that a summons under this Order should be served by the Court in the same manner as a summons to a defendant, the Court shall make over for service all summonses under this Order to the party applying therefor.

(2) The service shall be effected by or on behalf of such party by delivering or tendering to the witness in person a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court.

(3) Rules 16 and 18 of Order V shall apply to summons personally served under this rule, as though the person effecting service were a serving officer].

[8. Service of summons by Court. Every summons under this Order, not being a summons made over to a party for service under rule 7A of this Order, shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order V as to proof of service shall apply thereto.

9. Time for serving summons. Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.

10. Procedure where witness fails to a comply with summons. (1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document fails to attend or to produce the document in compliance with such summons, the Court shall, if the certificate of the serving officer has not been verified by affidavit, and may, if it has been so verified, examine the serving-officer on oath or cause him to be so examined by another Court, touching the service or non-service of the summons.

(2) Where the Court sees reason to believe that such evidence or production is material and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.

(3) In lieu of or at the time of issuing such proclamation or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment of immovable property.

11. If witness appears, attachment may be withdrawn. Where, at any time after the attachment of his property, such person appears and satisfies the Court: –

(a) that he did not without lawful excuse, fail to comply with the summons or intentionally avoided service; and

(b) where he has failed to attend at the time and place named in a proclamation issued under the last preceding rule, that he had no notice of such proclamation in time to attend, the Court shall direct that the property be released from attachment and shall make such order as to the costs of the attachment as it thinks fit.

12. Procedure if witness fails to appear. The Court may, where ‘such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding ^two thousand rupees] as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any :

Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid the Court shall order the property to be released from attachment.

13. Mode of attachment. The provisions with regard to the attachment and sale of property in the execution of a decree shall, so far as they are applicable, be deemed to apply to any attachment and sale under this Order as if the person whose property is so attached were a judgment-debtor.

14. Court may of its own accord summon as witnesses strangers to suit. Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed and may examine him- as a witness or require him to produce such document.

15. Duty of persons summoned to give evidence or produce document. Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it be produced, at such time and place.

16. When they may depart. (1) A person so summoned and attending shall, unless the Court otherwise directs, attend at each hearing until the suit has been disposed of.

(2) On the application of either party and the payment through the Court of all necessary expenses (if any), the Court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may order him to be detained in the civil prison.

17. Application of rules 10 to 13. The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person who ‘having attended in compliance with a summons departs, without lawful excuse, in contravention of rule 16.

18. Procedure where witness apprehended cannot give evidence or produce document. Where any person arrested under a warrant is brought before the Court in custody and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he hat been summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and, on such bail or security being given, may release him and, in default of his giving such bail or security may order him to be detained in the civil prison.

[19. No witness to be ordered to attend in person unless resident within certain limits. A person shall not be asked by a Court to attend in person to give evidence unless he resides at any place in Pakistan.]

20. Consequence of refusal of party to give evidence when called on by Court. Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document’ then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.

21. Rules as to witnesses to apply to parties summoned. Where any party to suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.

HIGH COURTS AMENDMENTS
LAHORE

Add the following proviso to 0. XVI, R. 1:
‘Provided that no party who has begun to call his witnesses shall be entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, or to produce any witness not named in a list, which must be filed in Court on or before the date on which the hearing of evidence on his behalf commences and before the actual commencement of the hearing of such evidence without an order of the Court made in writing and stating the reasons thereof’. [15.10.1932].

R. 2. Add the following as an Exception to R. 2 (1) :

‘Exception: When applying for a summons for any of its own officers. Government will be exempt from the operation of clause (1)’ .[9.1.1919].

R. 3. For rule 3, substitute the following: —

‘3. (1) The sum paid into a Court shall, except in the case of a Government servant, be tendered to the person summoned at the time of serving the summons if it can be served personally.
(2) When the person summoned is a Government servant, the sum so paid into Court shall be credited to Government.

Exception: (1) In case in which Government servants have to give evidence at a Court situate not more than five miles from their headquarters, actual travelling expenses incurred by them may, when the Court considers it necessary, be paid them.

Exception: (2) Government servant, whose salary does not exceed Rs. 10 per mensem may receive his expenses from the Court.'[19.1.1919].

R. 4. After the word ‘summoned’ where it occurs first in rule 4(1) insert: – R. 14A. Add Rule 14-A: –

’14-A. When a witness is summoned by the Court of its own motion, under Order XVI, rule 14, his diet money shall be paid by such party or parties as the Court may, in its discretion, direct.When diet money, etc. are not deposited, payment shall, be made out of contingencies and an order passed for recovery from any property of the party concerned and executed under Section 36 of the Code’. [3.6.1945].

R. 16. Add the following sub-rule (3) to rule 16.

(3) In the absence of the Presiding Officer the powers conferred by sub-rule (2) may be exercised by the Senior Subordinate Judge of the First Class exercising jurisdiction at the headquarters of the District, or by any Judge or Court-official nominated by him for the purpose :

Provided that a Court Official nominated for the purpose, shall not order a person, who fails to furnish security as may be required by sub-rule (2) to be detained in prison, but shall refer the case immediately to the Presiding Officer on his return.’ [25.7.1931].

N.-W.F.P.

Substitute the following for R. 1 :–

1. (1) On such date the Court may appoint and not later than 30 days after the settlement of issues, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents.

(2) They shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; the Court granting such permission shall record reasons for so doing.

(3) On application to the Court or such officer as it appoints in this behalf the parties may obtain summons for persons whose attendance is required in Court.’

R. 8. Add the following provisos to rule 8 :

‘Provided that such summons shall ordinarily be made over for service to the party calling the witnesses, and his affidavit shall be considered sufficient proof of service :

Provided further that he shall for sufficient reasons, be entitled to apply to the Court to have the summonses served through its agency.’

SINDH

Insert the following as proviso to sub-rule (1) of rule 1 :

‘Provided that where Government or a public officer being a party to a suit or proceeding as such officer supported by Government in the litigation applies for a summons to any public officer to whom the Civil Service Regulations apply to give evidence of fact which have come to his knowledge, or of matters with which to deal as public officer, or to produce any document from public records, the Government or the aforesaid officer shall not be required to pay sum of money on account of the travelling and other expenses of such witness.’

Add the following as rule 1-A :-

‘IA. the Court may, on the application of any party for summons for the attendance of any person as a witness, permit that service of such summons shall be effected by the party.’

Insert following as proviso in R. 3 :

“Provided that where the witness is a public officer to whom the Civil Service Regulation apply and is summoned to give evidence of facts which have come to his notice, or of facts with which he has had to deal in his official capacity, or to produce a document from the public record, sum payable by the party obtaining the summons on account of his travelling and other expenses shall not be tendered to him.”

ORDER XVII – ADJOURNMENTS

 

1. Court may grant time and adjourn hearing. (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.

(2) Costs of adjournment. In every such case the Court shall fix a day for the further hearing of the suit, any may make such order as it thinks fit with respect to the costs occasioned by the adjournment:

Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued for day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded.

2. Procedure if parties fail to appear on day fixed. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order or make such other order as it thinks fit.

3. Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.

[4. Appearance of parties on the day next after holiday. Where a suit or proceedings is set down for day which is a holiday, the parties thereto shall appear in the Court on the day next following that day, or, when two or more successive days, are holidays, on the day next following the last of such successive days, and the Court may then either proceed with the suit on such day, or some other day thereafter.

[5. Appearance of parties on the day when the Presiding Officer is absent. When on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day (notwithstanding the knowledge that the Presiding Officer would be absent) shall appear in the Court house on that day and the ministerial Officer of the Court authorized in that behalf shall hand over to the parties slips of paper specifying the other day fixed for proceeding with the suit or proceeding and signed by him].

HIGH COURT AMENDMENTS LAHORE
(i) For rule 1 add the following as sub-rule :-

(3) Where sufficient cause is not shown for the grant of an adjournment under sub-rule (1) the Court shall proceed with the suit forthwith.’

(ii) To rule 1(1) before the words ‘the Court’ add the words ‘subject to the provisions of Order XXIII, rule 3.’ [21.7.1937].

ORDER XVIII – HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

1. Right to begin. The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief he seeks, in which case the defendant has the right to begin.

2. Statement and production of evidence. (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

3. Evidence where several issues. Where there are several issues, the burden of proving some of which lies on the other party the party beginning may at his option, produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party, and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning, but the party beginning will then be entitled to reply generally on the whole case.

4. Witnesses to b examined in open Court. The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.

5. How evidence shall be taken in appealable cases. In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing, in the language of the Court, by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative and, when completed, shall be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary, correct the same, and shall sign it.

6. When deposition to be interpreted. Where the evidence is taken down in language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given.

7. Evidence under section 138. Evidence taken down under section 138 shall be in the form prescribed by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule.

8. Memorandum when evidence not taken down by Judge. Where the evidence is not taken down in writing by the Judge, ,he shall be bound, as the examination of each witness proceeds to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.

9. When evidence may be taken in English. Where English is not the language of the Court, but all the parties to the suit who appear in person, and the pleaders of such as appear by pleaders do not object to have such evidence as is given in English taken down in English, the Judge may so taken it down.
10. Any particular question and answer may be taken down. The Court may, of its own motion or on the application of any party or his pleader, taken down any particular question and answer, or any objection to any question, if there appear to be any special reason for so doing.

11. Questions objected to and allowed by Court. Where any question put to a witness is objected to by a party or his pleader, and the Court allows the same to be put, the Judge shall take down the question, the answer, the objection and the name of the person making it, together with the decision of the Court thereon.

12. Remarks on demeanour of witnesses. The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.

13. Memorandum of evidence in unappealable case. In cases in which an appeal is not allowed, it shall not be necessary take down the evidence of the witnesses in writing at length; but the Judge as the examination of each witness proceeds, shall make a memorandum of the substance of what he deposes, and such memorandum shall be written, and signed by the Judge and form part of the record.

14. Judge unable to make such memorandum to record reasons of his inability. (1) Where the Judge is unable to make a memorandum as required by this Order, be shall cause the reason of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court.

(2) Every memorandum so made shall form part of the record.

15. Power to deal with evidence taken before another Judge. (1) Where a Judge is prevented by death, transfer or other cause for concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.

(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply t8 evidence taken in a suit transferred under section 24.

16. Power to examine witness immediately. (1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided.

(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.

(3) The evidence so taken shall be read over to the witness and, if he admits it to be correct, shall be signed by him and the Judge shall, if necessary, correct the same, and shall sign it, and it may then by read at any hearing of the suit.

17. Court may recall and examine witness. The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.

18. Power of Court to inspect. The Court may at any stage of a suit inspect any property or thing concerning which any question may arise.

HIGH COURT AMENDMENTS LAHORE

Insert the following Explanations to rule 2: —

‘Explanation I. Nothing in this rule shall affect the jurisdiction of the Court of its own accord or on the application of any party, for reasons to be recorded in writing, to direct any party to examine any witness at any stage.

Explanation II. The expression ‘witness’ in Explanation I shall include any party as his own witness’. [9.6.1942].

Substitute the following for Rule 8: Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, in his own hand or from his dictation in open Court and such memorandum shall be signed by the Judge and shall form part of the record. [4.7.1942].

Substitute the following for Rule 13: –In cases in which an appeal is not allowed, it shall not be necessary to take down the evidence of the witnesses in writing at length; but the Judge, as the examination of each witnesses proceeds shall make a memorandum of the substance of what he deposes in his own hand or from his dictation in open Court, and such memorandum shall be singed by the Judge and shall form part of the record. [11.1.1951].

ORDER XX – JUDGMENT AND DECREE
1. Judgment when pronounced. (1) On completion of evidence, the Court shall fix a date, not exceeding fifteen days, for hearing of arguments of parties.
2. Power to pronounce judgment written by Judge’s predecessor. A Judge may pronounce a judgment written but not pronounced by his predecessor.

3. Judgment to be signed. The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed shall not afterwards be altered or added to, save as provided by section 152 or on review.

4. Judgments of Small Cause Courts. (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.

(2) Judgments of other Courts. Judgments of other Courts shall contain a concise statement of the case, the points for determination the decision thereon, and the reasons for such decision.

5. Court to state its decision on each issue. In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues in is sufficient for the decision of the suit.

6. Contents of decree. (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of claim, and shall specify clearly the relief granted or other determination of the suit.

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

(3) The Court may direct that the costs payable to one party by the other shall be set-off against any sum which is admitted or found to be due from the former to the latter.

7. Date of decree. The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.

8. Procedure where Judge has vacated office before signing decree. Where a Judge has vacated office after pronouncing judgment but without singing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate.

9. Decree for recovery of immovable property. Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers.

10. Decree for delivery of movable property. Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.

11. Decree may direct payment by installments. (1) Where in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by installments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.

(2) Order, after decree, for payment by installments. After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by installments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.

12. Decree for possession and mesne profits. (1) Where a suit is for the recovery of possession of immovable property and for- rent or mesne profits the Court may pass a decree:

(a) for the possession of the property ;

(b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits ;

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until :-

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree, whichever event first occurs.

(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.

13. Decree in administration suit. (1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such there directions as it thinks fit.

(2) In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estate of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.

14. Decree in pre-emption suit. (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall: —

(a) specify a day on or before which the purchase-money shall be so paid, and

(b) direct that on payment into Court of such purchase-money, together with the costs of (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.

(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct, –

(a) if and in so far as the claims decreed are equal in decree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and

(b) if any in so far as the claim decreed are different in decree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.

15. Decree in suit for dissolution of partnership. Where a suit is for the dissolution of a partnership or the taking of partnership accounts, the Courts, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.

16. Decree in suit for account between principal and agent. In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken the Court shall, before passing its final decree, pass a preliminary decree directing such account to be taken as it thinks fit.

17. Special directions as to accounts. The Court may either by the decree directing an account to be taken of by any subsequent order give special directions with regard to the mode in which the account is to be taken or vouched and in particular may direct that in taking the account books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised.

18. Decree in suit for partition of property or separate possession of a share therein. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then: –

(1) if and insofar as the decree relate to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54 ;

(2) if and insofar as such decree relates to any other immovable property or to movable property, the Court may, if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.

19. Decree when set-off is allowed. (1) Where the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

(2) Appeal from decree relating to set-off. Any decree passed in a suit in which a set-off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had been claimed.

(3) The provisions of this rule shall apply whether set-off is admissible under rule 6 of Order VIII or otherwise.

20. Certified copies of judgment and decree to be furnished. Certified copies of the judgment and decree shall be furnished to the parties on application to the Court, and at their expense.

HIGH COURTS AMENDMENTS LAHORE

Add rule 1A as follows: —

‘(I A) In addition to the particulars mentioned is clause (1), the decree shall contain the addresses of the plaintiff and the defendants as given in Order VII, Rule 19 and Order VIII, Rule 11, or as subsequently altered under Order VII, Rule 24, and Order VIII, Rue 12, respectively’.

SINDH

In sub-rule (2) of rule 11 : For the words ‘and with the consent of the decree-holder’ substitute die words ‘and after notice to the decree-holder.”

ORDER XXI – EXECUTION OF DECREES AND ORDERS

Payment under decree

1. Modes of paying money under decree. (1) All money payable under a decree shall be paid as follows, namely

(a) into the Court whose duty it is to execute the decree [through a bank or by postal money-order or evidence by writing signed by the decree-holder or his authorized agent]

(b) out of Court to the decree-holder ; or

(c) otherwise as the Court which made the decree directs.

(2) Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder.

2. Payment out of Court to decree-holder. (1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder holder fails to show-cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.

[(3) Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.]

Courts executing Decrees

3. Lands situate in more than one jurisdiction. Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, anyone of such Courts may attach and sell the entire estate or tenure.

4. Mode of transfer. (Transfer to Court of Small Causes) Omitted by the A. 0., 1949.

5. Mode of transfer. Where the Court to which a decree is to be sent for execution is o situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. But, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed.

6. Procedure where Court desires that its own decree shall be executed by another Court. The Court sending a decree for execution shall send:

(a) a copy of the decree ;

(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or where the decree has been executed in part the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and

(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

7. Court receiving copies of decree, etc., to file same without proof. The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof or the decree of order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.

8. Execution of decree or order by Court to which it is sent. Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction.

9. Execution by High Court of decree transferred by other Court. Where the Court to which the decree is sent for execution is a High Court, the decree shall be executed by such Court in the same manner as if it has been passed by such Court in the exercise of its ordinary original civil jurisdiction.

Application for Execution

10. Application for execution. Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.

11. Oral application. (1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant of he is within the precincts of the Court.

(2) Written application. Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars namely:

(a) the number of the suit ;

(b) the names of the parties ;

(c) the date of the decree ;

(d) whether any appeal has been preferred from the decree ;

(e) whether any, and (if any), what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree ;

(f) whether any, and (if any), what, previous applications have been made for the execution of the decree, the dales of such applications and their results ;

(g) the amount with interest (if any), due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed ;

(h) the amount of the costs (if any) awarded ;

(i) the name of the person against whom execution of the decree is sought ; and

(j) the mode in which the assistance of the Court is required, whether :-

(i) by the delivery of any property specifically decreed ;

(ii) by the attachment and sale, or by the sale without attachment, of any property ;
(iii) by the arrest and detention in prison of any person ;

(iv) by the appointment of a receiver ;

(v) otherwise, as the nature of the relief granted may require.

(3) The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.

12. Application for attachment of movable property not in judgment-debtor’s possession. Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex the application an inventory of the property to be attached, containing a reasonably accurate description of the same.

13. Application for attachment of immovable property to contain certain particulars. Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot: –
(a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and
(b) a specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

14. Power to require certified extract from Collector’s register in certain cases. Where an application is made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing any transferable interest in, the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.

15. Application for execution by joint decree-holder. (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.

16. Application for execution by transferee of decree. Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same condition as if the application were made by such decree-holder:

Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, an the decree shall not be executed until the Court had heard their objections (if any) to its execution:

Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.

17. Procedure on receiving application for execution of decree. (1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.

(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

(3) Every amendment made under this rule shall be signed or initialled by the Judge.

(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application :

Provided that, in the case of decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.

18. Execution in case of cross-decrees. (1) Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court then :-

(a) if the two sums are equal, satisfaction shall be entered upon both decrees; and

(b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so .much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum.

(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect ol judgment-debts due by the assignee himself.

(3) This rule shall not be deemed to apply unless :–

(a) the decree-holder in one of the suits in which the decrees have been made is the judgment-debtor in the other and each party fills the same character in both suits ; and

(b) the sums due under the decree are definite.

(4) The holder of a decree passed against several persons jointly and severally may treat as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons.

Illustrations

(a) A holds a decree against B for Rs. 1,000.5 holds a decree against/I for the payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.

(b) A and B, co-plaintiffs, obtain a decree, for Rs. 1,000 against C, and C obtains a decree for Rs. 1,000 against B. C cannot treat his decree as cross-decree under this rule.

(c) A obtains a decree against B of Rs. 1,000. C who is a trustee for B, obtains a decree on behalf of B against A for Rs. 1,000. B cannot treat C’s decree as a cross-decree under this rule.

(d) A.B, C, D and E are jointly and severally liable for Rs. 1,000 under a decree obtained by F. A obtains a decree for Rs. 100 against F singly and applies for execution to the Court in which the joint decree is being executed. F may treat his joint decree as a cross-decree under this rule.

19. Execution in case of cross-claim under same decree. Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money for each other then: —

(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and

(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.

20. Cross-decrees and cross-claims in mortgage suits. The provisions contained in rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge.

21. Simultaneous execution. The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.

22. Notice to show cause against execution in certain cases. (1) Where an application for execution is made:-

(a) more than one year after the date of the decree, or

(b) against the legal representative of a party to the decree, or where an application is made for execution of a decree filed under the provisions of section 44A the Court executing the decree shall issue a notice to the person against whom executions is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than one year having elapse between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

23. Procedure after issue of notice. (1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.

(2). Where such person offers any objection to execution of the decree, the Court shall consider such objection and make such order as it thinks fit.

[23-A. Deposit of decretal amount, etc. An objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless:-

(a) in the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its payment; and

(b) in the case of any other decree, he furnishes security for the due performance of decree.]

Process for Execution

24. Process for execution. (1) When the preliminary measures (if any) required by the foregoing rule have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

(2) Every such process shall bear date the day on which it is issued, and shall be signed by the Judge or such of officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.

(3) In every such process a day shall be specified on or before which it shall be executed.

25. Endorsement on process. (1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in, which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason of the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the Court.

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court shall, examine him touching his alleged inability, and, may if it thinks fit, summons and examine witnesses as to such inability, and shall record the result.

26. When Court may stay execution. (1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof for an order to stay execution, or for any other order relating to (he decree or execution which might have been made by such Court of first instance or appellate Court if execution had been issued thereby, or if application for execution had been made thereto.

(2) Where the property or person of the judgment-debtor has been seized under an execution the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. .

[* * * * *]

27. Liability of judgment-debtor discharged. No order of restitution or discharge under rule 26 shall prevent the property 01 person of a judgment-debtor from being re-taken in execution of the decree sent for execution.

28. Order of Court which passed decree or of appellate Court to be binding upon Court applied to. Any order of the Court which the decree was passed, or of such Court of appeal as aforesaid, in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution.

29. Stay of execution pending suit between decree-holder and judgment-debtor. Where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.

Mode of Execution

30. Decree of payment of money. Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention and \* * * *] prison of the judgment-debtor, or by the attachment and sale of his properly, or by both.

31. Decree for specific movable property. (1) Where the decree is for any specific omovable, or for any share in a specific movable it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.

(2) Where any attachment under sub-rule (1) has remained in force for is months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of movable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application.

(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months form the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.

32. Decree for specific performance, for restitution of conjugal rights, or for an injunction. (1) Where the party against whom a decree for the specific performance of a contract, or of restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree of the specific performance of a contract or for an injunction by his detention in [* * *] prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for a specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in [*****] prison of the directors or other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold : and out of the proceeds the Court may award the decree-holder such compensation as it thinks fit and shall pay the balance (if any) to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or it’ made has been refused, the attachment shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

Illustration

A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B, A, in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that on sum realizable by the sale of A’s property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution proceedings.

33. Discretion of Court in executing decrees for restitution of conjugal rights. (1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree against a husband for the restitution of conjugal rights or at any time afterwards, may order that the decree shall be executed in the manner provided in this rule.

(2) Where the Court has made an order under sub-rule (1), it may order that, in the event of the decree not being obeyed within such period as may be fixed .in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.

(3) The Court may from time to time vary or modify and order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money as ordered to be paid and again revive the same, either wholly or in part as it may think just.

(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree of the payment of money.

34. Decree for execution .of document, or endorsement of negotiable instrument. (1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.

(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.

(3) Where the judgment-debtor objects to the draft, is objections shall be stated in writing within such time, and the Court shall take such order approving or altering the draft, as it thinks fit.

(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.

(5) The execution of a document or endorsement of a negotiable instrument under this rule may be in the following form, namely: –

‘C.D., Judge of the Court of (or as the case may be), for A. B, in a suit by E.F., against A. B’, and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute and endorse the same.

(6) The Court, or such officer as it may appoint in this behalf, shall cause the document to be registered if its registration is required by the law for the time being in force or the decree-holder desires to have it registered, and may make such order as it thinks fit as to the payment of the expenses of the registration.

35. Decree for immovable property. (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.

36. Decree for delivery of immovable property when in occupancy of tenant. Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupancy by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.

Arrest and Detention in ”[***] Prison

37. Discretionary power to permit judgment-debtor to show cause against detention in prison. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in [***] prison of a judgment-debtor who is liable to be arrested in pursuance of the application the Court, shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show-cause why he should not be [detained in] prison:

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

38. Warrant for arrest to direct judgment-debtor be brought up. Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the cost (if any) to which he is liable, be sooner paid.

39. [Omitted by Civil Laws (Reforms) Act (XIV of 1994)}. Omitted rule is reproduced below:

39. Substance allowance. (1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court Such sum as the Judge thinks sufficient of the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court.

(2) Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fix under section 57, or, where no such scales have been fixed as it considers sufficient with reference to the class to which he belongs.

(3) The monthly allowance fixed by the Court shall be supplied by the party on whose application the judgment-debtor has been arrested by monthly payments in advance before the first day of each month.

(4) The first payment shall be made to the proper officer of the Court for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison, and the subsequent payments (if any) shall be made to the officer incharge of the civil prison.

(5) Sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison shall be deemed to be costs in the suit :

Provided that the judgment-debtor shall not be detained in civil prison or arrested on account of any sum so disbursed.

40. Proceeding on appearance of judgment-debtor in obedience to notice or after arrest. (1) Where a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be [detained in] prison.

(2) Pending the conclusion of the inquiry under sub-rue (1) the Courts may, in its discretion, order the judgment-debtor to be detained in the custody of ah officer of the Court or release him on his furnishing security to the satisfaction of the ‘Court for his appearance when required.

(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in ‘[***] prison and shall in that event cause him to be arrested if he is not already under arrest :

Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.

(4) A judgment-debtor released under this rule may be re-arrested.

(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release. –

Attachment of Property

41. Examination of judgment-debtor as to his property. Where a decree is for the payment of money the decree-holder may apply to the Court for an order that: –

(a) the judgment-debtor, or

(b) in the case of a corporation, any officer thereof, or

(c) any other person. be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents.

42. Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined. Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.

43. Attachment of movable property other than agricultural produce, in possession of judgment-debtor. Where the property to be attached is movable property, other than agricultural produce,, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof :

Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.

44. Attachment of agricultural produce. Where the property to be attached is agricultural produce the attachment shall be made by affixing a copy of the warrant of attachment: –

(a) where such produce is a growing crop, on the land on which such crop has grown, or

(b) where such produce has been cut or gathered, on the threshing-floor or place or treading out grain or the like or fodder-stock on or in which it is deposited, and another copy or on the outer door or on some other conspicuous part of the house in which the judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some other conspicuous part of the house in which the carries on business or personally works for gain or in which he is known to have last resides or carried on business or personally worked for gain; and the produce shall thereupon be deemed by have passed into the possession of the Court.

45. Provisions as to agricultural produce under attachment. (1) Where agricultural produce is attached, the Court shall make such arrangement for the custody thereof as it may deem sufficient and, for the purpose of enabling the Court to make such arrangements, every application for the attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered.

(2) Subject to such conditions as may be imposed .by the Court in this behalf either in the order of attachment or in any subsequent order the judgment-debtor may tend, cut, gather and store the produce and to any other act necessary for maturing or preserving it; and if the judgment- debtor fails to do all or any of such acts, the decree-holder may with the permission of the Court and subject to the like conditions, do all or any of them either by himself or by any person appointed by him in this behalf, and the costs incurred by the decree-holder shall be recovered from the judgment-debtor as if they were included in, or formed part of, the decree.

(3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil.

(4) Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be. fit to be cut or gathered, the Court may suspend the execution of the order for such time as it thinks fit, and may, in its discretion, make a further order prohibiting the removal of the crop pending the execution of the order of attachment.

(5) A growing crop which from its nature does not admit of being stored shall not be attached under this rule at any time less than twenty days before the time at which it is likely to be fit to be cut or gathered.

46. Attachment of debt, share and other property not in possession of judgment-debtor. (1) In the case of: –

(a) a debt not secured by a negotiable instrument,

(b) a share in the capital of a corporation,

(c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of any Court, the attachment shall be made by a written order prohibiting:-

(i) in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court;

(ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon:

(iii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.

(2) A copy of such order shall be affixed on some conspicuous part of the Court-house and another copy shall be sent in the case of the debt to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same.

(3) A debtor prohibited under clause (/) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.

47. Attachment of share in movables. Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.

48. Attachment of salary or allowances of public officer or servant of railway company or local authority. (1) Where the property to be attached is the salary or allowances of a servant of the ‘[State] or a servant of a railway company or local authority, the Court whether the judgment-debtor or the disbursing’ officer is or is not within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly installments as the Court may direct; and, upon notice of the order to such officer as the appropriate Government may by notification in the official Gazette appoint in this behalf: .

(a) where such salary or allowances are to be disbursed within the local limits, to which this Code for the time being extends, the officer or other person whose duty it is to disburse the same shall withhold and remit to the Court the amount due under the order, or the monthly installments, as the case may be;

(b) where such salary or allowances are to be disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to be disbursed shall remit to the Court the amount due under the order, or the monthly installments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time to be disbursed by the aggregate of the amounts from time to time remitted to the Court.

(2) Where the attachable proportion of such salary or allowance is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate Government in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.

(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2), shall, without further other notice or other process bind the appropriate Government or the railway company or local authority, as the case may be, while the judgment-debtor is within the local limits to which this Code for the time being extends and while he is beyond those limits if he is in receipt of any salary or allowances payable out of [the revenues of the Central Government or a Provincial Government] or the funds of a railway company carrying on business in any part of Pakistan local authority in Pakistan and the appropriate Government or the railway company or local authority, as the case may be, shall be liable for any sum paid in contravention of this rule.

Explanation. In this rule ‘appropriate Government’ means: –

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

[(ii) ******]

(iii) as respects any other servant of the [State] or a servant of any other railway or local authority, the Provincial Government.

49. Attachment of partnership property. (1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.

(2) The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profit with payment of the amount due under the decree and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require.

(3) The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same.

(4) Every application for an order under sub-rule(2) shall be served on the judgment-debtor and on his partners or such of them as are within Pakistan.

(5) Every application make by any partner of the Judgment debtor under sub-rule (3) shall be served on the decree-holder and on the judgment-debtor, and on such of the other partners as do not join in the application and as are within Pakistan.

(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners, and all orders made on such application shall be similarly served.

50. Execution of decree against firm. (1) Where a decree has been passed against a firm, execution may be granted: –

(a) against any property of the partnership;

(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, partner; and

(c) against any person who has been individually served as a partner with a summons and has failed to appear:

Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of section 247 of the Contract Act, 1872.

(2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm, he may apply to the Court which passed the decree for leave and where the liability is not disputed, such Court may grant such leave or where such liability disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.

(3) Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(4) Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.

51. Attachment of negotiable instruments. Where the property is a negotiable instrument not deposited in a Court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.

52. Attachment of property in custody of Court or public officer. Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued:
Provided that, where such property is in the custody of a Court any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.

53. Attachment of decree. (1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made: –

(a) if the decrees were passed by the same Court, then by order of such Court; and

(b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until:-

(i) the Court which passed the decree sought to be executed cancels the notice ; or

(ii) the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree.

(2) Where a Court makes an order under clause(a) of sub-rule(7), or receives an application under sub-clause (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

(3) The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed, to be representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

(4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1), the attachment shall be made, by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court, also be sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.

(5) The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.

(6) On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so’ long as the attachment remains in force.

54. Attachment of immovable property. (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate.

55. Removal of attachment after satisfaction of decree. Where: ~

(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property and paid into Court, or

(b) satisfaction of the decree is otherwise made through the Court, or certified to the Court, or

(c) the decree is set aside or reversed,
the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.

56. Order for payment of coin or currency notes to party entitled under decree. Where the property attached is current coin or currency notes, the Court may, at any time during the continuance of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree to receive the same.

57. Determination of attachment. Where any property has been attached in execution of a decree but by reason of the decree-holder’s default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future-date. Upon the dismissal of such application the attachment shall cease.

ORDER XXXII – SUITS BY OR AGAINST MINORS

AND PERSONS OF UNSOUND MIND

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

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

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

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

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

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

(4) No order shall be made on any application under this rule except upon notice to minor and not any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under the sub-rule.

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

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

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

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

(3) No person shall without his consent be appointed guardian for the suit.

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

5. Representation of minor by next friend or guardian for the suit. (1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit.
(2) Every order made in a suit or on any application, before the Court in or by which a minor is in anyway concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, discharged, and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have know, the fact of such minority, with costs to be paid by such pleader.

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

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

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

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

7. Agreement or compromise by next friend or guardian for the suit. (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend of guardian.
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

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

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

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

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

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

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

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

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

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

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

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

‘A. B., late a minor, by B.C., his next friend now having attained majority.’

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

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

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

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

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

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

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

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

15. Application of rules to persons of unsound mind. The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued

[16. Certain Laws not to be affected. Nothing in this order shall be construed to affect or in any way derogate from the provisions of any local law for the time being in force relating to suits by or against minors or by or against lunatics or other persons of unsound mind.]

HIGH COURTS AMENDMENTS LAHORE
R. 1: The following paragraph shall be added to rule 1-

‘Such person may be ordered to pay any costs in the suit as if he were the plaintiff’

R. 2: The following sub-rules were substituted for sub-rules (3) and (4) of rule 2:

‘(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons with their addresses, who prima facie are most likely to be capable of acting as guardian for suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2) above.

(4) The Court may, at any time after institution of the suit, call upon the plaintiff to furnish such a list, and, in default of compliance, may reject the plaint.’

R. 3: The following sub-rules (6) and (7) be added: –

‘(6) Any application for the appointment of a guardian for the suit, any list furnished under the rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matter in controversy in the suit adverse to that of the minor, and that each person proposed is a fit person to be so appointed.

(7) No order shall be made on any application under this rule, except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or where there is no such guardian of minor, or, where there is no father or other natural guardian of the minor, or, where there is no father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which he urged on behalf of any person served with notice under this sub-rule.

Provided that the Court may, if it sees fit issue notice to the minor also.’

(24.11.1927) R. 4: (7) Add sub-rule (2) of rule 4-

‘(2) Where a minor defendant has no guardian appointed or declared by competent authority, the Court may, subject to the proviso to sub-rule (1), appoint as his guardian for the suit a relative of the minor.

If no proper person be available, who is a relative of the minor, the Court shall appoint one of the other defendants, if any, and, failing such other defendant, shall ordinarily proceed under sub-rule (4) of the rule to appoint one of its officers or a pleader.’

(ii) The following words be added to sub-rule (3):-‘but the Court may presume such consent to have been given, unless it expressly refused.

(iii) In sub-rule (4) after the word ‘officers’ add ‘or a pleader’, and for the word ‘officer’ substitute the word ‘person’.

N.-W.F.P.

R.I. Same as in Lahore

SINDH

R. 7. Add the following as sub-rule (1A) after sub-rule (1) of rule 7.

‘(I A) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdraw of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability, and such minor or other person under disability is represented by Counsel (Advocate) or Pleader, the Counsel (Advocate) or Pleader shall file in Court with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party, shall recite the sanction of the Court thereto and shall set out the terms of the compromise in Form No. 24 in Appendix ‘D’ to this Schedule.

ORDER XXXIII – SUITS BY PAUPERS

1. Suits may be instituted in forma pauperis. Subject to the following provisions, any suit may be instituted by a pauper.
Explanation. A person is a ‘pauper’ when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where on such fee is prescribed when he is not entitled to property worth one hundred rupees other than his necessary wearing-apparel and the subject-matter of the suit.

2. Contents of application. Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits: a Schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and certification of pleading.

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

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

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

5. Rejection of application. The Court shall reject an application for permission to sue as a pauper:-

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

(b) where the applicant is not a pauper, or

(c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or

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

(e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interested in such subject-matter

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

7. Procedure at hearing. (1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence.

(2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in rule 5.

(3) The Court shall then either allow or refuse to allow the application to sue as a pauper.

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

9. Dispaupering. The Court may on the application of defendant, or of the Government pleader, of which seven days’ clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered:-

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

(b) if it appears that his means are such that he ought not to continue to sue as a pauper; or

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

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

11. Procedure where pauper fails. Where the plaintiff fails in the suit or is disappeared, or where the suit is withdrawn or dismissed:-

(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fee or postal charges(if any) chargeable for such service, or

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

11-A. Procedure where pauper suit abates. Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff the Court shall order that the amount of Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper shall be recoverable by the Provincial Government from the estate of the deceased-plaintiff.

12. Provincial Government may apply for payment of Court-fees. The Provincial Government shall have the right at any time to apply to the Court to make an order for the payment of Court-fees under rule 10, rule 11 or rule 11A.

13. Provincial Government to be deemed a party. All matters arising between the Provincial Government and any party to the suit under rule 10 rule 11, HA or rule 12 shall be deemed, to be questions arising between the parties to the suit within the meaning of section 47.

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

15. Refusal to allow applicant to sue as pauper to bar subsequent application of like nature. An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue, but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs, (if any) incurred by the Provincial Government and by the opposite-party in opposing his application for leave to sue as a pauper.

16. Costs. The costs of an application for permission to sue as pauper and of no inquiry into pauperism shall be costs in the suit.

ORDER XXXIV – SUITS RELATING TO MORTGAGES

OF IMMOVABLE PROPERTY

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

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

2. Preliminary decree in foreclosure suit. In a suit for foreclosure, if the plaintiff succeeds, the. Court shall pass a preliminary decree.

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

(i) principal and interest on the mortgage,

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

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

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

(c) directing:-

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

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

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

(1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

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

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

(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and if necessary;

(b) ordering him to re-transfer at the cost of the defendant the mortgaged property as directed in the said decree; and, also if necessary,

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

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

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

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

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

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

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

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

(d) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary:-

(b) ordering him to transfer the mortgaged property as directed in the said decree, and, also, if necessary:-

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

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

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

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

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

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

(i) principal and interest on the mortgage,

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

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

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

(c) directing:-

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

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

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

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

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

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

(a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and if necessary :-

(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree, and, also, if necessary:-

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

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

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

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

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

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

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

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

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

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

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

(ii) on the amount of the costs of the suit awarded to the mortgagee, at such rate as the Court deems reasonable from the date of the preliminary decree, and

(iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage security up to the date of the preliminary decree and added to the mortgage money at the rate agreed between the parties, or failing such rate, at the same rate as is payable on the principal, or failing both such rates, at nine per cent per annum, and

(b) subsequent interest up to the date of realization or actual payment at such rate as the Court deems reasonable.

(i) on the aggregate of the principal sums specified in clause (a) and of the interest thereon as calculated in accordance with that clause; and

(ii) on the amount adjudged due to the mortgage in respect of Such further costs, charges and expenses as may be payable under rule 10.

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

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

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

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

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

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

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

(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers confirmed by section 57 of the Transfer of Property Act, 1882.

14. Suit for sale necessary for bringing mortgaged property to sale. (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 11, rule 2.

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

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

ORDER XXXV – INTERPLEADER

1. Plaint in interpleader suits. In every suit of interpleader the plaint shall, in addition to 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 of 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 to stayed may be provided for in such suit; but if, and insofar 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 admission 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 suit. 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 of the 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 an interpleader-suit against A and C.

6. Charge of 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 Court’s 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 a 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 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) The agreement, 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 it was presented.

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 suits so far as the same are applicable.

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

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

(b) that they have a bonafide 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.

ORDER XXXVII – SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS

[1. Application of Order.  This Order shall apply only to the High Court [to the District Court, and to any other Civil Court notified in this behalf by the High Court].

2. Institution of summary suits upon bills of exchange, etc. (1) All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No. 4 in Appendix ‘B’ or in such other form as may be from time to time prescribed.

(2) In any case in which the plaint and summons are in such forms, respectively the defendant shall no appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend, and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree:-

(a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80, as the case may be, of the Negotiable Instruments Act, 1881, up to the date of the institution of the suit or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and

(b) for such subsequent interest, if any, as the Court may order under section 34 of this Code ; and

(c) for such sum for costs as may be prescribed: Provided that, if the plaintiff claims more that such fixed sum for costs the costs shall be ascertained in the ordinary Way.

(3) A decree passed under this rule may be executed forthwith.

3. Defendant showing defence on merits to have leave to appear. (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.

(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.

[(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1)].

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 do, and on such terms as the Court, thinks fit.

5. Power to order bill, etc., to be deposited with officer of Court. In any proceedings under the 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 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 nothing 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 JUDGMENT

 

Arrest before Judgment

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 limits of the jurisdiction of the Court his property or any part thereof, or

(b) that the defendant is about to leave Pakistan under circumstances affording reasonable probability that the plaintiff will or may thereby by 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 warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s 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.

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 to 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 been paid by the defendant under the proviso to the last proceeding rule.

(2) Every surety for the appearance of a defendant shall hind 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 [***] prison until the decision of the suit or, where a decree is passed 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 judgment

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.

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.

8. Investigation of claim to property attached before judgment. Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinafter provided for the investigation of claims to property attached in execution of decree for the payment of money.

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 costs 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 attachment before judgment not to be reattached 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.

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

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.

ORDER XXXIX – TEMPORARY INJUNCTION AND I

NTERLOCUTORY 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 part 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 defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying grand preventing the wasting, damaging, alienation, sale, removal or deposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

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 out of the same contract or relation to the same property or right.

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

(3) In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, an may also order such person to be detained in ‘[***] prison for a term not exceeding six months, unless in the meantime the Court directs his release.

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

[(2-A) An interim injunction passed under rule 1 or 2 in the absence of defendant shall not ordinarily exceed fifteen days: Provided that such injunction may be extended for failure of its service on the defendant when such failure is not attributable to the plaintiff or when the defendant seeks time for defence of application for injunction.

2-B. The order of injunction made under rule 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the Court after hearing the parties again and for reasons to be recorded for such extension. Provided that report of such extension shall be submitted to the High Court.]

[3. Before granting injunction Court to direct notice to opposite party. The Court shall in all cases, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

[Provided that, except in the case of sale of goods for default in payment, at the stipulated time, of in respect of which the goods were pledged with any bank, or where the injunction is to be granted against Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government in any case not involving the ejectment of any person from, or the demolition of any premises, the Court may where it appears that the object of granting injunction would be defeated by the delay, dispense with such notice:]

Provided further that the period of notice under this rule to Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government shall not be less than two days nor exceed seven days.].

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

[4-A. Injunction to cease to be in force after certain -period. An injunction granted by a Court in a suit which seeks to question the validity or legal effect of any order made, proceedings taken or act done by any authority or person, which has been made, taken or done, or purports to have been made, taken or done, under any law which is specified in Part I of the First Schedule to the Constitution or relates to or is connected with assessment of collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the injunction is discharged or set aside, by the Court earlier.

Explanation. In this rule public revenues includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government.

5. Injunction to corporation binding on its officers. 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 application of any party to a suit order the sale by any 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 which 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 authorise 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 authorised 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 after notice to the defendant at any time after institution of the suit.

(2) An application by the defendant for a like order may be made after notice to the plaintiff at any time after appearance.

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 the in possession of such land of 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 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.

HIGH COURT AMENDMENTS SINDH

Re-number rule 1 as sub-rule (1) and add the following as sub-rules (2) and (3):-

‘(2) In case of disobedience, or of breach of the terms of such temporary injunction or order, the Court granting the injunction or making such order 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 six months unless in the meantime the Court directs his release.

(3) The property attached under sub-rule (2) may, when the Court considers it fit so to direct, be sold and out of the proceeds, the Court may award such compensation to the injured party as it finds proper and shall pay the balance, if any, to the party entitled thereto’. (3-2-1993)

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 of the receiver, and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization on, 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 service 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 from 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 interest 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 decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
(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. 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 not set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to 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 memorandum. (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or by 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.

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 plaintiffs 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 plaintiffs 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 by 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.

(2) Stay by Court which passed the decree. Where an application is made for stay of execution of an appealable 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 the order is made;

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

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

(4) Notwithstanding anything contained in sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.

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 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 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 judgment-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. [No security to be required from the Government or a Public officer in certain cases]. Rep. by the A.0.. 1937.

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:

[Provided that, where such appeal has been preferred by the judgment-debtor, he shall be required, unless the Court is of opinion that prima facie the appeal is one which must succeed owing to an error apparent on the face of the record:
(a) in the case of a decree for the payment of money, to deposit the decretal amount or to furnish security for its payment, and
(b) in the case of any other decree, to furnish security for the due performance of the decree].

PROCEDURE ON ADMISSION OF APPEAL

9. Registry of memorandum of appeal. (1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall register the appeal in a book to be kept for the purpose.

(2) Register of Appeals. Such book shall be called the Register of Appeals.

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

(2) Where appellant resides out of Pakistan etc. Provided that the Court shall demand such security in all cases in which the appellant is residing out of Pakistan, and is not possessed of any sufficient immovable property within Pakistan other than the property (if any) to which the appeal relates.

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

11. Power to dismiss appeal without sending notice to lower Court. (1) The Appellate Court, after sending for the record if it thinks fit so to do, and 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 without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

(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.

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,

(2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary of for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal or such day.

13. Appellate Court to give notice to Court whose decree appealed from. (1) Where the appeal is not dismissed under rule 11, the Appellate Court shall send notice of the appeal to the Court from whose decree the appeal is preferred.

(2) Transmission of papers to Appellate Court. Where the appeal is from the decree of a Court, the records of which are not deposited in the Appellate Court, the Court receiving such notice shall send with all practicable despatch all material papers in the suit, or such papers in the suit, or such papers as may be specially called for by the Appellate Court.

(3) Copies of exhibits in Court whose decree appealed from. Either party may apply in writing to the Court from whose decree the appeal is preferred, specifying any of the papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of, and given to, the applicant.

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.

15. Contents of notice. The notice to the respondent shall declare that, if he does not appear in the Appellate Court on the day so fixed, the appeal will be heard ex parte.

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

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

18. Dismissal of appeal where notice not served in consequence appellant’s failure to deposit costs. Where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within, the period fixed, the sum required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed:
Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing.

19. Re-admission of appeal dismissed for default. Where an appeal is dismissed under rule 11, sub-rule (2) of rule 17 or rule 18, 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.

20. Power to adjourn hearing and direct person appearing interested to be made respondents. 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.

21. Re-hearing on application of respondent against whom ex parte decree made. Where an appeal is heard ex parte and judgment 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 separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate 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) 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) Unless the respondent files with the objection at written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.

(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 pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule.

23. Remand of case by Appellate Court. When 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 thinks 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 judgment and order to the Court from whose decree the appeal is preferred, with 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.

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 judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit notwithstanding that the judgment 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 issue and refer the same for the 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 with its findings thereon and reasons therefor.

26. Findings and evidence to be put on record: Objection to finding. (1) Such evidence and findings shall from 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 proceed to determine the appeal.

27. Production of additional evidence 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

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, 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.

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 evidence it to be confined, and record on its proceedings the points so specified.

JUDGMENT IN APPEAL

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

31. Contents, date and signature of judgment. The judgment of the Appellate Court shall be in writing and shall state: –

(a) the points for determination;

(b) and 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 the judges concurring therein.

32. What judgment may direct. The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the 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: –

[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].

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 judgment 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

35. Date and contents of decree. (1) The decree of the Appellate Court shall bear date the day on which the judgment 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) Judge dissenting from judgment need not sign decree. The decree shall be signed and dated by the Judge or Judges who passed it:

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 judgment of the Court to sign the decree.

36. Copies of judgment and decree to be furnished to parties. Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense.

37. Certified copy of decree to be sent to Court whose decree appealed from. A copy of the judgment 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 judgment of the Appellate Court shall be made in the register of civil suits.

HIGH COURTS AMENDMENTS LAHORE

R. 1. Add the following proviso to sub-rule (1) of rule 1: –

‘Provided that when two or more cases are tried together and decided by the same judgment, and two or more appeals are filed against the decrees, whether by the same or different appellants, the officer appointed in this behalf may, if satisfied that the questions for decision are analogous in each appeal, dispense with the production of more than one copy of the judgment.’ (2-12-1942).
Add the following as sub-rule (3) of rule 14: –

‘(3) It shall be in the discretion of the Appellate Court to make any order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of or at any proceeding subsequent to the decree of that Court, or on the legal representatives of any such respondent:

Provided that: –

(a) the Court may require notice of appeal to be published in any newspaper or in such other manner as it may direct;

(b) no such order shall preclude any such respondent or legal representative from appearing to contest the appeal.

R. 23A. Add the following as Rule 23A: –

’23A. 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.’

R. 35. Add the following to sub-rule (4) to R. 35:-

‘Provided also in the case of the High Court, that the Registrar or such other officer as may be incharge of the Judicial Department from time to time, shall sign the decree on behalf of the judge or Judges who passed it; but that such Registrar, or such officer shall not sign such decree on behalf of a dissenting Judge’.

R. 38. Add the following as Rule 38:-

’38. (1) An address for service filed under Order 7, rule 19, or Order 8, rule 11, or subsequently altered under Order 7, rule 22 or Order 8, rule 12 shall hold good during all appellate proceedings arising out of the original suit or petition.

(2) Every memorandum of appeal shall state the addresses for service given by the opposite-parties in the Court below, and notices and processes shall issue from the appellate Court to such addresses.

(3) Rules 21 and 22 of Order 7 shall apply so far as may be to appellate proceedings.’

N.-W.F.P.

R. 1. Add the following as proviso to sub-rule (1) of rule 1: –

‘Provided that when two or more cases are tried together and decided by the same judgment and two or more appeals are filed against decrees by the same appellants it shall not be necessary to produce more than one copy of the judgment.’

R. 14. Add the following proviso to sub-rule (1) of rule 14: –

‘ Provided that with permission of the Court no notice need be served upon a respondent who was & pro forma defendant in a suit which was decided ex pane against him.’

R. 38. Add the following as Rule 38: –

’38. (1) An address for service filed under Order 7, rule 19, or Order 1, rule 11, or subsequently altered under Order 7, rule 22, or Order 8, rule 12, shall hold good during all appellate proceedings arising out of the original suit or petition.

(2) The notice of appeal, and other processes connected with proceedings therein, shall issue to the addresses mentioned in clause (1) above, and service, effected at such addresses shall be as effective as if it had been made personally on the appellant or respondent, as the case may be.

(3) Rules 21, 22, 23, 24 and 25 of Order 7, shall apply, so far as may be, to appellate proceedings.’ (24-11 -1972 and 29-1 -1973).

SINDH

R. 14. Add the following as sub-rule (3) of rule 14: –

‘(3) Appellate Court may, however, in its description, dispense with the service of notice of the appeal of interlocutory application therein on a respondent or opponent who has made no appearance at the trial Court.’

-R. 14A. Add the following as Rule 14A: –

’14A. Subject to the leave of the Appellate Court 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, 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.’

R.38. Add the following as Rule 38: –

’38. (1) An address for service filed under Order 7, rule 19, Order 8 rule 11, or subsequently altered under Order 7, rule 24, or Order 8, rule 12, shall hold good during all appellate proceedings arising out of the original suit of petition, subject to any alteration under sub-rule (3).

(2) Every memorandum of appeal shall state the address for services given by the opposite parties in the Court below and notices and processes shall issue from the Appellate Court to such addresses.

(3) Rules 21 to 25 of Order 7, shall apply, so far as may be to appellate proceedings.’

ORDER XLII – Procedure.

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

HIGH COURT AMENDMENT LAHORE

Add the following as Rule 2:- ‘2. In addition to the copies specified in Order 41, rule 1, the memorandum of appeal shall be accompanied by a copy if the judgment of the Court of first instance unless the appellate Court dispenses therewith

ORDER XLIII – APPEALS FROM ORDERS

1. Appeal from orders. An appeal shall lie 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;

(b) an order under rule 10 of Order VIII pronouncing judgment against a party;

(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;

(e) an order under rule 4 of Order X pronouncing judgment against a party;

(f) an order under rule 21 of Order XI;

(g) an order under rule 10 of Order XVI for the attachment of property;

(h) an order under rule 20 of Order XVI pronouncing judgment against a party;

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

(ii)an order under rule 62 or rule 103 of Order XXI relating to the right, title or interest of the claimant or objector in attached property;]

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

(m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction;

(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;

(o) an order under rule 2, rule 4 or rule 7 of Order XXXIV refusing to extend the time for the payment of mortgager-money;

(p) an order 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 2, 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 of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

(v) an order made by any Court other than a High Court refusing the grant of a certificate under rule 6 of Order XLV;

an order under rule 4 of Order XLVII granting an application for review.

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

[3. Notice before presentation of appeal. (1) Where an appeal against an order is preferred during the pendency of a suit, the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against ”[either personally or through registered post acknowledgment due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the appellate Court.]

(2) On receipt of notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine.

4. Application of Rule 3. The provisions, of rule 3 shall mutatis mutandis, apply to all applications filed before an Appellate Court during the pendency of suit.]

HIGH COURTS AMENDMENTS LAHORE

In clause (u) of rule 1 after the word and figure rule 22, add ‘or rule 23A.’

SINDH

Substitute the words ‘any order’ for the words ‘an order under rule 23 of order XLI’ appearing in clause (u) of Rule 1.

ORDER XLIV – PAUPER APPEALS

1. Who may appeal as pauper; procedure on application for admission of appeal. Any person entitled to prefer an appeal, who is enable 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 a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suit by paupers, insofar as those provisions are applicable: Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.

2. Inquiry into pauperism. The inquiry into the pauperism of the applicant may be made either by the Appellate Court or under the orders of the-Appellate Court by the Court from whose decision the appeal is preferred:

Provided that, if the applicant was allowed to sue or appeal as a pauper in the Court from whose decree the appeal is preferred no further inquiry in respect of the pauperism shall be necessary, unless the Appellate Court sees cause to direct such inquiry.

ORDER XLV – APPEALS TO THE [SUPREME COURT]

1. ‘Decree’ defined. [In this Order, unless there is something repugnant in the subject or context, the expression ‘decree’ shall include a judgment or final order.]

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

3. Certificate as to value of fitness. [(1) A petition made under rule 2 shall briefly state the grounds of appeal and pray for a certificate.

(2) Upon receipt of such petition, the Court shall direct notice to be served on the apposite-party to show cause why the said certificate should not be granted: Provided that no notice shall be directed to be served on or given to the opposite-party or to the legal representative of a deceased opposite-party in a case where such opposite-party 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.]

[(3) the Court may, if the opposite-party in response to the notice issued under sub-rule (2) appears after hearing both the parties, or if the opposite-party does not appear in response to such notice, then after hearing the party making the petition, grant or refuse the certificate.

(4) If on the date fixed for the hearing, the party making the petition does not appear and the opposite-party appears in response to such notice or if both the parties do not appear on such date, the petition shall be dismissed.]

4. Consolidation of suits. For the purposes of pecuniary valuation, suits involving substantially the same questions for determination and decided by the same judgment may be consolidated; but suits decided by separate judgments shall not be consolidated, notwithstanding that they involve substantially the same question for determination.

5. Remission of dispute to Court of first instance. In the event of any dispute arising between the parties as to the amount or value of the subject-matter of the suit in the Court of first instance, or as to the amount or value of the subject-matter in dispute on appeal to ‘[the Supreme Court] the Court to which a petition for a certificate is made under rule 2 may, if it thinks fit, refer such dispute for report to the Court of first instance, which last-mentioned Court shall proceed to determine such amount of value and shall return its report together with the evidence to the Court by which the reference was made.

6. [* * * * * *]

7. Security and deposit required on grant of certificate. (1) Where the certificate is granted, the applicant shall, within 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 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 [printing] and transmitting to [the Supreme Court] a correct copy of the whole record of the suit, except:-

(1) formal documents directed to be excluded by [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: 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.]

[* * * * * * *]

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 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 more authenticated copies of any of the papers in the suit on his applying therefor and paying the reasonable expenses incurred in preparing them.

9. Revocation or 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.

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 [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.

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 [the Supreme Court], and in the meantime execution of the decree appealed from shall not be stayed.

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 refused of the balance (if any) of the amount which he has deposited under rule 7.

13. Powers of Courts 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 [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 any order which ‘[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.

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

(2) In default of such further security being furnished as required by the Court:

(a) if the original security was furnished by the appellant, the Court may, on 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 Supreme Court. Whoever desires to obtain execution of any order of [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 [the Supreme Court] was preferred.

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

(4) Unless [the Supreme Court] is pleased otherwise to direct, no order of [the Supreme 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.

16. Appeal from order relating to execution. The orders made by the Court which executes the order of [the Supreme Court], relating to such execution, shall be appealable in the same manner an subject to the same rules as the orders of such Court relating to the execution of its own decrees.

17. [Omitted by the Federal Court Act, 1941 (XXI of 1941), S.I}.

 

ORDER XLV-A – EXECUTION OF ORDER OF FEDERAL COURT

1. (1) Whoever desires to desires to obtain execution of an order of the Federal Court made under sub-section (2) of section 209 of Government of India Act, 1935, shall apply by petition, accompanied by a certified copy of the order sought to be executed, to the High Court from which the appeal to the Federal Court was preferred.

(2) The High Court shall transmit the order of the Federal Court to the Court which passed the first decree appealed from or to such other Court as the High Court may deem fit and may give such directions as may be required for the execution of the same. The Court to which the said order is transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.

2. The provisions of Rule 16 of Order XLI shall apply mutatis mutandis to the execution of decrees or orders for cost passed by the Federal Court in appeal from the High Court.

ORDER XLVI – REFERENCE

1. Reference of question to High Court . Where, before or on the hearing of a suit of 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 of 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 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 or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference.

3. Judgment 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 judgment, 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.

5. Power to alter, etc., decree of Court making reference. Where a case is referred to the High Court under rule 1, 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.

6. Power to refer to High Court questions as to jurisdiction in small causes. (1) Where at any time before judgment 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 proceedings 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 purpose of this rule.

HIGH COURT AMENDMENT  SINDH

Add the following as Rule 8: ‘Rule 38 of Order 41 shall apply so far as may be, to proceedings under this Order.

ORDER XLVII – REVIEW

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

(a) by a decree or order from which an appeal is allowed, but from which 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 OF error apparent on the face of the receipt, 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 judgment 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 judgment notwithstanding the pendency of an appeal by some other party where the ground of such appeal is common the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case the case on which he case on which he applies for the review.

2. To whom applications for review may be made. An application for review of a decree or order of a Court, not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree or made the order sought to be reviewed but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under rule 4, sub-rule (2), Proviso (a), proviso (a), be disposed of by his successor.

3. Form of applications for review. The provisions as to the form of preferring appeal shall apply, mutatis 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 whose 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, continue attached to the Court at the time where the time where the application for a review is presented and is not or are 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 bear 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) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was-

(a) in contravention of the provisions of rule 2,

(b) in contravention of the provisions of rule 4, or

(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause. Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.

(2) Where the application has been rejected in consequences 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 tile 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.

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 applications. (1) 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.

(2) Nothing in this Order shall apply to any judgment pronounced or made by the Supreme Court.]

HIGH COURT AMENDMENT SINDH

Add the following as Rule 10: -’10. Rule 38 of Order 41 shall so far as may be, to proceedings under this Order’.

ORDER XLIX – HIGH COURTS

1. Who may serve processes of High Courts. 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 intestate 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. Saving in respect of High Court. 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 judgment and orders by a [* * *] High Court.

3. Application of rules. The following rules shall not apply to any [* * *] 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 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 35 of Order XLIL 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 Court constituted under the Provincial Small Cause Courts Act, 1887, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act 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 judgment;

Order XXVIII, rules 5 to 12 (evidence);

Order XLI to XLI (appeals);

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

Order LI.

ORDER LIPRESIDENCY SMALL CAUSE COURTS

[Omitted by the A. 0., 1949]