Civil Procedure Code - by Justice Naimuddin

Civil Procedure Cone
Justice Naimuddin Ahmed

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F

Justice Latifur Rahman Supreme Court

Chief Justice of Bangladesh Dhaka- 1000.
FOREWORD
Mr. Justice Nairnuddin Ahmed, Member, Law Commission and former Judge of
the Supreme Court of Bangladesh, High Court Division has given me the draft
copy of his book 'Civil Procedure Code' for my perusal and writing a foreword.
I understand that this is the first complete book on Civil Procedure Code written
since Bangladesh came into being. It contains several citations of important
cases from our jurisdiction. The author has incorporated many important
references of the Indian Jurisdiction and of both the Divisions of the Supreme
Court of Bangladesh which will be of great help to the Judges, practising
lawyers, academicians and others who are connected with the civil justice
system in Bangladesh.
This book on Civil Procedure Code will be of practical help to the young trial
Judges of the civil Courts in Bangladesh as this is a complete Code with all
amendments. The author has taken a.great care in incorporating all amendments
before 14' August, 1947 to make a comprehensive book on the Code of Civil
Procedure.
Justice Ahmed has given great care and attention to the writing of this book. I
have no reasons to doubt that it will be an important addition to the existing
books on Civil Procedure Code. I am sure that the work will bring much credit to
the writer.
I wish the book good currency and appreciation at both home and abroad.
Justice Latifur Rahrnan

Chief Justice of Bangladesh
I' August, 2000
.: BANGLADESH INSTITUTE OF LAW AND INTERNATIONAL AFFAIRS
OUSE NO, 22, ROAD NO, 07, OHANMONDI A/A. DHAKA-105 ia 911171, FA 8110970EmajI: biIia@ciIechco.net ,web:y.boon!e,ne/ja
INTRODUCTORY REMARKS
It gives me great pleasure to note that the Bangladesh Institute of Law and
International Affairs (BILIA) is going to publish a comprehensive commentary
on the Code of Civil Procedure, 1908 which is the outcome of a project study
undertaken by BILIA in 1990 sponsored by the Asia Foundation.
In this regard I would like to record my sincerest appreciation to Mr. Justice

Naimuddin Ahmed, Member. Bangladesh Law Commission and Member of the
Executive Council of BILIA for his painstaking work in writing an exhaustive
and critical commentary on the Code as a comprehensive and unique
compendium on the Civil Procedure Code of the Sub-continent. This book,
setting a precedent in publication on the Code in Bangladesh, will no doubt be of
considerable use to the members of the Judiciary and the Legal Profession.
I would fail in my duty if I did not acknowledge the initial support of Asia
Foundation given to BILIA in the shape of seed-money which actually gave us
the encouragement to undertake such an onerous task.
Lastly, I would like to express my regret for the delay in the publication of the
book due to circumstances beyond our control.
Syed Ishtiaq Ahmed

Chairman. BILIA
PREFACE
About five years ago while I was a sitting Judge of the Supreme Court, High
Court Division, Syed ishtiaq Ahmed, Bar-at-Law, who happened to be the
Chairman of the Bangladesh Institute of Law and International Affairs (BILIA),
came one day to my chamber with a hunch of typed papers and requested me to
pay a cursory glance over those papers which, he said, were it draft of it
Commentary on the Code of Civil Procedure, 1908, prepared by a group of
consultants engaged by the Institute. I reluctantly agreed having very little time
then to do any work other than judicial work.
When I opened the packet I found that the typed papers left by Mr. Ahmed
contained hardly anything other than a few synopses copied from some current
textbook available in the market. Even the Sections and the Orders of the Code
were missing. I informed Mr. Ahmed accordingly. With undaunted perseverance.
he insisted that I should write what he called a Bench Book oil Code of Civil
Procedure, 1908,
even if it took ten years to do so. On his insistence, I undertook
the work but did not take ten years but it little more than five years to complete
it. So, the initiative is his and the labour is mine. But for his initiative I would
never have employed my labour.
This book is primarily meant for the new-comers on the bench in the civil courts,
and, in this context, it may he called a Bench Book.
While going through the hare text published by the Government and the text
books available in the market since Pakistan period it was noticed that
amendments of the Code made by the Calcutta High Court under section 122 of
the Code from time to time between the coming into force of the Code oil
January, 1909 and the partition-of British India into India and Pakistan and the
partition of Bengal into East Pakistan (now Bangladesh) and West Bengal on 14'
August, 1947, were excluded although these amendments are laws in force in
Bangladesh in view of Section 18(3) of the Indian Independence Act, 1947 read
with Article 224 of the Constitution of Pakistan. 1956, Article 225 of the
Constitution of Pakistan, 1962 and Article . 149 of the Constitution of
Bangladesh. Without these amendments the Code is incomplete. Efforts have,
therefore, been made to collect these amendments and to include them in this
hook in order to make the hook complete.
The book is aimed at enabling the new-comers to understand and apply the
Sections and the Orders of the Code in dealing with civil suits and cases. As
such, citations have been generally confined to those cases the interpretations in
which have been accepted as binding within the territory of Bangladesh.
Contrary views which have been accepted as good law in territories other than
Bangladesh have been generally avoided except in one or two isolated cases.
Along with the case laws references have also been made to the corresponding
rules in the Civil Rules and Orders, Volume I and the Civil Suit Instructions
Manual and the forms prescribed in Schedule I of the Code and the Civil Rules
and Orders, Volume II.
Before I conclude, I must record my thanks to Syed Ishtiaq Ahmed, Bar-at-Law,

Chairman, BILIA, Mr. M. Amir-ul-islam, Bar-at-Law, Honorary Secretary,
BILIA and Mr. Waliur Rahman, formerly, Secretary, Ministry of Foreign
Affairs, Government of Bangladesh and now Director, BILIA, for the initiative
they have taken in goading me to continue and complete the work. Messers Md.
Abdul Wadud, Assistant Bench Officer, Supreme Court, High Court Division
and Md. Mahbubur Rabman, Computer Programmer. BILIA, deserve special
thanks for the enormous Libour they have undertaken to take clown dictation
from me continuously for several years and then prepare the manuscript.
I also express my profound gratitude to His Lordship Hon'ble Mr. Latifur

Rahman, the Chief Justice of Bangladesh, for kindly consenting to write the
Foreword of the book.
Lastly, it will he an act of highest ingratitude if I do not mention Sultana, my

wife, whose encoura gement and support revived me whenever I became
exhausted and thought of abandoning the work.
Iii spite of the best care taken by all concerned, I have no doubt that there are
mistakes and errors in the book and for them the entire responsibility is mine. All
suggestions from any quarter for removing these errors are welcome and will he
highly appreciated.
Naimuddin Ahmed
ASS0
• cth—u/ .df,//7t
BARRISTER-AT-LAW
HONORARY SECRETARY'S NOTE
I deem it a great honour and a privilege in writing the Note on the book on the
Code of Civil Procedure, written by Mr. Justice Naimuddin Ahmed, Member,
Law Commission. The Code of Civil Procedure enacted in the early part of the
20th century (1908) is still governing the procedural law relating to civil litigation.
The Code is mainly divided into two parts, i.e., Sections and Orders. Main
principles are contained in the Sections and detailed procedures regarding the
matters dealt with by the Sections are further specified and elaborated in the
Orders. Under Section 122 of the Code, Supreme Court has power to make rules
regulating the procedure of both the Divisions of the Supreme Court as well as of
the Subordinate Courts. The Supreme Court has been given wide power to alter or
add, amend or annul any of the rules. Civil Rules and Orders thus serve as an
important instrument. A thorough knowledge of the Code as well as of the Civil
Rules and Orders (CR&O) is an imperative for understanding the full implication
of the procedural law, regulating our justice delivery system. This book will no
doubt hell) in developing the knowledge as well as in understanding as to how the
Code can be used as a guide to give relief to the litigants.
This book on the Code not only gives reference to leading case laws on each of the
Sections but also provides a helpful guideline by giving cross references to various
Orders which are related to the Sections as well as reference to CR&O contained in
Civil Suit Instruction Manual. The book, therefore, may act as a handy reference
for judges and advocates for getting a quick overview not only of the Sections but
also the interconnection of the Sections with various Orders and Rules. Mr. Justice
Naimuddin Ahmed has had long experience as a Judge in all the tiers of the
Subordinate Courts as well as being a judge of the High Court Division of the
Supreme Court. Mr. Justice Ahmed also served as the Registrar of the Supreme
Court for a considerable period. Hence he is most competent to write a book on the
Code of Civil Procedure as this Code guided him all through his career as a Judge.
Now, that he sits as a Member of the Law Commission, Mr. Justice Naimuddin
Ahmed may reflect adequately upon the Code. In this book Mr. Justice Naimuddin
Ahmed very advisedly kept himself away from his comments and reflections as
anxiety to help the judges and advocates for using this Code as a guide to their
practice is well reflected in the planning of the book. The book is presented in a
concise and compact manner. Reference is given to the most relevant and leading
case laws under each of the Sections. Citations are made from AIR, ILR, CWN,
BLD, DLR, Indian Appals, PLD and CR&O for the purpose of charting out a
pathway'. This will help the practitioners and judges to remain on the right track.
There is a growing demand for speedy disposal of the case and reduce unnecessary
and unbearable delay in the disposal of cases. It is expected that the Judges may
use this book in planning each of the cases pending before them. This book along
with CR&O, it is hoped, can act as a handy tool for the Judges both in case
management as well as in the quick disposal of cases.
This book, therefore, may act as a guide book for all practitioners and judges a like.
M. Amir-U] Islam
Barrister-at-Law
.Honorary Secretary
BILIA
BANGLADESH INSTITUTE OF LAW AND INTERNATIONAL. AFFAIRS
HOUSE NO. 22, ROAD NO. 57, DHANMONDI NA, DHAKA . 205 TEL: 911718, FAX: 8110970, Email: biIia@ciIecIone(web:'vbolonIoneUbjba
Director's Note
Long ten years and-ten days --------sounds rather daunting. But a compendium of
laws, case laws, and rulings of the Honorable Courts such as this can reasonably
take this time : it is a serious and substantive work.
My deep appreciation goes to all the members of the Executive Council

particularly Syed Ishtiaq Ahmed, Shah AMS .Kibria Barrister Amirul Islam and
Professor K. A. A. Kuaniruddin for the guidance and inspiration they have given
to me since the day I assumed charge in August 1998. I must, however single out
the author of this work Justice Naimuddin Ahmed. Who found time in inspite of
his heavy workload to reach out to places to get useful case-laws and judgements;
he ferreted out materials from sources at home and abroad.
As a member of the law commission, he is busy. But as an author, he was untiring

and never felt restrained.
In Bangladesh when we are working hard to restore rule of law in its true sense,
this book is certainly a valuable contribution. In a country where even the
Constitution was mangled and distorted mostly by extra- Constitutional forces
over a long period of time, such a work could not have come at a more propitious
time.
Bangladesh Institute of Law and International Affairs shares the joy and pride
together with the Asia Foundation in this production, which will, I am confident,
assist enormously in promoting greater transparency and accountability in the
administration of Justice in Bangladesh.
Waliur Rahman
Director, BILIA
ABBREVIATIONS
The All India Reporter (AIR), Bombay series, Calcutta series, Madras series, etc.
have been cited thus:— 1931 B, 1931 C, 1931 M, &c.
The Indian Law Reports (ILR) Bombay, Calcutta, Madras. etc. have been cited
thus:— 31 B. 31 C, 31 M, &c.
The Calcutta Weekly Notes (CWN) have been cited thus 31 CWN. 32 CWN. &c.
The Calcutta Law Journals (CU) have been cited thus:— 31 CU. 32 CU, &c.
The Bangladesh Legal Decisions (BLD) have been cited thus:-1981 BLD, 192
BLD, &c.
The Dhaka Law Reports (DLR) have been cited thus:— 31 DLR, 32 DLR. &c.
The Indian Appeals (IA) have been cited thus:— 31 IA, 32 IA. &c.
The Pakistan Legal Decisions (.PLD) have been cited thus:-3I PLD, 32 PLD. &c.
The Civil Rules And Orders (CR&O), Volume .1 has been cited thus:—C.R. & 0.
Addenda
In Section 44A: Add the following note: -
The Government has declared Fiji to be a reciprocating territory and

the Supreme Court of Fiji to be 'a superior Court of the territory for the
purposes of this section, vide Gazette of Pakistan, 1949, Pt. 1, page 275.
Certain Courts of Pakistan have been declared to be superior Courts

for the purpose of Part I of the Foreign Judgements (Recirocal Enforcement)
Act, 1933 (23Geo. 5, ch. 13). vide Gazette of Pakistan, 1953 Pt. 1, pp 143-
144.
The Government has declared the Colony of Singapore to be a

reciprocating territory, and the Supreme Court of Singapore to be a superior
Court of the territory for the purpose of this section, vide Gazette of Pakistan,
1954, Pt. I. p. 106.
Certain Courts in Pakistan have been declared to be Superior Courts

for the purpose of section 5 of the Reciprocal Enforcement of Judgement
Ordinance of Singapore, vide Gazette of Pakistan, 1954,
. Pt. I, p. 296.
The Government has declared the Australian Capital .Territory to be a

reciprocating territory, and the Supreme Court of Australian Capital territory
to be a superior Court of the territory for the purposes of this section, vide
Gazette of Pakistan, 1957, Pt. I, p. 174.
The Government has declared New Zealand including the Cook

Islands (including Nive) and the Trust Territory of Western Samao to be
reciprocating territory, and the Supreme Court of New Zealand to be a
superior Court of that territory for the purposes of this section (w.e.f. .7 1h
August 1958), vide Gazette of Pakistan, 1958, Pt.I. p. 455.
The Government has declared the Northern Territory of Australia to

be a reciprocating territory and the Supreme Court of the said territory to be a
superior Court of the territory for the purposes of this section, vide Gazette of
Pakistan, 1959, Pt. I, p.425.
In Section 112: Add the following note:-
"This section does not confer a right of appeal to the Appellate

Division. It merely declares that the constitutional prerogative of the
Appellate Division to grant special leave to appeal to the Appellate Division
is not limited by anything contained in the Code."
In Rule 2 of Order IV: After the words, "particulars of every ,

suit", insert the
words, "except suits triable by a Court invested with jurisdiction of a Court of
Small Causes under the Provincial Small Causes Courts Act, 1887",
The above insertion was made by rule made by the Calcutta High Court under section
122 of the Code vide Notification No. 8579- G-dated 26-7-1938.
In Rule 43 of Order XXI: After the words, "shall be made by actual

seizure", insert the words, "at the identification of the decree-holder or his
agent",
The above insertion was made by rule made by the Calcutta High Court under section
122 of the Code vide Notification No. 4440-G dated 29-05-1941.
In Rule 44 of Order XXI: After the words, "attachment shall be made",

insert the words, "at the identification of the decree-holder or his agent".
The above insertion was mde by rule made by the Calcutta High Court under section
122 of Code vide Notification No. 4440 dated 29-05-194!.
In Sub-rule (2) of Rule 54 of Order XXI: After deleting the full stop, add
the following words, "and also, where the property is situated within the
cantonment limits, in the office of the local Cantonment Board and the
Military Estates Officer concerned."
The above addition was made by rule made by the Calcutta High Court under section
122 of the Code vide Notification No. 6149-G dated 26-7-1941.
In Rule 1 of Order XLII: For Rule 1, substitute the following:-

"1. The rules of Order XLI shall apply, so far as may be, to appeals from
appellate decrees:
Provided that every memorandum of appeal from an-appellate decree
shall be accompanied by a copy of the decree appealed from and also (unless
the Court sees fit to dispense with any or all of them), by copies of the
./
judgment on which the said decree is founded and of the judgment and decree
of the Court of first instance"..
The above substitution was made by rule made by the Calcutta High
Court under section 122 of the Code vide Notification No. 1750-G dated 15-
2-1938.
Corrigendum
P. 11, line 2 from end, for "pecuring" read "pecuniary".
P. 14, line 12 from top, for "both the suit" read "both the suits".
P. 17, line 15 from top, for "Jotindra" read "Jyotirupa" and P Xli, line 16 from
end, for "Jotindra" read "Jyotirupa".
P 28, line 16 from top, for "P410" read "P228".
P. 30, line 9 from end, for "Ranchandar" read "Ranchordar" and P lix, line 2
from top, for "Ranchandar" read "Ranchordar".
P. 36, line 9 from end, for "exercise" read "exercised".
P. 39, line 14 from end, for "Ommitted" read "Omitted".
P. 43, line 8 from top, for "violable" read "voidable".
P. 54, line 14 from top, for "Drab" read "Dorab".
P. 56, line 3 from top, for "proceeding" read "preceding".
P. 58, line 10 from end, for "626" read "126".
P. 59, line 8 from end, for "225-226" read "226-227".
P. 59, line 6 from end, for "Or.21, r.99" read "Or.21, r. 98".
P. 59, line 6 from end, after "Or. 21, r. 98;" add "for resistance by bonafide
claimant, Or. 21, r. 99;".
P. 1.00, line 4 from .top, for "miss-description" read "mis-description"..
P. 105, line 11 from end, for "accounting" read 'according".
P. 119, line 6 from top, delete the bracket before "or" and insert the bracket
after "or".
P. 124, line 17 from top, for "1938" read "1928".
P. 124, line 4 from end, for "page-1648" read "page 1643".
P. 125, line 18 from end, for "property" read "properly".
P. 129, line 11 from top, for "38-41" read "31-40".
P. 130, line 10 from end, for "on" read "or".
P. 138, line 19 from end, for "describti.on" read "description".
P. 142, line 2 from end, for "38-41" read "38-40".
P. 148, line 2 from end, delete "the Court may make an order thai".
P. 171, line 1.2 from top, after "or" insert "of'.
P. 173, line 6 from top, for "on" read "or".
P. 173, line 7 from top, after "fixed" insert "by".
P. 174, line 12 from end, for "in delivering" read "by delivering".
P. 180,. line 8 from .top, after "one of the parties" insert "or both parties".
P. 192, line 11 from top, for "For" read "Form".
P. 201, line 2 from top, for "for execution" read "for the execution".
P. 201, line 14 from end, for "count" read "court".
P. 206, line 3 from end, for "condition" read "conditions".
P. 206, line 2 from end, for "think" read "thinks".

1-
P. 240, line I and 2 from top, read this note after Rule 86 and then insert
"Baijnath-v-Maheep, 16 C 55; Ramdial-vs-RamdaS, IA 181".
P. 241, line 11 from end, insert" ,coma" after "irregulari,ty".
P. 242, line 18 from top, for "compatent" read 'competent".
P. 245, line 16 from end, for "rules" read "rule".
P. 250, line 10 froth top, for "250" read "198".
P. 252, line 7 from top, for "one or" read "one of'.
P. 266, line 10 from top, for "Judabendra" read "Jadabendra".
P. 297, line 17 from end, for "therefrom" read "therefrom of'.
P. 302, line 17 from end, for "his" read "him".
P. 314, line 7 from top, for "proceeding" read "preceding".
P. 314, line 14 from end, for "summon" read "summons".
P. 327, line 5 from top, for "willful" read "wilful".
P. 331, line 9 from end, for "or" read "and".
P. 335, line 15 from top, delete ,coma"
coma" after "the Court".
) P. 337, line 9 from top, for "terns" read "terms".
P. 347, line I I from end, for '(i)" read "(i)(a)".
P. 360, line 10 from end, for "Where" read "When".
M.

l908: Act V Civil. PROCEDURE CODE
TUE CODE OF CIVIL PROCEDURE, 1908

(Act No. V of 1908)
CONTENTS
Foreword by Hon'ble Mr. Justice Latifur Ralirnan
Chief Justice of Bangladesh
Introductory Remarks by Syed Ishtiaq Ahmed
Chairman, BILIA
Pre face by Justice Naimuddin Alznzed
Member Law Commission
Honorary Secretary's Note by Barrister M. Amir-Ul-Islarn
Honorary Secretary, BILIA
• Director's Note by Wuliur Rahinaii
Director, BILIA
• Abbreviations
I dI)k ol Cases
SECTIONS
Short title, commencement and extent.
2. Definitions.
b. Subordination of Courts.
4. Savings.
5. Application of the Code to Revenue Courts.
6. Pecuniary jurisdiction.
•7. Provincial Small Cause Courts.
8. Presidency Small Cause Courts.

PART!
I
SUITS IN GENERAL
.IURISOICTION OF THE COURTS AND res judicata
SECTIONS
9. Court to try all civil suits unless barred.
.10. Stay of suit.
10 Resjudccita.
12. Bar to further suit.
13.When foreign judgment not conclusive.
, 14, . Presumption as to foreign judgments.
PLACE OPSUING
"l5 Court in which suits to be instituted.
16. Suits to be instituted where subject—matter situate.
17. Suits for immoveable property situate within jurisdiction of different
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 moveables.
I

II CONTENTS 11908: Ac
SECTIONS
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 he instituted in more than one Court.
23. To what Courts application lies.
24. General power of transfer and withdrawal.
25. Power of Governor General in Council to transfer Suits.
INSTITUTION OF SUITS
26. Institution of suits.
SUMMONS AN!) 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. .

34. Interest.
COSTS
35. Costs.
35A. Compensatory costs in respect of false or vexations claims or
defences.
PART!!
EXECUTION
GENERAL
SECTIONS
36. Application to orders.

37. Definition of Court which passed a decree.
COURTS BY WHICH DECREES MAYBE EXECUTED
38. Court 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.
'I ;0K: Act Vi CIVIL PROCEDURE CODE
SECTIONS
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 f Native States.
44A. Execution of decrees passed by Courts in the United Kingdom and other
reciprocating territory.
45. Execution of decrees in foreign territory.
46. Precepts.
QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE
47. Questions to he 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. Powers of Court to enforce Execution.
52. Enforcement of decree against legal representative.
53. Liability of ancestral property.
54. Partition of estate or separation of share.
ARREST AND DETENTION
55. Arrest and detention.
56. Prohibition of arrest or detention of women in execution of decree for
money.
57. Subsistence-allowance.
58. Detention and release.
59. Release on ground of illness.
ATTACHMENT
60. Proprty 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 he void.
SALE
65. Purchaser's title.
66. Suit against purchaser not maintainable on ground of purchase being on
behalf of plaintiff.
C

iv CONTENTS 11908: Act V
SECTIONS
67. Power br Local Government to make rules as to sales 01 land in

execution of decrees for payment of money.
DELEGATION To COLLECTOR OF POWER TO ExIcuiE DECREES AGAINST
IMMOVEABLE PROPERTY
68. Power to prescribe rules br transferring to Collector Execution of
certain decrees.
69. Provisions ol Tli ird Schedule to apply.
70. Rules ol procedure.
7 I . Collector deemed to he acting judicially.
72.. Where Court may authorize Collector to stay public sale of latid.
DISTRIBUTION OF ASSETS
73. Proceeds of Execution-sale to he rateably distributed among decree-
holders.
RESISTANCE To EXECUTION
74. Resistance to execution.
PART HI . 60
INCIDENTAL PROCEEDINGS
COMMISSIONS
SECTIONS
75. Power of Court to issue COIflflhiSSiOflS,
76. Corn mission to another Court.

77. Letter of request.
78. Commissions issued by Foreign Courts.
PART TV
SUITS IN PARTICULAR CASES
SUITS BY OR AGAINSTTI It GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY
SECTIONS
79. Suits by 1W against Government
80. Notice,
81. Exemption from arrest and personal appearance.
82. Execution ol decree.
SUiTS IJYAUENS AND BY OR AGAINST FOREIGN AN!J NATIVE RULERS
83. When aliens may sue.
84. When boreign States may sue.
85. Persons specially appointed by Government to prosecute or defend for
Princes or Chiefs.

190$: Act V I CIVIL PROCEDURE CODE xiii
Document relied on in plaint

RULES
'4. Production of dociiniciit oil which plaintiff sues.
List cli other documents.
I 5. Statement in case oi documents not in plaintiff ' s possession or power.
I. Suits on lost negotiable instrumcnts.
17. Production of shop-hook.
Oricinal entry to he marked and returned.
1$ Inadmissibility of document not pioduced when plaint filed.
42
WRITTEN STATEMENT AND SETOFF
RULES
Written statement.
2. Now facts must be specially pleaded.
. Denial to he specific.
4. Evasive denial.
5. Specific denial.
Particulars to set-off to he given in written statement.
Ef'lct of set-oil.
7. Defence or sct-off founded oil grounds.
S. New ground oi defence.
9. Subsequent pleadings.
10, Procedure when party fails to present written statement called for by
Court.
0 ER .,,IX 147
APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE
RULES
.Parties to appeai on day fixed in summons for defendant to appear and
answer.
Dismissal Of suit where summons not served in coIseqLience 01
2.
plaintiffs failure to PIY costs.
Where neither party appears. suit to be dismissed.
Plaititiff may bring fresh suit or Court may restore suit to file.

xiv CONTENTS 11908: Act
RULES
5. Dismissal of suit where plaintiff, after summons returned unserved,
fails for three months to apply for fresh summons
(., Procedure when only plaintiff appears.
When summons duly served.
When summons not duly served.
When summons served, but not in duetime.
7. Procedure where defendant appears on day of adjourned hearing and
assigns good cause for previous non-appearance.
8. Procedure where defendant only appears.
9. Decree against plaintiff by default bars fresh suit.
ID. Procedure in case of non-attendance of one or more of several
plaintiffs.
II. 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 parte against defendant.
14. No decree to he set aside without notice to opposite party.

ORDERX 154
EXAMINATION OF PARTIES BY THE COURT
RULES
1. Ascertainment whether allegations in pleadings are admitted or denied.
2. Oral examination of party, or companion of party.
3. Substance of examination to he written. -
4. Consequence of refusal or inability of pleader to answer.
• •. . ORDER X1
• EXAMINATION OF PARTIES 9Y THE COURT
RULES
1. Discovery by interrogatories.
2. Particular interrogatories to he submitted.
3. Costs of interrogatohes.
4. Form of interrogatories.
5. Corporations.

1908: Act Vi CIVIL PROCEDURE CODE Vii
I'ARTX.
RULES
SECTIONS
12. Effect of rules in First Schedule.
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. Power of other High Courts to make rules.
126. Rules subject to sanction.
127. Publication of rules.
128. Matters for which rules may provide.
129. Powero.f Chartered High Courts to make rules as to their original civil
procedure.
130. Power of other High Courts to make rules as to matters other than
procedure.
131. Publication of rules.

PART XI 89
MISCELLANEOUS
SECTIONS
132. Exemption of certain women from personal appearance.
133. Exemption of other persons.
134. Arrest other than in execution of decree.
135. Exemption 1mm arrest under civil process.
I35A.Exemption of members of legislative bodies from arrest and detention
under civil process.
136. Procedure where person to he arrested or property to he attached is
outside district.
137. Language of subordinate Courts.
138. Power for Local Government to require evidence to he recorded in English.
139. Oath on affidavit by whom to be administered. -
140. Assessors in cause of salvage etc.
141. Miscellaneous proceedings.
142. Orders and notices to he in writing.
143. Postage.
viii CONTENTS 1908. Act V
SECTIONS
144. Application br reslitlitiort.
45. EnIorcenicnl of liability of surety.
146. Prccdings by or against represçntativcs.
147. Consent or agreement by persons under disability.
148. Enlarg ement oF time.
149. Power to make up deficiency ol court-lees.
ISO. Transfer of business.
SI. Savin g of inherent powers ol Court.
152. Amendment of judgments. decrees or orders.
153. General power to amend.
154. Saving of present right of appeal.
155. Amendment of certai ii Acts.
150. Repealed.
157. Continuance of orders under repealed enactments.
158. Re l'erencc to Code of Civil Procedure and other repealed enactments.

19 ,08; Act Vj CIVIL PiocEouIE CODE ix
THE FIRST SCHEDULE

ORDER I 104
PARTIES TO SUITS
RULES
Who may bejoined as plaiiitills,
2. Power Oi l court to order separaic tiials.
3 Who may he ui ned as defendants.
4. Court may i y e iudgment lor or atiflst One or nore QI joi nt partics.
5. Delenda p i need not he intercsted in all the rclit' ctainic.
6. Joinder of parties liable on s ame çont'ac1.
7. Wicui plaintiff in doubt from whom redress is to be spught.
8. One person iay soc or defend on hhal F of all i same I niCrest,
9. M isjo ocler and non-joi ndci', r
I (I. . Suit jn name qi wronc plaintiff.

Court nlay strike out or ad(j parties.
Where deIendait added. plaint to he amended.
I . Conduct Of .'Alit.
12. Appearance of one of several plaintiff's or defendants for othcrs.
13. Objections as to non-1ointjcr or niisjoincler.

ORDER II am
FRAME OF SUIT
RULES
Frame of suit,
2. Suit to include the w hole claim.
Rclinquishincilt of part of claim.
Omission to sue for one of several reliefs.
3. .Joinder of causes of action.
4 Only cCrtai ii cai ins to he joined lr recovcm'y of Ininioveable property.
5. Claims by or against executor. adninistrator or heir.
6. Power of Court to ordci' scpau'ac trials,
7, . Objections as to nil joi ndcr.

x CONTENTS 111908: Act
ORDER III
RECOGNIZED AGENTS AND PLEADERS
RULES
Appearances, etc., may he in person, by recognized agent or by
U pleader.
2. Recognized agents.
3. Service of process on recognized agent.
4. Appointment of pleader.
5. Service of process on pleader.
6. Agent to accept service
Appointment to he in writing and to he filed in Court.
ORDER IV 117
RULES
Suit to he commenced by plaint..
2. Register of suits.
ORDER V
ISSUE AND SERVICE OF SUMMONS
Issue of Summons
RULES
Summons.
2. Copy or statement annexed to summons.
3. Court may order defendant or plaintiff to appear in person.
4. No party to he ordered to appear in person unless resident within
certain limits.
5 Summons to he either to settle issues or for the ascertainment whether
suit will he contested or for final disposal
6. Fixing clay 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 Su,nnwns
/ Delivery or transmission of summons for service.

908: Act VI CIVIL PROCEDURE CODE XV
.ULES
6. Objections to interrogatories by answer.
7. Setting aside and striking Out interrogatories.
g • Affidavit in answer, tiling.
. Form of affidavit in answer.

No exception to he taken.
I1. Order to answer or answer •further.
I J. Application for discovery of documents.
Affidavit of documents.
Production o Jocuments.
I Inspection of documents referred to in pleading or affidavits.
I f Notice to prduce.
17 Time for inspection when notice given.
181. Order for inspection.
19. Verified copies.
20. Premature discovery.
Non-compliance with order for discovery.
: Using answer to interrogatories at trial.
Order to apply to minors.
ORDER X11 161

ADMISSIONS
WLES
Notice of admission of case.
. Notice to admit documents.
Form of notice.
Notice to admit facts.
Form of admissions.
6.' Judgment on admissions.
7. Affidavit of signature.
g . \Notice to produce documents.

xvi CONTENTS 111908: A'
163
ORDER XIII
PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENT
RULES
Documentary evidence to he produced at first hearing.
2. Effect on non-production of document.
3. Rejection of irrelevant or inadmissible documents.
4. Endorsements on documents admitted in evidence.
5. Endorsements on copies of admitted entries in hooks accounts and
records.
6 Endorsements on documents rejected as inadmisible in evidence.
7 Recording of admitted and return of rejected documens.
Court may order any documents to he impounded.
9 Return of admitted documents.
10 Court may send for papers from its own records or from other courts.
II Provisions as to documents applied to material objects.
ORDER XIV
SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR
ON ISSUES AGREED UPON
RULES
Framing of issues.
2. Issues of law and of fact.
3. Materials from which issues may he 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 by agreement be stated in form of issues./
7. Court, if satisfied that agreement was executed in good faith, lila:
pronounce judgment.
/
ORDER XV
DISPOSAL OF THE SUIT AT THE FIRST HEARING
RULES
Parties not at issue.
2. One of several defendants not at issue.
3. Parties at issue.
4. Failure to produce evidence.

1908: Act Vi : CIVIL PROCEDURE CODE xvii

ORDER XVI 172
SUMMONING AND ATTENDANCE OF WITNESSES
RULES
Summons to attend to give evidence or produce documents.
2. Expenses of witness to he paid into Court on applying for summons.
Experts.
Scale of expenses.
3. Tender of expenses to witness.
4. Procedure where insufficient sum paid in.
Expenses of witnesses detained more than one day.
5. Time, place and purpose of attendance to he specified in summons.
6. Surnriions to produce document.
7. Power to require persons in Court to give evidence or produce
document.
n
8 Summons how served.
9. Time for serving summons.
IC). Procedure where witness fails to comply with summons. I
II. If witness appears, attachment may he 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.
'5. 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 produc&
uocument.
Ke No witness to he ordered to attend in person unless resident within
certain limits.
20. Consequence of refusal of party to give evidence when called on by
Court.
MI Rules as to witnesses to apply to parties summoned.

XVIII CONTENTS 11908: Act V
ORDER XVII 179

ADJOURNMENTS
RULES
I. 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.
ORDER XVIII 18!

HEARING OF THE Suii AND EXAMINATION OF WITNESSES
RULES
I. Right to begin.
2 Statement and production of evidence.
2A. Court may go on with the hearing, although the evidence of the party
having right to begin not concluded.
3. Evidence where several issues.
4. Witnesses to he examined in open Court.
5. How evidence shall he taken in appealable cases.
6. When deposition to he interpreted.
7. Evidence under section 138,
8. Memorandum when evidence not taken down by Judge.
9. When evidence may he taken in English.
10. Any particular question and answer may he taken down.
II / Questions objected to and allowed by 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.

908: Act VI CIVIL PROCEDURE CODE xix

ORDER XIX 186
AFFIDAVITS
RIFLES
Power to order any point to he provcd by affidavit.
2. Power to order attendance ol deponent for cross-examination.
3. Matters to which affidavits shall he confined.

ORDER XX 187
JUDGMENT AND DECREE
RULES
.1 uclg lien t when pronounced.
Power to pronounce Judgment written by Judge's predecessor.
3. Judgment 10 he signed.
4. Judgments of S ma! I Cause Court. p
Judgments of other Courts.
5. Court to state its decision on each issue.
6. Contents (Ii decree.
7. Date of decree.
8. Procedure where Judge has vacated office before signing decree.
9. Decree for recovery or immovable property.
ID. Decree for delivery of moveahie property.
II. Decree may direct payment by installments.
Order, alter decree for payment by installments.
Decree for possession and msne prof-it'.
Vecree in administration suit.
Decree in pre-emption-sltit.
Decree in suit for dissolution of' a partnership.
Decree in suit for account between principal and agent.
Special directions as to accounts.
Decree in suit for partition of property orseparate 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 he furnished.
XX CONTENTS 11908: Act V
194
EXECUTION. OF DECREES AND ORDERS
Payment under Decree..
RULES
Modes of paying money under decree.
2. Payment out of Court to decree-holder.
Courts executing Decrees
3. Lands situate in more than one jurisdiction.
4. I OmitredJ
5. Mode of transfer.
(. Procedure where Court desires that its own decree shall he executed by
another Court.
7. Court receiving copies of decree, etc. to tile same without proof.
8. Execution of decree or order by Court to which it is sent.
9. Execution by High Court Division of decree transferred by other
Court.
Application for Execution
• 10. Application for execution.
H. Oral application.
Written application.
12. Application for attachment of moveable property not in judgment-
debtor's possession.
13. Application for attachment of immovable property to contain certain
particulars.
Power to require certified extract from Collector's register in certain
cases.
15. Application for execution by joint decree-holder.
/
16. Application for execution by transferee of decree.
I
17. Procedure on receiving application for execution of decree.
18. Execution in case of cross decrees.
'9. Execution in case of cross-claims under same decree.
20. Cross-decrees and cross-claims in mortgage suits.
21. Simultaneous execution.
Notice to show cause against execution in certain cases.
23. Procedure after issue of notice.

1908: Act VI CIVIL PROCEDURE CODE xxi
Process for Execution

RULES
24. Process for execution
25. Endorsement on process.
Stay of Execution
26. When Court may stay execution.
Power to require security from, or impose conditions upon judgment-
debtor.
27 Liability of judgment-debtor discharged.
28. Order of Court which passed decree or of appellate Court to he binding
upon Court applied to.
29. Stay of execution pending suit between decree-holder and judgment-
debtor.
Mode of Execution
30. Decree for payment of money.
31. Decree for specific moveable property.
32. Decree for specific performance, for restitution of conjugal rights, or
- for an injunction.
33. Discretion of Court in executing decrees for restitution of conjugal
rights.
34. Decree for execution of document, or endorsement of negotiable
instrument.
35. Decree for immoveable property.
36. Decree for delivery of immovable property when in occupancy of
tenant.
Arrest and Detention in the Civil Prison

37 Discretionary power to permit judgment-debtor to show cause against'
detention in prison.
38. Warrant for arrest to direct judgment-debtor to he brought up.
39. Subsistence allowance.
40. Proceedings on appearance of .judgment-debtor in obedience to notice
or after arrest.
LI
Attachment of Property
41. Examination of judgment-debtor as to his property.
42. Attachment in case of decree for rent or mesne profits or other matter,
amount of which to he subsequently determined.
43. Attachment in case of decree for rent or mesne profits or other matter,
amount of which to he subsequently determined.
XXH CONTENTS 11908: Act V
RULES
44 Attachment of agricu tu ral produce.
45 Provisions as to agricultural produce under attachment.
46 Attachment of debt, share and other property not in possession of
judgment-debtor.
47 Attachment o I share in moveables.
48 Attachment of salary or allowances of public officer or servant of
railway or local authority.
49 Attah iii en t of partners hi p property.
50. Execution ol decree against him.
52. Attachment of property in custody of Court or public olticer.
53. Attachment of decrees.
54. A ttac Ii meni of i m moveable property.
55. Removal of attachment after satisfaction of decree.
56. Order for payment of coin or currency notes to party entitled under
decree.
57 Determination of attachment.
Investigation of Claims and Objections
58 Investigation of claims to. and objections to attachment of. attached
property.
Postponement ol Sale.
59. Evidence to he adduced by claimant.
60. Release of property Irom attach went.
6k. Disallowance of claim to property attached.
62. Continuance of attach ment subject to claim of incumbrancer.
63 Saving of suits to establish right to attached property.
Sale Generally
(.4
F
Power to order property attached to he sold and proceeds to he paid to
person en titled.
65 Sales by whom ColiducLed and how made.
.66 Proc I amati on of sales by public auction.
67. Mode of making proclamation
68. Time ol sale.
69. Aclj ou rn men t or stoppage of sale.
70. Saving of certain sales.
7!. Defaulting purchaser answerable for loss on re-sale.
72. Decree-holder not to hid for or buy property without permission.
1908: Act Vi CIVIL PROCEDURE CODE XXII
RULES
Where decree-holder purchases. amount of decree may he taken as payment.
73. Restriction on bidding or purchase by officers.
Sale of Moveable Property
74. Sale of agricultural produce.
75. Special provisions relating to growing crops.
76. Negotiable instruments and shares in corporation.
77. Sale by public auction.
78. Irregularity not to vitiate sale, but any person injured may sue.
79. Delivery of moveable property, debts and shares.
80. Transfer of negotiable instruments and shares.
81. Vesting order in case of other property.
Sale of !mnwveable Property
82. What Courts may order sales.
83 Postponement of sale to enable udgment.-dehtor to raise amount of decree.
84. Deposit by purchaser and re-sale on default.
85. Time for payment in full of purchase money.
86. Procedure in default of paymtt.
87. Notification on re-sale.
88. Bid of co-sharer to have preference.
89. Application to set aside sale oil
90. Application to set aside sale oil of irregularity or fraud.
91. Application by purchaser to set aside sale on ground of judgment-"
debtor havin g- no saleable interest.
92. Sale when to become absolute or he set aside.
93. Return of purchase money in certain cases.
94. Certificate to purchaser.
95. Delivery of property in occupancy of pudgment 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 immoveable property.
98. Resistance or obstruction by judgment-debtor.
99. Resistance or obstruction by boiw tide claimant.
IOU. Dispossession by decree-holder or purchaser.
101. ik',,.a tide claimant to he restored to possession.
102. Rules not applicable to transferee ide pendente.
103. Orders conclusive subject to regular suit.
XXiV CONTENTS 1.1908: Act V

ORDER XXII 252
DEATH, MARR[AGE AND INSOLVENCY OF PARTIES
Ru LES
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 services.
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 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 suitor give security.
\9/' Effect of abatement or dismissal.
ID, Procedure in case of assignment before final order in suit.
II. Application of Order to appeals.
12. Application of Order to proceedings.
257
WITHDRAWAL AND ADJUSTMENT OF SUITS
RULES
Withdrawal of suit or abandonment of part of claim.
2: Limitation law not affected by fresh suit.
3. Compromise of suit.
Proceedings in execution of decrees not affected.
259
PAYMENT INTO COURT
RULES
I. Deposit by defendant of amount in satisfaction of claim.
2. Notice oldeposit.
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.

1908 Act VI CIVIL PROCEDURE CODE xxv
ORDER XXV 261

SECURITY FOR COSTS
RULES
When security For costs may be required from plaintiff.
Residence Out of Bangladesh.
2. Effect of failure to furnish security.
• ORDER XXVI 26:
'COMMISSIONS
Commissions to Examine Witnesses
RULES
I. 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 Bangladesh.
6. Court to examine witness pursuant to commission.
7. Return of Commission with depositions of witnesses.
g . When depositions may he read in evidence.
Commissions for Local Investigations
9. Commissions to make local investigations.
10. Procedure of Commissioner.
Report and depositions to he evidence in suit.
Commissioner may he examined in person.
Commissions to examine Accounts
II. Commission to examine or adjust accounts. t
12. Court to give Commissioner necessary instructions.
Proceedings and report to he evidence.
Court may direct further inquiry.
Commissions to make Partitions
13. Commission to make partition of immoveable property.
14. Procedure of Commissioner.
General Provisions
IS. Expenses of Commission to he paid into Court.
16. Powers of Commissioners.
XXVI CONTENTS 11908: Act V
RULES
17 Attendance and examination of witnesses before Conimissioner.
Is Parties to appear before Commissioner.
Commissions issued at the instance 0/ Foreign Tribunals
l) Cases in which High Court Divisions may issue Commission to
examine witness.
20. Application for commission.
21. To whom commission
ission ni ay he issued.
Issue, execution and return of comnhissions, and transmission ot
evidence to foreign Court.
ORDER XXVII.
SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS
IN THEIR OFFICIAL CAPACITY
RULES
Suits by or against Government.
Pci-sons autliorizeci to act for Government.
3. Plaints in suit by or against Government.
4. Agent for Government to receive process.
5. Fixing of day for appearance on behalf of Government.
(.). Attendance of ' person able to answer questions relating to suit against
G ) y e ri me lit.
7 Extension of time to enable public officer to make reference to
Government.
Procedure in suits against public officer.
No security to he required from Government or a public officer in
t certain cases.
Omitted I
ORDER XXVI1A 1 273

SUITS INVOLVING ANY SUBSTANTIAL QUESTION AS TO 'THE INTERPRETATION
OF CONSTITUTIONAL LAW
RULES
Notice to the Attorney General.
2. Court may add Government as party.
3. Costs when Government added as party.
4. Application of Order to appeals.
1908: Act V] CIVIL PROCEDURE CODE xxvi
ORDER XXVIII
SUITS OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN
RULES
I . 011ice is, soldiers, sailors or airmen who Cannot obtain leave may
authorize any PCISOfl 10 SUC or defend for them.
2. Person so authorized may act personally or appoint pleader.
3. Service oil so authorized, or on his pleader, to he good service.
275
Suits b y or Against Corporations
RULES
1. Subscription and yen iiçation pf pleading.
2. Service oil
3 Power to require personal attendance 01 0 Uiccr of'corporation.
ORDER XXX 276

SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS
IN NAMES OTHER THAN THEIR OWN
RULES
1. Suing of partners in narn of jim. t
2. Disclosure of partners' names.

3. Service.
4. Right of suit on death of partner.
5. Notice in what capacity served.
6. Appearance o[ partners.
7. No appearance except by partners.
8. Appearance under protest.
9. Suits between co-partners.
I 0. Suit against person carrying on business in name other than his won.

XXVIII CONTENTS 11908: Act
ORDER XXXI 280

SUITS BY OR AGAINST ThUSTEES,. EXECUTORS AND ADMINISTRATORS
RULES
I. Representation of beneficiaries in suits concerning property vested in
trustees, etc.
2. Joider of trustees, executors and administrators.
3. Husband of married executrix not to join.
291
SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
RULES
Minor to sue by next friend.
2. Where suit is instituted without next friend, plaint to be taken off the
Ii Ic.
3. Guardian for the suit to he appointed by Court for minor defendant.
4. Who may act as next friend or he 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.
9. Retirement of next friend.
9. Removal of next friend.
10. Stay of proceedings on removal, etc. of next friend.
H. Retirement, removal or death of guardian for the suit.
l2. Course to be Followed by minor plaintiff or applicant on attaining
majority.
13. Where minor co-plaintiff attaining majority desires to repudiate suit.
14. Unreasonable or improper suit.
IS. Application of rules to persons of unsound mind.
16. Saving for Princes and Chiefs.

1908: Act VI CIVIL PROCEDURE CODE XXIX

ORDER XXXIII 28$
Sthis BY PAUPERS
RULES
Suits may he instituted in finina pauperis.
2. Contents of application.
3. Presentation of application.
4 Examination ol appi leant.
IF presented by agent, Court may order applicant to he examined by
commission.
5. Rejection of application.
6. Notice of day for receiving evidence of applicant's pauperism.
7. Procedure at hearing.
8. Procedure if application admitted.
9. Dispaupering.
10. Cost where pauper succeeds.
I. Procedure where pauper fails.
I IA. Procedure where pauper suit abates.
12. Government may apply for payment of court-fees.
13. Government to he deemed a party.
14. Recovery of amount of court- fees.
IS. ' Refusal to allow applicant to sue as pauper to bar subsequent
application of like nature.
16. Costs.
1..
SUITS RELATING TO MORTGAGES OF IMMOVEABLE PROPERTY
RULES t
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.

xxx CONTENTS 11908: Act V
RULES
S. Final decree in redemption suit.
Recdvery of balance due on mortgage in suit for redemption.
9. Decree where nothing is found due Or where mortgagee has been
overpaid.
Costs ol mortgagee subsequent to decree.
Payment of interest.
Sale of property subject to prior mortgage.
Application o I proceeds.
Suit for sale necessary for bringing mortgaged property to sale.
Mortgages by the deposit of title deeds and charges.

ORDER XXXV 307
INTERPLEADER
RULES
Plaint in in terp leader-suits.
Payment of thing claimed 11W Court.
3 Procedure whcre defendant is siting plaintiff.
4 Procedure at first hearing.
5 Agents and tenants may not institute i.ntcrpleader-suits.
6 Charges for plaintiff's costs.

ORDER XXXVI 309
SPECIAL CASE
RULES
I. Power to state case for Court's opinion.
2. Where value of subject-matter must be stated.
3. Agreement to he filed and registered as suit.
4. Parties to he subject to Court's jurisdiction.
5. Hearing and disposal of case.
190: Act V CIVIL PROCEDURE CODE XXXI
ORDER XXXVII 31
SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS
RULES
Application ol Order.
7 Institution of summary suits UPOfl hills of exchange etc.
3. Defendant show ng defence on merits to have leave to appear.
4. Power to set aside decree.
5. Power to order bill. etc., to he deposited with officer ol Court.
6. Recovery (II costs ()I tinting non-acceptance of dishonoured bill or note.
7. Procedure in suIts.

ORDER XXXVIII 3,3
ARREST AND ATTACHMENT BEFORE JUDGMENT
Arrest beftre-Judgment
RULES
Where defendant may he called U0fl to furnish security for
appearance.

7 Security.
3. Procedure on application by surety to he discharged.
4. Procedure where defendant fails to furnish security or find fresh
security.
Attachment before Judgment
5. Where defendant may he called upon to furnish security for production
o f property.
6. Attachment where cause not shown or security not furnished.
7. Mode o I , making attachment.
1!
8. Investigatton 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.
I. Property attached before judgment not to he re-attached in execution of
- decree.
12. Ag ricultural Produce not attachable before judgment.
13. Snial I Cause Court not to attach immoveable property.
xxxii CONTENTS [1908: Act V

•
ORDER XXX VIX
320
TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary Injunctions
RULES
Case in which temporary injunction may he granted.
Injunction to restrain repetition or continuance of breach.
3. Before granting injunction Court to direct notice to opposite party.
4. Order for injunction may he discharged, varied or set aside.
5. Injunction to corporation binding on its officers.
Interlocutory Orders
6. Power to order interim sale.
7. Detention, preservation, inspection, etc, of subject matter of suit.
8. Application for such orders to he after notice.
9. When party may he put in immediate possession of land the subject-
matter ol suit.
10. Deposit of money, etc. in Court.
325
APPOINTMNT 'OF .RECEIVERS
RULES
I. Appointment of receivers.
2. Remuneration.
3. Duties.
4. Enforcement of receiver's duties.
5. When Collector may he appointed receiver.
1
'ORDER XLi: •. •
APPEALS FROM ORIGINAL DECREES
RULES
I. Form of appeal
what to accompany memorandum.
Contents of memorandum.
2. Grounds which may he taken in appeal.
3. Rejection or amendment of memorandum.
1908: Act Vi CIVIL PROCEDURE CODE XXXIII
RULES
4. One of several plaintiffs or defendan'ts 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. [Repeated].
8. Exercise of powers in appeal from order made in execution of decree.
Procedure on Admission of Appeal
9. Registry 91 memorandum of appeal.
Register of Appeals.
10. Appellate Court may require appellant to furnish security for costs.
Where appellant resides out of Bangladesh.
II. 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.
'5. Contents of notice.
15 A.
Procedure on Hearing
16. Right to begin.
17. Dirnissal of appeal for appellant's default.
Hearing appeal exparte.
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 he
made respondents.
2!. Re' hearing on application of respondent against whom ex parte decree
Ill ade.
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.

XXXIV CONTENTS [1908: Act V
RULES
24. Where evidence on record sufficient, Appellate. 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.
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.
35. Date and contents of decree.
Judge dissenting from judgment need not sign decree.
36. Copies of judgment and decree to he furnished to parties.
37. Certified copy of decree to be sent to Court whose decree appealed
from.
\APPEALS FROM APPELLATE DECREES
RULES
Procedure.
APPEALS FROM ORDERS
RULES
Appeals from orders..
2. Procedure.
190: Act V CIVIL PROCEDURE CODE XXXV
ORDER XLIV 1 349
PAUPER APPEALS
RULES
I. Who may appeal as pauper.
Procedure on application for admission of appeal.
2. Inquiry into pauperism.
ORDER XLV
APPEALS TO THE APPELLATE DIVISION
RULES
I. "Decree" defined.
2. Application to Court whose decree complained of.
3. Certificate as to value or fitness.
4. Consolidation of suits.
5. Remission of dispute to Court of first instance.
6. Effect of refusal of certificate.
7. Security and deposit required on grant of certificate.
8. Admission of appeal and procedure thereon.
9. Revocation of acceptance of security.
9A. Power to dispense with notices in case of deceased parties.
10. Power to order further security or payment.
II. Effect of failure to comply with order.
12. Refund of balance deposit.
13. Powers of Court pending appeal.
14. Increase of security found inadequate.
IS. Procedure to enforce orders of the Appellate Division.
16. Appeal from order relating to execution.
17. [Omitted.
ORDER XLVI 1. 355

REFERENCE
RULES
I. Reference of question to High Court Division.
2. Court may pass decree contingent upon decision of High Court
Division.
XXXVI CONTENTS 11908: Act V
RULES
3. Judgment of High Court Division to he transmitted, and case disposed
of accordingly.
4. Costs of reference to High Court Division.
5. Power to alter, etc., decree of Court making reference.
6. Power to refer to High Court Division 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.

ORDER XLVII 357
RE1EW
RULES
Application for review of judgment.
2. To whom applications for review may he made.
3. Form of application 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
RULES
L Process to he served at expense of party issuing.
Costs of service
2. Orders and notices how served.
3. use of forms in appendices.
1908: Act Vi CIVIL PROCEDURE CODE xxxvii
ORDER XLIX 362

HIGH COURT DIVISION
RULES
I. Who may serve processes of High Court Division.
2. Saving in respect of High Court Division.
3. Application of rules.
• ORDER .• .•
SMALL CAUSE COURTS
RULES
1. Small Cause Courts.
ORDER LI —[Omtttedj 363

XXXVHI CONTENTS [1908: Act V
SCHEDULES
THE FIRST SCHEDULE— RULES OF PROCEDURE
364
APPENDIX A-
Pleadings

APPENDIX 399
Process
PPENDJXC- .- 410
Discovery, Inspection and Admission

APPENDIX 415
Decrees
450
APPENDIX F_
Execution
APPENDIX F—
Supplemental Proceedings
APPENDIX G—
Appeal, Reference and Review
APPENDIX
Miscellaneous
THE SECOND SCHEDULE - [REPEALED]

APPENDIX - FORMS
THE THIRD SCHEDULE —EXECUTION OF DECREES BY COLLECTORS 495
THE FOURTH SCHEDULE —ENACTMENTS AMENDED [REPEALED] 499
THE FIFTH SCHEDULE - [REALEDI 499

1908: Act VI CIVIL PROCEDURE CODE XXXIX
TABLE OF CASES
• A
A. Milton & Co. -vs- Ojha A.E. Co., 91
Abdo -vs- Muzafftr, 37
Abdul Aziz -vs- Abani Mohan, 253
Abdul Aziz vs- Ahani Mohan, 255
Abdul Gani Being dead his heirs Md. Harunur Rashid and others -vs-Raja Mia and others, 9
Abdul Hakim -vs- Ganendra Nath Bashu Roy, 102
Abdul Hakim -vs- Sacluiiah Khan, 1/2
Abdul Hamid -vs- Abdul Jabbar, 94
Abdul Hamid -vs- Abdul Jabbar, 94
Abdul Hamid -vs- Nazrul Islam Chowdhury. 75
Abdul Hsheni -vs- Sale Ahmed, 108
Abdul ia/il Munshi —vs- Abu Bakar Siddique, 321
Abdul Karim Abu Ahmed Khan Ghaznavi -vs- The Ailahabad Bank Ltd.., 2
Abdul Majid -vs- Sheikh, 71
Abdul Manna,,. -vs- Akramn Ali, 83
Abdul -vs- Amin, 318
Abdul -vs- Bullen, 205
Abdul -vs- Egga.r, 282
Abdul -vs- Hem, 359
Abdul -vs- Hrishikesh, 172
Abdul -vs- Mohini, 34
Abdul -vs- Nur, 316
Abdul -vs- Nur, 3/7
Abdul -vs- Satya, 300
Abdul -vs-Susi, 258
Ahc/ur Rahim -vs- Barkat, 70
Abdur Rahman & ors -vs- Sultan and ors., /
Abc/ur Rahman Sikda.r -vs- Kaiidas Basu, 43
Abdur Rout -vs- Abdul Hamid Khan, 13
Abu Mozajftir Mutwaili -vs- Sasanka Sekhor, 322

Abu Saber Aziz Mohammad and others -vs- Government of Bangladesh frnd others, 109
Abul Bakar Siddique -vs- Additional Deputy Commissioner and others, 83
Abui Bather Chowdhury -vs- Mehaf Khatun, 82

xl TABLE OF CASES [1908: Act V
ACC Ltd. -vs- Pakistan., 63

Adaikappa -vs- Chandra Sèkhara, 8
Aga Md. -vs- Cohen, I/
Ahmed Musaji Sale/i and others -vs- Hashin Ebrahini Saleji and ors., 8
Ahmed Musaji Sale/i and others -vs- Hashin Ebrahim Sale/i and ors. 8
Ali.,n.ed -vs- Abdul, 106
Ahmed -i's- Hashi,n, 75
Aidal -vs- Khazan., 48
Akhil -vs- Man.niatha, 55
Akhoy -vs- Surendra, 200
Akhtaruzzanzan and another -i's- Hahihuiiah and others, 109
Ak.vha)' -vs- Surendra, 256
Aldridge -vs- Barrow, 104
Alkn Mia and others -vi- Government of the Peoples Republic of Bangladesh, 153
Ali Begum -vs- Badrul Islam, 70
Ali Begum -vs- Badrul Islam, 70
Ali Mondal -vs- Ghu/ani Ban, 100
Alkama -vs- S)'ed, 325
Allah -vs- Kara,n, 207
A/tap -vs- Jamsur, 333
Amal Kumar Mitra -vs- Md. Mashiur Rahman., 108
Arnan -vs- Nancan, 284
A,nhika Raujan. Majumder -vs- The Manikganj Loan. Office Ltd., 36
A,nir vs- Ahmed, 331
Amiya -vs- Province-of East Pakistan, 63
Anijya -vs- Province of East Pakistan, 63
Ainjad -i's- Ali, 323
Amtul -vs- Muhammad, 259
A,nu1'a -vs- Ananda, 323
Anan.da vs- Upen.dra, 283
Anandapri)'a -vs- Bqoy, 195
A nnadarao -vs- Ramdas, 70
An.nadarao -vs- Ramdas, 70
Anna,nalai -vs- Thornhill, 17
A nukul -vs- Province of Bengal, 105
Appa -vs- Venkappa, 246
Ardeshir -vs- Flora Sassoon, 133
1908: Act V] CIVIL PROCEDURE CODE xli
Ardeshir -vs- Himi, 68

Asad -us- Mohammad, 325
Asan -vs- Sarocla, 67
Ashabai -us- Haji Tyeh, 113
Ashutosh Roy Chowdhury -us- Gunamian, 194
Ashutosh -vv- Secretary of State, 177
Asi,n -vs- Ral, 93
Asutosh vs- Behari, 306
A.vutosh -vv- Upendra. 94
Attor Mia -us- Mst. Mahrnuda Khatun Chowdhury, 83
And ba/a Dasi -vs- Nii'upaina Dasi, 101
Aziz -vs- Ka.niz, 34 A 490, Btjai -vs- Raghunath, 53
Azizallah -vs- Court of Wards, 102
Azizur Rahinan vs- The Barnw Oil Co. 342
Aziz-ur -vs- Ali Raza, 195
RI
B.N. Railwa y -vs- Behari, 338
Babanna. -vs- I'aravcj, 148
Badri -vs- Chokke,3/6
Badri -vs- Dhcir,nada.s, 41
Bahadur us- Jotindra, / 7
Bahir vs- Nabin, /70
Baijnath -us- Benovendra, 236
Baishnab -us- Bank of Bengal, 278
Baiaji -us- Ganesh, 244
Balaram -us- Mangta, 328
Baikishen -us- Choudhurv, 283
Blinakun.cI -us- San.gari, //I
Balmukunci -vs- B.N Ry, 189
Baniacharan. us- Gadadhar, 153
Bandhu -vs- K. T Bank, 41
Bandi -us- Madalapaui, 339
Bangladesh Jativa Samabava. Bank Ltd. -vs- Dail y Sang had newspaper, and others, 41
Bangladesh Shilpa Bank -us- Bangladesh. Hotels, 101
Bangladesh -us- Abdul Wadud & others, 62
Bank of Bengal -us- Lucas, 4/
xlii TABLE OF CASES [1908: Act V
Banka -vs- Abdul. 246

Banshi -i's- Majaharudclin.. 96
Ban ski har -vs- Ratan.la/, 359
Ban.wari -vs- Sa,nman, 338
Baruram -i's- Upendra, 243
Basangowda. -vs- Churchig irigowda, 100
Basa.n.ta -i's- La/a, 276
Basaratulicih -vs- Reazuddin, 93
Bash iruliah Munshi -vs- Abdul Bari Bepari, 14
Basin -i's-. Hafiz. 244
Basiruddin -vs- Saradindu, 35
Baza vet Hossain -i's- Dooli Chand, 44
Bazlur Rahmcin. Bhuiyan -vs- B. S. Corporation, 102
Beer Chun.der -vs- 1.vhan. áiunder, 65
Begg Dunlop & Co. -vs- Satish., 321
Begg Dunlop and Co.-vs- Jagann.ath Marwa.ri, 35
Bene -vv- Matungini, 189
Bengal P & I Co. -i's- Kamini, 22
Benira.m -vs- Rain/al, 281
Beno" -vs- Satis, 325
Bepin -vs- Abdul. 151
Bepin. -is- Jogencfra, 14
Bhadreswar Coal Co. -i's- Satish, 276
Bii.ag wan -vs- Nilkanta, 256
Bhagwat -i's- Debi, MA 218; Kazi -i's- Kazi, 172
Bhagwat -i's- Sheogolam, 330
Bhagwati -vs- Bindeshri, 112
Bhagwati -vs- Madan, 44
B/win ram -vs- Anil,ika, 360
Bhairah -vs- Kali, 339
Bharat -i's- Ku-an., /92
Bhul,aneswa.ri -i',v- Nilcomul, 31
Bhu.kh.i -i's-Rain Khe/awan., 133
Bhupen.dra -i's- Jatind,-a, 242
Bhupendra -i's- Rajeswar, 108
Bhupendra -vs- Trinayan.i, 73
B/i utnath -i's- Sarhimukhi, 344
1908: Act Vi CIVIL PROCEDURE CODE xliii
Bibi Mutto -vs- 1/ahi, 153

Bid yad bar -vs- Man incfra, 35
Bindeswari Prasad -vs- Debendra I'rasad, 100
Bipin -vs- Abdul. 148
Bipin -vs- Jogendra, 333
Birdichand -vs- Badesah.eh, 198
Birhen,nun -vs- L.M. Bank, 239
Bisheswar -vs- Ambika, 318
!?i,vwa.,nhhar -vs- Aparna., 58
Bit/al -vs- Nand, 58
Bose & Co. -vs- A lien. Bros, 259
Bra jabala -vs- Gurudas, 246
Bra jãhala -vs- Gurudas, 246
Bridges & Co. -vs- Somas Din & Co., 278
Brij Inc/ar -vs- Jai Inc/ar, 326
Brij Inder -vs- Kanshi, 339
Brijhukhan -vs- Tota, 97
Brijra/ -vs- Manaranja.n, 44
British Commonwealth Ins. Co. -vs- Haji Adam Huh, 27
Budclree -vs- Chooni, 70
Bugha -vs- Rant, 244
Bvkanr -vs- Rajendra, 58
C
Calico P.A. Ltd. -vs- Jeevanram, 261
Casperz -vs- Kishori, 338

Cas.vamaily -vs- Curre,nbhoy, 16
Cecil We/don Andrew -vs- Helen. Andrew, 341
Chajrna/ -vs- Dha rant, 203
Chaln.a Fibre Co. -vs- Abdul Jabbar, 13
Chaloth -vs- Saidindavide, 36
Chandra Kumar lvi ukhapadht'a -vs- Shudhansu Badani Debi, 102
Chandra -i's- Monoha.r, 31
Chandra -us- Prasanna, 136
Chandra -vs- Si.uihagshu, /01
Chandraniani -vs- Anarjan, 244
Chandrc,mathi -vs- Naravwzsa,nj, 181
xhv TABLE OF CASES [1908: Act V
Chan.c/rika -i's- Hira,3 16

Charan. -vs- Ainir, 133
Chartered Bank -vs- Imperial Bank, 134
C/wrtIrbh.uj -vs- Basdeo, 330
Chett)'ar Firm -vs- C. F., 53
Chha/uram -vs- Neki, 357
Chi,nawa -i's- Gangawa, 146
Chirajdin -i's- Samnancla, 336
Chotteylal -i's- Lakshmnj, 24
Chowdhurv -vs- Midnapore Zeniindar)' Co., 14
Ch!.(ndy -vs- Abbas, 282
Clark -i's- Alexander. 53
Clark -vs- Alexander, 58
Co-operative H. Bank -vs- Surendra, 338
Crc wd,ron -vs- Ganesh, 29
Cri -vs- V/at.von., 19
Dagdu -i's- Chandrabhan, 332

Dagunath -vs- Bjswambhar, 98
Dake.vhu.r -vs- Rewat, 282
Damodar -us- Kittappa, 355
Damodar -vs- I,vivar, 52
Darasatu I/a/i -i'.r- Man ik Mondal, 83
Dattatreya -i's- Radhahai, 6
Da)amnove -vs- Sarat, 243
De/jendra -vs- Ra,nratnn, 294
Debenc/ra vs-Na m'endra, 108
Deevendra -i's- I'm'adumnnva, 195
Dharani -i's- Kshitipati, 47
Dhirenclra -us- Karnini, 242
Dhoron,ev -i's- Rat/ha, 323
Dhunji -i's- Fforde, 22
Dik/ar Ahmed Chowdhurv -us- Farroque Ahm.ed, 69
Dildar -i's- Bhawani, 3()
I)in.obandhu -i's- Joçmnava, 53
District Board Tippera -i's- Saraftit Ali, 126
1908: Act VI CIVIL PROCEDURE CODE xlv
District Board Tipperah -i's- Sara ftLt Au, 123

Doorça -vs- Nittokallv, 28$
Dr Ahad Au Khan -vs- Enavet Uu/áh Mondal, 222
Drab -vs- Executors, 54
Durga. -vs- Ba/want, 234
Durç'a -vs- Bhagwandas, 55
Durga -vs- Jawa.hir, 81
.Durga -vs.. Na/in, 316
Durgada.v -.vs- Na/in, 321
Dull -vs- Shanisuddin, 153
Dutta. -vs- Shamsudc/in, 180
Dwar -vs- Fatik, 199
E
East Indian Rai1wa' Co. -vs- fit Mat, /00
Emanuel Grech -vs- Antonio Grich, 339
Enatullah -vs- Jihan, 181
Ershaci Ali -vs- Sved Azizul Huq, 9
Eshaque Ali How/cider -vs- Jahangir Alain Matbar, 79
F
Faizunnessa -i's- Go/am, 70
Fakarudc/in and another -vs- Sri Sri Kaliniata. Bi rahe and
Fateh -vs- Jitmnu, 36
Favaz -vs- Prag, 54
Federation of Pakistan -vs- Shamsul Hi.ida, 62
Firm M.S.M.M. -vs- Mg. Scm, 91
Firm of Harchand -vs- Rain, 14.9
Firm -i's- Rambahadur, 168
Eu/i —vs- Khokai, 28/
G
(;ai,tcl -vs- Rac/he, 338
Gaisuddin Ahmed -vs- Province of East Pakistan, 322
Gajadhar -vs- A,'nbika, 134
Gaistaun -vs- Dinshaw, 40
Gaistaun. -vs- Sassoon & Compan y 102
xlvi TABLEOFCASES [1908: Act V
Ganesh -vs-. Ban wary, 228

Gan.pat -vs- Jivan, 358
Garibuilah -vs- Modha, 266
Gaya I'd -vs- Ram.ji, 32
Genu -vs- Sakha raIn, 234
Ghisulal -vs- Gumbhir,nall. 278
Ghu lam -vs- Dinona.th. 53
Ghuznavi -vs- Allahadhad Bank, 339
Giribala -vs- ChancIer, 106
Girihala -vs- Mina Ku,na.ri, 203
Girihala -VS- I'roka.rh, 323
Girin.dra -vs- Kedar, 58
Girish -vs-Sasi, 336
Gohin.da -i's- Ahho', 244
Gohinda -vs- Kunja, 187
Gokul -vs- Pad,nanund, I
Gokuidas -vs-Gan.eshial, 121
Golain Nahi -vs- Mohamniadul Hoque Chowdhurv, 102
Goldberg -vs- Sarojin.i, 314
Gopai -vs- Harinioh.on, 94
Gopal -vs-E., 314
Gorach.and -vs- Profuila, /96
Gorachand -vs- Prafu//a, 36
Goswa,ni -vs- Raman, 76
Gour -vs- Hem. 200
Gouri Shan.ker -vs- Kasi Prasad, 52
Gouri -vs- Mt Man.ki, 129
Govind -vs- Deben.dra, 22
Govjnda -vs- Dwarka, 258
Gur Pac.ia -vs- G., /04
Gur Prasad -vs- Gur Prasad, 113
Guran -vs- Rain, 81
Gurdeo -vs- Chandrika. 294
Gurudas -vs - Deputy Custodian, Enemy Property, 63
Gurudar -vs- Deputy Custodian, Enemy Property, 63
Guruda.s -vs- Ganendra, 36
Guruda.r -vs- inanendra. 196
1908: Act V] CIVIL PROCEDURE CODE xlvii
Gurudwara & C. -vs- Shiv Rattan, 13

Guruniurthe -vs- Ran,aswami, 327
Gvanoda -vs- Butto, 292
H
H. M. Sava & Co. -vs- Wazir Ali Industries, 75
Habib -vs- Samuel Fitz & Co., 279
Hahihuila vs- Abtia, 325
Hal,ibuilah Khan -vs- Shah Ashrafuc/din Ahmed and others, 31
Hafizuddin Sarkar -us- Bangladesh, 17
Haidarul/ah -us- Ga/indha Sukiahaid)'a, 106
Haji Ahul Quaseni -us- Abc/ar Rahmcin Adam, 242
Haji AbuI Quase,n -us- Abc/ar Rahnian Adam, 51
Haji Abul Quasein -vs- Abdur Rahman. Adam, 53
Haji Md. S/ia riarullah -vs- Asrafiuz Nessa Bihi and Ors. 33
Hciji -vs- Haji, 259
Hajon -vs- Bur Singh, 64
Hakim -vs- Gan.ga, 29
Huli/,c,lali -us- Latta, 338
Har Narai,,. -vs- Sac/ha, 331
Ha,-a -vs- Bei,in, 16
Harachanc/ar -us- La/ Bahaclur, 19
Ha.rakuniar -vs- Jagat, 73
Haran Chandra Daradi -vs- Ejahar Mo/ia, 79
Haran Chandra Daradi -us- Ejhar Mo/ia, 339
Harbhagat -vs- Sheonandan, 58
Harc/asi -vs- Gadaclhar, 333
Harc/eo -us- Huka,n, 190
Harendra -us- .Haric/a.si, 351
Harendra -us- Puma, 104
Hargo -us- Chanc/u, 247

Hari Pandurang -us- Secv of State, 322
Han -i's- Joy, 120
Han -us- Mahomecl, 145
Harihandhu -vs- Harimohan, 276
Haribandhu -us- Hanimohan., 279
Han band/ia -vs- Han nw/ion, 35
xlviii TABLEOFCASES [1908: Act V
Haricharan -vs- Manni.atha, 93

Hc,rihar -vs- Be/ny, 153
Harih.ar -vs- Ranishashi, 120
Harinath. -vs- Ram.kurnar, 261
Harirani -i's- Lcilhai, 262
Har,ney Ali & Ors -vs- Mafiz Ali & Ors., 74
Hati Pratihari -vs- Alekh, 99
Hayatunnessa -vs- Ashia, 41
Hazari Da.s -vs- Daiha Charan Mandal, 121
Heeren.drci. -vs- Dheerendra, 1/7
Heercn.i/ra -vs- Dhirendra, 14
Heniangini -vs- Bhag wati, 284
Henianta Kuniari -vs- Midnapur Zam.indarv Co. 258
Heruchandra -vs- Naren.dra, 210
Hemendra -vs- Pro kash, 325
Henilata -vs- Bengal Coal Co. Ltd., 95
Hetram -vs- Shadira,n, 294
Hida y hia Textile Mills Ltd. -vs- Allied Bank, /
Hinga -i's- Munn.a, 171
Hira -vs- Ka.stur, 42
Him/al -vs- Narsila.l, 29
Hoshang -vs - Eddie, 63
Hriday -vs- Akhil, 275
Hukwn -vs- Ka,naian.and, 330
Hukuni Cliand -vs- Kanwlanand, 98
Hukurn Chand -vs- Karnalanand, 98
Hukuni Chand -vs- Kainalan and, 99
Hurrisli -vs- Kalisun.dari, 199
Hurronath -i's- Krishna, 14 C 147, 6
I
I. G. S. N & Co. Ltd. -i's- Lalniohan, 275
I. C. Cnrn.pagnie -vs- Mehta & Co., 277
I.C.C. Coinpagnie -vs- Mehta & Co., 279
Ibrahim -vs- Abbas Sheikh, 342
Ibrahim -vs- Ran/adu, 246
Imani Sharif -vs- Abdul Mannan, 210
1908: Act VI CIVIL PROCEDURE CODE xlix
In ,-e-Brenhik/a -vs- B.LS.N. Co. 188

Inavet -vs- U,nrao, 207
Indar -vs-Mewci.IaI, III
/n.c/rajit -: Pratap, 358
/nciubhusan -vs- Harkha ran, 246
Indur -vs- Raclha, 328
Injad -'is- Mohini, 339
J
Jaflerji -i's- Mivadin, 246
Jagaclis -vs- Debebn.dra, 326
Jagadis -vs- Debendra, 326
Jagadish -vs- Bhuban.esh war, 306
Jagannath. -vs- E. 205
Jagannath -vs- Ganesh, 230
Jagarinath -vs- Kacnta I'arsad, 96
in bar -vs- Ka,nini Debi, 35
Jai Berharn -vs- Kedar, 94
.Iairani -vs- No. wroji, 246
Jamalucidin -vs- Mu/tahar, 71
.larnalucldin -vs-Rabeva Beguni. 108
Januruddin Sakh ic/ar -vs- Raufiw. Nessa Bibi, 93
Janaki -vs- Prcunatha, 78
Janardan -vs- Nilkantlz, 331
Jan.kiram her -vs- Nilakanta /yer, 99
Jashi,nuddin. Kanchc,n -vs- Md. Ali Ashraf 83
Jatin.cira -vs- Srinath, 282
Ja.wahir -vs- Fateh, 338
Jihan -vs- Ramesh, 258
Jitendra -vs- Ashoke, 323
Jnannen.dra Sunciari -vs- Nara)'an Ch.. Sam/ar, 234
Jociha -vs- Goka ran, 300
Jogen.cira -vs- Doorça, 290
Jogendra -vs- Durga, 289
./ogen.dra -vs- Durga, 290
Jogenc/ra -vs- Durga, 291
Jorencira -vs- Sb yarn, 200
a
I TABLE OFCASES [1908: Act
Jog endra -vs- Wajidunnessa. 33

Jamal ul4ondal -mv- Jahar All Khan, 96
./udabenclra -vs- Ga lent/ru, 266
Jung -vs- Bank of VI, 43
Jura wan. -vs- Mahahir, 41
Ju.vtain -vs- ['au/i. 30
Jvotivh -vs- Hur, 318
K
K.B. Haji Badi Ah,n.etl Chowdhurv -vs- An,iruzzanian., 226
Ka/ciin Ros,.i/ Silicate -i's- Son.ali Bank, 29
.Kaiiash -vs- Nawadwip, 147
Kajah -vs- Soleinon, 201
Kali -i's- Bihhuti, 35
Kaliappan vs- Varadarajulu, 33 M 75, 45
Kalicharan -vs- Survakuniar, 99
Kalidas -i's- Prasanna, 230,
Kalipada Saha -i's- Nityanada Saha, 244
KaIi1,ada -vs- Basanta, 244
Kali1,ada -us- Basanta, 299
Kalipa/a -vs- Ba,van.ta, 96
Ka/ipac/a -i's- Charu/ata, 14
Ka/ipac/a. -us- Dino, 34
Kalipada -us- Han, 35
Ka/liani -vs- Mutahil, 291
Kalvan. -vs- Maqhul, 29
Kaini,, i -vs- Pru,natha, 28
Kanni La! Kripasan.kar -i's- Shah Mahniucl Patwari, 58
Ka,iai La! Kricisaiikar -us- Shah Mahniud Patwari, 58
Kanshi -us- K.. 48
Karam -vs- Ku,,. war, 85
Karnatullu Traders Ltd. -vs- Joya Engineering Corporation., 317
Kavh'i' -vs- Sarhanant, 230
Kasini. -i's- Johu,null, 153
Kath'u,n,nu -vs- Muhammad, 358
Kedar -mv-
Chandra, 28
Kedar -vs- Go/am. 102
1908: Act V] CIVIL PROCEDURE CODE Ii
Kedar -vs- Hara, 256

Ke,rar Mal, -vs- N. K. V. Valiappa Chetiar, 341
Ke,rhardo -vs- Radhakishen, 99
Kesri -vs- National Jute Mills Co., 149
Kessowji -vs- G. I. P R, 341
Khan Sher Dii Khan -vs- Sir Abdul WadudMia, 66
Khan. -125- Ali, 326
Khodui -vs- Harihar, 34
Khoka -vs- Ramchandra, 316
Kiran,naii -vs- Rwnanath, 258
Ki,van -vs- Rachappa, 134
Kishen -vs- Durga, 16
Kishorechand -vs- Madhowji, 145
Kissen -vs- SukIal, 255
Krishna -vs- Hem., 321
Krishna vs- Manindra, 340
Krishna -vs- Muhammad, 105
Krishna -vs- Pachiappa, 133
Krishna -vs- Raja, 33
Krista -vs- Pancharitm, 181
Kslietra -i's- Gnu,', 96
Kumar Ram. Nara van Ro y Chowdhury and another-vs- Sonatanessa Bibi and others, 60
Kumn.ud -us- Jatindra, 22
Kuipi.mswaini -vs- Zaminda,; 304
Kutu/,uddin -us- Go/am, 187
Kviasa -i's- Rarnasami, 244
L
La( ha -i's- Virji, 22
Larhman. -vs- Ram, 187
Lach,ni Narain -vs- Bal,nukund, 300
Lakh,n.ichand -us- Kuchuhhat, 99
Lakshni u,.ara,n -vs- Ba/ni ukun.d, ISO
La/a C/ic! -i's- Ram Pal, 153
La/a -i's- Mina, 216
La/it -vs- Satisli, 288
Lnlitc,s'Ii war -i's- Ranieshn 'a ,', 134
Iii TABLE OF CASES [1908: Act V
LolmaAi -i's- Chititamani, 30

li4mohon -vs . Dhupi,. /6
-vs- Nand, 151
Latchman -vs- Madan, 34
Latchman-vs- Madan, 34
M.
M. A. Hakim -vs-- Bho/anath Sen, 24
Mix. M. M. Ispahani -vs- Sonali Bank, 29
Ma Shwe Mya -vs- Mg. Po., 133
IvThbia -vs-Sheikh, 288
Mabia -vs-Sheikh, 288
Madan -vs- Rebati, 53
Madanlal -vs- Tripura Modern Bank Ltd., 100
Madappa -vs- Jaki, 203
Madho -vs- Gur, 42
Mahaluxmi Bank Ltd. -vs- Jdris Barry Co. 122
Mahan.t -vs- Rajkumar, 151
Mahanth -vs- Chowdhury, 76
Maharaja of Bha.ratpur -vs- Kacheru, 65
Mahendra -vs- Gurudas, 317
Malwruddin . Khair -vs- Jogendra Kishore, 343
Mahomed Din -vs- Hirda, 51
Majihulla vs- Umed, 41
Maksud Ali -vs. Eskandar, 210
Manarama -vs- Wajaddi, 190
Mancharani. -vs- Fakir, 246
Manick -vs- Surrat, 325
Manickani -vs- Mahudam, 151
Manila! -vs- G.S. Q M. Co., 237
Manual -vs- Harendra, 133
Manilal -vs- Ishwar, 68
Manindra -vs- Saradindu, 266
Manjula -vs- Pandurang, 42
Manmarha -vs- Nagendra, 316
Manmatha -i's- Rakhal, 200
Man.mohan -vs- Bidhubhusan, 278
1908: Act VI CIVIL PROCEDUR CÔbE
Mannujan Begum -vv- Abdus Samad, 267

Man.orath -vs- Ainbika, 37
Mansur Ahmed -vs- Kalipada Chattapadhva, 84
Mansur All -vs - Arodhendu, 63
Mansur All -vs- Jamiran, 340
Marakarutti -vs- Verran, 100
Iviariannessa -vs- Ramkalpa, 181
Martin. -vs . Lawrence, 48
Master AhdulAziz -vs- Abani Mohan Mukh'rjee and dhers, 98
Mutual Sikdar & Ors. -vs- Bipu Behari Dai & Qr.. 76
Mutual Sikdar -vs-Benodini, 1.09
Mutual Sikdèr -vs- Benodini Da.ci 104
Md. Abdur Rahim -vs- Sree Sree : Grádhari, 41
Md. All -vs- Upendra, 15
Md. Fakirullah Mitt -vs- Bim.alendra N. Maitra, 134
Md. Pu furl Miah —vv- Benode Behari Roy. 228
Md. Habibullah -i's- Tikirn, 24
Md. Ibrahim -:vs- Md. Alauddin, 343
Md. Idris Miuh -vs- Abdul Motaleb, 258
Md. Islam -v.- Man .hi Abdul Rah.man, 2/2
Md. li/ant -vs- Munshi Abdur Rahman, I / I
Md. Mokrram Ali Laskar.-vs- Sekandarul Islam, 2/2
Md. MOst elnul Hique' vs- The C'ornmossioner of Income Tax and Sales Tax, Pakistan, 132
Md. Reza -vs- Md. Askari, 68
Md. Shandul Hoque -vs- Mst. Rahirna Bibi and another, 98
Md. Shari atulk,h -vs- Ashratim Nescn. 10
Md. Shari/it/la -vs- Election. Tribunal, 321
Md. Sit/tan Mia -vs-,. Sree I4aradhan Saha and others, /68
Mel, -i's- Md., 20
Md. -vs- Saadat, 80
Md. Yusuf-vs- Motzal Ahmed Sowdager, 78
Meerudin -i's- Ru/il. a, 247
Messes Nahi Baksh -vs- Secretary, Ministry a/Industries, Govt. of Pakistan, Karachi, 131
Messrs Crescent Films, Lahore -vs- Messrs Shah Noor Films Ltd. Lahore, 101
Mg Ba -i's- Mg Ye, 187
Micln.apore Zemninclary Co. -vs- Secretary of State, 139
Midnapure Zamin.clar)' Company, -vs- Naresh, 190
liv TABLE OFCASES [1908: Act V
Miksi Marak -vs- Jo,c'endra, 181

Milk/u -vs- Basal?!, 245
Miller -vs- Raniranjan, 326
Mir Laike Ali -vs- Standard Vacuum Oil Company, 229
Mirpur Ceramic Works Ltd. -vs- A.I. Khan, 109
Mirza Ali Akhar Kashani -vs . the United Aral, Republic, 64
Mohabir -vs- Chundra, 99
Mo/whir vs- Jage, 329
Mohammad -vs- Mahabir, 28
Mohd. Fakirul/ah -vs . Commissioner of Wakf 70
Mold. Sagir Bhattj -vs. Federation of Pakistan, 343
Moheen -vs- Gokul, 73
Mo/irs/i -%'S- Jogciidra, 207
Moh.im -i's- Ben gs/u, 76
Mohinj Mohan -vs- Kunju Behari, 18
Mohini -vs- Surendra, 73
MohiurjrJjn Mo/ia -vs- Province of East Pakistan 316
Mohor Ali -vs-Zaft,r Ali, 109
Mohunt -i's- Kh.etter, 229
Mokshada -vs- Gopal, 54
Monmohiny -vs- Radha, 229
Monohar -vs- Jadun.ath, 284
Monoh.ar -vs- Nanak, 28
Monoji.a,/ai -vs- Set/i Hira/a/, 10/
Mon.tar UI/a/i -i's- Fa,-at UI/a/i 342
Mooichcinc/ -i's- Ga.nva, 148
Mosa,nniat A vmun. Nassa —vs- Md. Ohaid,.d Haque, 321
Moshingan -vs- Mozai-i, 30
Mo yna Mia. -vs- Hazi Abdus Saniad, 210
Mrs. S. Nurun Nahar Beguni -vs- Sec)', Defence, 331
Mst. A rita Begum -i's- K/i.ulque Muhammad Naq''i, 14
Muilik -vs- S/ire Pd.. 112
Munni -i's- J'ri/oke, 16
Mun.shi 1i4'oizuddin Ahmed -vs- Mu.vtafa Hossain, 34
Mun.shi -vs- Muns/u. 98
Mi.irahari -vs- Bapav)'a, /
Musaheb -vs--/navatullah, 300
1908: Act VI CIVIL PROCEDURE CODE lv
Muthapa -vs- Muthu, 113

M,.,thu-vs- Ven.kata, 296
Mt.izhar -vs- Bar/ha. 339
MW Mir MahbuburAlani -vs- Kazi Mvi Salahm Ahmed, 102
N
Nabar/wip -vs- Sec,-etarv of State, 177
Naeen Finance Limited -i's- Bashir Ahmed Rafiqui. 93
Naien.clra Nat/i Sen Ro y -is- Saiyal Ali Janwdar, 76
Nagenc/ra -vs- Ha ran, 42
Nagen.drabala -vs- Secretar y of Stare, 133
Nair Service Soc ia/v -vs- K. C. Alexander, 101
Na,nun.a -vs- Ro y/ia. 22$
Nand -vs- Gour. 73
Nancla Kish.ore -vs- Ram Go/am, 99
Nanu/rarn -vs- Raw Prasad, 145
Nan/ia/al -i's- U,n.rao. 243
Nan jappa -us- Gan.apathi. 73
Narendra -vs- Gopal. 36
Narendra -us- Jogendra, 283
Narendra -vs- Kamaiba.vini,
Nareudra -i's- Scitva. 253
Na,'endra -vs- Taritbal. 145
Nares/i -us- Hvder. 344
Naresh -vs- Jog esh, 3/7
Naresli -is- ./agcsh, 319
Naresh -vs- MafIa/i. 230
Na,',vh Sriulhar -us- Maharashtra, 10/
C larsi is- 5ac:hu,h'a. 281
Nasir -us- Su,,jè,in:, 267
Nt,irr/uIin -vs- .Savnd:.i ,'. 244
Nat/inn I Singh -vs- Na/pal Singh. /00
Nciwbut -vs- Mah.esh, / I /
Nair A/i,ncd -is- Habibar Ru/man, 98
Nec/cue,, / -vs- Naravana. 153
Nidhi Lal -vs- Mazhar. 18
Niran.ka -us- Atul, 133

lvi TABLE OF CASES [1908: Act V
Nirmcila -vs- I'rahhat, 120

NLrarAii -us- Mohamad Ali, 20
Nit''a -vs- Nani, 343
Nowab -us- Hari.vh, 290
Nowabjan. Bihi -us- Chandra Kumar Ro y, 43
Nowi-oji -vs- Deccan Bank Ltd, 316
Nripen.c/ra -vs- Heinan ta, 134
Nuruc/din -us- Pran., 348
Na i-ui Islam -us- Abc/ar Rashid, 133
0
Obho)' -vs- Hurychurn, 109
Official Trustee -vs Krishna, 340
Orde -us- Skinner, 22
Oriental Bank -us- Chariol, 99
Oriental Bank -us- Govind, 106
Others, 96
IAP
Pa(.ln?a -us- Gins, 133
Padinabati - us- Rasik, 186
Padnialochan -us- Girish, 134
I'acim.anahh -vs- Khe,nu,30_5
I' a/an i.rami —vs- Thonclania, 184
Panchaifi -us- Gauri, 275
Panda -us- Dcv ji, 358
Pan.,ia -us- Nihal, 29
Pa,-amasiva -us- Krishna, 109
Pa,-hatj -us- Ta/si, 149
Parshottam -us- Ku/a, 109
/'arsotinl -us- Laimohon, 341
Pa.s-hupati -vs- Usha1,ati, 43
I'asupati -us- Na,ida, 332
Pavan.a -vs-I'an.a, / / I
Pears' Choud/juru -us- Son.00 Doss, /00
Peary -us- Anunc/a, 239
Peciarangaswaini -us- State, 32
1908: Act Vi CIVIL PROCEDURE CODE lvii
Pc/I -vs- Gregory, 300

Peria -us- Subranianja, 312
Perurnai -vs- Thiru,nala, 288
Prainatha N. Dcis -vs- Barindra N. Das, / /0
J'raniatha -vs- Nagendra. 339
Pramatha -vs- Samar, 244
Prein Chanci Dcv -vs- Mokshacla Debi, 35
Prem -vs- Deb., 79
Prernsukhdas -vs- Udaira.,n, 162
Probodh vs- Nee/ratan, 107
Prornotho Nath Chowdhurv -vs- Kaniir fktan.da/, 339
Proson.n.omoyi -vs- Beni, 325
Province of East Bengal -vs- Priva Nath Guha, 94
Proince of East Pakistan -vs- AlIaha/ad Bank, 63
Pudmw;aiid -us- Chun.di, 208
Pun jab Ali Paramanik -vs- Md. Kokrrarn Hossain. 98
Punnani -us- Moilison, 154
Puma -us- Panchu, 96
Purshotan -us- Hargu, 330
Pvari -us- Kaiu, 358
R
R. P. Shah -vs- Com,nr. of Tax E.B., 121
Radha -us- Man.ohar, 54
Radha -us- Pvari, 207
Radha -vs- Radha, I//
Radhagohind us- Rajhunath, 246
Rac/hakant -vs- Debendra, 139
Radhakun war -vs- Reoti, 294
Radhanath -us- Uttarn, 178
Radhe)' -us- Bihari, 30
Raghu bar -vs- Mardari, 68
Raghunath -vs. Dy. Commissioner, 81
Raghunath -vs- Shamo, 348
Raharnat -vs- Abdul, 300
Rahini. vs- I'htii, 41
Ruhi,n -us- Phul, 41
lviii TABLE OF CASES [1908: Act V
Raicha ran. -i's- Debi Prasad, 94

Raja Ki.vtancind -vs- I'irthe, 41
Raja Pa,'rha,va,'ath i -vs- Raja Rwigiah,.?24
Raja Peri Mohon. -v,v- Manohar. 6
Raja,i,'opala -i's- Subbanunal. 76
Rajani -i's- Raikuntha, 120
Rajani -i's- J)'Oti, 256
Rajchunder -vs- Ganga, 253
I?ajendra S/i nit/i -vs- Mahadev, 96
Rajenth-a -vs- Chunder, 48
Rajenth'a -i's- Disn'it Board, 221
Rajenc/ra -i's- District Board, 229
Rajendra -is- Rain, 233
Raje,idra -i's- Ram, 240
Rajencli'a -vs- Tu.rtunto see, 293
Rajkuniar -vs- Rcunsundar, 263
Rajnarain -vv-An.anga, 153
Rakhit -i's- Puc/clo, 340
Ram Ahhi/akh -vs- Rum Jas, /I
Rani Cooiner -i's- Soshee, 243
Rain -i's- Ma,c,,,, I/ /
Rama -i's- Govin.cla, 73
Rwnanath -i'.v- Gu ,ggodo, 126
Ratnant/,ai -i's- Penia. 55
Ranida,r -i's- Raiji, 279
Ranidhan i - i's- Rajrc,n i. 233
Ranidhari -i's- Parmanan.d, 145
Runiendra -i's- Bra jenc'/ra, 105
Rameshwar -i's- k/knurl,, 28
Rain,r,,'opi/ -iv- Dh.irend,-a, 131
Raingopal -vs- Dhirend,-a, 132
Ranu,'opal -i's- Ha,'kishen, 255
Rami. -vs- Bi'ojo, 343
/?amijudclui. Chawkicler -i's- Haji Baser Ahmed Molia, 258
Rum jar -vs- Gu,'uc/,a,'a,,. 52
Rwnjas -vs- Gurucha ran, 58
Ra,n5a,'a,, -i's- Radha, 258
1908: Act V] CIVIL PROCEDURE CODE lix
Ram,vundar -vs- tVladh.u, 276

Ranchander -vs- Bai, 30
Ranchorcla.s -vs- Bai, 30
I?wu'oon B. Co. -vs- Collector, 74
Rani -vs- Brojo. 343
Ratan./a/ -vs- La/mon., 329
Rati -vs- Uttaw., 223
Rama Sabhapcithv -vs- A 01 nwkannwnma/, 167
Ravi -vs- Uttam, 223
Ravin.a.ndan -vs- Jagarnath, 242
Razia Khatun. and Ors -vs- Syeda Sirajunnessa Khatun. 96
Reh,nat Ali -vs- Abdul Han,icl. 10/
Rezia Khatun -vs- Dc/war Hussain, 124
Rohini -vs- .Iodu, / / I
Rohin.i -vs- Kusuin, 292
Rudra -vs- Sarda, 190
Rukni,ni. -vs- Brojonath.. 234
Rukmini -vs- Dhondo, /6
Rwigrav -vs- Sic/hi, 262
Rusto,nice -i's- Official Lic,uidator, 74
S
S -vs- Indian Iron. & Steel, 13
S.A. Latif -vs- J. B. Duha,vh, 63
S.N. Bcinerjee -vs- B. C. Chakrahortv, 64
Sacidatinanci vs- Phu/kuar, 232
Sahhapaty -vs- Perummal, 185 *
Sab,trj -i's- Sari, 2 S
Sac/wi -vs- Kukari. 242

Sachincira Lal Dcis -is Hridav Ranjan Dc,s, /6
Such/nc/i-a -vs- (Is/ia. 85
Sadhu -i's- Dhirenclra, 139
Sataruddi,i and others -iv- FazIul Huc1 and others, 83
Sa.hadat -vs- Md. Hassain 57 CWN 948. II
S'alwc/ev -vs- Scikhawat, 300
.Saha ru/la -vs- Bangoo, 343
Saic/unnessa -vs- Tejenc/ra, 97
Ix TABLOFCASES [1908: Act V
Sailabnia -vs- Nirmala, 99

Sailendra -'s- Surendra, 200
Sailes -vs- Jai, 318
Saived -vs- Haji, 71
Sakin.a -vs- Cha ran lit, 289
Salanicluind -vs- Joogal, 91
Salig -vs-Ishar, 37
Swna -vs- Ravji, 17
Swnararhrai -vs- Kasturbhai, 279
Sainarendra -vs- Harendra, 252
Sa,nas,.ndara,n -vs- Chokalingain, III
Sainhhu -vs- Harihar, 97
San, rathrai vs- Kastur/,hai, 276
Sant -vs- Isliar, 320
Sanrish war -vs- Lakhikanta, 343
Santosh Kumar Cha.krubart)' -vs- M.A. lvi otaleb Hossain., 124
Saran gapari -vs- Na ra yanasarn i, 358
Surat Kumar -vs- Official As.ri,iee, 99
Surat -vs . Biseswar, 151
Surat -vs- Mohan, 110
Sarat -vs- Tarini, 247
Sa.ravana -vs- Sesha, 343
Sa.nlarnic,/ -vs- Jahar,nal, 151
Sartosh Kumar Chakrahorty -vs- M.A. lvi ota/eb Hossain,83
Sa.rI,i -vs- Gobind, 241
Sushi vs- Na,ida, 318
Sasi -vs- Rashik. 131
' Sasiran,.a -vs- Meherban, 318
Satis -vs- Apara, 151
Satish -vs- Hash en,, 283
Satrucherla -vs- Raja, 34
Satva Nara''an Ban erjee -i's- Rat/ha Nat/i Das, 19
Satya -vs-. Rani. 325
Satvara.njc,n -i's- Surat, 42
Saya.,naii vs- An isuddin. 294
Saved Ali -i's- Sree Gopal Chandra Das and m's., 9-
Secretary of State -i's- Hindustan, I. Co., 358
.1908: Act VJ CIVIL PROCEDURE CODE lxi
Secretary of State -vs- Nara van, 292

Secy. qt State -vs- Marjurn, 30
See also Abdul Latif -vs- Avesha Begwn, 342
See Keen Rabinson & Co. -vs- Lily Biscuit Co., 277
Seeni -vs- Muthusamy, 34
Senaji -vs- Punnaji, 316
Senkaralinga -vs- Rajeswuri, 69
Serajul Mostafa -vs- Ali Ahmed Sikdar and others, 93
Seth -vs- Shankar, 42
Sewdut -vs- Sreekanta, 318
Shah -vs- Kailarh, 230
Shakar -vs- Gangarain, 190
Shambhu Nath Pock/ar -vs- Bangladesh Railway, 83
Shamsuddin Khan vs- Shainsuzzarnan, 13
Shamsul Huda -vs- Mozammel Huq, 316
Shankarainu -vs- Pad,nanabha, 24
Shanti -i's- Khandubala, 43
Sharat-vs- Maiha,, S & L Co., 255
Shauran -vs- Abdus Saniaci, 290
Shauran -vs- Abdus, 291
Sheikh Salim -vs- Ha/era, 78
Sheo Pa.sad -vs- La/it, 135
S/ieo Progash -vs- Bh.up, 205
Sh.ih -vs- Lakhi, 16
Shiba -vs- Prayag, / 13
Shihkumari -vs- Secretary qfState, /77
Shibn.ath -vs- Sheikh, 228
Shihan -vs- Abdul, 71
Sikandar -vs Kushal, 151
Sita/ -vs- Goya, 258
Sita/akshnü —vs- Ven.kata, 183
Sitararn -vs- Hariram, 130
Sk. Md. Ahzir Ali -vs- Abc/u,' Rahini, 105
Sob/a -vs- Jethntal, 100
Son.ali Batik -vs- Mahbu but Amin, 29
Sonaram -vs- Mahi rain, 243
Soonder -vs- Goorprasad 151
lxii TABLE OFCASES [1908: Act V
Sourendra. -vs- Jatindra, 151

Sreemutty Dhai -vs- Bhadarnzull, 277
Srec',,ath -vs- Pri)'anath, 34
Sreenat/i -vs- Privanatli, 34
Srinath -vs- Probodh, 74
Sripati -vs- Bibhuti, 326
Srira,nulu -vs- Sri ra,nulu, 300
State of Uttar Pradesh -"s- Mukthar Singh, 99
Suhash Chand -vs- Sarju Devi, /00
Subashini -vs- Ashutosh, 258
Subed -vs- E, 206
Suddasook -vs- Rani, 30
Suclhanwyee -vs- Bhujendra, 42
Sujan -vs- Sagar, 48
Sultan Ahmed -vs- Md. Islam, 109
Sultan Ahmed -vs- Md. Islam., 93
Sultan Ahmed -vs- Puma Chandra, 134
Sunil Krishna Banik -vs- Kailash Chandra Saha, 79
Sun.il Krishna Biswas -vs- Ka/ila.sh Ch. Sen, 342
Surujniall -i's- Ramchandra, 224
Surendra -vs- Aghore, 283
Surendra -vs- Atahuddin, 25
Si.rendra -vs- Bansi, 316
Suren.drci -i's- Mahendra, 75
Suren.dra -vs- Manniatha, 239
Surenc/ra -vs- Man,natha, 239
Surendra -i's- Mono/jar, 276
S,.trendra -i's- Ragh,.math, 333
Surendra —vs- Sauravini, 239
Suresh -vs- Kristo Rang mi, 356
Suri'i'a Beguin -vs- Aliniuliah Ma/uk, 14
Sur'a Kanta -vs- Taraknath, 99
Swami Turianan,da -vs- Sins Kumar Sen, 14
Sved Abdul -vs- Badaruddin, 99
Svecl Ahmed -vs- Pro tu 1/oh Kr. Dcv. 76
Sved Ali Sardar -i's- Shahabuddin Ahmed Chowdhurv, 143
Si'ed Matiur Rob -i's- Bangladesh. / 7
1908: Act V] CIVIL PROCEDURE CODE lxiii
Sved Mohiuddin -vs- Pin-hi, /3/

Syihet C. T. Bank vs - Rasik. 234
Svihct C. T. Bank -vs- Rasik, 234
I
Taher -vs- Otarucldi 336
Tancred -vs- Mu/lick, 355
Tan cur -i's- ./uiadhar, 18
Taqui —i's- Obci id allah, 281
Ta,ak N. Sc,, -vs- Kartick Ch. Sen, 207
Tarcik -vs- Sarat, 53
Tarcipadci -vs-Bciçala, 109
TItakur Prascici -i's- Faki ru//a/i, 93
Thaku,das -vs- Joseph, 224
The Vice Chairman, Enem y Property Management Board, Dhaka & ors -vs- Shah Go/am
Nabi and Others, 27
Tikarani -I's- Maheshwa.ri, 82
Tinkari -vs- Naren.dra, 294
Too/se ynwne' -vs- Prasadinon.ey, 181
Tricamndas -vs- Gopinath, 344
Tripoli -vs- Biseswar, 35
Tula -vs- Tika,n, 70
Ta/a/i -vs- V. Balabhai, 224
U
U.P. Government -vs- Brij Mohon Lai, 62
Udwant -vs- Tokan, 35
U,nabai -vs- Bhau Ba/want, 105
Unic.,bai -i's- Bhau, 112
Umnapati -vs- Sheikh, 282
4
Umnapati -vs- Sheikh, 283
Uniaprasad Pal and others -i's- Mirtun/ai' Pal and others, /0
(Jma.too/ -i's- Ku/sum, 23
Umes -vs- Fatima, 29
Uinesh -vs- Zahur, 294
Unimarine S.A. Panama -vs- Bangladesh, 316
United Oriental Steamship Co. -vs- Starhac Co., 64
Upendra -vs- Janaki, 133
lxiv TABLE OF.CASES [1908: Act
V
Varada -vs- Narsinha, 321
Veerappa -vs- Tindal, 108
Velli)'cippa -vs- Vella)'appa, 1930 M 72], 6
Venkataswam.i -vs- Uppilipalayam. 145
Vidya Charan Shukia -vs- Khulachand Baghel and ors., 9
Vidyabanti -vs- Jai, 349
Vid)'arthi -vs- Rani, 24
Vithal -vs- Vithojirav, 244
W
Wazirunnessa -vs-' Ilahi, 289
West Pakistan. (Now Govt. of N. W. F. P.) —vs- Ha/i Mohammed Ismail and others., 9
Y
Yule and Co. -i's- Mahomed, 355
Yusuf -VS- J iotish, 246
z
Zainalabdin -vs- Md. Ashgar, 54
Zaki -vs- Deonuth, 296
Zanziruddin Ahmed -vs- Government of Bangladesh, 134
Zuheda -vs- Ko,nanna, 316
Zubeida -vs- Md., 23
a
1908: Act V] CIVIL PIWCH)URE CODE S. I
THE CODE OF CIVIL PROCEDURE, 1908

[Act No. V of 1908]
[21st March, 19081

An Act to consolidate and amend the laws relating to the
Procedure of the Courts of 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
Section-1: Short title, commencement and extent.—( I) This Act.
may he 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 Bangladesh.
Code how far exhaustive—matters not specifically provided for.
The essence of it Code is to be exhaustive on the matters in respect of

which it declares the law. The Code of Civil Procedure is, therefore, to he
considered to he complete in itself and exhaustive of the matters dealt with
therein.
Gokul -i's- Padmantind 29 C 707 Pc = (1902) 29 l.A 96 (202).
The object of codification is that oil point specifically dealt with by it,
such law should be sought for in the Code. When, however, there is no
specific provision the court must act according to justice, equity and good
conscience.
Naren,c/,-a -vs- Kainalbasinj 23 C 563 PC

Murahari -vs- Bapavya, 194 .9 M 743
Hidaybia Textile Mills Ltd. -i's- Allied Bank, PLD 987 SC 521
Contents of the Code—the Civil Procedure Code deals with procedural

matters and not substantive rights. The procedural laws are grounded on
principles of natural justice.
Ahc/ur Rah,na,i & ors -i's- Sultan and ors.

35 DLR (AD . ) 51 = 1983 BLD (AD) 129
2 Ss. 1-2 CIVIL PROCEDURE CODE 11908: Act V
The body of the Code creates jurisdiction and is unalterable except by the
legislature and the rules indicate the mode of exercising it. Therefore, the
body must be read in conjunction with the rules.
Abdul Karim Abu A/iined Khan Ghci,iavi i'.v- The Ai/ahabac/ Bank Ltd.
41 IC 598 FB = 27 CWN 877
The orders and rules apply to High Courts unless the Code contains
something inconsistent.
Sabitri -i's- Scn'i, 48 C 48/ PC
Section-2: Definitions.—In this Act, unless there is anything

- repu g nant in the subject or context,–
I ) "Code" includes rules:

"Deciee" means the formal expression of an adjudication which,
sofir 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 he either preliminary or final It shall hniedto
include the 1joll
of a plaint and the determination of any question
within section 144, but shall not include— -
(a) any adjudication from which an appeal lies as an appeal from an

order, or
(b) any order of dismisal for default.
Explanation–A decree is preliminary when further proceedings have

to he 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:
--t R 6
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 the High Court Division:
1908: Act VI CIVIL PROCEDURE CODE S.2 3
(5) "foreign Court" means a Court situate beyond the limits of

Bangladesh which has no authority in Bangladesh and is not
established or continued by the Government:
"foreign judgment" means the jLldgment of a foreign Court:

(7) 'Government Pleader" includes any officer appointed by the
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:
('T "judgment" means the statement given by the Judge of the

"—" groLinds of a decree or order:
"Judgment—debtor" means any person against whom a decree has

been passed or an order capable of execution has been made:
-1 I) "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) "moveable property" includes growing crops:
) ' de"neans 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:
(16) "prescribed" means prescribed by rules:
(1 7)"puhlic officer" means a person falling under any of the

following descriptions, namely:—
(i) every Judge;

(ii) every member of the Civil Service of the Republic;
4 S.2 CIVIL PROCEDURE CODE 1J908: Act V
(iii) every commissioned or gazetted officer in the military, naval or

air forces of Bangladesh while in the service of the Republic;
(iv) 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 authorized by a Court of
Justice to perform any of such duties;
(v) every person who holds any office by virtue of which he is

empowered to place or keep 'any person in confinement;
(vi) 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;
(vii)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 the pecuniary interests of the Government, or to
prevent the infraction of any law fdr the protection of the
pecuniary interests of the Government.; and
(viii) every officer in the service or pay of the Republic, 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 a judgment or decree, includes

stamped.
(2)cree"
The important elements of decree are:-
1908: Act V] CIVIL PROCEDURE CODE S.2 5
i) there must be a formal expression of adjudication;

ii) there must be conclusive determination of the rights of the
parties;
iii) the determination must he with regard, to all or any other matter
in controversy; and
iv) the expression of an adjudication must be in a suit.
The importance of the definition of the word "decree" rests on the fact that
by reference to it, the right of appeal is determined, the aim being to permit.
all from an adjudication which purports to settle the rights of the
parties, though it does not completely dispose of the Suit, e- ,, - preliminary
decree.
The decree may he either preliminary or final, or may be partly preliminary

and partly final. These terms have been defined in the explanation.
Preliminary decree .
Preliminary decrees are passed, when, after the decision of the suit, the
court has to stay its hand in order to mark out the consequences on which
the complete disposal of the suit depends. These consequences may he
arithmetical as in an account suit, or ministerial as in a partition suit, or
contingent as in a mortgage suit. It is only on such preliminary decrees that
a right of appeal is given. No doubt the decision of a single issue may, in
certain cases, lead to a decree, e.g. when the whole suit, and not part of it,
is dismissed as time barred. But an oil and
every point in issue between the parties, is not a 'decree' within the
meaning of S. 2(2).
The cases where the legislature contemplated the preparation of a

preliminary decree, are specified in rules 12-18 of Order XX of the Code.
As to appeal from preliminary decree, sec S. 97. A preliminary decree may
he passed in the following classes of suits:
(ix) In sluts for possession of immovable property and for rent or mesne
profits. (Or XX r. 12. Form No. 23 Appendix D. Sch. I)
(ii) In suits for partition of revenue-paying estate tinder section-54.
(iii) Iii Suits or partition of any other immoveable pr0pty UfldlCr 0r.20r. IS.
(iv) In suits for partition under Act IV of 1893.
(v) In suits for account between principal and agent. (Or. 20, r. 16. Form
No. 21 App. I). Sch, I).

6 S.2 CIVIL PROCEDURE CODE [1908: Act V
(vi) In all other suits in which it is necessary to ascertain the amount of

money clue to one party from another, that an account should be taken.
(Order 20. r. 16).
(vii) In suits for foreclosure of mortgage. (Or. 34, r. 2, Form No. 3. App. 1).
Sell. I).
(viii) In suits for redemption of a mortgage. (Or. 34, r.7. Form No. 7 App.
D. Sch. 1).
(ix) In suits by creditors or by legatees for administration. (Or. 20 r. II;
Form No. 17 App. D. Sch. I).
(x) En suits for dissolution of partnership and accounts. (Or. 20 r. 15;
Form No. 21 App. D Sch. I).
(xi) In suits for pre-emption (Or. 20. r. 14)
(xii) In suits for sale (Or. 34 r. 4; Form No. 5. App. D. Sch. .1)
The above list is not exhaustive and does not preclude the court from passing
a preliniinary decree in cases not expressly provided for in the Code.
Dattatreva -vs- Raclhahai 45 B 627

Rqja Pen Mo/ian -vs- Munohar, 27 ('JVA T 989
Similarly., in suits mentioned in Order XX the Court is not bound to pass a

preliminary decree and may pass a decree for the amount due straightaway if
it does not involve elaborate accounting.
Vel/ivappa - i's- VeIiaapm. / 930 M 721;

Hurroiwth -vs- Krishna, 14 C 147.
all decree
A final decree is one when the adjudication completely disposes of the suit,
that is, when it is such:thLt.he court which makes it cannot alter or
recorlsider it except o n.Vie''
A court jsconietent to make final decrees in all suits except where a
preliminary decree is necessary.
Partl y preliminary and partly-finf

. In a suit for possessioti and ;6sue profits,the decree for possession is a
preliminary decree, and the IrreSLie profits are ascertainable in the final
deee.
A decree shall be deemed to include-

rejectiOti of plaint Ltnd
qLiestions within section I 44;
a)Reection of plaint ir-

An order rejecting a plaint on the grounds mentioned in clauses (a) to (d) of
Or. VII. r. II, is a decree and is, therefore, appealable under S. 96, but
rejection of plaint does not preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action under Or. Vii. r. 13, prqyidecl he
is not barred by lapse of time and so, a plaintiff whose plaint is reeced may
either appeal against the order or call a fresh plaint, pri.ded he is
not barred by lapse of time.
h) Question within Section 144.

Determination of any question under S. 144 is a decree. It means the
determination of a question directly concerned by the section, and not one
incidentally connected with or collateral to the decision of any such question.
The decision must be oil merits of the application for restitution. The
question of limitation is one collateral to the merits of the application for
restitution and is not, therefore, a cluestion within section 144, and as such,
the determination of limitation is not a decree as defined in S. 2 (2).
I
"Decree" shall not include:
a) any adjudication from which an. appeal lies as an appeal from an
order. Orders which are so appealable are specified in S. 104 and
Or. 43. i. I of the Code;
h) any order of dismissal for default.
Distinction between decree and order;

The principal points of distinction between a decree and an order is that an
adjudication which amounts to a decree is generally appealable, but an
order is not so, and is appealable in exceptional cases as specified in S. 104
read with Or. 43 r. I of the Code.
Decree cannot he different from judgment.

The decree has to agree with the judgment.
See section 33 and Or. XX rr. 6 and 7.
Decree nust be formally drawn tip -

The decision of the court must be expressed in the form of a decree; Mere
recording a finding in thejudgment without drawing up a decree in the
prescribed form, or a finding on it particular issue without embodying it in
the decree, is not a decree.
8 S. 2 CIVIL PR0cEI:)URE CODE [1908: Act V
An adjudication cannot be regarded as a decree, unless formally drawn up

as such, or at all events can be so drawn up. Omission to draw up the
decree does not affect the right of a party to prefer appeal.
Following are Decrees

When all was made in a suit and it amounted to the formal expression
of an adjudication which so far as regards the court expressing it,
conclusively determined the rights of parties with regard to one of the
matters in controversy in the suit, namely, whether the judgment-debtor
was an agriculturist and entitled therefore to have his debt discharged or
reduced under the Act. The order was a decree within the meaning of S.
2(2) and an appeal lay under S. 96.
A (/0 ikappci -vs- Chandra Sek/ia ra

P.L.D /947 PC 279 = 1948 PC 12
In a suit to have partnership accounts taken, and for that pul-pose to have
various matters decided by the court, the court "declared" that the
partnership in question was dissolved as from first July, 1907 and then
"ordered and decreed" that "It is referred to the Assistant Referee of the
court to take the following inquires, that is to say: (i) to inquire who were
the partners who were entitled to share in the assets and goodwill of the
said partnership business; (ii) to take account of the dealings of the parties
with the assets of the said partnership business". It was held that the
adjudication was preliminary decree within S.2 and S. 97.
Ahmed Musaji Sale/i and others -Ps- Has/i/n Ebrahini Sa/eji coil
()t/i(V 1915 PC I/O
Order cannot be separated into elements some of which are orders and
others decrees.
Ahmed Musciji Sale/i wul others -iv- HaShin Ebra/ii,n. Sn/eli ciiid
nt/ices 1915 PC 116
- An order dismissing an appeal determines the rights of the parties with

regard to all the matters in controversy and is as such a decree. Partition
III
suit ended compromise decree. Later application was filed for drawing
LIP the Final decree. Question arose whether the compromise decree was a
pre Ii mi nary or a final decree.
It has been held that the compromise decree has determined the rights of
the parties by allotment of respective shares to the plaintiffs conclusively,
1908: Act V]
CIVIL PROCEDURE CODE. S.2 9
but the suit itself has not been disposed of completely because physical
division of the properties in terms of the compromise decree has [lot been
brought on record by either party to the suit and hence the compromise
decree was a preliminary decree and not a final decree within the meaning
of S.2(2) of the Code of Civil Procedure.
Abc/ui Gain being dead his heirs Md. Harunur Rashid and
others -.'s-Raja Mia and others. 2 BSCR 318
Determination of a question under section 144 is available to the Small

Causes Court and an order passed therein shall be deemed to be a decree
though no appeal lies therefrom in such a case. It is a distinct case of
'Decree' where no appeal lies hut remedy in accordance with the provision
of the Act lies from such decree.
Saved All -s- Sree Gopai Cllai1clrcI Dos and ors. 4 B.S. C. R. 22/
In view of the definition of decree whether adjudication about costs can be

said to he the determination of the rights of the parties in a suit. If costs
have been claimed, the decision about costs in a decree is necessarily an
adjudication which 'determines the rights of the parties' with regard to a
controversy in the suit. Since appeal can be filed against a decree in its
entirety or against that part of the decree which the aggrieved party wishes
to challenge, a party, if aggrieved, by the rejection of claim for costs can
file an appeal under section 96 against the adverse decision regarding costs.
14/ext Pakistan (Now Govt. of N. 14'. F.P.) -vs- Ha/i Mohammed /s,ni/ and
others. PLJ 1980 SC. 2
2(5) Foreign Court

Two conditions must he satisfied in order to bring a court within the
definition of a foreign court:
(a) it must he situated beyond the limits of Bangladesh.
(h) it must not have been established or continued by the
Government of Bangladesh.
Foreign ,Judgment also includes decree.
U.... had Ali -"s- Sea' A:izul Hucj 3 BSCR 141
(9) Judgment
The essential element of a judgment is that there should he a statement
f the grounds of the decision.
Vidva çhtiran Shukia -vs- Klittlachaiicl Baghel and ors.

i9O SC. /099(1113)
10 Ss. 2-4 CIVIL PROCEDURE CODE. [1908: Act V
2(10) Judgment-debtor
Judgment-debtor is a person against whom a decree has been passed or an
order capable of execution has been made/A person who is a party to the
suit against whom no decree has been passed is not a judgment-debtor.
inaprasacI P/ c,ii.d of/ic/s -i's- Miriun jay Pal and others

/968C547(548)
2( 14) Order
Order as defined in S. 2 (14) means the formal expression of any decision
Of a civil court which is not it decree. It is analg®us to a decree and
generally has the essential attributes of a decree but as it arises out of it
proceeding not being it it does not amount to a decree.
Md. 5/ian atullah -i's- As/i ratun Ne,vsa

25' DLR (SC) 9/ = 5 BLR (AD) 12
2(15) Pleader
The term "pleader" as defined in S. 2 (15) is used in a much larger
sense than its signification under the Legal Practitioners Act according to
which it is restricted to the class of practitioners who are entitled to practise
only in courts subordinate to High Court.
.Ioi'es/i Ch. f%4lfkhen/ee (Petnr.) 5 DLR ló
Section-3: Subbordination of Courts.- For the purposes of this

Code, the District Court is subordinate to the High Court Division, 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 Division and
District Court.
Section-4: Savings.—( I) In the absence of any specific provision to

the contrary, nothing in this Code shall he deemed to limit or otherwise
affect any special 'I' 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) Ill particular and without prejudice to the generality of the

proposition contained in sub-section (1), nothing in this Code shall he
deemed to limit or otherwise affect any remedy which a landholder 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.
1908: Act VI CIVIL PROCEDURE, CODE Ss.4-6 II
The meaning of the saving clause is that if anything in the Code is in

conflict with anything in a special law, the Code shall not prevail to
override the inconsistent provisions.
Ago Aid. - 's- Cohen 13 C 22 /
Application of the Code is not barred where the special law is silent.
Saliwlat -i's- Md. Hossain. 57 CVVN 948
"Power" includes also execution procedure, if the special law confers a

special power oil executing court, that provision shall override the
corresponding provision of the Code.
Rain A bhiiakh •i.'s- Ran, ins 1966 A 218
Sëtion-5: Application of the Code to Revenue Courts.—( I)

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 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 Government * *
may prescribe.
(2) "Revenue Court" in sub-section (1) means a Court having

jLlrisdiction under any law to entertain suits or other proceedings relating
to the rent, revenue or profits of land used for agricultural purposes, hut
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.
Section-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.
For pecuring jurisdiction of the different grades of court, see sections 3. 18

and 19, Civil Courts Act, 1887 (Act XV of 1887).
12 Ss..-7-8 CIVIL PROCEDURE CODE {l9®8: Act V
Section-7: Small Cause Courts.—The following provisions shall

Causes
not extend to Courts constituted under the * * Small Courts Act,
** or to courts exercising the jurisdiction of a Court of Small
Causes underthe said Act, that is to say,–
(a) so much of the body of the Cede as relates to–

(x) sLlits excepted from the cognisance of a Court of Small
Ciuses;
(ii) the execution of decrees in such Suits;
(iii) the execution of decrees against immoveable proerty; anal
(h) the following sections, that is to say,–

section 9,
sections 91 and 92,
sections, 94 and 95, so far as they authorise or relate to-
(i) rders for the attachment of immoveable property,

(ii) injunctions,
(iii) the appointment of a receiver of immoveable property, or
(iv) the interlocutory orders referred to in clause (e) of section
14, and sections 16 to 112 and 115.
Section-8: /Presidencv Sinall Cause Curts./ Omitted b y A. 0., 1949

198: Act V] CIVIL PROCEDURE CODE Ss. 9-1.0 13
Part I
SUITS IN GENERAL
JURISDICTION OF THE COURTS AND RES JUDICATA
CSctiQui.Courts to try all civil suits unless barred.—The Courts

shall (subject to the provisions herein, contained) have jurisdiction to try
Lill suits of a civil nyIure excepting Suits of which their cognizance is
either expressly or Lmpl iedly barred.
Explana[i.n. —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.
Civil courts have jurisdiction to try all suits of a civil nature except those
the trial of which is expressly or impliedly barred.
Ahth,r Rout -vs- Abdul Haijid Khan, 17 DLR, Sc 515
Suits relating purely to religious rites mr ceremonies or involving purely

caste questions are not suits of a civil nature but when the principal question
is of civil nature such as, as to religious office or fees attached to it or right
to any property, the suit is maintainable.
"Expressly barred" means barred by any statute in force. "Impliedly barred"

means barred by general principles of law, equity or public policy, etc.
(Ouster of jurisdiction of the civil court can not he readily inferred unless
expressly taken away
5'ha,ivwhdi,i Khan -i's- Shamsuzzaman, 22 DER 655
C/ia/na Fl ire . -is- Abdul Jabbar,PTD7767 ,S.C.381
S -vs- Indian Iron & Steel, 197 sc 1298
In case of doubt as to jurisdiction, coLirt shall lean 4owards,aSSUrription of

jurisdiction.
Gurudwara & C. -i's- Shii Rattan, 1955 SC 576
Section-10: Stay of suit.—No Court shall proceed with the trial of

( .
t' any suit in which the matter-in-issue is also directly and substantially in
ç
14 S.10 CIVIL PROCEDURE CoDl: [1908: Act V
issue in a previously instituted suit between the same ptie or between

parties under whom they or any of them claim litigating under the same
or
title where sLich suit is pending in the same any other Court in
Bagladesh having jurisdiction to grant the relief claimed, or in any Court
beyond the limits of Bangladesh established or continued by the
Government and having like jurisdiction, or before the Supreme Court.
(Explanation —The pendency of a suit in a foreign Court does not

pre1iide the Courts in Bangladesh from trying a suit founded on the same
cause of action)
The essential conditions for the application of the section are: (I) the
matter-in-issue in the second suit is directly and substantially in issue in the
previous suit, (2) the parties in both the suit are the same and (3) the court
in which the first suit is instituted is competent to grant the relief claimed in
the subsequent suit and (4) the previously instituted suit is pendin g in the
same court in which the subsequent suit is brought or in any court in
Bangladesh or in any court beyond the limits of Bangladesh established or
continued by the Government or before the Supreme Court.
Kalipacla -i's- Cliarulata, 60 C /096
The institution of the subsequent suit is not barred, only the trial of the
subsequent suit is barred.
Bepin -vs- Jo'enclra, 24 CLI 514
all
(Suit includes all but does not include for leave to
appeal.)
L/ioi. 'dhurv-'s-MdiiaporeZemindrv Co., 27 CWN 772.
rswan1.Lmn1p.andcl - vs- SiuiKi cISTLR 175
When a suit cannot he stayed under section 10 the court has inherent power
under section 151 of the Code of Civil Procedure to stay a suit for ends of
,justice>..) - - _. -• _. - _______
[/iiiu//ah Munshi -vs- A/?(/"/Ban Bepari, 2/ DLR fj7
Under section 10 only the subsequent suit and not the previous suit can be
tayed court can, however, stay the previous suit for ends of justice by
ipplying section 151 of the Code of Civil Procedure.
\J
Mvt. Arift: Be'wn. -us- KhuiqueMuhaininad Naqvi,
V
/
- 21 DLR(WP) 209
'or purpose of. section IC), the date of presentation of plaint and not date of
admission is the date of institution.
Heerendra -vs- Dhire,tdra, 62 C / / /5
7
1908:
V] Act ^ CiViL PiOcEDuRE CODE M
,%r
amism"
IMi^w
IYA/ Court shall try any, suit or issue in

VJ whi chthe matter directly or subually inishas been directly and
' substantially in issue in L iorme r t between the same parties. or
\PJ weenpirties Tiidei whom they or any
try
the same title, in a Court competent to _Such subsquent suit or the suit
in which such issue ias been sLibsequently raised, and has been heard and
finallyCourt.
------------------------
decided by such Co
Explanation I The expressi o n "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

it Court shall be determined irrespective of any provisions as to a right of
it 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.
3u1tion Any matter which might and ought to have been

made ground of defence or attack in Such former sLut shall he deemed to
have been a matter directly and sLibstantially 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, he
deemed to have been refused.
,Kiination VI Where persons litigate bona fide in respect of it

public right or of a private right claimed in common for themselves and
others, all persons interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so litigating.
The following are the conditions of res judicata:-

/7
r rT 3_-ktnti t y ofmatter in issue:
The matter ill subsequent suit must have been directly and substantially
in issue in the former suit- Elonatio,i I/I is direct i-es judicata and
Explanation IV is constructive' i-es judicta.lt is not necessary that the matters
in the two suits must be the same in ver a'tirn. It is sufficient if the matter in
issue in the former suit was substantially the same. -
Md. Ali -.x- Llpen.clra, 58 CLI 196

-r
c ldentity of parties:
,-The former suit must have been between the same parties or parties under
who2 they or any of them claim.
3Same title:
The parties in the subsequent suit must have litigated under the same title in
the former suit.
(4-C6ncurrence of jurisdiction:
0 The court which had decided the former suit must have been competent to
try the subsequent suit or the suit in which such issue has been subsequently
raised.
. (.1tial decision:
¼ The matter-in-issue in the subsequent suit must have been heard and finally
decided in the former
Res Judicata does not only forbid trialf a suit but also of an issue which has
been finally decided in a previous suites Judicata ousts the jurisdiction of
the court whereas estoppel is a rule of evidence and shuts the mouth of a
pLtl'tY.
Cussainallv -"s- Curre,nbho y, 36 B 214
an issue was raised and finally decided, the rule of res judicata applies
although the suit was decided ex parte.
Hara -i's- Be 'In, 13 CLI 38

hib -i's- Lakhi, /925 C 427
As between co-plaintiffs, a finding to become res judicata must have been

essential for the purposes of giving relief to the plaintiff in the previous suit.
Ruk,nini -i's- Dhon.do, 36 B 207
The conditions for applying res judicata between co-defendants are: (1) there
" must be conflict of interest between the defendants concerned; (2) it must be
jnecessary to decide the conflict in order to give the plaintiff the relief he
claims; (3) the question between the defendants must have been finally
decided inter se between them.
Munjil -i's- Triloke, 35 CWN 661 PC

Kishen -i's- Durga, 35 CWN 1217 PC
ifiiw/wn_-vs-Dhupi, 59
Sachindra L/ Das -i's- Hriday RankTDLR (AD) 56
1908: Act Vi CIVIL PROCEDURE CODE Ss. 11-13 17
sion ill previous suit cannot operate as res judi.cata when an appeal is
pending.
A,uicinwlai - ps- Thornhill, 36 CWN I PC
• bar of res judicata is applicable to writ proceedings oil the general
orincinie that there should be an end to litigation.
of
he
Bangladesh, 42 DLR (AD) 57

Hafizu ddiu Sarkar -vs-
Where several suits involving common issues are disposed of in one
judgment and an appeal is filed against the decree in one and not from the
decrees ill the others, the matter decided in latter suits does operate as res
Lidicata.
Bahadur i's- Jotwdra, 64 CLJ 431
Section-12: Bar to further suit.—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.
Ast des picciuding a fresh suit. see Or. 2, r. 2:0r. 9. r. 9:0r. 22, r. 9 and Or. 23. rI.
ection-13: When foreign judgement not conclusive.—A foreign
Judgement shall be conclusive as to any niittei:.herehy directly
adjudicated upon between the same parties or betweeipujties under
whom they or any of them claim litigating under the same title exëpt–.
where it has not been pronounced by a Court of competent
Jurisdiction;
zb) where it has not been given on the merits of the case;
(c) where it appears oil face of the proceedings to he founded on
an incorrect viewfiiatmationiljaw or a refLisal to recognize
the law of Bangladesh in cases in which such law is applicable;
(d) where the proclgs in which the judgement was obtained are
opposed to natural justice;
(e) where it has been obtained by fraud;
(1) where it sustains a clainn founded on a breach of any law in force
in Bangladesh.
Forei gn udgements may be enforced under section 44A of the Code or by a
7 suitupOIl it.
18 Ss. 14-16 Civil-, PR ChI)URE CoI)l 1908: Act V
ection-14: Presumption as to foreign judgements.—The Court

shall presume, upon the production of any document purporting to be a
certified copy of a foreign juclgement..that such jLldgenlent was
pronounced by a Court of competent jurisdiction. Linless the contrary
appears on the record: hLlt such presumption may he displaced by proving
Want 01 jurisdiction.
Pi1ci oi SuiNc .
Section-15: Courts in which suits to be instituted.—Every suit -

shall be institLlted in the Court of the lowest grade competent to try.it.
The section is a rule of procedure not of jurisdiction and while it lays doyn
that a suit shall he instituted in the court of the lowest grade, it does not
thci-eb y oust the jurisdiction of the courts of higher grades 'which they
possess under Inc ----
Acts constitutui them.
MoI,ini Mo/u,,i -vs- Kuiiji Beha,'i, 47 CWN 720
- i'.v- Jo/ce/liar, 14 CWN 322
Although it may have u ri sdicti on in the higher court, such as, a suhord i nate.
jud g e's court, should not, as a matter of procedure., entertain the suit which
the lower court has jurisdiction to entertain hut to return the plaint to the
plaintiff for presentation to the lower court i.e. assistantj uclge ' s court as
provided by Order 7 rule. 10 of the Code.
- ATic//ij La! -vs- Malia,, 7A (l&'5), 230
As to valuation, see rule 25, C.R. & 0 and para 4, Civil Suit Instructions
Manual. For grades of courts and pecuniary jurisdiction, see sections 3. 18
aticl 19. Civil Courts Act, 1887.
Section-16: Suits should be instituted where subject—matter

situate—Subject to the pecuniary or other limitations prescribed by any
law, sLilts-
(a) for the recovery of immoveable property with or without rent or
profits,
(h) for the partition of immoveable property,
(c) for foreclosure, sale or redemption ill case of a mortgage of or
charge upon immoveable property,
(d) for the determination of any other right to or interest in
immoveable Property,
(e) for compensation for wrong to immoveable property.
(f) for the recovery of moveable property actually under distraint or
attachment,
1908: Act V CIVIL PROCH)URF CODF Ss. 16-17 19
shall be instituted in the CoLirt within the local limits of whose

jurisdiction the property is sitLiate
Provided that a suit to obtain relief respecting, or compensation for

Wrong to, immoveable property held by or oil of the defendant
may, where the relief sought can he entirely obtained through his personal
obedience, be instituted either in the Court within the local limits of
whose jLirisdiction 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, or in the Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides, or carries oil or
personally works for gain.
L.vp/aiiatoii In this section ''property'' means property situate in

Bangladesh.
The section provides that suits covered by clauses (a) to (1) are to he
instituted in the courts within the local limits of which the property is
situate. "Immovable property' is not defined in the Code. It is defined in
section 3 clause (25) of the General Clauses Act, 1897. Suits referred to in
clause (c) has some additional forums also.
iclausc (cjne to immovable )pertv" means torts affecting immovable

I -operty such as. trespass, nuisance. ml ringemcnt of easement. etc.
Crip -i'.v- A'atsoii (/893) 20 C 689,)
Section-17: Suits for immoveable property situate within the

jurisdiction of different Courts.—Where a suit is to obtain relief
respecting, or compensation for wrong to, immoveable 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 cognizahie by such Court.
This section is supplemental to sectioil 16 and applies only to suits falling

within clauses (a) to (e) of that section.
Satva Nara van Bwierje -is- Rod/ia Nath Dos, 45 CWN 1085
(The section is for the benefit of litigants, the object being to avoid
multiplicity of suits.
Haruc/ic,i,dar Lot IJci/icu/tir (I $94) /6 A 35_)
20 Ss. 17-19 Civil- PRoctDuI Coni [1908: Act V
Section 17 applies only to those cases in which there is one and the same
cause of action in respect of immovable property situate within the jurisdiction
of different courts and does not apply if the cause of action as to the property
without the local limits of jurisdiction is different.
Niscir Ali -i's- Moha,l7ac/ Ali, 36 CWN 937; 59 IA 268
Section-18: Place of institution of suit where local limits of

Jurisdiction of Courts are uncertain.—(l) Where it is alleged to he
uncertain within the local limits of the jLlrisdiction of which of two or
more Courts any iminoveable property is situate, any one of these 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 sLut relating to that property, and its decree in the suit shall have the
same effect as if the property were sitLiate within the local limits of its
urisdiction:
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 (I),
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.
Appellate court will not interfere unless there was, at the time, no
reasonable ground for uncertainty as to jurisdiction and there has been
consequent failure of justice.
Md. -Ps- Md., 1933 A 555)
Section-19: Suits for compensation for wrongs to person or

moveables.—Where a suit is for compensation for wrong clone to the
person or to moveable 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.
1908: Act V] CIVIL PROCEDURE CODE Ss. 19-20 21
ILLUSTRATIONS
(a) A, residing in Chittagong heats B in Dhaka. B may sue A either
in Dhaka or in Chittagong.
(h) A, residing in Chittagong, publishes in Dhaka statements

defamatory of B. B may sue A either in Dhaka or in Chittagong.
The section applies to suits for wrong done to the person or the movable
property of the claimant.
Section-20: Other suits to be instituted where defendants reside

or cause of action arises.—Subject to the limitations aforesaid, every suit
shall he instituted in a Court within the local limits of whose jLlrisdiction-
(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
(h) 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 inpart, arises.
Explanation I Vs/here a person has a permanent dwelling at one

place and also a temporary residence at another place, he shall he 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 he deemed to carry on business

at its sole or principal office in Bangladesh 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 Dacca. B carries on business in Chittagong. B,
by his agent in Dacca, buys goods of A and requests A.to deliver
them to the Bangladesh Biman. A delivers the goods accordingly
in Dacca. A may sue B for the price of the goods either in Dacca,
22 Ss. 20-22 CIVIL PROCIi)tiRL Cooi- 1908: Act V
where the cause of action has arisen, or in Chittagong, where B

carrjes On business.
(b) A resides at Cox's Bazar, B at Dacca and C at Chitta g on g . A. B

and C being together at Khulna, B and C make a joint promissory
note payable oil and deliver it to A. A may sue B and C at
Khulna, where the cause of action arose. He may also sue them at
Dacca, where B resides, or at Chittagong, 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.
This section is subject to provisions of sections 16-19,
"Residence" means where a person or his fanii I y or servants eat, ii rink and
sleep.
Kimmel -vs- .i(1!iIUlI'(J, /3 CL.! 22
A nitn ma y dwell at more places than one at the same time.
Orde -vs- Skinner, 3 C. 9/ PC
"Cause of action" means the whole of the material facts which it is

necessary for the plaintiff to allege and pro''c in order to succeed.
1)/ton/i -vv- I1(n'(/(', / 1 13 649
Cause of act ion must be antecedent to I lie i list itut ion of the SLI it.
(7w'intl - tv- 1)/,ei,dra,.'2 IC 23/
'ection-2 1: Objection 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.
Objection to territorial jurisdiction must he taken in the original court at the
earliest opportunity and before settlement of issues. Even if this is done and
the objection is disallowed. 110 appellate OF i'evisional court will allow the
objection unless there has been consequent f'ailure of justice.
Bcn,,'af I' & I Co. -vs- Kwnini, 22 CWN 5/7
Lw lu, ox- I/jr//. 62 /(1'399
Section-22: Power to transfer suits which may be instituted in
more than one Court.—Where a suit may he 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
I )OS: Act V I Civu. PR ClI)iJRF CODE Ss. 22-24 23
and in all cases where issues arc settled at or before such settlement, apply
to have the stilt transferred to aiiotlier Court. and the Court to which such
application is made, after considering the objections of the other parties
if any), shall determine ill f the several Courts having jurisdiction
the suit shall proceed.
Section 22 would apply only it ' the Suit ill entirety is cognizable by either
of the courts in which the suit is tiled or b y the court to which the suit is
snu g lit to be transferred.
/iibei/a -vs- /VI(/.. /93 -3 L 635
Application under section 22 should he registered as miscellaneous judicial

case See rule 774(a)( I C.R. & 0.
Section-23: To what Court application lies.—( I ) Where the several

Courts having jurisdiction are subordinate to the same Appellate Court, an
appl icatipn under section 22 shall he made to the Appellate Court.
(2) Where such Courts are subordinate to different. Appellate Courts the
application shall he marie to the High Court Division.
For principles to he applied in deciding the question ni transfer.
LII) 10 roof -vs- KW S111)1, /0 CLI 20'
Section-24: General power of' transfer and withdrawal.—( I ) On

the application of any of the parties and after notice to the parties and
alter hearing such of them as desire to he heard, or of its own motion
without such notice, the High Court Division or the District Cuurt may Lit
any stage-
(a) transir any suit, appeal or other proceeding pending before it for trial
or disposal to any coLirt subordinate to it and competent to try or
dispose of' tile si me. or
(h) withdraw anY suit, appeal or other proccechng pending in any Court
subordinate to it. and
(I) try or dispose of the same: or
(ii) transfer the same br trial or disposal to any CoLirt subordinate to
it and competent to try or dispose of the same: or
(iii) retransi'er the same for trial or disposal to the Court from which it
was withdrawn.
24 Ss. 24-24A CIVIL PROCEDURE CODE [I 908 Act V
(2) Where any suit or proceeding has been transferred or withdrawn

Under sub-section (I), 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 he a Court of Small Causes.
The section gives general power of transfer of all suits, appeals, and other
proceedings and is not limited like section 22 to suits in which the plaintiff
has the option of suing in more than one court. It may be exercised at any
stage of the proceeding and even suo m.o1u without an application.
Md. Habi ho/la/i -vs- Tikam, 49 A 57
The.power conferred oil High Court Division under section 24(1 )(h) of
the Code regarding withdrawal and transfer of case is an unfettered one.
M. A. Hakim -vs- Bholanath Se,i, 40 DLR 413

The effect of a transfer of a suit under sub-section (4) from a court of small
causes is that the suit must he tried under the small cause court procedure
Without any right of appeal.
Cliottevial -vs- Lakshmi, 38 A 425
,S/icukarama -vs- Padmanabha, 3S M 25
The transferee court shall be deemed to be a small cause court if it has no
small cause coLirt power.
Vid\'a,yhi -vs- Ram, 1935 A 690
For Form of notice of application for transfer of a suit. Form No. 2, App. H
Sch. I = H.C. Form No. (P) 54.
Section-24A: Appearance of parties on transfer of suit, etc.—( I)

Where any suit is transferred under section 22, or any suit, appeal or other
proceeding is transferred or withdrawn under sub-section (1) of section 24
oil 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.
1908: Act Vi CIVIL PROCEDURE CODE Ss. 24A-29 25
(2) Where any suit, appeal or other proceeding is transferred from

one Court to another, otherwise than on the application of a party, the
parties thereto shall appear before the Court from which the suit, appeal or
other proceeding is to he 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 he transferred,
either on the same day, or on such earliest day as may he reasonable
having regard to the distance at which the other Court is located.
Section-25: Omitted by the Central Laws (Statute Reform)

Ordinance, 1960.
Section-26: Institution of suits.—Every sLut shall he instituted by
the presentation of a plaint or in such other manner as may be prescribed.
As to mode of institution, see Or. 4, r. I and rule 48, C.R & 0.

A suit is not duly instituted until it is registered.
Sitrentha -vv- Atabuc/din 26 CWN 391
SUMMONS AND DISCOVERY
Section-27: Summons to defendants.—Where a suit has been duly

instituted, a summon may he issued to the defendant to appear and answer
the claim and may he served in manner prescribed.
Issue and service of summons - see Or. 5.
Section-28: Omitted by Act VIII of 1973 as amended by Act LIII

of 1974.
Section-29: Service of foreign summonses.—Summonses and other
processes issued by any Civil or Revenue Court situate outside
Bangladesh may he sent to the Courts in Bangladesh and served as if they
were summonses issued by such Courts:
Provided that the Government has by notification in the official

Gazette declared the provisions of this section to apply to such Courts.
Provisions of section 29 have been applied to-
(i) the Civil Courts in the Federation of Malaya as respects service in

East Bengal (now Bangladesh) of processes issued by such courts, see
Dhaka Gazette, 1949, Part–I, Page-543.
26 Ss. 29-30 Civil- PR CEDtJRE CODE I 1908: Act V
(ii) all Civil and Revenue Courts of India, as respects service in the
Province of East Bengal (now Iangladesh ) of summonses issued by such
Courts: and that service by such Courts of summonses issued under the said
Code by aCourt in the province of East Bengal (now Bangladesh) shall he
deemed to be valid service, see Government of East Bengal, Judicial and
Legislative Department (Ju(Iicial), Notification No. 3843-i, dated 30
August, 195 I, ])Uhlishe(I ill Dacca Gazette, Extraordinar y , dated 1st
September, 1951. Pt. I, pages 947 and 948.
(iii) all Civil and Revenue Courts of the Union of Burma; and service
b y such COL HIS of summonses issued ii ncler the said Code b y a Court in East
Bengal (now Bangladesh) shall be deemed to be valid service, see Dhaka
Gazette. Extra, dated 18th October, 1954. Pt. I. 1). 3053.
(iv) the summonses issued by an y Civil or Revenue Court in Pakistan

(applichle to Bangladesh) ma y be sent to the Courts in the Union of Bruma
and served as if the y had been issued by such courts, see Gazette of'
Pakistan. 1955, Pt., L P . 143.
(v) service b y an y Court situated ill (applicable to

Bangladesh) of any summons issued by a Court of the Union of Burma
shall be deemed to h. valid service, see Gazette of Pakistan, 1955. Pt. I. p
143.
(vi) all Civil and Revenue Courts ill Federal Republic of Germany;
and service b y such courts on an y summons issued under the said Code b y a
Court in the Prov i nec of East Bengal ( now Bangladesh ) shall be deemed to
be valid service, see Dacca Gazette, 1955, Pt. I, 1051.
ill and the service by such Courts of

(vii) all Civil Courts
any summons issued tinder this Code by a Court ill Province of East
Pakistan (now Bangladesh) shall be deemed to be valid service, see Dhaka
Gazette. 1959 Pt. I. P.778.
,/2':section_9'Power to order discovery and the like.—Suhject to

7 /uch condliti( s and limitations as may he prescribed, the Cotn't may. at
Lilly time, either of ' its own motion or on the application of any party.—
(a) make such orders as may he necessary or reasonable in all matters

relating to the delivery and answcrin of intel'rotzatories, the
admission of documents and facts, and the discovery, inspection.
pi'ocluctioni, impoLindin g and return olclocuments or other material
objects producible as evidence:
1908: Act VI Civil., PROCFI)uRr CODE Ss. 30-32 27
(h) issue sLimmonses 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.
For discovery and inspection see Or. I

For discovery by interrogatories see Or. I 1, rr. I - I
For discover y by affidavit and production ol document see Or. I I, rr. 12-14
For inspection of documents see Or. I I. r- 15
For ool of facts by affidavits see Or. 19
For admission of documents and facts see Or. 12
For prod uct on. impound lug and return of clocume nts see Or. 13
See para 13. Civil Suit Instructions Manual and rules 130-131. C. R & 0.
Affidavit ol cv deuce-governing pri tic i pie in practice-grou ncls of belief and

verilication rule.
The Vi( e (liwinia,,, Enem y Propeiiv Management Board. Dhaka &

ors -vs- Shali Go/am Nahi and Others 27 DLI? (Al)) 156
This scction enables the Court to make an order for discovery, which is
iiecessarv or reasonable.
BiitLv/, C'oni,,,on irea///, Ins. Co. -vs- Ha/i /dwn Ha/i. 6 1)11? 544
Section-31: Summons to witness.—The provisions in sections 27

and 29 shall appl y to summonses to give evidence or to produce
(bc LI Iflefl tS or other material ohjects.
For summons to witness see Or. 16

For production of (bocu nients see Or. 13
For production or inspections of material things (S. 94 (h)J, see Or IS. r. IS.
Or. 39, r. 7, and section 60. Evidence Act, 1872.
e
ection 3 . Penalt y for default.—The Court may
p com el the
attendance o any person to whom a summons has been issLied under
section 30 and for that pirpose may–
(a) issue a warrant for his arrest:

(11) attach and sell his property
(c) impose a fine upon him not exceeding five hundred Taka:
(d) order him to furnish securit y for his appearance and in delault
commit him to the civil person.
28 Ss. 32-34 CIVIL PROCFDLRE CODE I
It Act V
For warrant, attachment and sale see Or. 16, rr. 10-13, 17, 18, 20, 21
For.line see Or. 16,r. 12
For security see Or. 16,r. 16
Penalty can be imposed only when a SU111111011S has been issued and not when
there is an order to produce a document.
R(,mes/n yar -vs- I?ik,wt/i, 5 PLJ 550
JUDGMENT AND I)EcREE
Section-33: Judgement and decree.—The Court, after the case has

been heard, shall pronounce judgernent, and on such judgement a decree
Shall follow.
For judgement and decree see Or, 20.

For judgement in appeal see Or. .4 1, rr. 30, 31
A decree must automatically follow judgement and court can not stop
preparation of decree until payment of cleficite court fee.
Molianu,ico/ - i's- Ma/whir, 1942 P 4/0

Kcddir -i's- Chandra, /932 P 410
When adjudication made is a "clecree' omission or refusal to draw up a

decree would not negative the right to prefer an appeal.
Kwnini -vs- /',•(,,,•,(,t/7df 19 CWN 755, 757

Moiio/iar -vs- Nanak, 57 IC 479
INTEREST
Section-34: Interest.—( I ) 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 he paid on the principal 5LI
adjudged, from the date of the suit to the date of the decree, in addition to
an y 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 adjud g ed, 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 the
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.
908: Act V] CIVIL PROCEDURE CODI Ss-34-35 29
The section applies only to decree "for payment of money."

Interest prior to the suit (i.e., interest which is part of the claim in the suit) is
a matter of substantive law and does not come within this section.
Crewc/so,, -t',v- Ga,zesii .32 CL! 329
The award of interest from date of suit to date of decree is entirely
discretionary.
Pa,uw -PS- Ni/ai, 26 CWN 737 PC
The discretioi is not excluded even if there was an a greement that interest
shou Id run U p to rca Ii zat ion.
U,ne,s -Ps- Fat/nut. 15' C 164 PC
The rate of interest is entirely discretionary even if there was an agreement.
Hakim -Ps- Ganga, 47 CWN 1/3 Pc
MIS M. M. Ispahwii -vs- Sonaii Bank 37 DLR (AD) /
Under sub-sec (2) where a decree is silent as to interest, it shall be deemed to
have been refused.
Him/al -Ps- Narsjiai, /7 CWN 573 PC
So,ia/, Bank -Ps- Malibu/70/ Amin, 42 DLR (AD) 107
Kaclarn Rosul Silicate -vs- Soiwii Bank, 42 DLR (AD) 294
Right to interest depends upon contract, express or implied, or on some rule
of law allowing it.
Kalvan -vs- Maqhui, 22 CWN 866 PC
For Form of simple money decree see Form No. 2 App. D. Sch. 1= H.C.
Form No. (.1) 26.
COSTS
Section-35: Costs.—( I.) Subject to SLICh conditions and limitations as
may he prescribed, and to the provisions of any law for the time being in
force, the costs of and incident to all suits shall he in the discretion of the
Court, and the Court shall have full power to determine by whom or out
of what property and to what extent such costs are to be paid, and to give
Lill 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.
30 CIVIL PR()CFI)tJRI CoI)F 1908: Act V
Ss. 35-35A
(3) The Court may give interest on costs at any rate 1101 exceeding six
PCI . cent. per annum, and such interest shall be added to the costs and shall
he recoverable as SLICh.
Proportionate costs, see rules 164-165, C.R. & 0.
"Sill-) ject to such conditions and limitations'' - The tollowing rules contain
limitations regarding costs:- costs of interrogatories (Or. 11, r. 3); 11011-
service of notice to admit documents (Or. 12, r. 2); costs of affidavit (Or. 19.
r. 3); decree-holder's purchase without perniissioil (Or. 21, r. 72); liability of
minors pleader to py costs (Or. 32. r. 5); withdrawal from suit without
permission (Or. 2.r. 1(3)); costs on payillent into court (Or. 24, r. 4); costs
of next friends and guardians (Or. 32, rr. 4-5); costs in pauper suits (Or. 33
rr. 10-I1, 16); interpleader suits (Or. 35. r. 3).
Incident to all suits" i nd odes costs of all applications etc. niade dun ng the
trial
Appeal—Where costs are awarded in a "decree" an appeal lies for costs
\V he
ii -
I) a matter of principle is involved;
Se(. flf 5iuie - ps- Murjuin. II C3.59

Di/dur -w.v- Shuown, $4 C $78,,
(2) the order proceeds upon a misapprehension of fact or law;

Rn,ILIlortIav -vs- Bai, /6 B 676
./i.tstuin -vs'- PojilI, 24 CWN 352;
(3) there has been no real exercise of discretion;

i1oshii,'üii -'.v Mozuri. 12 C 271
Lu /nwn I -vs- Chin /c wuni , 41 A 254;
or,
(4) the order is erroneous in law and improper.

R(nLha,u/er -vs- I3ui, 16 B 676;
,Si,ddusook -vs- Ruin. 17 C 620;
RudIie' -vs- Biliuri, 40 A 558
• Section-35A: Compensatory cost in respect of false or vexatious

claims or defences.—( I) If in any suit or other proceeding, (including an
execution proceeding), not being an appeal, any party objects to the claim
or delence on the ground that the claim or defence orally part of it is, as
against the. objector, false OF vexatioLls to the knowledge of the party by
whom it has been put forward, and if thereafter, as against the objector,
1908: Act VJ CIVIL I'Roc:EF)IJRF Cot) S. 35A 31
such Chlilll 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
recordine it.s reasons for holding such claim or defence to he false or
VCXatiouS, make an order for the payment to the objector by the party by
WhOni sLICh 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 amouit
exccedui g live thousand Taka or cxci±eding the limits of its pecuniary
jurisdiction, whichever amount is less:
Provided that where the pecuniary limits of the jurisdiction 01 any

Court exercising the jurisdiction of a Court of Small Causes Linder the
Small Cause Courts Act. 1887, and not being it Court constituted under
that Act, are less than two hundred and fifty Taka. the High Court
Division may empower such Court to award as costs LIfldcr this section
Lilly amount not exceeding two hundred and fifty Taka and not exceeding
those limits by more than one hundred Taka:
Provided, further, that the High Court Division may limit the amount
W hich any CoLirt 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, he exempted from any criminal liability
in respect of any claim or defence made by him.
(4) The amoLint of any compensation awarded under this section in

respect of a false or vexatious claim or defence shall he taken into account
in any subsequent suit for damages or cohipensation in respect of such
claim or defence.
The general rule is that the successful party is entitled to costs unless he is
guilty of misconduct, negligence or omission or unless there is some other
good cause for not allowing costs.
Bhubmiesivari -us- fViIco,nuI, 12 C IN PC
Court may in exceptional cases award costs even against strangers to the
Still. providal he is given an opportunity of bein g
heard.
Hahi/n,/Ia/, K/iijj -us- 5/,/ /\s/7/'!fi((/(/j/j fumed amid others 35 DLI? (AD) 72.
C/la/Idea - us- Mono/mar, 1942, A 233 PB.
CiviL PROCEDURE CODE [1908: Act V
32 S. 35A
Costs under the section are compensatory and not penal.

(]ci\'a I'd -es- Ramji, 1949 A. 135
Conditions for awarding compensatory costs are that:-( I) the claim must be
false or vexatious to the knowledge of the plaintiff; (2) the interests of
justice require it and (3) objection was put forward by the defendant at the
earliest opportunity.
Pedara,,çaswafli -',s- State, 1953 44 583
1908: Act V CIVIL PROCEDURECODE Ss. 36-37 33
Part II
EXECUTION
GENERAL
Section-36: Application to orders.—The provisions of the Code

relating to the execution of decrees shall, so far as they are applicable, he
deemed to apply to the execution of orders.
The detailed procedure relating to execution of decrees is in Order 21 and

this section makes the provisions of Order 21 applicable to all orders.
Applicability of s.36 in execution of pre-emption order and delivery of
possession of a disputed property.
HuJi Md. Slwriatullcili -p.s- A,rrafi,n Nessa Bihi and

others, 28 DLR (AD) 91
The principle is that the court has inherent power to have its order carried
out.
.lo'endra -Ps- N(ijidwinessa, II CWN 856
Execution of decrees or orders should receive as much attention as original
suits or appeals.
See rule' s 167, 168, C. R. & 0 and paia 35, Civil Suit Instructions Manual
Section-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 he executed has been passed in the exercise
of appellate jurisdiction, the Court of first instance, and
b) where the CoLirt 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.
The meaning of this section is that in addition to the court which actually
passed the decree, the expression "court which passed a decree" includes
the courts mentioned in clauses. (a) and (b).
Every decree whether it be of the court of first instance or of a court of first
appeal or of the High Court Division or of the Appellate Division is to he
executed by the court of first instance which passed the decree.
Krishna - s- Ra,ia,38 M 832

34 Ss. 37-38 CIVIL PROCEDURE CODE [1908: Act V
Where the court of first instance which passed the decree has ceased to exist
or ceased to have jurisdiction, the only court which can execute such a
decree is the court mentioned in clause (b).
A court does not cease to exist because its head-quarters are removed to
another place or the local limits of its jurisdiction are altered.
Larch.,nan. -vs- Madan, 6 C5/3,

Sreenath -i's- Privanath., 35 CWN 77;
Satrucherla -i's- Raja, 50 M 882
A court does not cease to exist if it is re-established after abolition, or

merely because its business is transferred by the District Judge to another
court, or because its pecuniary jurisdiction is curtailed.
Khodai -vs- Harihar, 4 P 688,

Kalipada -vs- Dino, 25 C 315,
Abdul -i's- Mohini, 37 CWN 679
Territorial jurisdiction is a condition precedent to a court executing a

decree, but there is a distinction between jurisdiction to execute a decree
and jurisdiction to entertain an application to execute a decree. So, where
after the passing of a decree a court is removed to another place or property
is transferred from its jurisdiction to the jurisdiction of another court by
Government notification, the removed court or the original court may
entertain an application for execution, and then send it to the court having
territorial jurisdiction for executing the order for sale.
Sreenath -vs- Privaizath, 35 CWN 77,

Lachman -i's- Madan, 6 C 513;
Seeni -i's- Muth.t,samy, 42 M 821 PB
COURTS BY WHICH DECREES MAY BE EXECUTED
Section-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.
This section confers jurisdiction for execution on (I) the court which passed
the decree or (2) the court to which the decree is transferred.
Court passing the decree can send the decree for execution to another court
even after the judgment-debtor ceased residing within the jurisdiction of
decreeing court having property therein.
Muns/ii Moizuddin Ahmed -i's- Musrafti Hossain, 14 DLR 828

A Court has no jurisdiction, in execution of a decree, to sell property over

which it had no territorial jurisdiction at the time it passed the order of sale.
It was held that the sale must be set aside as being without jurisdiction.
Prem. Ch.and Dey -vs- Mokshadci Debi, 17 C 6.99
If after a court has passed a decree, the local jurisdiction in respect of the
subject-matter of the suit is transferred by an order of the Govt. to some
other court, the application for execution of the decree may be made either
to the court which passed the decree or to the court to which the local
jiirisdiction has been transferred.
Jalwr -vs- Karn.ini Debi, 28 C 238
It is not competent to a Court, in execution of a decree for money, to attach,

at the instance of the decree-holder, a debt payable to the judgment-debtor
outside the jurisdiction, by a person not resident within the jurisdiction of
that court.
No court can execute a decree in respect of property lying outside its
territorial jurisdiction at the time of execution.
Begg Dunlop and Co.-vs- Jagannath Marwari, 39 C 104
A court passing a decree has power to execute it although by reason of

accumulation of interest or mesne profits the amount under execution
exceeds its pecuniary jurisdiction.
Bk! vadhar -vs- Manindra, 53 C 14 PB
Can the executing Court go behind decree?

It has been universally held that the executing court cannot alter, vary or
add to the terms of a decree.
Udwwit -us- Tokan, 28 C 353 PC
The executing court must take the decree as it stands and cannot question
the legality or correctness or validity of the decree.
Kalipada -vs- Han, 44 C 627;
Kali -vs- Bihhuri, 36 CWN 1120;
Tripoli -s Bise.rwar, 55 CL] 114
But, a decree a gy'dead man can be challenged in execution as it is

nullity.
Haribancihu -vs- Hariniohon, 34 CWN 36;
Basiruddin -vs- Saradindu, 38 CWN 1124
4
36 Ss. 38-39 Civil- PIocFuRF CODE [1908: Act V
So, where a person dies during a litigation and his heirs are not substituted
the decree cannot be executed against them.
Na renc/ra - s- Gopal, /7 CLI 634

When a decree is of a court which on the face of it has no jurisdiction,
pecuniary or territorial, the executing court may refuse to execute.
Gorachand -'.v- Pr titila, 53 C 166,' 29 CWN 948 PB
Section-39: Transfer of decree.--(I) 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
(h) if sLich person has no 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
if the decree directs the sale or delivery of immoveable property

situate outside the local limits of the jurisdiction of the Court which
passed it, or
(cI) 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.
Court transferring a decree can simultaneously carry oil

proceedings, where it is satisfied that property would be insufficient to
satisfy decree but the power should be exercise in exceptional cases..
Pate/i -is- Jitnnil, 1929 B 418; Gurudas -i's- Ganendra 39 CWN 165
S.39 does not authorize the court passing decree for money to sell properties
of judgment-debtor situate outside its jurisdiction, even if they have been
attached before judgment.
Ani.bika Ran/an Majuinder -vs- The Manikganj Loan. Office Ltd.,
33 CWN 848
"Decree-holder" includes transferee of a decree.
C/ia/or/i -i's- Saidin.da'ude, 26 Al 258
1908: Act V CIVIL PROCEDURE CODE Ss. 39-42 37
Verification of application for transfer and particulars to be set out, see rule-
228, C.R. & 0. Notice under Or. 21, r. 22 to he given in all cases where
notice is necessary. See also rule 228, C.R. & 0. Transfer to High Court
Division, Or. 21, r. 9 and rule 228, C. R. & 0. Transfer to Stiall Cause
Court, Or. 21, r. 4.
Section-40: Omitted by Act VIII of 1.973, as amended by Act LIII

of 1974.
Section-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 execLite the same the circumstances attending such failLire.
If no application for execution is made to the transferee court within six

months from the date of the transfer, that court shall return the decree to the
transferor court.
Sec rule 231. C. R &O.
E%, e6 court shall maintain a register of transferred decree in Forni (R) 22.
See rule 232, C. R &O.
Transferee court retains jurisdiction to execute until execLition has been
withdrawn by calling back the decree or until it has sent the required
certificate of execution or failure of execution under section 41
SaIi' -c-I.v/,ar, 1930 L 50
.Abdu -i',v- Muaffiir, 20 A 129
tt4u,zorat/i -VS- A,fl/7ikQ. 13 CWN 533
Section-42: Powers of Court in executing transferred

decree.----( I ) 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 he
punishable by such CoLirt in the same manner as if it had passed the
decree. And its order in executing such decree shall he sLibject 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;
(h) power under sub-section (I) of section 50 to permit execution to
38 Ss. 42-44A CIVIL PROCEDURE CODE [1908: Act V
proceed against the legal representatives of adecased 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 grant 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.
Section-43: Execution of decrees by British Courts in places to

which this Part does not extend or in foreign territory.—Any decree
passed by a Civil Court established in any area in Bangladesh to which
the provisions relating to execution do not extend, may, if it cannot he
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
Bangladesh.

of 1974.
Section-44A: 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, the decree
may he executed in Bangladesh 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 provision 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.
1908: Act VI CIVIL PROCEDURE, CODE Ss. 44A-46 39
Exj.lanation I - " 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 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, means such Courts as may
he specified in the said notification.
Explanation 3 —"Decree" with reference to it superior Cout, means

any decree or, judgment of such Court under which a sum of money is
payable, not being it 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 supe r i or Courts in the United Kingdom, includes

Jud g ments 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 it decree or judgment.
Although section 47 was omitted by Ordinance No. XLVIII of 1983, it continues to
exist in sub-section (3) br want or consequential amendment.
Section-45: Ommitted by Act VIII of .1973 as amended by Act
LIII of 1974.
Section-46: Precepts.—(l) Upon the application of the decreer

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 j ud gment-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
40 Ss. 4648 CIVIL PROCEDURE CODE 11908: Act V
attachment has been made and the decree-holder has applied for an order
for the sale of such property.
The object of this section is to enable the decree-holder to obtain an interim

attachment where there is ground to apprehend that he may otherwise be
deprived of the fruits of his decree.
A precept may be issued, even after a decree is transferred to another court

and the court to whom precept is issued cannot question its validity.
(1u1stai,u - v s- ,IJ,nslic, '.3 / CVV'N 653
Section-47: Omitted by Ord. XL VIII of 1983.
LIMIT OF TIME FOR EXECUTION
Section-48: Execution barred in certain cases.—(l) 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 he
made upon any fresh application presented after the expiration of twelve
years from–
(a) the date of the decree sought to be executed, or,

(h) 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 ill making the
payIleIlt 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 teflll of
twelve years, where the judgment-debtor has, by fraud or force,
prevented the execution of the decree at some time within twelve
years immediately before the date of the application; or
(h) to limit or otherwise affect the operation of article 183 of the First
Schedule to the . Limitation Act, 1908.
This section fixes a maximum period of twelve years after which no

execution of a decree can be allowed. Twelve years is to he counted 110111 the
terminus quo in clauses (a) and (b) of sub-section (I). Although an outside
period of twelve years has been fixed, the decree must during the period he
kept alive uilcler article 182 of the Limitation Act, 1908, which requires the
first application for execution to be made within three years of the decree
and each successive application to be made within three years of the final
order passed oil last application. Decree may also be kept alive without
application for execution by payment and endorsement under section 20 of
the Limitation Act. 1908;
]it of a decree where an appeal has been taken and dismissed for
default or for non-prosecution, the period of limitation under section 48 of
the Code is to run from the date of the decree of the trial court and not from
such appellate order dismissing the appeal for non-prosecution.
Md. Abc/ui Rahi,n -vs- Sree Sue Gmadliari. 27 DLR 73.
12 years' limitation for execution of a decree is the maximum period
allowed for its execution. First application for execution Just, however, he
made within 3 years from the date of the decree as provided by Article 182,
Limitation Act and each successive application for its execution must be
made within 3 years from the date of the last preceding application for
execution. Section 48 is controlled by the provision of the Limitation Act.
Baii'lc,des/i. Jativa 5amabava Bank Ltd. -i's- Dail y Saiz'bad newspaper
cuici others, 36 DLR (AD) 5
"Fresh application'' in sub-section (I). means a substantive application upon

which an order has to be made granting or refusing application. It does not
mean an application merely ancillary or incidental to the prosecution or
continuation of the substantive application already made..
i?ci/um - vs- P/IL/I, /S A 482 FB
An execution application made within twelve years may carry the execution
proceedings beyond twelve years for purpose of final completion.
Roiii,n ys- Phul, 18 A 482 FB:
Majthulia r's- Umecl, 30 A 499
But a subsequent application for attachment and sale of fresh properties not
included in the previous application and made after twelve years is not in
connection with the original application nor was the substantive application
pending for the purpose of giving the decree-holder its benefit.
Badri -r's- Dharniac/as, 60 CLJ 123;
Huvatu,j.nessa -r's- Ashia, 50 C 743,
Band/i.e -'x- K. T. Bank, 54A 419
"Subsequent order" in clause (b) of sub-section (I) means an order ill
slut in which the decree is made and not all by the executing court.
I?a/c, Ki.rrana,id -v- Pirthe, 37 CWN 548 PC
.Iurawan -i's- Maha/,ir, 40A /98
TRANSFEREES AND LEGAL REPRESENTATIVES

Section-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.
The principle embodied in S.49 is the same as in S. 132 T.P. Act.
The right is not available where there is no cross- decree oil date of
assignment.
Nagen.dra -vs- Haran, 37 CWN 758
Section-50: Legal representatives.—( I) 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 execwe 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 sLich 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.
This section enables a decree-holder to execute his decree against the legal
representatives of the judgment-debtor when he dies after decree. A decree
against a dead person or against a person who died during the pendency of
the suit without his legal representatives being brought on record is a nullity
and cannot he executed against his legal representatives. But death of a
defendant after hearing but before judgment does not affect its validity (see
Or. 22, r. 6) and can be executed against his legal representatives. Death in
this section means natural death and not civil death.
Sudhamovee -i's- Bhujen.dra, 1935 C 713;

Madiw -is- Gur, 53 A 529
A mere trespasser is not a legal representative.
Satvaran/a,i -i's- Sarat, 30 CWN 565
Application under S. 50 to execute a decree against a legal representative is

to be made to the court which passed the decree.
Seth -i's- Sliankar, 17A 431;

H/ru -i's- Kastiw, 18 B 224,
Man lula -i's- Panditrang, /934 B 2/5
1908: Act VI CIVIL PROCEDURE CODE Ss. 50-51 43
A transferee court has no jurisdiction to substitute the heirs of the judgment-

debtor and execute the decree against them.
Abdur Rah.,nc,n Sikdar -vs- Kalidas Basu, JO DLR 277
The position has changed after enactment of section 42(2)(b) by Ord. XLIV
of 1962, S. 10.
Judgment-debtor dies before sale, heirs not brought oil
Held: The sale having taken place without bringing the heirs judgment-
debtor on record should be treated as void and not violable, so far as the
heirs are concerned.
Nowabjan Bibi - vs- Ciiaiiclra Kuinar Ro y, 4 DLR 43

Pashupati -i's- Ushapati 1949 C 299
Shanti -k's- Khan.dubaia 65 CWN 171 FB
Jung -vs- Bank of UI 1928 PC 162; 32 CWN 790 PC
When substitution is made by the executing court of the legal

representatives of a judgment-debtor deceased since the transfer of the
decree, it is an irregularity. But the irregularity may be waived by
acquiescence and when it has been so waived, the party acquiescing cannot
turn round and question the jurisdiction of the executing court.
PROCEDURE IN EXECUTION
Section—Si: Powers 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;
(h) 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 where the decree is for the payment of money,

execution by detention in prison shall not he ordered unless, after giving
thejudgment-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 had faith in relation to his
property; or
(h) 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 sLim 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 he 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.
The section simply states generally the powers of the Court to enforce
execution. Details are to be found in Or. 21.
Detention in civil prison shall not be ordered as a matter of coLirse but only
Oil fulfilment of the conditions laid in the proviso. The object is to protect
poor hut honest debtors.
Section-52: Enforcement of decree against legal representative.—

I ) 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 he 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
sLich property of the deceased as is proved to have come into his
possession, the decree may he executed against the judgment-dehtor 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.
To apply S. 52 three conditions are required to be satisfied: (I) legal

representative must have received some property of the deceased; (2) he
must no longer be in possession of it and (3) he has failed to duly apply to

discharge the debt of the deceased.
This section requires that the decree (I) must be passed against the legal
representative as such, (2) must state that the amount is to be realised out of
the estate of the deceased debtor.
Brijra/ -vs- Manciranjan, 1947 P 365

Sub-section (2) says that in regard to property which came into the hands of
the legal representative but which has not been duly applied by him, the
decree may be executed against him as if the decree was to that extent
passed against hi in personally.
Bhagwati -vs- Madci,z. 1930 L 354

The creditor of a deceased Mahaniedan can not follow his estate into the
hands of a bona fide purchaser for value from his heir.
Bazaver Hossain -i's- Dooli Cliand, 4 C 402 PC

A decree against a wrong person as heir can not be executed against the
rightful heir.
Kaliappan -us- Varadara/ulu, 33 M 75
Section-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 he property of the deceased which has come to the hands of the
son or other descendant as his legal representative.
Section-54: Partition of estate or separation of share.—Where the

decree is for the partition of an 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.
S'ce Or. 20. i. 18.
ARREST AND DETENTION
Section-55: Arrest and detention.--(I) A judgment–debtor may

he arrested in execution of a decree at any hour and on any clay, and shall,
as soon as practicable, he brought before the Court, and his detention may
he in the civil prison of the district in which the Court ordering the
detention is situate, or, where such civil prison does not afford suitable
accommodation, in any other place which the Government may appoint
for the detention of persons ordered by the Courts of such district to he
detained:
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 authorized 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 authorized 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 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 Government in this behalf.
(3) Where a judgment-debtor is arrested in execution of a decree for

the payment of money and brought before the Court, the Court shall
inform him that he may apply to be declared an insolvent, and that he may
he discharged if he has not committed any act of bad faith regarding the
subject of the application and if he complies with the provisions of the
law of insolvency for the time being in force.
(4) Where ajudgment-debtor expresses his intention to apply to be

declared an insolvent and furnishes security, to the satisfaction of the
Court., that he will within one month so apply, and that he will appear,
when called upon, in any proceeding upon the application or upon the
decree in execution of which he was arrested, the Court may release him
from arrest, and, if he fails to apply and to appear, the Court may either
direct the security to be realized or commit him to the civil prison in
execution of the decree.
See also rules 220-224, C.R. & 0. For exemption of certain persons from
arrest see sections 133, 135 and 135A of the Code. For arrest of persons
outside coLirt's jurisdiction see section 136 of the Code. For arrest and
detention see Or. 21, rr. 37-40. For period of detention and release see
section 58 and Or. 21, r. 40. For release on ground of illness see section 59.
For procedure when a person arrested is too ill to be removed see rule 221,
C. R. & 0. For arrest before judgment see Or. 38, r. I of the Code and rule
284, C. R. & 0 and para 34, Civil Suit Instructions Manual. Form of
warrant of arrest, see Form No. 13 App. E Sch. I = H.C. Form No. (P) 26.
The provisions of section 55 are mandatory.
Dharani -i's- Kvhitipari, 54 C 782,
Section-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 civil prison of a
woman in execution of a decree for the payment of money.
A woman cannot also be imprisoned iii execution of a decree for restitution

of conjugal rights. See Or. 21, r. 32.
Section-57: Subsistence allowance.—The Government may fix

scales, graduated according to rank, race and nationality, of monthly
allowances payable for the subsistence of judgment-debtors.
See also rules 174 and 223, C. R & 0.
Section-58: Detention and release.—(1) Every person detained in

the civil prison in execution of a decree shall be so detained,— .
(a) where the decree is for the payment of a sum of money exceeding
fifty Taka, for a period of six months, and,
(h) in any other case for a period of six weeks:
Provided that he shall be released from such detention before the

expiration of the said period of six months or six weeks, as the case may
be,-
(i) on the amount mentioned in the warrant for his detention being
paid to the officer in charge of the civil prison, or
(ii) on the decree against him being otherwise fully satisfied. or
(iii) on the request of the person on whose application he has been so

detained, or
(iv) on the omission by the person, on whose application he has been
so detained, to pay subsistence allowance:
Provided, also, that he shall not be released from such detention under
clause (ii) or clause (iii), without the order of the Court.
(2) A judgment-debtor released from detention under this section shall

not merely by reason of his release be discharged from his debt, but he
shall not be liable to be re-arrested Linder the decree in execution of which
he was detained in the civil prison.
This section does not apply to cases of imprisonment for contempt of court.
Martin -i's- Lawrence (1879) 4 C 655
The court has no power to fix shorter period than six months or six weeks as
the case may be.
Su/an -is- Sugar, 5 CWN 145
See also rule 222, C.R & 0.
The immunity from re-arrest is applicable only when a judgment-debtor is
released from detention in jail and not when he is arrested and released
without bin -g- committed to prison.
Rajendra -'.v- ChancIer, 23 C 128:
Kanshi -i's- K. 1929 L 36/
Form of warrant of committal, see Form No. 14, App. E, Sch. I = H. C. Form
No. (P) 27. Form of Order of release, see Form No. 15, App. E, Sch. I = H.
C. Form No. (P) 28.
Section-59: Release on ground of illness.--41) At any time after a

warrant for the arrest of a judgment-debtor has been issued the Court may
cancel it on the ground of his serious illness.
(2) Where a judgment-debtor has been arrested, the Court may
release him if, in its opinion, he is not in a fit state of health to be detained
in the civil prison.
1908: Act Vi Civil-, PROCEDURL COoi Ss. 59-60 49
(3) Where a judgment-debtor has been committed to the civil prison, he

may he released therefrom-
(a) by the Government, oil ground of the existence of any infectious

or contagious disease, or
(b) by the committing Court, or any Court to which that Court is
subordinate, oil ground of his suffering from any serious illness.
(4) A judgment-debtor released under this section may he re-arrested,

bLit the period of his detention in the civil prison shall not ill aggregate
exceed that prescribed by section 58.
Sec LIIS0 rules 221-223, C.R. & 0.

Form o[ order 0! rclease. Form No. 15, A11. E, Sch. I = H. C. Form No. (P) 28.
ATTACHMENT
Property liable to attachment and sale in execution of

decree.—( I) The following property is liable to attachment and sale in
execution of a decree, namely, lands, houses or other buildings, goods,
money, hank-notes, checiues, bills of exchange, hLlndis, 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 he held in the name
Of the judgment-debtor or by another person in trust for him or on his
behalf:
Provided that the following particulars shall not he 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 he parted
with by any woman;
(b) tools of artizans, and, where the judgment-debtor is an agricLlltLirist,

his implements of husbandry and sLich cattle and seed-grain as may, in
the opinion of the Court, he 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 he free
from liability under the provisions of the next following section;
50 S.60 CIVIL PIocI-DuR1- CODE L1908:
Act V
(c) houses and other buildin g s (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) hooks of account;
(c) 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 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 Taka and one-half the
remainder:
Provided that where such salary is the salary of a servant of the

Republic or a servant of the Railway 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 lurther period of twelve months and, where such
attachment has been made in execution of one and the. same decree, shall
he finally exempt from attachment in execution of that decree;
() the pay and allowances of9,jrns to whom the Army Act, 1952,
Navy Ordinance, 1961 or the Air Force Act, 1953 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 he liable to attachment:
(I) any allowance forming part of the emoluments of any servant of the
Republic or of any servant of the Railway or local authority which the
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;
(11) a right to future maintenance;
(o) any allowance declared by any Bangladesh law to he exempt from

liability to attachment or sale in execution of a decree: and,
1908: Act V.1 CIVIL PROCEDURE CODE Ss.60-62 51
(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 sale for the recovery of an
arrear of such revenue.
Explanation 1 —The particulars mentioned in clauses (g), (h), (i), (j),

(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 Republic or a servant of the Railway or local authority the
attachable portion thereof is exempt from attachment until it is actually
payable.
Explanation 2 - In clauses (h) and (i) ''salary" means the total

monthly emoluments, excluding any allowance decl lred exempt from
attachment under the provisions of clause ( I ) derived by a person from his
employment whether on duty or on leave.
The proviso to sub-section (I) is mandatory and there is no jurisdiction to

attach and sell even though no objection has been taken.
Aidal -rs- Khazan, /930 A 707,-'

Mah:om.ed Din -is- Hi,yla, 1935 L 942
Where the judgment-debtor transferred his property after the same was
attached by the court such transfer would he void against all claims
enforceable under the attachment but the validity of such transfer could not
be clustioned on that ground.
Ha/i Abul Quasein -vs- Abdur Rahman Adam, 22 DLR 822
Seo–i: Partial exemption of agricultural produce.—The

Government may, by geneiäl 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 Government to he 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.
Mode of attachment of agricultural produce, see Or. 21, rr. 44-45 and as to
mode of sale, Or 21, rr. 74-75.
ètn-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.
52 Ss. 62-63 Civit. PioC1!)uiE CODE [1908: Act V
(2) No outer door of a dwelling-house shall be broken open unless

such dwelling-house is in the occipancy of the judgment-debtor and he
refuses or in any way prevents access thereto, but when the p.rson
executing any such process has duly gained access to any dwelling-house,
lie may break open the door of any room in which he has reason to believe
any such property to be.
it
(3) Where a room in 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 gi\'ing 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.
A shop or a godown is not it dwelling house.
Damodar - ys-/swar, 3 B 89
jon-63: Property attached in execution of decrees of several

Courts.—( I) Where property not 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
CoLirts. the Court under whose decree the property was first attached.
(2) Nothing in this section shall he deemed to invalidate any

proceeding taken by a Court executing one of such decrees.
The section does not require that the higher court should have appellate or
revisional jurisdiction over the other court. It has reference only to the
gradation of courts.
Gai,ri S/ia,ike, -i's- Kasi Prasa(I, 61 CWN 725
All that the court referred to in sub-section ( 1) is competent to do is to

determine-
(1) an y claim to property attached in execution of decrees of more courts

than one, and (2) any objection to the attachment thereof i.e. claims which
can be summarily enquired into under Or. 21, rr. 58-60.
Ram.-jets -vs- Guruc/iaran. 14 CVVN 396

908: Act VI Civil- PKOC1ThLJRE CODE Ss. 63-64 53
The duty of the superior court is to determine the above questions and no
transfer of the decree to that court is necessary.
Clark -vs- Alexander, 21 C 200

C/icttvur Firm -us- C. F., 132 IC 832
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, he void as against all claims
enforceable under the attachment.
E.vpiwiatiou - For the purposes, of this section, claims enforceable

under an attachment include claims for the rateable distribution of assets.
A sues B for Taka 5000. B owns a house worth Taka 5000, and he has no
other property. B may sell or mortgage the house notwithstanding the
institution of the suit against him and he may sell or mortgage it even after a
decree has been passed against him in the suit and the sale or mortgage in
either case will be perfectly valid and pass a good title to the transferee.. But
if the house is attached in execution of the decree, any private transfer of the
house by B contrary to such attachment shall be void as against all claims
enforceable under the attachment. The section applies only to voluntary sale,
gilt or mortgage etc., in contravention of the attachment and not to sale by a
court in execution of a valid decree.
This section secures in tact the rights of the attaching creditor against the
attached property by prohibiting transfers pencling . the attachment.
Di,, I, ,id/,t, -vs- Jo',nwa. 29 C 154 PC
The attachment affects the right, title and interest of the judgment-debtor at
he , date of attachment and so a conveyance after attachment hut in
Ilursuance of a contract before. attachment is not affected.
Madan -i's- Re/,aii, 21 C'Wv' 159

In a later case it was held that an agreement for sale creates no interest.
7'arcik -iv- S,rat,3$ CWN 159

The later decision is in 'conformity with sectioii 54 of the T.P. Act.
The section does not apply to transfer by operation of law.
Cht,Io,n -us- Dinojiath. 2$ A 467

If an attachment is raised by the executing court but is restored on appeal,
the order relates hack to the date of the first attachment.
A:i: -vs- Kaniz. 34 A 490; Ri/ui -i's- Raghi,.ncith, 48 A 698

Where a judgment-debtor transferred his property after the same was
attached by the court, such transfer would he void against all claims
enforceable under the attachment but the validity of such transfer could not
be questioned on that ground.
Ha/i Aba! Quaseni -i's- A/dur Rahnian Adam, 22 DLR, 822
SALE
Section-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.
What passes to the purchaser is only the right, title and interest of the
judgment-debtor with all risks and defects of title.
Drab -is- Evecutors, 3 C 806, 813 PC

The title of a stranger bona fide auction- purchaser is not affected by the
reversal of the decree after confirmation of sale, but the case is otherwise if
the decree- holder himself is the auction purchaser.
Zciinci/abdin -.v- Md. Ashgar JO A 166 PC

Mokshada -i's- Gopcil, 26 C 734
A purchaser at an execution sale is bound by the doctrine of lix ,eiulenx
under S. 52, T.P. Act.
Rail/ia -i's- Ma,1ohur, 15 CWN 756 PC

lcivci -I'S- Piuiç, I/ CWN 561 PC
Section-66: Suit against purchaser not maintainable on ground

of purchase being on behalf of plaintiff.—(l) 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 pLirchaser certified as aforesaid was inserted in the
certificate fraudulently or without the consent of the real pLirchaser, 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.
1908: Act V CIVIL PROCEDURF-; CODF Ss. 66-68 55
The object is to discourage benami purchases at execution sales by

debarring a suit by the real purchaser against the ostensible or certified
purchaser. The bar is in respect of a suit by a person claiming to be the real
and beneficial purchaser as plaintiff or on behalf of some one through
whom he claims, against the certified purchaser or any person claiming
through him.
Ramanihui -vs- Pei-in, 24 CWN 699 PC
Section 66 applies to real transactions. It does not apply to a case of

fictitious sale held in execution of a fictitious decree obtained in it fictitious
suit.
Akhif -YS- MdIIIIIUII/!O, 18 CWN 1331
A suit for possession against an execution purchaser based on the ground of

his being a henamdar for the plaintiff is not mai ntai iiahle.
DurKa - .'s- Bliagivandus, 23 A 34
Section-67: Power of Government to make rules as to sales of

land in execution of decrees for payment of money.—( I )The
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
interests 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
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 k)rcc therein, the Go!ernment may, by notification in the official
Gazette, declare sLich rules to he in force, or may, by a like notification,
modify the same..
Every notification issued in the exercise of the powers conferred by

this sLib-section shall set out the rules so continued or modified.
DIu;1'IoN TO COIA,ECTOR OF POWER TO EXECUTE DECREES

A(;AINST I MMOVEABI E PROPERTY
Section-68: Power to prescribe rules for transferring to Collector

execution of certain decrees.—The 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 immoveable property to
he 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, imrnoveahle property, shall he transferred to the Collector.
5 Ss. 69-72 CIVIL PROCI1)URN CooL 11908: Act V
Section-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 proceeding
section.
Section-70: Rules of procedure.—( I ) The Government may make

Riles consistent with the aforesaid provisions-
a) for the transmission of the decree from the Court to the Collector, and
!0i regulating the procedure of the Collector and his sLibordinates in
executing the same, and for re- transmitting the decree from the
Collector to tile Court;
(b) conlerring 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:
M providing for orders macic 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 he
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 coriferrect by

rules made under sub-section ( I ) Up011 the Collector or Lilly gazetted
subordinate of the Collector, or upon any appellate or revisional authority,
shall not he exercisable by the CoLirt or by any Court in exercise of any
appellate or revisional jurisdiction which it has with respect to decrees or
orcle rs oft he Court.
Section-71: Collector deemed to he acting judicially.—ln

execLiting a decree transferred to the Collector under section 68 the
Collector and his subordinates shall lie deemed to be acting judicially.
Section-72: Where Court may authorize Collector to sta y public

sale of land.— I ) Where in any local area in which no declaration under
sect ion 68 is in force the property attached consists of larict or of a share in
land, and the Collector represents to the Court that the public sale of the
lLtiici or share is objectionable and that satisfaction of the decree illay he
908: Act VI Civil. PROCEDURE CODE Ss. 72-73 57
made within a reasonable period by a temporary alienation of the land or

Share, the Court may authorize the Collector to provide for such
satisfaction in the manner recommended by him instead of proceeding to
a sale of the Ian ci or share.
(2) In every such case the provisions of sections 69 to 7 I and of any

rules made in pursuance thereof shall apply so far as they are applicable.
1701 ol authoruv o Collcctor. Form No. 42. App: E. Sch. I=H.C. Form No. (M) 15.
DISTRIBUTION OF ASSETS
Section-73: Proceeds of execution sale to he rateably distributed

among decree-holders.--( I) Where assets are held by it Court and more
persons than one have, before the receipt of such assets. macic 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, shalt be
ratcably distributed among all such persons:
Provided as follows:-
(a) where any property is sold . stibfect to a mortgage or charge. the

mort ga g ee or incumbranccr shall not be entitled to share in any
surplus arising from such sale;
(h) where any property liable to be sold in execLitionof a decree is subject

to it mortgage or charge. the Court may, with the consent of the
mortgagee or incumbrancer, order that the property he sold free from
the mort g a g e 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 detra'ing the expenses of the sale;

secondly, in discharging the amount due under the decree;
thirdly, ill discharging the interest and principal monies due on

suhseq Lient incumbrances (if any): and
fourthly. rateably amon g the holders of decrees for the payment of
money against the judgment-debtor, who have, prior to the sale of the
l)ropertv. applied to the Court which passed the decree ordering such sale
br execLition ob such decrees, and have not obtained satisfaction thereof.
58 S.73 CIVIL PROCEDIJRF, CODE 1.1908: Act V
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 sq, entitled may sUe such person to compel him to refund the
assets.
ill
(3) Nothing section affects any right of the Government.
The object of the section is to prevent multiplicity ol execution proceedings

and to secure equitable distribution by placing all decree-holders upon the
same tooting.
Bit/ic,! -i's- Naiid. 2$ A 106
The following conditions are necessary for applying the section:- (I) the
decree-holder should have applied For execution to the court which holds the
assets (see Or. 21, r. II); (2) .such application should have been made before
the receipt of' assets by the court; (3) the assets must be assets held by the
court; (4) the attaching creditor as well as the decree-holders claiming to
participate ill assets should be decree-holders for the payment of money
and (5) such decrees must have been obtained against the samejudgment-
debtors.
Rcinijci.v -is- Gi,riuharan, 14 CWN 396
Where property of the same judgment-debtor is attached in execution of

decree of more courts than one and is sold by the court of the higher grade,
the holders of decrees of inferior courts are entitled to rateable distribution
by that court without getting the decrees transferred and making fresh
applications For execution because in view of section 63 the court of the
highest grade is to determine all claims relating to the attached property and
such claims include claim for rateable distribution.
BYkant -I'S- Ru,je,u/m, 12 C333

Hcirh/iagcii -i's- Sheoniiidan., 2 CWN 626
Clark -vs- A lexciniler, 21 ('200
Girin'lra -i's- Kecicir, 29 CWN 575
Kcu,c,i La! Kripc,sankcir -i's- S/ia/i Maliiniid I'atii'ciri. II DLR 326
Bank payment order not assets until it is cashed. Assets ill 73 refers
only to nioliC)'.
Kci,ic,i Lcil Kri1,ascinkar -vs- S/ia/i Ma/inwc/ Pativari, / / DLI? $26
Court acting under S. 73 cannot go into the question whether the decree was
obtained b y fraud.
Bisu'c,ni/ilicn -vs- Aparn.ci.39 CWN 490 EB
1908: Act VI CIVIL PROCEDURF CODF S74 59
RESISTANCE To EXECUTION
Section-74: Resistance to execution.—Where the Court is satisfied
that the holder of a decree for the possession of immoveable property or
that the purchaser of immoveable property sold in execution of a decree
has been resisted or obstructed in obtaining possession of the property by
the judgment-debtor or some person on his behalf and that such resistance
or OhstrLlCtion was without any just cause, the Court may,: at the instance
of the decree-holder or pLirchaser. order the judgment-debtor or such other
person to be detained in the civil prison for a term which may extend to
thirty days and may further direct that the decree-holder or purchaser he
put into possession of the property.
See also rules 225-226 and 774 (a) (9), C. R & 0.
For resistance to possession of immovable property, see Or. 21, r. 97: for
resistance by judgment-debtor, Or. 21, r. 99; and dispossession by (teCree-
holder or purchaser. Or, 2 1, r. IOU.
As to resistance to execution (anticipated and actual) and requisition for
police help in execution, see rule 226. C.R & 0. As to procedure when a
process-serving peon is resisted, or when property attached or person
arrested is snatched away, see rule 227, C. R & 0.
60 Ss. 75-78 CIVIL PROCFDURE CODE 1.1908: Act V
Part III
INCIDENTAL PROCEEDINGS
CoMNlIssIoNs
Section-75: Power of Court to issue commissions.—Subject to Stich
conditions and limitations as may be prescribed, the CoLirt may issue a

.com ni i 55 iOn -
(a) to examine an y person:

(b) to make a local investigation;
(C) to examine or adjust accounts; or
(ci) to make a partition.
For general provisions regarding commissions. see Or. 26, rr. IS-IS and
rules 234-246. C & 0; to examine witness, see Or. 26, rr. I-S and rules
247-257, CR & 0: for commission for local investigation, see Or. 26, rr. 9-
10 and rules 263-274, CA & 0 for commission for taking accounts, see
Or. 26, rr. 11-12 and rules 275-279. C.R & 0; and commission to make
partition. see Or. 26, rr. 13-14 and rule 274. C. R & 0.

of 1974.
Section-77: Letter of request.—ln lieu of issuing it the
Court may issue a letter of request to examine a witness residing at any
place not within Bangladesh.
A court in Bangladesh has the jurisdiction to issue it commission, as much as

it letter of request, to examine a witness in India.
Kiiiiitir Rom N,,i,v(,n Ro y CI?Otl . (I/iiiiv (1/UI ct,iollier
-1'.V- So,utta, es.va Bibi (111(1 o1/?eIc, 29 DLI? (SC) 170
Section-78: Commissions issued by foreign Courts.—Subject to

such conditions and limitations as may he 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 Bangladesh and established or

continued by the authority of the Government or
(b) [Clause (b) of section 78 was omitted by Act VIII of 19731.

(c) COLIrtS of any State or country outside Bangladesh.
1908: Act Vi CIVIL PROCEDUEU .: CODE Ss. 79-80. 61
Part IV
SUITS IN PARTICULARS CASES
SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS

IN THEIR OFFICIAL CAPACITY
Section-79: Suits by or against Government.—ln a sLut by or

against the Government the authority to he named as plaintiff or
dcfendant, as the case may he, shall he Bangladesh.
Sec also Or. 27, rr. 1-8 and rules 280-282, C.R & 0.
Section-80: Notice.--(I) A suit may he instituted against the

Government or against a public officer, in respect of any act purporting to
he 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) Omitted by Act VIII of 1973 as amended by Act LIII of 1974.
(h) (i) in the case of a suit against the Government other than a suit
relating to the affairs of the Railway, a Secretary to the
Government or the Collector of the District: and
(ii) in the case of a suit against the Government relating to the affairs
of the Railway, the General Manager of the Railway,
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 o r left, the plaintiff shall not he entitled to any costs
if settlement as regards the subject-matter of the sLut 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:
CIVIL PROCEDURE CODE 1 1908: Act V
62 Ss. 80-82
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.
The object of notice under this section is nothing but to give a chance to the
authority to examine the claim of the plaintiff before such suit is filed and
that such a notice call he waived by the authority. Notice under section
80 was mandatory before 1962 but it is no longer a mandatory provision in
view of substitution of the said section by the Code of Civil Procedure
(Amendment) Ordinance 1962 (XLIV of 1962).
Bangladesh - y .- Abdul Wadt,d & others, 25 DLR (SC) 90
Notice under the section afresh is necessary after amendment of the plaint
in it suit against the Government if the amendment changes the character of
the suit and not otherwise.
Federtioii of Pakistan -i's- Shcinisul Hucla, (1956) 8 DLR 692
Section-81: Exemption from arrest and personal appearance

In a suit instituted against a public officer in respect of any act purporting
to he done by him in his official capacity—
(a) the defendant shall not he liable to arrest nor his propert y 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.
See also Or 27 r. 8 proviso.
Section-82: Execution of decree.---(]) Where the decree is against

the Government or against a public officer in respect of any such act as
aforesaid, a time shall he specified in the decree within which it shall he
satisfied; and, if the decree is not satisfied within the time so specified, the
Court shall report the case for the orders of the 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.
The decree cannot be executed unless all the conditions are complied with,
though the decree is not void.
U. P. Government -i's- Brij Mo/ion L1, 1953 A 96

1908: Act Vi CIVIL PROCEDURJ-CODF S.83 63
Suils BY ALIENS AND BY OR AGAINST FOREIGN RULERS,

AMBASSADORS AND ENVOYS
Section-83: When aliens may sue.—(1) Alien enemies residing in

Bangladesh with the permission of the Government, and alien friends,
may sue in the Courts in Bangladesh, as if they were citizens of
Bangladesh.
(2) No alien enemy residing in Bangladesh without such permission,

or residing in a foreign country, shall sue in any of such Courts.
Exp/wuitwn—Every person residing in a foreign country the

Government of which is at war with. or engaged in military operations
against, Bangladesh, and carrying on business in that country without a
license in that behalf under the hand of a Secretary to the Government
shall, for the purpose of sub-section (2), he deemed to he an alien enemy
residing in a foreign coLintry.
Mere residence of Pakistani nationals in enemy territory would not make

them alien enemies but they can he alien enemies if the residence is without
the authority of the Government.
S.A. Lalif -rs- J.B. Duha.r/,, PLD 1970 Karachi 220;

Ga rudas -vs - Dc1,ut' Custoc/jait, Enem y Proper v, PLD 1969 Dacca 84/;
A,nt y a -vs- Pr()vuuC of East Pakistan, 25 DLR 304
An alien enemy cannot file it writ petition.
ACC Ltd. -vs- Pakistan, PLD 1972 Lahore 201;

(;IlrI,(/c,.r -vs- Deputy Custodian, Eiwinv Proper v, PLD /969 Dacca 841
Alien enemies as defendants can defend suits filed against them,
HosIwn' -vs - Eddie, PLD 1968 Karachi 752;

Province (?t East Pakista,, -vs- Al/ahahad Bank, PLD 1968 Dacca
It is for the executive to decide whether the state of war exists or not and its
decision is conclusive.
Manstik Ali -vs - Arodhen.di.,, PLD 1969 SC 37
Courts can take judicial notice of existence of the state of War from existing
F. cts.
A,niva -vs- I'rO,'j/,ce (?t East Pakistan, 25 DLI? 304

64 Ss. 83-85 CIVIL PROCEDURE CODE 1908: Act V
An alien enemy cannot proceed with a suit.
U,,iic/ O,7CfltO/ 51eC1117S/ii/) Co. -"S- ,Star/7ac Co., 25 DLR 114
Where there was no bar to the institution of the suit against the plaintiff at
its commencement but during its pendency the plaintiff became disqualified
to prosecute it as a result of the declaration of emergency the proper course
by the court is to suspend the trial during the period of the plaintiff's
disqualification and not to dismiss it.
S. N. Bwi.erjee - p v- B. C. Cliakra/iortv, j 976 C 267
Section-84: When foreign States may sue.—( I) A foreign State

may sue in any Court in Bangladesh:
Provided that such State has been recognized by the Government.
Providd, 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 recognized by the Government.
The section refers to those private rights of a State that must be enforced
thrOU"ll a Court of justice as distinguished from its political rights.
Ha Io, i -vs- B,t. Singh, I/ C 17

Mi,:c, Ali Akbar Kc.,,cluini -r- the United Arab Republic. I SCR 319,
/966 SC 230
Section-85: Persons specially. , appointed by Government to

prosecute or defend for Ruler of foreign State.—( I) Persons specially
appointed by order of the Government at the request of the Ruler of any
foreign State. or at the request of any person competent, in the opinion of
the Government, to act oil of such Ruler, to prosecute or defend
any suit on his behalf, shall be deemed to he the recognized agents by
whom appearances, acts and applications under this Code may be made or
done on behalf of sLich Ruler.
(2) An appointment under this section may be made for the purpose
of a specified suit or of several specified sLtits, or for the purpose of all
such suits as it may from time to time he necessary to prosecute or defend
oil of the Ruler.
1908: Act VI CIVIL PROCEDURE CODE Ss.110-112 81
Ragh.u,zath -vs- Dv. Commissioner, 31 CWN 495 Pc

Durga -vs- Jci.wahir, 18 c 23 Pc
Gu.ran -vs- Ram., 55 c 944
Section–ill: Bar of certain appeals.—Notwithstanding anything

contained in section .109, no appeal shall lie to the Appellate Division-
(a) from the decree or order of one Judge of the High Court
division, or of one Judge of a Division Court or of two or more
Judges of High Court Division or of a Division Court
constituted by two or more Judges of High Court Division,
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 Division at the time being, or
(b) Omitted by the Law Reforms Ordinance, 1978 (Ordinance
XLIX of 1978).
Section-112: Savings.—(l) Nothing contained in this Code shall be

deemed-
(a) to affect the powers of the Appellate Division under article 1.03
of the Constitution of the People's Republic of Bangladesh or
any other provision of that Constitution; 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 the
Appellate Division, or their conduct before that Division.
(2) Nothing herein contained applies to any matter of criminal or

admiralty or vice-admiralty jurisdiction, or to appeals from orders and
decrees of PriLe Courts.
Part VIII
REFERENCE, REVIEW AND REvIsIoN

Section-113: Reference to High Court Division.—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 Division, and
the High Court Division may make such order thereon as it thinks fit.
For detailed procedure, see Or. 46, rr. 1-7.
Under S. 113 an opinion is to be sought when the Court itself feels some
doubts about the question and not when it has formed an opinion and acted
Upon it and that opinion is disagreed with by another Court.
Tikaram -Ps- Maheshwari. 1959 A 659
Section-114: Review.—Subject as aforesaid, any person considering

himself aggrieved
a)cree or order from which an appeal is allowed by this Code,

/ but from which no appe—al as preferred,
been —
(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 CouIt may make such order thereon as
it thinks fit.
Review of the appellate order or decree, when will lie, see
Abul Basher ChoH'ulhur\' -vs- Meliat Khatim, 35 DLR 6

Section-115: Revision.—The High-Court Division may call for the

record of any case which has been decided by any Court subordinate to
the Hi gh Court Division and in which no appeal lies thereto, and if such
subordinate Court appears to have committed any error of law resulting in
an error in the decision occasioning failure of justice, the High Court
Division may make such order in the case as it thinks fit.
1908: Act V] CIVIL PROCEDURE CODE S1115 83
Glaring misconception of law and non-consideration of material evidence.

Interference u/s. 115 by High Court Division called for.
Sartosh Kunwr Chakrahorty -vs- M.A. Motaleh Hossain, 36 DLR (AD) 248
Exercise of revisional jurisdiction can either be at the instance of a party or

even SUO mow, High Court Division can call for the records of a case from
lower court and on perusal thereof make such order as it finds fit and
proper. Order passed on due consideration of the facts and circumstances of
the case valid despite absence of the Advocate for the petitioner.
Darasatu/Iah -vs- Manik Mondal, 36 DLR (AD) 88

Saftiruddin and others -.'s- Faziul Huq and others, 49 DLR (AD) 151
It is a discretionary power of the court to grant or not to grant injunction. If

the court exercises its judicial discretion, the High Court is not to interfere
u/s. 115.
Mansur Ahmned -i's- Kalipada Chattapadhya, 1/ DLR 103
Finding of facts based on due consideration of evidence was beyond the

scope of revisional coutt to interfere with.
Jashimuddin Kanchan -"s- Md. Ali Ashraf 42 DLR (AD) 289.
Remand not justified when the revisional Court is competent to decide the
case on the evidence on record when no further evidence is. required.
Abc/u/ Mannan -vs- Akra,n Ali, 43 DLR (AD) 125;

Attor Mitt -vs- Mst. Mahmnudo Khatun Chowdhurv, 43.DLR (AD) 125
A revisional court acts beyond its jurisdiction in setting aside concurrent

finding of fact, when there is no- misreading and misappreciation of the
evidence on record.
S/iamb', .., Nat/i. Poddar .'.v- Bangladesh Railway, 43 DLR (AD) 82
The revisional court is competent to interfere in acase of non-consideration

of material evidence which is specifically material for determination of the
material issue.
A/nil Bakar Siddique -is- Additional Deput y Co,nmirsioner and others.

48 DLR (AD) 154
Part IX
SPECIAL PRovisIoNs RELATING TO HIGH COURT DIVISION
Section-116: Part to apply only to High Court Division.—This

Part applies only to High Court Division.
Section-117: Application of Code to High Court Division—Save

as provided in this Part or in Part X or in rules, the provisions of this Code
shall apply to High Court Division.
"Rules" mean rules contained in Schedule I or made under section 122.
Section-118: Execution of decree before ascertainment, of costs.—

Where the High Court Division 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 he
executed as soon as the amount of the costs shall be ascertained by
taxation.
Section-119: Unauthorized persons not to address Court.—

Nothing in this Code shall be deemed to authorize 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 authorized him so to do,
or to interfere with the power of the High Court Division to make rules
concerning advocates..
Section-120: Provisions not applicable to High Court Division in

original civil jurisdiction.—(l) The following provisions shall not apply
to the High Court Division in the exercise of its original civil jurisdiction,
namely, sections 16, 17 and 20.
1908: Act VI CIVIL PROCEDURE CODE ISs. 121-123 85
Part-X
RULES
Section-121: Effect of rules in First Schedule.—The rules in the

First Schedule shall have effect as if enacted in the body if this Code until
annulled or altered in accordance with the provisions of this Part.
In order to determine the jurisdiction of a Court both the 'body of the Code
and the rules must be looked into.
Sach.inc/ra - ps- Us/ia, 1949 C 6.90
No rule inconsistent with the body of the Code can confer a jurisdiction
upon any court.
Karam. -vs- Kunwar, 1942 A 387
Section-122: Power of Supreme Court to make rules.—The

Supreme Court may, from time to time after previous publication, make
rules regulating the procedure of each Division of the Supreme Court and
the procedure of Civil Courts subject to its superintendence and may by
such rules annul, alter or add to all or any of the rules in the First
Schedule.
See also Article 107 of the Constitution and section 126.
Most of the rules in the C.R.&O are made in exercise of the power under
this section.
Section-123: Constitution of Rule Committees.—(l) A Committee,

to be called the Rule Committee, shall be constituted for the purpose
referred to in section 122.
(2) Such Committee shall consist of the following persons, namely:

(a) three Judges of the Supreme Court, one of whom at least has
served as a District Judge for three years;
(b) two advocates practising in that Court; and
(c) a Judge of a Civil Court subordinate to the High Court Division.
(3) The members of such Committee shall be appointed by the Chief

Justice who shall nominate one of their number to be president.
86 Ss. 123.128 CIVIL PROCEDURE CODE [1908: Act V
Provided that, if the Chief Justice elects to be himself a member of

the Committee, the number of other Judges appointed to be members shall
he two, and the Chief Justice shall be the President of the Committee.
(4) Each member of such Committee shall hold office for such
period as may be prescribed by the Chief Justice in this behalf; and
whenever any member retires, resigns, dies or becomes incapable of
acting as a member of the Committee, the said Chief Justice may appoint
another person to be a member in his stead.
(5) There shall be i Secretary to such Committee, who shall be

appointed by the Chief Justice and shall receive such remuneration as may
be provided in this behalf by the Government.
Section-124: Committee to report to Supreme Court.—The Rule

Committee shall make a report to the Supreme Court 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 Supreme Court shall
take such report into consideration.
Section 125: Omitted by the Central Laws (Statute Reform)

Ordinance, 1960 (21 of 1969), s.3 and 2nd Sch. (with effect from the
14th October, 1955).
Section-126: Rules to be subject to approval by the

President.—Rules made under the foregoing provisions shall be subject
to the previous approval of the President.
See also Article 107 of the Constitution.
Section-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 s:.une
force and effect as if they had been contained in the First Schedule.
Section-128: Matters for which rules may provide.—( 1) Such

be not inconsistent with the provisions in the body of this
rules shall
Code, hut, 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 sub-section (1), such rules may provide for all or any
of the following matters, namely:-
1908: Act Vi CIVIL PROCEDURE CODE S.128 87
(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 counterclaim, 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 he 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 it express or implied; or,
oil enactment where the sum sought to he 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 immoveable 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 non-
p1yn1eit 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
88 Ss. .128-131 CIVIL PROCEDURE CODE [1908: Act V
(j) all forms, registers, books, entries and accounts which may be
necessary or desirable for the transaction of the business of Civil
Courts.
Section-129: Omitted by Act VIII of 1973, as amended by Act

LIII Of 1974.
Section-130: Omitted by A. 0. 1961, Article 2 Schedule (with

effect from the 23rd March, 1956).

of 1974.
Part XI
MISCELLANEOUS
Section-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.
This section recognises the rights of the pardanashin ladies to have their
evidence taken on commission. This is a right which the court cannot deny.
But the correct meaning of the section is that a pardanashin lady shall be
exempted from personal appearance in court, that is, from being exposed to
public gaze but she is not exempt from attendance. The court has therefore
power to order examination in court, provided she does not become visible
to the public gaze.
Re. Bilasrov, 56 !C 865
Section-133: Exemption of other persons.—(l) The

Government may, by notification in the official Gazette, exempt from
personal appearance in Court any person whose rank, in the opinion of the
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 Division by the 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 Division 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.
See also Or. 26, r. I.

Section-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.
Section-135: Exemption from arrest under civil process.—(l) 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 there 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.
As to immediate execution, see Or. 21, r. I I (I) and as to attendance to

show cause, see Or 21, r. 37 (I ).
Section-135A: Exemption of members of legislative bodies from

arrest and detention under civil process.--(I) No person shall he liable
to arrest or detention under civil process-
(a) if he is a member of Parliament during the continuance of any

meeting of Parliament;
(h) if he is a member of any committee of Parliament, during the
continuance of any meeting of such committee;
and during the fourteen days before and after such meeting or
sitting.
(2) A person released from detention under sub-section (I) 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).
Section-136: Procedure where person to be arrested or property

to be attached outside district.---fl) Where an application is made that
any person shall be arrested or that any property shall be attached under
1908: Act VJ CIVIL PROCEDURE CODE Ss. 136-17 91
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 he made by its own officers, or by a
Court subordinate to itself, and shall inform the Court which issued oi-
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.
(4) Omitted by A. 0. 1949
This section read with Or. 38, rr. I and 5 enables the court to arPest before
ju(Igernent a person or attach before judgement any property outside the
local limits of its jurisdiction. It may also under Or. 21, r. 5$, read with Or.
38, r. S order removal of the attachment.
Firm M.S.M.M. -i's- Ms'. Sei,i. 9 R 561
This section also enables a party to enforce an order of injunction against a

person outside the local limits of the jurisdiction of the court passing the
order.
A. Milton & Co. -i's- 0/ha A.E. Co., 57 C I280

Salainchanci -vs- Joogal. 55 C 777
Section-137: Language of subordinate Courts.—{ 1) The language

which, oil commencement of this Code is the language of any Court
subordinate to the High Court Division shall continue to be the language
of such subordinate Court until the Government otherwise directs.
(2)The 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 he in English; but if any party or his 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 costs of such translation.
Section-138: Power of High Court Division to require evidence to

be recorded in English.—(l) The High Court Division 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 cases in which an appeal is allowed shall be
taken down by him in the English language and 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 he taken down in writing from his
dictation in open Court.
Section-139: Oath on affidavit by whom to be administered.—In

the case of any affidavit under this Code-
(a) any Court or Magistrate, or

(h) any officer or other person whom the Supreme Court may
appoint in this behalf, or
(c) any officer appointed by any other Court which the Government
has generally or specially empowered in this behalf,
may administer the oath to the deponent.
Sheristadars of all civil courts are ex officio commissioners of affidavits.

See rule 27, C.R & 0. See also rule 28 C.R & 0. District Judges are
empowered to appoint commissioners to administer oaths of affidavits vide
Government Notification dated the I' July, 1881, published in the Calcutta
Gazette dated 6 .July, 1881, Part-I, Page-694.
Section-140: Assessors in causes of salvage, etc.—(1) 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 he
prescribed, two competent assessors; and such assessors shall attend and
assist accordingly.
(2) Every such assessor shall receive such fees for ' his attendance, to
he paid by such of the parties as the Court may direct or as may be
prescribed.
Section-141: Miscellaneous proceedings.—The procedure provided

in this Code in regard to suits shall he followed, as far as it can be made
applicable, in all proceedings in any Court of civil jurisdiction.
The 'proceedings" as mentioned in Section-141 refers to original matters in

the nature of a suit. The procedure in regard to suits can be extended only to
proceedings of original natLire.
Janitruciclin Sakhi c/ar -vs- RCiUfiIn Nessa Bihi, 5 DLR 269

Sera Jul Mostafti -vs- Ali Ahmed Sikdar and others, 33 DLR 168
Harichara,j -vs- Manmatha, 41 C I
Asini -Ps- Raj, 13 CLJ 642
Ba.rai-atuiiah -Ps- Reazuddin, 53 C679
Thak.u.r Prasad - s- Fakirullah, /7 A 106 PC
The provisions of section 141 CRC are to be strictly followed so far as

they can be made applicable.
Sultan Ahined -i's- Md.. Islam, 36 DLR 81
When any special law does not provide any procedure to he followed in
inquiries and proceedings under the Act- procedure prescribed in section
141 CRC will he applicable.
Naee,n Finance Limited -vs- Bash.ir Ahmed Raft qui, 23 DLR (SC) 8/
Section-142: Orders and notices to be in writing.—All orders and

notices served on or given to any person Linder the provisions of this Code
shall be in writing.
Section-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 Government may remit such postage, or fee, or

both, or may prescribe a scale of court-fee s to be levied in lieu thereof.
Section-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).
The underlying principle of restitution is that when a person is deprived of

some right or property by an erroneous judgment, order or decree, then in
the event of the reversal of that judgment, order or decree, he may become
entitled to restitution of his right or property and that it is the duty of the
court to see that the ends of justice be met.
Aix/ui Humid -"s- Abdul la/thor, 34 DLR (AD) 208

The power of a court to grant restitution is not confined to the cases covered
by the provisions of section 144. The court has also inherent powers to
grant restitution for ends of justice under section 151 in cases not covered
by section 144.
Province of East Bengal -vs- Priva Nct/i Guh.a, 7 DLR 575
Asutosh. -i's- Upeiidra, 21 CWN 564
lai Berhani -vs- Kedar, 49 IA 351
Go pal -vs- Harinwh.on, 21 CLI 624
Raicharan -vs- Debi Prasad, 26 CWN 408
The right to get restitution under section 144 is mandatory, restitution under
section 151 is discretionary.
Abdul Humid -vs- Abdul Jabbar, 34 DLR (AD) 208
1908: Act V] Civil. PROCEDURE CODE Ss. 145-147 95
Section-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

(h) 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 iii any proceeding 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 think 's sufficient
has been given to the surety.
Although section 47 was omitted from the Code by Ord. XLVIII of 1983, it
continues to exist in this section.
By treating a surety a party within the repealed section 47 a ri g ht of appeal is

allowed against any order passed against him. The omission. of section 47
from the Code by Ordinance XLVIII of 1983 has therefore created difficulty
in interpreting this section.
Form of notice to surety under this section, see Form No. 13 App. H, Sch. I
= H. C. Form No. (P) 155.
Section-146: Proceeding 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 proceeding may be taken orthe application may be
made by or against any person claiming under him.
Confer sections 50 and 52. Decree against father cannot be charged into
decree against son by invoking this section for purpose of rateable
distribution.
Heinlata -vs- Bengal Coal Co. Ltd., 39 CWN 26
Section-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.
Section-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.
This section applies only where time is fixed for the doing of "ally act
prescribed or allowed by the Code"
Banshi -vs- Majah.aruddin, 36 CWN 693

Extension of time to comply with courts order-effect of the expression used.
Fakaruddin and another -vs- Sri Sri Kali,nata Bigrahe and

others 3 BSCR 243
Court can extend time and condone delay if the order in question is not final.
Joyn.a/ Moiiciai -"S JaliarAit Khan, 21 DLR 371

Razia. K/i.atun. and Ors -vs- Seda Sirajunn.essa Khatu,i, 4 BSCR 115
Enlargement of time contemplated under the section his no application to a

case where time is fixed by a Court in decree for performing an obligation
arising out of a contract between the parties.
Ralendra Shi ru/i -vs- Mahadev, 27 DLR 232.
When ex-parte decree is set aside on condition of defendants paying a

certain sum of money within a certain time Court has power under section
148 to enlarg e time.
./agan.nath -i's- Ka,n.ta Parsad, 36 A, 772;3 IC 38
When it time is fixed by a decree of the court for taking some steps
and it directs that on failure, of doing so within the time limited the case
should stand dismissed, the court has no jurisdiction to extend the time
limited by the decree
When the court directs by its decree that unless payment is made within a
certain date the suit or appeal will stand dismissed, the order is final order
and the court cannot extend time.
Kshetra -vs- Gour, 37 CWN 878;
Puma -'s- Panch.u, 61 CU 512
The court has 110 power to extend a time fixed by statute and not fixed or
granted by the court.
Kalipada -vv- Basanta, 35 CWN 877

1908: Act Vi CIVIL PROCEDURh COI)F Ss. 85-86 65
(3) A person appointed under this section may authorize or appoint

persons to make appearances and applications and do acts in any such sLut
oi- sLuits as if he were himself a party thereto.
This section is an enabling section. It enables a Sovereign Prince or a

Ruling Chief to prosecute or defend suits through recognised agents
specially appointed in that behalf; it does not prevent the institution of a suit
by a sovereign Prince in his own name.
fVIci/iarajci ol Bliamtpur - v- Kac/,eru, /9 A 510:
Beer Chunder -vs- Is/ian Chunder. 10 C 136
Section-86: Suits against RuIers.-----( I) Any Ruler of a foreign State

may, with the consent of the Government, certified by the signature of a
Secretary to the Government bLut not without such consent, be sued in any
competent Court.
(2) Such consent may he given with respect to a specified suit or to

several specified suits or with respect to all suits of any specified class or
classes, and may specify, in the case of any Wit or class of suits, the Court
in which the Ruler may be sued; hut it shall not he given unless it appears
to the consenting authority that the Ruler-
(a) has instituted a suit in the Court against the person desiring to sue
him, or
(b) by himself or another trades within the local limits of the
urd1cton of the Court. or
(c) is in possession of immoveable property situated within those
limits and is to be sued with reference to such property or for
money charged thereon.
(3) No such Ruler shall be arrested under this Code, and, except with
the consent of the Government certified as aforesaid, no decree shall he
executed against the property of any such Ruler.
(4) Omitted by Act VIII of 1973, as amended by Act LIII of 1974.
(5) A person may, as a tenant of immoveable property, SLIC, without

such consent as is mentioned in this section, a Ruler from whom he holds
or claims to hold the property.
66 Ss. 86-8A CIVIL PROCEDURE CODE [1908: Act V
Suit not maintainable at all in the absence of consent, Consent filed after
period of limitation, held unavailing.
Khali Sher Dii Khan -vs- Sir Abdul Wadud Mia, 7 .DLR (FC) 170
Section-86A: Suits against diplomatic agents.—(l) No proceeding

in any Court shall lie against a diplomatic agent except in a case relating
to-
(a) any private immoveable property situated in Bangladesh 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 Bangladesh 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 (])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 Bangladesh of that State and includes a member of
the staff of that mission having diplomatic rank.
Section-87: Style of Rulers as parties to suits.—The Ruler of a

foreign State may sue, and shall be sued, in the name of his State:
Provided that in giving the consent referred to in the foregoing section

the Government, or the Government, as the case may be, may direct that
any such Ruler shall be sued in the name of an agent or in any other name.
The words, "or the Government, as the case may be", after the amendment
by Act VIII of 1973 and Act LIII of 1974, appear to be redundant and
meaningless.
INTERPLEADER
Section-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, moveable or immoveable, 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.
See also Or. 35,rr. 1-2.
In ail suit the real dispute must be between the defendants and
the plaintiff's position must be one of impartiality. Where the defendants do
not claim adversely to each other or the plaintiff does not admit the claim of
any of the defendants the suit is not interpleader.
A.ra,i -vs- Sciroda, 1922 C 138.
Ail suit is one in which the real dispute is between the

defendants only and the defendants interplead, that is to say, plead against
each other instead of pleading against the plaintiff as in ail suit.
A. person having an interest in the subject-matter of the suit and is not
strictly impartial cannot institute ail suit. A holds in his hands a
sum of rupees which is claimed by B and C adversely to each other. A
institutes an interpleader suit and at hearing it is found that A had entered
into an agreement with B before the institution, of the suit that if B
succeeded in the suit he should accept from A a part of the amount held by
A in full satisfaction of his claim. Here by virtue of the agreement A has an
interest in the subject-matter of the suit, and he is not, therefore, entitled to
ail
institute suit. The suit must be dismissed.
68 Ss. 89-91 CIVIL PR()CH)URE ConF [1908: Act V
Part V
SPECIAL PROCEEDINGS
ARBITRATION
Section- .-89: Omitted by the Arbitration Act, 1940. (X of 1940),

Section 49 and Third Schedule.
SPECIAL. CASE
Section-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.
See also Or. 36, rr. 1-5.
SUITS RELATING To PUBLIC MATTERS
Section-91: Public nuisances.—(l) In the case of a public nuisance

the Attorney General, or two or more persons having obtained the consent
in writing of the Attorney General, may institute a suit, though no special
damage has been caused, for a declaration and injunction or for such other
relief as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or otherwise

affect any ri ght of suit which may exist independently of its provisions.
Three kinds of remedies may he available against public nuisance: (I) the
persons committing public nuisance may be criminally prosecuted; (2) he
may be proceeded under this section and (3) he may be sued for damages at
the instance of a private individual. These remedies are concurrent. The
second class suit falls under this section.
Md. Reza -vs- Md. Askari, 46 A 470;

IVianilal -i's- Is/iwar, 1925 B 367;
Ardeshir -i's- Hi,ni, 53 B 187.
Suit by a number of Mohamedans claiming right to take tazias along a

certain road alleged to have been narrowed down is a suit within this
section.
Raghubar -vs- Mardari, 157 IC 638.

Section-92: Public charities.—( I) 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 Attorney
General, or two or more persons having an interest in the trust and having
obtained the consent in writing of the Attorney 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
Government within the local limits of whose jurisdiction the whole or
Lilly 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 inquires;
(e) declaring what proportion of the trust- property or of the interest
therein shall he allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust-property to he let,
sold, mortgaged or exchanged:
((J ) settling a schenic: or
(h) granting such further or other relief as the nature of the case may
require.
(2) Save as provided by the ReligioLls Endowment Act, 1863, no suit

claiming any of the reliefs specified in sLib- section ( I ) shall he instituted
in respect of any such trust as is therein referred to except in conformity
With the provisions of that sub-section.
Section 92 was intended to govern representative suits brought for the

benefit of the public by vindicating the rights of the public in public
charitable trust.
Dildar AI,,iieI Chon'd/ii,rv -r.- f'arroque Ahmed, 27 DLI? (SC) 135
In rezarci to public trust, religious endownient, etc. court is not hound to

accept a c o mpromise arrived at between the parties.
Selikaralinga -US- RciI'.vrcii'i, 31 All 230 PC

Suit under this section must be a representative one brought by individuals

for the benefit of and as representatives of the general public and not for
their own interests.
Buddree -i's- Ch.00ni, 33 C 789;

Annadarao -Ps- Ram las, 48 C 493 PC
The suit being a representative one, the death of one of the plaintiffs does
not cause abatement, and the court has power under Or. I. r. 10(2) to add
other persons interested in the trust as parties.
Ann.udarao -I's- Ranidas, 48 C49 1 3 PC
The suit does not also abate on the death of the defendan't.
Tula -i's- Tik.am, 1934 A 3.15
Any member of the public may come in and carry on the suit or appeal and
no fresh sanction is necessary.
Faiu.nn.essa - i's- Golani., 39 CWN 95!
If consent has been given to two or more persons, some only of them cannot
sue without the others.
Ali Begun -vs- Badrul Is/am, 1938 PC 184, 65 IA /98
If three persons sue with consent and two die, the other plaintiff can appeal
alone.
Ali Region -i's- Badrul Islam, 1938 PC 184, 65 IA 198
If the trust is not created mainly and substantially for the purpose mentioned
in the section, it will not come within operation of the section, though it may
contain some provisions for public purposes of a charitable or religious
nature.
Mo/id. Fakirul/ah -us- Commissioner of Wakf 4 MR 17-3
The section has no application to suits against trespassers or against alienees

from trustees for a declaration that the property in their hands is trust
property and for possession i.e. a suit for a declaration that the property
belongs to a wakf.
Abdur Rah.imn -us- Barkat, 55 C 519 PC
The expression, "alleged breach of trust", presupposes the existence of a

trust.
1908: Act VI CIVIL PROCEDURE CODE Ss.92-9 71
Jamalu.ddtn -vs- Mu/tabar, 25 A 63

Shihan -vs- Abdul, 34 CWN 1/29
The expression does not also mean an "admitted" trust.
Sai yed -vs- Ha/i, 1934 B 257
So, where the defendant denies trust and claims property as private, it is
open to the court to frame an issue whether it is trust property and a separate
suit for that purpose is not necessary.
Abdul Ma/ic! -Ps- Sheikh, 39 CWN 1103
Section-93: Exercise of powers of Attorney General.—The powers

conferred by sections 91 and 92 on the Attorney General may be, with the
previous sanction of the Government, exercised also by the Collector or
by such officer as the Government may appoint in this behalf.
Part VI
SUPPLEMENTAL PROCEEDINGS
Section-94: Supplemental proceedings.—In order to prevent the

ends of . justice from being defeated the Court may, if it is SO prescribed,-
(a) issLie Li warrant to arrest the defendant and bring him before the
CoLiti 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;
(h) direct the defendant to ILirnish security to produce any property
belonging to him and to place the same at the disposal of the Court
or order the attachment 0! 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 it of any property and enforce the performance of
his duties by attaching and selling his property:
(e) make such other interlocLitory orders as may appear to the Court to
be just LIlidI convenient,-
Clause (a)- Arrest before judgment (Or. 34 rr. 1-4; S. 136):
Clause (Ii)- Attachment before judgment (Or 3, rr. 5-12; Or. 39. r. 7):
Clause (c) - Temporary injunction (or 39, rr. 1-5);
Clause (ci) - Receiver (Or. 40, rr. 1-5; S.5 I (ci));
Clause (e) - Such other interlocutory orders (Or. 39, rr. 6- 10).
Section-95: Compensation for obtaining arrest, attachment or

injunction on insufficient grounds.—( I ) Where, in any suit in which an
arrest or attachment has been effected or a temporary injunction granted
under the last proceeding section,-
(u) it appears to the Court that such arrest, attachment or injunction

was applied for on insufficient grounds. or
(h ) 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,, [lot
ot
exceeding one thousand Taka, as it deems a reasonable compensation to
the defendant for the expense or injury caused to him:
908: Act Vi CIVIL PROCEDURE CODE S. 95 73
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 tor
Compensation in respect of such arrest, attachment or injunction.
Compensation for obtaining arrest, attachment or injunction on insufficient

grounds. Mode of assessment of damages.
B/n I /) iiilra -vs- Tiiiiavani, 48 C'vVIV 348

Ivloficen -t'-Goku/, 3 WR 91 PC
In order that the section may app'y, the arrest or attachment before
judgment mist have been effected. i.e. actually made or the temporary
Ui unction must have been actual I y granted. Merely procuring an order is
not sulhcient.
Ramet-vs- Gorinda,39 M 952
The court ma y award compensation when it appears that ( I ) the application

was made on insufficient grounds, or (2) when the plaintiff fail,s in the suit
and there was no reasonable or probable ground for instituting the suit.
Proof of actual malice is not required in order to succeed in an application
under this section.
Nwijappa -vs- Gaiiapat/ii, 35 Al 598
An aggrieved person may avail himself of this section or he may bring a

regular suit for damages bitt after an application under this section is
determined on merit, a fresh suit is barred being res uch icata.
/-h,raku,rar - p r- ./a'ai, 53 C 1008

Mohini -vs- .Sti,i',,tho, /8 CWN 1189
Nmid -vs- C,our. 13 WR 305
74 S.96 CIVIL PIWcEDURECODE [1908: Act
Part VII
APPEALS
Section-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 juris ic ion o the Court authorized to
hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex- parte.
(3) No.appeal shall lie from a decree passed by the Court with the
consent of parties.
Decrees (S.2(2))
Procedure regarding appeal (Or. 41)
Pauper appeals (Or. 44)
Power of appellate court (S. 107; Or. 41, rr. 4,33).
The section gives right of appeal from every decree passed by any court
exercising original jurisdiction unless such right is denied by any other law
for the time being. in force.
To enable a person to appeal - (1) he should be a party to the suit or legal

representative; (2) he should have an interest in the subject-matter of the
suit; (3) he should be prejudicially affected by the decree.
Srinath - i's- Probodh, II CL.! 580;

Rl.Lvromjee -i's- Official Liquidator, 49 Ic.8I
It is well settled that a right of appeal must be given by a statute or by some

equivalent authority.
Rangoon B. Co. -i's- Collector, 16 CWN 961 PC
The decree contemplated by S. 96 of the Code is a decree made ill a suit. A

proceeding under S.34 (6) of the Sylhet Tenancy Act is started by an
application and not by a plaint, and consequently the order under S. 34 (6)
of the Sylhet Tenancy Act is not an order in a suit. The order complained
against, therefore, is not appealable before the District Judge.
Harmev Ali & Ors -i's- Mafiz Ali & Ors, (1955) 8 DLR 80
1908: Act Vi CIVIL PROCEDURE CODE Ss. 96-98 75
Sections 96 and 104 C.P. Code do not prohibit stranger from filling an
appeal and if adversely affected by an order or decree he (stranger) may file
an appeal.
H. M, Sava & Co. -vs- Wazir Ali Industries, Ltd., 21 DLR (SC) 50
Ex-parte decree (Concurrent remedy by way of appeal u/s.96 CRC and
application u/o. 9. r. 13 C.P.Q. It is for the party concerned to choose either
or both but within the period of limitation in each case.
Abdul Ha,nid - p.r- Nazrul Islain. Chowdh.urv, CPSLA No. 138 qt / 981
SejØ7: Appeal from final decree where no appeal from

preliminary decree.—Where any party aggrieved by a preliminary
deciee 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.
This section lays down that if a party who considers himself aggrieved from
a preliminary decree fails to appeal within the period of limitation
prescribed, he is debarred from disputing its correctness or raising any
objection to it in an appeal preferred from the final decree.
Ahm.ed -vs- Hashi,n, 19 CWN 449 PC

Surendra -us- Mahendra, 36 CWN 490.
Section-98: Decision where appeal heard by two or more

Judges.—( I) Where an appeal is heard by a Bench of two or more
Judges, the appeal shall he 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 he
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 he 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 High Court Division.
When the judges differ oil question of fact, there call no reference hut
the decree shall he confirmed.
Gosnan,, -vs- Raman. 17 C.3

When two Judges agree in their opinion in respect of part of the claim, hut
differ as to the rest, the jUd g inent on the portion on which they concur will
be in accordance with the concurring Opinion and in respect of the portion
oil they differ the judgment of the lower court must he confirmed.
Raja1,'o/Nlla -i's- Sijlthaninial, 51 M 291
Section-99: No decree to be reversed or modified for error or

irregularity not affecting merits or jurisdiction—No decree shall he
reversed or substantially varied, nor shall any case he remanded, in appeal
Oil account of an y 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 CoLirt.
For:- misjoinder of plaintiffs, see 0. I, r.

misjoinder of defendants, see 0. I. r. 3;
misjoinder and non-joinder of parties. see 0. I. r. 9;
misjoinder of plaintiffs and causes of action, see 0. 2. r, 3;
misjoinder of defendants and causes of action, see 0. 2, rr. 3-5;
objections to mis joinder. see 0. 2, r. 7;
irregularity affecting jurisdiction, see S. 21.
No decree to he reversed or modified for error or irregularity not affecting

Merit or jurisdiction. -
Mere fact of misjoinder of parties or causes Of action is not sufficient to

have the proceedin gs set aside or the action dismissed.
fvlaluini/i -is- (lioitcl/u,r'. 4/ C'VVN 418 PC
Error, defect or irreularity not affecting merits of the case. Appellate cmi rt
not to interfere.
Moliiiii - y.- 13e,u,'sli,. / 7C 580 PC;

N , 'end,a Nat/i Sen Ro y -is- ,S'aival Ali Ja,nador, 8 DLR /00:
..S'ved Ahmed -i's- Prof i i//oh Kr. Dei', 13 DLR 676
The principle underlying S.99 is of general application and is not to . he

confined to suits only bitt is applicable to pre-eillption proceedings.
Man/al Sikdar & Ors. -i's- Bipit Beluiri Dos & Ors.. 28 DL!? (AD) 5
1908: Act VJ CIVIL PkoclDuRh C0DH Ss. 100-105 77
APPEALS FROM APPELLATE DECREES
Sections 100-103: Omitted by the Law Reforms Ordinance, 1978

(Ordinance XLIX of 1978)
APPEALS FROM ORDERS
Sectio 4: 0 ders from which appeal lies.—( I) An appeal shall

lie I the following orders, and save as otherwise expressly provided in
the body of this Code or by any law for the time being force, from no
other orders:-
Clauses (a) to (f) omitted by the Arbitration Act, 1940 (X of

1940), s.49 and 3rd Schedule.
(IT) an order under section 35A;
(g) an order Linder 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
(ff) 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.
This section should he read with Cr. 43, r. I. They contain a complete list of
orders from which an appeal shall lie.
The words. "save as otherwise expressly provided in the body of this

Code," refer to other express provisions in regard to appeal from orders,
e.g., ss. 144& 145.
Section–LOS: Other orders.--(I) 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; hut, where a decree is
r
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.
Sub-section (I) bars appeal from any order unless right of appeal from such
order is expressly given by the Code. A party is not, however, bound to
prefer all immediate appeal from an interlocutory order although such
appeal may lie. The sub-section also provides that if he waits until the
whole cause has been decided, he call make the error, defect or irregularity
of the order a ground of objection when all is subsequently preferred
against the decree in the suit in which the order is made. The section also
applies to non-appealable orders in this way that although there is no right
of appeal from such orders, similar objection to error, defect or irregularity
of the order may be taken in the memo. of appeal if and when an appeal is
filed against the final decree. The section, therefore, allows an appeal from
a non-appealable order in an indirect manner. The advantage of an
appealable order is that there is all right of appeal from such all
order. Sub-section (2) is an exception to sub-section (I). An order of
remand under Or. 43, r. 23 is appealable under Or. 43, r. I but if a party
does not appeal against all of remand, he is precluded from disputing
its correctness when subsequently appealing from the decree ill the suit. He
must appeal from the order of remand directly or be precluded from
questioning its correctness.
Sheikh Sal/in -vs- Hajera, 55 C 506;

Ja,iaki -i's- Pramat/ja, 15 CWN 830
Interlocutory order subject to other provisions of the Code, could be

challenged in appeal from the decree, if it affects the decision of the case,
but it cannot be so done, if once appeal or revision has been filed against
such orders.
Md. Ywii7 -i's- Mota/ Ahmed Sowdager, 1981 BLD (AD) 456.
Section-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 the High Court Division)
in the exercise of appellate jurisdiction, then to the High Court Division.
, RAL PROVISIONS RELATING TO APPEALS
See 6n-1.07: Powers of Appellate Court.—(I) Subject to such

conditions and limitations as may he 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 same7 duties as are
conferred and imposed by this Code on Courts of original jurisdiction in
respect of sluts instituted therein.
For:- Clause (a), see Or. 41, rr. 24, 33
Clause (b),. see Or. 41, r. 23
Clause (c). see Or. 41, rr. 25
Clause (d), see Or. 41, rr. 27-29.
Where a decision by it trial judge is based on oral evidence the appellate

court must, in order to reverse, not merely entertain doubt but be convinced
that it is wrong.
Prein -vs- Del,, 1948 PC 20
Provisions of S. 107(l) (b) C.P.C. as elucidated by Or. 41, r. 27, are clearly
not intended to allow a litigant who has been unsuccessful in the lower court
to patch up the weak parts of his case and fill up omissions in the appellate
court.
Su.nil Krishna Banik -vs- Kailash Chandrc, Saha, 36 DLR (AD) 220
Haran Chandra Daradj -"s- Ejahar Molla, 36 DLR 41
Appeal filed against an interlocutori order and against an order finally

disposing of the case - no difference in law even whether such interlocutory
order is passed by an appellate court.
Eshaqu.e Ali Howlader -'s- Jahangir A lam Matbar, 35 DLR 398
Section-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-
80 CIVIL Plwc1DuRECODF [1908: Act V
Ss. 108-110
(a) from appellate decrees; and

(b) from orders made under this Code or under any special law in
which a different procedure is not provided.
APPEALS To THE APPELLATE DIVISION
Section-109: When appeals lie to the Appellate Division.—Subject

to such rules as may, from time to time, he made by the Supreme Court
regarding appeals from the Courts of Bangladesh, and to the provisions
hereinafter contained, an appeal shall lie to the Appellate Division-
(a) from any Judgment, decree or final order passed on appeal by the
High Court Division or by any other Court of final appellate
jurisdiction:
(b) from any Judgment, decree or final order passed by the High
Court Division in the exercise of original civil jurisdiction; and
(c) from any Judgment, decree or final order, when the case, as
hereinafter provided, is certified to he a fit one for appeal to the
Appellate Division.
S. 109 is not only qualified by the opening words of S. III but also by S. 112.
Md. -r.c- Scwdai, 43 CWN 733 PC.
Section-110: Value of subject–rnatter.—In each of the cases

mentioned in clauses (a) and (h) of section 109, the amount or value of the
subject -matter of the suit in the Court of first instance must be twenty
thousand Taka or upwards, and the amount or value of the subject-matter
in dispute on appeal to the Appellate Division must he the same sum or
upwards,
or the Judgment, decree or final order must involve, directly or indirectly,
some claim or question to or respecting property of like amount or value,
and where the Judgment, decree or final order appealed from affirms the
decision of the Court immediately below the Court passing such
Judgment, decree or final order, the appeal must involve some substantial
question of law.
"Substantial question of law" does not mean a question of general

importance but a substantial question of law as between the parties in the
case involved.
Ragh.unath -i's- Dy. Commissioner, 31 CWN 495 PC

Durga -i's- Jawahir, 18 C 23 PC
Gu.ran -i's- Rain, 55 C 944
Section–ill: Bar of certain appeals.—Notwithstanding anything

contained in section 109, no appeal shall lie to the Appellate Division-
(a) from the decree or order of one •Judge of the High Court
division, or of one Judge of a Division Court or of two or more
Judges of High Court Division or of a Division Court
constituted by two or more Judges of High Court Division,
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 Division at the time being, or
(b) Omitted by the Law Reforms Ordinance, 1.978 (Ordinance
XLIX of 1978).
Section-112: Savings.—(l) Nothing contained in this Code shall be

deemed-
(a) to affect the powers of the Appellate Division under article 103
of the Constitution of the Peoples Republic of Bangladesh or
any other provision of that Constitution; or
(h) to interfere with any rules made by the Supreme Court, and for
the time being in force, for the presentation. of appeals to the
Appellate Division, or their conduct before that Division.
(2) Nothing herein contained applies to any matter of criminal or

admiralty or vice-admiralty jurisdiction, or to appeals from orders and
decrees of PriLe Courts.
Part VIII
REFERENCE, REVIEW AND REVISION

Section-113: Reference to High Court Division.—Subject to such
conditions and limitations as may he prescribed, any Court may •state a
case and refer the same for the opinion of the High Court Division, and
the High Court Division may make such order thereon as it thinks fit.
Under S. 113 an opinion is to he sought when the Court itself feels some
doubts about the question and not when it has formed an opinion and acted
upon it and that opinion is disagreed with by another Court.
Tika rain -vs- Maheshwari, 1959 A 659
Section-114: Review.—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.
Review of the appellate order or decree, when will lie, see
A/nil Basher Chowc/hur' -vs- Mehaf Khatun, 35 DLR 6
Section-115: Revision.—The High Court Division may call for the

record of any case which has been decided by any Court subordinate to
the High Court Division and in which no appeal lies thereto, and if such
subordinate Court appears to have committed any error of law resulting in
an error in the decision occasioning failure of justice, the High Court
Division may make such order in the case as it thinks fit.
Glaring misconception of law and non-consideration of material evidence.

Interference u/s. 115 by High Court Division called for.
Sartosh Kumar Chakrahortv -vs- M.A. Mora/eb Hossain, 36 DLR (AD) 248
Exercise of revisional jurisdiction can either be at the instance of a party or

even sun inotu High Court Division can call for the records of a case from
lower court and on perusal thereof make such order as it finds fit and
proper. Order passed on due consideration of the facts and circumstances of
the case valid despite absence of the Advocate for the petitioner.
Darasatuilah -vs- Manik Mondal, 36 DLR (AD) 88
Saftiruddin and others -vs- Faziul Huq and others, 49 DLR (AD) 151
It is a discretionary power of the court to grant or not to grant injunction. If

the court exercises its judicial discretion, the High Court is not to interfere
u/s. 115.
Mansur Ahined -"s- Kalipada Chattajadhya, I / DLR 103
Finding of facts based on due consideration of evidence was beyond the

scope of revisional court to interfere with.
Jashinniddin Kanchan -vs- Md. Ali Ashrat, 42 DLR (AD) 289.
Remand not justified when the revisional court is competent to decide the
case on the evidence on record when no further evidence is required.
Abdul Mannan. -vs- Akrcun Ali, 43 DLR (AD) 125;
Attor Mia -vs- Mst. Ma/unudci Khatun Chowdhurv, 43 DLR (AD) 125
A revisional court acts beyond its jurisdiction in setting aside concurrent

finding of fact, when there is no misreading and misappreciation of the
evidence on record
Sh.an,bt Nat/i Podda.r -"s- Bangladesh Railway, 43 DLR (AD) 82
The revisional court is competent to interfere in a case of non-consideration

of material evidence which is specifically material for determination of the
material issue.
Abul Bakar Sic/dique -vs- Additional Deput y Connnissioner and others,

48 DLR (AD) /54
84 Ss. 116-1.20 CIVIL PROCEDURE CODE [1908: Act
Part IX
SPECIAL PROVISIONS RELATING TO HIGH COURT DIVISION
Section-116: Part to apply only to High Court Division.—This

Part applies only to High Court Division.
Section-117: Application of Code to High Court Division—Save

as provided in this Part or in Part X or in rules, the provisions of this Code
shall apply to High Court Division.
'Rules" mean rules contained in Schedule I or made under section 122.
Section-118: Execution of decree before ascertainment of costs.—

Where the High Court Division considers it necessary that a decree passed ill the
exercise of its original civil jurisdiction should be executed before the amount of
the costs incurred in the sttit call 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 he
executed as soon as the amount of the costs shall be ascertained by
taxation.
Section-119: Unauthorized persons not to address Court.—

Nothing in this Code shall be deemed to authorize 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 authorized him so to do,
or to interfere with the power of the High Court Division to make rules
concerning advocates. .
Section-120: Provisions not applicable to High Court Division in

original civil jurisdiction.—(1) The following provisions shall not apply
to the High Court Division in the exercise of its original civil jurisdiction,
namely, sections 16, 17 and 20.
Part-X
RULES
Section-121i Effect of rules in First Schedule.—The rules in the

First Schedule shall have effect as if enacted in the body if this Code until
annulled or altered in accordance with the provisions of this Part.
In order to determine the jurisdiction of a Court both the body of the Code
and the rules must be looked into.
Sachinxlra -i's- Ushj, /949 C 690
No rule inconsistent with the body of the Code can confer a jurisdiction
upon any court.
Karam. -vs- Kunwc,r, 1942 A 387
Section-122: Power of Supreme Court to make rules.—The

Supreme Court may, from time to time after previous publication, make
rules regulating the procedure of each Division of the Supreme Court and
the procedure of Civil Courts subject to its superintendence and may by
such rules annul, alter or add to all or any of the rules in the First
Schedule.
See also Article 107 of the Constitution and section 126.
Most of the rules in the C.R.&O are made in exercise of the power under
this section.
Section-123: Constitution of Rule Committees.—( 1) A Committee,

to be called the Rule Committee, shall be constituted for the purpose
referred to in section 122.
(2) Such Committee shall consist of the following persons, namely:

(a) three Judges of the Supreme Court, one of whom at least has
served as a District Judge for three years;
(b) two advocates practising in that Court; and
(c) a Judge of a Civil Court subordinate to the High Court Division.
(3) The members of such Committee shall be appointed by the Chief

Justice who shall nominate one of their number to be president.
Provided that, if the Chief Justice elects to be himself a member of

the Committee, the number of other Judges appointed to be members shall
he two, and the Chief Justice shall be the President of the Committee.
(4) Each member of such Committee shall hold office for such
period as may he prescribed by the Chief Justice in this behalf; and
whenever any member retires, resigns, dies or becomes incapable of
acting as a member of the Committee, the said Chief Justice may appoint
another person to be a member in his stead.
(5) There shall be a Secretary to such Committee, who shall be

appointed by the Chief Justice and shall receive such remuneration as may
be provided in this behalf by the Government.
Section-124: Committee to report to Supreme Court.—The Rule

Committee shall make a report to the Supreme Court 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 Supreme Court shall
take such report into consideration.
Section 125; Omitted by the Central Laws (Statute Reform)

Ordinance, 1960 (21 of 1969), s.3 and 2nd Sch. (with effect from the
14th October, 1955).
Section-126: Rules to be subject to approval by the

President.—Rules made under the foregoing provisions shall be subject
to the previous approval of the President.
See also Article 107 of the Constitution.
Section-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 sime
force and effect as if they had been contained in the First Schedule.
Section-128: Matters for which rules may provide.--41) Such

rules shall be not inconsistent with the provisions in the body of this
Code, but, sublect 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 sub-section (1), such rules may provide for all or any
of the following matters, namely:-
908: Act Vi CIVIL PROCEDURE CODE S. 128 87
(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 counterclaim, and the valuation of
SLICh sLIitS for the purposes of jurisdiction;
(ci) 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 he entitled to
contribution or indemnity over against any person whether a party
to the Suit or not:
(f) su!1u1ary 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 sou g ht to he recovered is a
fixed sum of money or in the nature of a debt other than a
penalty; or
Oil 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 immoveable 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 non-
payment 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.
Section-129: Omitted by Act VIII of 1973, as amended by Act

LIII Of 1974.
Section-130: Omitted by A. 0. 1961, Article 2 Schedule (with

effect from the 23rd March, 1956).

of 1974.
Part XI
MISCELLANEOUS
Section-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) Nothin g 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.
This section recognises the rights of the pardanashin ladies to have their
evidence taken on commission. This is a right which the court cannot deny.
But the correct meaning of the section is that a pardanashin lady shall be
exempted from personal appearance in court, that is, from being exposed to
public gaze but she is not exempt from attendance. The court has therefore
power to order examination in court, provided she does not become visible
to the public gaze.
Re. Bilasroy, 56 IC 865
Section-133: Exemption of other persons.--( 1) The

Government may, by notification in the official Gazette, exempt from
personal appearance in Court any person whose rank, in the opinion of the
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 Hi g h Court Division by the Government
and a list Of such personsshall 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 Division 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.
See also Or. 26, r. I.

Section-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.
Section-135: Exemption from arrest under civil process.—(1) No

Judge, Magistrate or other judicial officer shall he 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 there witnesses acting in obedience to a summons, shall he 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 decree.
As to immediate execution, see Or. 21, r. II (I) and as to attendance to

show cause, see Or. 21, r. 37 (I).
Section-135A: Exemption of members of legislative bodies from

arrest and detention under civil process.--(I) No person shall he liable
to arrest or detention under civil process-
(a) if he is a member of Parliament during the continuance of any

meeting of Parliament;
(h) if he is a member of any committee of Parliament, during the
continuance of any meeting of such committee;
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).
Section-136: Procedure where person to be arrested or property

to be attached outside district.---(I) Where an application is made that
any person shall he 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 he passed against him by that Court, in either of which
cases the Court making the arrest shall release him.
(4) Omitted by A. 0. 1949
This section reacl with Or. 38, IT. I and 5 enables the court to arrest before
judgement a person or attach before judgernent any property outside the
local limits of its jurisdiction. It may also under Or. 21, i. 58, read with Or.
38, r. 8 order removal of the attachment.
Finn M.S.M.M. -us- Mg. Scm.. 9 56/
This section also enables a party to enforce an order of injunction against a

person outside the local limits of the jurisdiction of the court passing the
order.
A. Mi/to,? & Co. -us- Oj/ui A.E. Co., 57 C 1280,
,Sa/an,c/wi,d -vs- Joogal, 55 C 777
Section-137: Language of subordinate Courts.—( 1) The language

which, on the commencement of this Code is the language of any Court
subordinate to the High Court Division shall continue to he the language
ol' such subordinate Court until the Government otherwise directs.
(2) The 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 his pleader is unacquainted
with English a translation into the language of the Court shall, at his
request, he supplied to him; and the Court, shall make such order as it
thinks fit in respect of the payment of the costs of such translation.
Section-138: Power of High Court Division to require evidence to

be recorded in English.—(l) The High Court Division 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 cases in which an appeal is allowed shall be
taken down by him in the English language and 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 he taken down in writing from his
dictation in open Court.
Section-139: Oath on affidavit by whom to be administered.--In

the case of any affidavit under this Code-
(a) any Court or Magistrate, or

(h) any officer or other person whom the Supreme Court may
appoint in this behalf, or
(c) any officer appointed by any other Court which the Government
has generally or specially empowered in this behalf,
may administer the oath to the deponent.
Sheristadars of all civil courts are ex officio commissioners of affidavits.

See rule 27, C.R & 0. See also rule 28 C.R & a District Judges are
empowered to appoint commissioners to administer oaths of affidavits vide
Government Notification dated the l July, 1881, published in the Calcutta
Gazette dated 6 July, 1881, Part-I, Page-694.
Section-140: Assessors in causes of salvage, etc.--(I) 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 he
prescribed, two competent assessors; and such assessors shall attend and
assist accordingly.
(2) Every such assessor shall receive such fees for his attendance, to
he paid by such of the parties as the Court may direct or as may be
prescribed.
Section-141.: Miscellaneous proceedings.—The procedure provided

in this Code in regard to suits shall be followed, as far as it can he made
applicable, in all proceedings in any Court of civil jurisdiction.
The proceedings" as mentioned in Section 141 refers to original matters in

the nature of a suit. The procedure in regard to suits can be extended only to
proceedings of original nature.
Jainiruciclin Sakhidar -ys- Rautiui Nessa Bibi, 5 DLR 269

Sera Jul Mostaft, -vs- Ali A/i,necf Sikclar and others, 33 DLR 168
1-laricha ran -'s- Maninatlia, 41 C I
Asim -vs- Raj, 13 CLI 642
Basaratullah -ks- Reazuddin, 53 C 679
Thakur Prasad -us- Fak.iru.11ah, 17A 106 PC
The provisions of section 141 CRC are to be strictly followed so far as

they can be made applicable.
Sultan Ahmed -vs- Md.. Islam., 36 DLR 81
When any special law does not provide any procedure to he followed in
inquiries and proceedings under the Act- procedure prescribed in section
141 CRC will he applicable.
Naeen,. Finance Limited -s- Bashir Ah,ned Rat tcjui, 23 DLR (SC) 81
Section-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.
Section-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 Government may remit such postage, or fee, or

both, e a scale of court-fees to be levied in lieu thereof.
Spplication
=ion-144: fo r restitution.—( 1) Where and in so far
as a decree is varied or reversed, the Court of first ianshiflTone
application of 6n_y_p_,a_rTy--e—^t—itffed toany benefit bay of restitution or
otherwise, causesuch enttec'

rtyrestitution to be mad . will, so far as may be,
place the parties in the position which tI ould have occupied but for
such decree or such part thereof as'. een varied or reversed; and, for
this purpose, the Court may any orders, including orders for the
refund of costs and for the ay ent of interest , damages, compensation
and mesne profits, whi are roperly consequential on such variation or
reversal.

(2) No su be instituted for the purpose of obtaining any

restitution or f which could be obtained by application under
sub-section (1).
The underlying principle of restitution is that when a person is deprived of

some right or property by all judgment, order or decree, then in
the event of the reversal of that judgment, order or decree, he may become
entitled to restitution of his right or property and that it is the duty of the
court to see that the ends of justice be met.
Abc/ti! Humid -s's- Abdul Jabbar, 34 DLR (AD) 208
The power of a court to grant restitution is not confined to the cases covered
by the provisions of section 144. The court has also inherent powers to
grant restitution for ends Of justice under section 151 in cases not covered
by section 144.
Province of East Be,u,'aI - p's- Priyci Nath Guha, 7 DLR 575
Arutosh -vs- Upendra. 21 CWN 564
Jai Berham -vs- Kedar, 49 IA 351
Gopal -vs- Harimohon, 21 CL] 624
Raicharan -vs- Debi Prasad, 26 CWN 408
The right to get restitution Linder section 144 is mandatory, restitution under
section 151 is discretionary.
Abdul Humid -vs- Abdul Jabbar, 34 DLR (AD) 208
Section-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

(h) 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, Linder an order of the Court in
any suit or in any proceeding consequent thereon,
the decree or order may be executed against him, to the extent to
which he has rendered himself persomilly 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.
Although section 47 was omitted from the Code by Ord. XLVIII of 1983, it
continues to exist in this section.
By treating a surety a party within the repealed section 47 a ri g ht of appeal is

allowed against any order passed against him. The omission of section 47
from the Code by Ordinance XLVIII of 1983 has therefore created difficulty
in interpreting this section.
Form of notice to surety under this section, see Form No. 13 App. H, Sch. I
= H. C. Form No. (P) 155.
Section.-146: Proceeding 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 proceeding may be taken or the application may be
made by or against any person claiming under him.
Confer sections 50 and 52. Decree against father cannot be charged into
decree against son by invoking this section for purpose of rateable
distribution.
He,n/ata -,s- Bengal Coal Co. Ltd., 39 CWN 26
Section-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.
96 S.148 CIVIL PROCEDURE CODE 111908: Act V
Section-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.
This section applies only where time is fixed for the doing of "any act
prescribed or allowed by the Code"
Banshi -i's- Malaharuddin, 36 CWN 693
Extension of time to comply with courts order-effect of the expression used.
Fakaruddin and another -vs- Sri Sri Kalirnata Bigrahe and

others 3 BSCR 243
Court can extend time and condone delay if the order in question is not final.
it Joynal IViondal -vs- Jahar Ali Khan, 21 DLR 371
Ra:ia Khatun and Ors -us- Syeda Sirajtinnessa Khatun, 4 BSCR 115
Enlargement of time contemplated under the section has no application to a

case where time is fixed by a Court in decree for performing an obligation
arising out of a contract between the parties.
Rajendra Shim/i -i's- Mahadei;, 27 DLR 232.
When ex-parte decree is set aside on condition of defendants paying a

certain sum of money within a certain time Court has power under section
148 to enlarge time.
Jagannath -vs- Kainta Parsad, 36 A, 772;3 IC 35
When a certain time is fixed by a decree of the court for taking some steps
and it directs that on failure of doing so within the time limited the case
should stand dismissed, the court has no jurisdiction to extend the time
limited by the decree.
When the court directs by its decree that unless payment is made within a
certain date the suit or appeal will stand dismissed, the order is final order
and the court cannot extend time.
Kshetra -vs- Gour, 37 CWN 878,
Puma -vs- Panchu, 6/ CLI 512
The court has no power to extend a time fixed by statute and not fixed or
granted by the court.
Kalipada -vs- Bascrhta, 35 CWN 877

1908: Act V] CIVIL PROCEDURE CODE •Ss. 149-150 97
Section-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-fees 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.
This is an empowering section and it enlarges the power of the court to give
time to make up deficiency of court-fees in a properàse. The power is
' subject to the discretion of the court and isnOr claimable as of right'by a
party.
Brijhukhan -vs- Tota, 50'Y4 980
Principal ground for extension of time to pay court-fee would ordinarily be

deficiency in stamp, due to bonafide mistake. Deliberate attempt to avoid
payment of sufficient court-fee or to defer the day of payment to suit a
party's own convenience is no ground.
Saidunnessa -vs- Tejendra, 44 IC 398
Court should not extend the period of limitation of a suit by allowingtime

fo payment of deficit court-fee on plaint when there is no question of any
mistake on the part of the plaintiff.
Sa,nhhu -vs- Harihar. 41 C 1092; 18 CWN 1071
See also paras 1(2) and 37(l), Civil Suit Instructions Manual as to exercise
of power regarding plaints with deficite court-fees. Regarding appeal filed
with deficite court-fees, see rule 288, C.R & 0 and section 6 (2), Court fees
Act, 1870.
Secitoi450: 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.
This section is intended to meet the difficulty sometimes caused by the

abolition of a court or the transfer of any local area from the jurisdiction of
one court to that of another involving the transfer of the business of one
98 Ss. 150-151 CIVIL PROCEDURE CODE [1908:
Act V
court to another court. Under section 13(2) of the Civil Court Act, 1887,
business may be assigned to the several judicial officers having the same
local jurisdiction. Such assignment of business is not the same thing as
transfer of business under this section.
Munshi -vs- Munshi, 26 CWN 216

Dagunath -vs- Biswambhar 61 CLI 543
The general power o)' transfer and withdrawal of cases from one court to
another court cot$'ained in section 24.
Section-
Wlre specific relief is available, inherent powers of court under this section
cannot be invoked.
Punjab Ali Pararnanjk -vs- Md. KQkrra,n Hossain, 29 DLR (SC) 185;
NazirAhmed -vs- Habi bar Rahman, 7 DLR 192
s inherent
Master Abdul Aziz -vs- Abani Mohan Mukherjee and others

30 DLR (SC) 221
Jurisdiction under S.151 cannot be invoked suo motu by the court unless any
formal prayer is made by any party seeking to have recourse to it.
Md. Shahidul Hoque -vs- Mst. Rahi,na Bibi and another, 32 DLR (AD) 52
Illustration of Court's inherent powers:
Where Court has inherent power:-
. Ø) To consolidate suits normally before trial begins.

Hukwn Chand -vs- Kamalanand, 33 C. 927
.LE5 To postpone the hearing of suits pending the decision of a selected

action.
Hukurn Chand -vs- Kamalanand, 33 C. 927

.-35 ' To stay cross-suits on the ground of convenience.
Hukum Chand -vs- Kamalanand, 33 C. 927

Nanda Kishore -vs- Ram Golam, 40 C. 955, 959-960
Syed Abdul -vs- Badaruddin, 28 CWN295
To order joint trial of suits.
Kalicharan -vs- Suryakumar, 17 CWN 526
entertain the application of a third person to be made a party.
Oriental Bank -vs . Chariot, 12 C. 642
(6) To stay execution or operation of the order appealed from so that the
order which might be passed in appeal might not be rendered
infructuous.
State of Uttar Pradesh -vs- Mukthar Singh 1957 A. 505
To apply the principles of res judicata to cases not falling within

/
section 11 of the Code.
To add a party, or to transpose parties.
Lakhmichand -vs- Kuchubhat, 35 B. 393, 14 IC 559

Surya Kanta -vs- Taraknath 44 CL] 243
Sailabala -vs- Nirmala, 1958 SC 394
(9) To stay proceedings pursuant to its own order in view of ank intended
appeal.
Sarat Kumar -vs- Official Assignee, 34 CWN 631
pass a conditional order providing for dismissal of the suit in case

the order is not complied with.
Hati Pratihari -vs- Atekh, 1954 Orissa 136
amend decrees and orders in cases not covered by section 152.
Inherent power to amend decrees and orders.
Mohabir -vs- Chundra, 19 CWN 1021
0To correct its own mistakes.
Keshardo -vs- Radhakishen, 1953 SC 23

Jankiram Iyer -vs- Nilakanta Iyer, 1962 SC 633
100 S.151 CIVIL PROCEhURE CODE [1908: Act V
s4 ' To correct an error due to the laches or negligence of the officers of

court.
Ali Mo,uIal -vs- Ghu.Iam. Ban, 1955 AC 526, 59CWN 513
To amend the sale certificate and correct miss—description of the

property.
Sob/a -i's- fethnwl, 1961 Rajsthan, 191
(15) To set aside an order obtained by fraud practised upon the court, or
where it is misled by the party or the court itself commits a mistake
which prejudices a party who is not to blame, e.g. when a pleader not
engaged by the defendant at all consents to a decree on behalf of the
defendant.
Pear)' Choudhury -i's- Sonoo Dass, 19 CWN 4/9

Boson gowda -I's- Churchigirigowda., 34 B 408
set aside an order recording compromise obtained by fraud
Bindeswari Pra.vac/ -vs- Dehendra Prasad, 1958 P. 618
4Y7) To restore a suit dismissed for default in cases not provided for by
Order 9, rule 9.
Suhash Chanci -i's- Sarju Devi, 1960 A 569
restore an application under Order 9, rule 13 which had been dismissed

for default.
Madania/ -vs- Tripura Modern Bank Ltd.,
1953 Assam. 539, 1954 Assam I (PB)
An application for setting aside ex parte order may lie under section
151.
To restore an application under Order 9, rule 13 dismissed for default.

An application for restoration of the application for setting aside the ex
parte order which was dismissed for default is competent.
/ Nath.uni Singh. -i's- Naipal Singh, 1958 . P. 107

I
'1) To reconstruct records as and where they are lost by accident.
Marakarutri -vs- Vernon, 46 M. 679
strike off the defence and proceed ex pane where a suit is

adjourned on the condition that the defendant should pay the costs of
the adjournment within a prescribed period and he fails to do so.
East Indian Riil/wa' Co. - i's- fit Mcii 47 A. 538

To mould the relief in accordance with the law as on date of the

decree. To grant relief on the basis of subsequent legislation.
Nair Service Societ y -vs- K.C. Alexander, 1968 SC 1165
To correct date where date of decree differs from the date of judgment.
Rehmat Ali -vs- Abdul Hainid, 1979 SCMR 423
permit examination of witnesses not mentioned in the list of

witnesses.
To issue an injunction in cases not falling under 0.39. Contrary

decisions are not good law.
Monoh.arlal -vs- Seth Hira.lal, 1962 SC 527
1To-stay a suit even if it dose not come within section 10.
Aruil,aia Dasi -vs- Nirupama Dasi, 1951 AC 561
hold a trial or part of it in camera if satisfied that ends of justice

required such a course.
Narsh Sridh.ar -vs- Maharashtra, 1967 SC 1
Messrs Crescent Films, Lahore -vs- Messrs Shah Noor Films Ltd. Lahore
and 8 others, PLD 1978 Lah. 72/.
There is no limitation for application u/s 151.
Chandra -"s- Sudhagshu., 80 IC 55
The expression, "ends of justice" used in section IS I recognises wide

powers inherently possessed by the court to do justice in a given case. From
this, it must not be supposed that the court can, in disregard of the
established principles and norms of law, make an order.
Bangladesh Sh.ilpa Bank -"s- Bangladesh Hotels, 38 DLR (AD) 70
Section-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 he
corrected by the Court either of its own motion or on the application of
any of the parties.
Anomaly can be corrected.
Mvi Mir Mahbubur Alain -vs- Kazi Mvi Salahm Ahmed BCR 1984 AD 164
Mistake may be corrected.
Go/am Nabi -vs- Mohammadul Hoque Chowdhury, 3 BCR 1982 AD 166;

Baziur Rahman Bhuiyan -vs- B.S. Corporation,
34 DLR (AD) 42= 1980 BLD (AD) 443
There is no time limit to amend a decree to make it in conformity with

judgment.
Chandra Kumar Mukhapadhya -vs- Shudhansu Badani Debi, 28 CWN 873
The section is confined only to the kind of mistakes, errors, slips or

omissions mentioned therein. The section contemplates amendment of
decree in respect of any clerical or arithmetical mistake, it does not
contemplate amendment of a substantial nature.
Abdul Hakim -vs- Ganendra Nath Bashu Roy, 47 DLR (AD) 9
Amendment of decree does not give a fresh start of limitation to file an

appeal.
Kedar -vs- Golam 4 CWN 83.
Section-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.
Or.6, r. 17 is confined to amendments of "pleading" and S. 152 to correcting

errors in "judgments, decree and orders." The present section confers a
general power on the court to amend defects and errors "in any proceeding
in a suit" and to make "all necessary amendments" for the purpose of
determining the real question at issue between the parties to the suit. An
incorrect description of a property in a mortgage deed was repeated in the
plaint, judgment and decree and the court allowed an amendment of the
decree and connected proceedings.
Azizallah. -vs- Court of Wards, 54 A 800

The powers of amendment conferred by the Code are very wide but they
must be exercised in accordance with legal principles, and an amendment
would not be allowed which would involve setting up of a new case.
1908: Act V] CIVIL PROCEDURE CODE Ss. 154-158 1.03
Section-154: Saving of present right of appeal.—Nothing in this

Code shall affect any present right of appeal which shall have accrued to
any party at its commencement.
Section-155: Amendment of certain Acts.—The enactments

mentioned in the Fourth Schedule are hereby amended to the extent
specified in fourth column thereof.
Section-156: Repealed by the Second Repealing and Amending

Act, 1914 (XVII of 1914). - .
Sections-157 and 158: Repealed by Act VIII of 1973 as amended

by Act LIII of 1974.
104 Or. I Rr. 1 . 3 CIVIL PROCEDURE CODE [!908: Act V
THE FIRST SCHEDULE

Order I
PARTIES TO SUITS
Rule-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 acts 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.
This order deals with joinder of parties and also to a certain extent with
joinder of causes of action.
Harendra -vs- Puma, 55 C 164
Provisions regarding impleading of parties in proceedings under section 96

of the State Acquisition and Tenancy Act, 1950, are governed by the
provisions of Order I.
Mutual Sikder -vs- Ben.odini Dasi, 28 DLR (SC) 5
This rule should be read with Order I, rule 3 (joinder of defendants) and
Order 2, rule 3 (joinder of causes of action)
Rule-2: Power of Court to order separate trials.—Where it

appears to the Court that any joinder of plaintiffs 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
When it appears to the court that a single suit brought by several plaintiffs in
respect of the same transaction may embarrass or delay the trial on account
of the causes of action being distinct, the court instead of dismissing the suit
may put the plaintiffs to their election, i.e. ask them to decide which of them
should proceed with the suit or order separate trials.
Aldridge -vs- Barrow, 34 C, 662

Gur Pada vs- G. 19 cii316
Rule-3: Who may be joined as defendants.—All persons may be

joinded 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
1908: Act Vi CIVIL PROCEDURE CODE Gr. I Rr. 3-6 105
separate suits were brought against such persons, any cmmen question of
law or fact wu1d arise.
This rule deals with joinder of defendants. This rule should be read with
Order I rule 4 () and rule 5. order 2 rule 3 is subject to the provision of this
rule.
Rarn.endra -vs- Brcijendra, 45 C. III
In order to determine whether a suit satisfies the condition in this rule the
factors are: (1) could the right to relief against the defendants be said to be in
respect of or arising out of the same act or transaction or series of acts or
transactions? and (2) would any common question of law or fact arise if
separate suits were brou g ht against the different defendants?
Krishna -vs- fI/Juhc,.,nmad, 33 CL] 369

Anukul -vs- Province of Bengal 51 CWN 295
In a suit for ejectment of a tenant, the sub-tenants are necessaly parties in

order to make the decree effective.
Sk. Mel, Aniir Au -vs- Abdu.r Rahi,n, 9 DLR 102
Rule-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, accounting to their respective liabilities.
Rule-5: Defendant need not be interested in all the relief claimed.

—It shall not be necessary that every defendant shall be interested as to
all the relief claimed in any suit against him.
Every defendant need not be interested as to all the reliefs, but there must be
a cause of action in which all the defendants are more or less interested.
Umabai -vs- Bhau Balwc,nt, 34 B._58
Rule-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.
106 Or.! Rr. 6-8 CIVIL PROCEDURE CODE [1908: Act V
This rule applies to joinder of parties in suits based on contracts. Liability

upon a contract may be (a) several; (b) joint and several; or (c) joint. This
rule applies to joinder of parties in cases (a) and (b).
Rule-7: Where 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.
Rule-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 persons 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 plaintiff's expense, notice of the institution of the suit to 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.
This section lays down the conditions necessary for bringing a representative
suit on behalf of persons having the same interest. The requisites for
application of this rule are (a) numerous parties; (b) same interest; (c)
permission of court; and (d) notice of suit.
The proper course is to obtain permission of the cort before filing the suit.
Oriental Bank -vs- Govind, 9 C. 604

Giribala -vs- Cha.nder, /1 C. 213
The permission may also be granted after filing of the suit.
Ahined -i's- Abdul, 44 C. 258

A person appointed a representative under Order I rule 8 is not a party in his
personal capacity. On his death, his rights do not survive to his heirs. On his
death, the proper procedure is for the remaining persons to apply for
directions whether the court will permit the remaining persons to continue to
prosecute or defend the suit or directions should be given authorising an
additional person to join the survivors, and after the court's order, the suit
should proceed.
Haidaruliah. -vs- Gajiic1h.a Suklabaidya, 8 DLR 60
1908: Act V] CIVIL PROCEDURE CODE Or.! Rr.9-1O 107
Rule-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.
This rule is a rule of procedure and has no application in cases where under
the substantive law no effective decree can be passed without the absent
parties.
This rule does not do away with the necessity to bring.a necessary party.
Probodh vs- Neelratan, 62 C 324
Rule-10: Suit in name of wrong pIaintiff.—(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 ap'bther person
to he substituted or added as plaintiff upon such terms yfhe Court thinks
just.
Court may strike out or add parties.–(2) The Court may at any
stage of the proceedings, either upon or without the application of either
party, and on 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.
Where defendant added, plaint to be amended.–(4) 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, section 22,
the proceedings as against any person added as defendant shall be deemed
to have begun only on the service of the summons.
108 Or. I R. 10 CIVIL PROCEDURE CODE [1908: Act V
Sub-rule (I) applies when a suit has been brought in the' name of a wrong
plaintiff or when there is doubt whether the right person has come as
plaintiff. In either case, the mistake must be a hona tide mistake. No person
can be added or substituted as a plaintiff without his consent.
Sub-rule (2) provides for the addition of the proper parties and necessary
parties. The power to strike out an improper party or to add a necessary party
may be exercised at any stage of the suit. The court can also transpose a
defendant as plaintiff.
Bhupen.dra -vs- Rajeswar, 59 C 80
Debeizdra vs-Narendra., 24 CWN / /0
The striking, addition, substitution on transposition may be made oil

application of the plaintiff or defendant or the party wishing to come in or
SW) niotu.
The question of hona tIde mistake arises only in case of sub-rule (I) and not
in case of sub-rule (2).
A suit against a dead mail a nullity from the beginning and as such, there
can be no amendment by substitution of his legal representatives.
Veerappa -vs- Tindal, 31 Al 86
A person may be added as a defendant or plaintiff under Order I rule 10 (2)

to enable the court to completely adjudicate oil relevant questions in the
suit.
Abdul Hashem -vs- Sale Ahmed, 36 DLR 303
Reasons should be assigned by the court for an order under Order I, rule 10
(I) or rule- lO (2).
Court has discretionary power to add pat-ties at any stage of the proceeding.
Amal Kumar Mitra -us-. Md. Ma.vhiur Rahm.an, 30 DLR (SC) 244
A transferee during pendency of the suit cannot apply for being impleaded as
a party under Order I, rule 10 (2) as the transfer is hit by the doctrine of lis
pen.dens.
Jainaluddin -vs-Raheya Be gaIn, 32 DLR 63
Form of notice to person who, the court considers should be added as co-
plaintiff. No. 5, App. B=H.C. Form No. (P) 1.
1908: Act V] CIVIL PROCEDURE CODE Or. I Rr. 11-1.3 109
Rule-11: Conduct of suit.—The Court may give the conduct of the

suit to sLich person as it deems proper.
"Person" in this rule means a person who is a party to the suit and not a
stranger.
Mirpur Ceramic Works Ltd. -vs- Al. Khan, 20 DLR 902

Tarcipada -vs-Bagala, 46 CLI 530
Rule-12: Appearance of one of several plaintiffs or defendants for

others.—(l) 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. .
Rule-13: Objections as to non-joinder or rnisjoinder.—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.
Objection not taken at the earliest opportunity must be deemed to have been
waived.
Parc,numsiva -vs- Krishna, 14 M. 489

Mcetilal Sikdar -vs-Benodini, 28 DLR (SC) 6
Moh.orAlj -vs-ZatarAli, 27DLR 452
Akhta.ruzzaman and another -vs- Hahihullah and others, 31 DLR (AD) 88
Sultan Ahmed -vs Md. Islam, 36 DLR 81
Alu Saber Aziz Moha,n,nad and others -vs- Government of Bangladesh and
others, 31 DLR (AD) 218
Objection will not be allowed in appeal.
Parshottan't -vs- Kala, 26 B 301

Ohho y -vs- Hu.rvch.urn, 8 C. 277
110 Or.II Rr.1-2 CIVIL PROCEDURE CODE [1908: Act V
Order II
FRAME OF SUIT
Rule-1: Frame 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.
The object of the rule is that all matters in dispute between the parties
relating to the same transaction should be disposed of by the same suit.
Sc, rat -vs- Mohan, 25 C 371, 2 CWN 201
Rule-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.
Relinquishment of part of claim.—(2) When 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.
Omission to sue for one of several reliefs.—(3) A person entitled to

more than one relief in respect of the same cause of action may sue for all
or any of such reliefs; 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 to B at a yearly rent of Taka 1200. The rent for the
whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in
1908 only for rent due for 1906. A shall not afterwards sue B for the rent
• due for 1905 or 1907.
This rule means that where a plaintiff omits to sue in respect of or
intentionally relinquishes any part of his claim, he shall not afterwards sue in
respect of the portion so omitted or relinquished.
Pra,natha N. Das -vs- Barindra N. Das, 8 DLR, 604
1908: Act V] CIVIL PROCEDURE CODE Or. II R. 2 111
This rule is founded on the principle that a person should not be vexed twice
for one and the same cause.
Balmakund -vs- Sangari, 19A 379 FR

Rohini -vs- Jodu, 30 CWN 873
The rule is directed against two evils, namely, (1) splitting up of claims and
(2) splitting up of remedies.
The rule applies not only to plaintiff in a suit, but also to a defendant who
claims a set-off under Or. 8, r. 6.
Nawbut -vs- Mahesh, 32 C 654
An exception to this rule is to be found in Or. 34, r. 14
I,zdar -'s-Mewa1a1, 36 A 264
The rule is no bar to a suit when cause of action is different.
Payana -vs-Pana, 18 CWN 617 PC
This rule does not apply to application for execution
Radha -vs- Radha, 18 C515
It does not apply to restitution proceedings under section 144
Rain -i's- Magan, 1935 A 135

Sa,nasundara,n -vs- Chokalingarn, 40 M 780
The tests for applying this rule are—
(I) The cause of action means every fact which will be necessary for the
plaintiff to prove, if traversed, in order to support his right to the
judgment;
(2) Whether the claim in the new suit was in fact the foundation for the
former suit;
(3) If the evidence to support the two claims is different, then the causes of
action are also different;
(4) The causes of action in the two suits may be considered to be the same if
in substance they are identical; and
(5) The cause of action has no relation to the defence that may be set up by
the defendant nor does it depend upon the character of the relief prayed
for by the plaintiff.
Md. Islam -vs- Munsh.j Ahdtir Rahman, 6 DLR 81

112 Or. II Rr. 2-4 . CIVIL PROCEDURE CODE [1908: Act V
Suit not barred under this rule if cause of action giving rise to the second suit
did not arise when the first suit was filed.
Abdul Hakim -vs- Sç,dullah K/urn, 22 DLR (SC) 3
Rule-3: Joinder of causes of action.—(l) 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 or value of the aggregate
subject-matters at the date Of instituting the suit.
A plaintiff may unite several causes of action against the same defendant or
defendants jointly, but in order to enable him to do so the defendants must
be jointly interested i.e. all the defendants must be jointly liable in respect of
each and all the causes of action which are united.
Bh.a.gwati -vs- Bindeshri, 6 A 106

Mullik -vs- Sheo Pd. 23 C 821
Urn.abai -us- Bh.au, 34 B 358
Order 2, rules 6 and 7 should also be read with this rule.
Rule-4: Only certain claims to be joined for recovery of

immoveable property.—No cause of action shall, unless with the leave
of the Court, he joined with a suit for the recovery of immoveable
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.
1908: Act VI CIVIL PROCEDURE CODE Or.II Rr.4-7 113
This rule is in part an exception to the general principle laid down in Or. 2,
r. 3 providing for the joinder of several causes of action. It is also an
exception to Or. 2, r. 2 (.1.) and 3, which deal, with the same cause of action
and prohibit splitting. Or. 2, r. 2 has to be read with this rule.
"Claims" in clauses (a), (b) and (c) of this rule mean "cause of action" used
in the opening part of the rule.
Where in a suit it is sought to join claims other than those mentioned in
clauses (a), (b) and (c) leave of the court is necessary. Clause (c) makes it
clear that no leave is necessary when the claims joined in a suit arise out of
the same cause of action..
Shiba -Ps- Prayag, 59 C 1399 PC
Rule-5: Claims by or against executor, administrator or heir.—
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 or heir,
or are such as he was entitled to, or liable for, jointly with the deceased
person whom he represents.
Where two claims which this rule does not allow to be joined are joined in
one suit, the practice is to amend the plaint by striking out one of them and
the suit may then be proceeded with.
Ashabai -vs- Haji Tyeb, 6 B 390
Rule-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.
This rule applies to cases in which there is a proper joinder of causes of
action but the causes of action so joined cannot conveniently be tried
together.
Muthapa -vs- Muthu, 27M. 80
a
A court has no power to dismiss suit for misjoinder of causes of action, but
can take action under this rule.
Gar Pra.sad -Ps- Gur Prasad, 19 CLI 316
Rule-7: Objections as to misjoinder.—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:
114 Or. III Rr. 1-3 CiviL PROCEDURE CODE [ 190: Act V
Order III
RECOGNIZE!) AGENTS AND PLEADERS
Rule–I: Appearances, etc., may be in person, by recognized agent

or by pleader.—Any appearance, application or act in or to any Court,
required or aLithorized by law to be made or clone by a party in such
Court, may, except where otherwise expressly provided by any law for the
time being in force, he made or clone by the party in person, or by his
recognised agent, or by a pleader appearing, applying or acting, as the
case may he, on his behalf:
Provided that any such appearance shall, if the Court so directs, he

made by the party in person.
"Otherwise expressly provided," see Or. 3,r.3 and Or. 44, r. I. The proviso
should he read with Or. 5, r. 3 empowering the court to order the plaintiff or
the defendant to appear in person. For consequence of non-appearance, see
Or. 9, r. 12. The proviso should be read with Or. 5, r.3.
Rule-2: Recognized agents.—The recognized agents of parties by

W110111 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.
For recognized agent of government, see Or. 27, rr. 14.
Rule-3: Service of process on recognised agent.—( I) 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.
1908: Act V] CIVIL PROCEDURE CODE Or. Ill R. 4 115
Rule-4: Appointment of pleader.--(I) No pleader shall act for any

pekon in any Court, unless he has been appointed for the purpose by such
it
person by in writing signed by such person or by his
recognized agent or by some other person duly authorized by or under a
power-of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall he

deemed to be in force until determined with the leave of the Court by it
writing signed by the client or the pleader, as the case may he, 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

Jud g ment, 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 Division may. by general order, direct that.
it
where by whom a pleader is appointed is unable to write his
name, his mark upon the document appointing the pleader shall be
attested by such person and in such manner as may he specified by the
order.
(5) No pleader who has been engaged for the purpose of pleading
only shall plead oil any party, unless he has filed in Court a
iiemorandum of appearance signed by himself and stating—
(a) the names of the parties to the SUit,

(h) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorized to appear:
in
Provided that nothing this sub-rule shall apply to any pleader
this
engaged to plead oil of any party by any other pleader who has
been duly appointed to act in Court oil of such party.
This rule makes it between it pleader (I) appointed by it party to

act in court (sub-rule (I)); (ii) engaged by a party for pleading only (sub-rule
(5)); and (iii) engaged to plead by it pleader duly appointed by it party to act
116 Or.HI Rr.4-6 CIVIL PROCEDURE CODE [1908: Act
(Proviso to sub-rule (5)). In case (i) the appointment must be made by a

document in writing called Vakalatnama and filed in court. In case (ii) the
pleader engaged for pleading only, shall file a memorandum containing the
particulars required by sub-rule (5). In case (iii) no memorandum or
Vakalatnama need be filed (proviso to sub-rule (5)).
See also rules 816-819 and 822, C. R. & 0.
Government pleader need not file Vakalatnama
See also rule 281, C. R & 0.
A party cannot be heard in person unless appointment by Vakalatnama of an

advocate is determined.
See also rule 823, C.R. & 0.
Rule-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, shall be as effectual for all purposes as if the same had been given
to or served on the party in person.
Rule-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.
Appointment to be in writing and to be flied in Court.—(2) Such

appointment may be special or general and shall be made by an
instrument in writing signed by the principal, and such instrument or, if
the appointment is general, a certified copy thereof shall be filed in Court.
1908: Act V] CIVIL PROCEDURE CODE Or. IV Rr. 1-2 117
Order IV
Rule—I: Suit to be commenced by plaint.—(l) 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 J
and VII, so far as they are applicable.

Hours of presentation of plaints, See rule 10, C.R. & 0.
See also rules 48-55, C.R. & 0. and Para I Civil Suit Instructions Manual
Date of presentation is the date of institution.
Heerendra -vs- Dheerendra, 62 C /1/5
Rule-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.
See also rules 50 and 5I, C.R. & 0.

18 Or.. V Rr. 1-3 CIVIL PROCFDURE CODF 11908: Act V
Order V
ISSUE AND SERVICE OF SUMMONS
ISSUE OF SUMMONS
Summons.—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 he therein specified:
Pro\'ided that no such summons shall he issued when the defendant

has appeared at the presentation of the plaint and admitted the plaintifFs
claim.
(2) A defendant to \VhOfll a sLimmons has been issued under sub-rLIIe

I ) may appear–
(a) in person, or
(h) hy a pleader duly instructed and able to answer all material
questions relating to the slut, or
(c) by a pleader accompanied by some person able to answer all
such questio.
(3) Every such summons shall be signed by the Judge or such officer
as he appoints. and - shall be scaled with the seal of the Court.
See also rules 57, 59. ôft 61. 177. 877 and 878, C. R. & 0.
Form of summons, lorm No. I-A, 2 App. B, Sch. I = H.C. Form No. (P) 5.
Rule-2: Copy or statement annexed to stimmons.—Every

summons shall be acconipanicd by a copy of the plaint or, if so permitted,
by a concise statement.
Rule-3: Court may order defendant or plaintiff to appear in

person.—( I ) Where the Court sees reason to rCqLIirC the personal
appearance of the defendant, the summons shall order him to appear in
person in Court on the da y therein specified.
(2) Where the Court sees reason to require the personal appearance of
the plaintiff on the same clay, it shall make an order for such appearance.
For consequence of' non-appearance, see Or. 9, r. 12. As to appearance ol

pardanashin women. see Secti011 132.
1908: Act VI CIVIL PROCEDURE CODE Or. V Rr. 4-7 119
Rule-4: No party to be ordered to appear in person unless

resident with certain limit.—No party shall he ordered to appear in
person unless he resides–
(a) within the local limits of the Court's ordinary original

urisdiction. 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-sixths 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.
Rule-5: Summons to be either to settle issues or for final

disposal.—Thc Court shall determine, at the time of issLilng the
summons, whether it shall he for the settlement of issues only, for the
ascertainment whether the suit will he contested, 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 he for final disposal of the suit.
The words, "for the ascertainment whether the suit will be contested,' were
inserted by rule macIc by the Calcutta High Court under section 122 of the
Code vide Notification No. 12421-G, dated the 25 August, 1927 published
in the Calcutta Gazette dated 1-9-1927 Part-I. Page 1825.
See also Para 9. Civil Suit Instructions Manual. Form of summons, see Form
Nos. I, IA, 2, App. B. Sc h. I = H.C. Form No. (P) 5.
Rule-6: Fixing day for appearance of defendant.—The day for the

appearance of the defendant shall he 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 he so fixed as
to allow the defendant sufficient time to enable him to appear and answer
on such (lay.
As to fixing of first hearing (late in S.C.0 cases, see also rule 315. C. R. &
0. See also Para 8 (3). Civil Stut Instructions Manual.
Rule-7: Summons to order defendant to produce documents

relied on b y 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.
Foriu oF summons. Fonu Nos. I. I-A. 2. App. 13, Sch I = H. C. Form No. (P) 5.
4
120 Or. V Rr. 8-10 CIVIL PROCEDURE CODE [1908: Act V
Rule-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.
Form of summons, Form No. 1, App. B, Sch I = H. C. Form No. (P) 5.
See also para 6, Civil Suit Instructions Manual.
SERVICE OF SUMMONS
Rule-9: Delivery or transmission of summons for service.—( I)

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 officer 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.
If a summons sent by registered post is returned with the endorsement
"refused" .it is prima ,tcie good evidence that addressee had an opportunity
to accept it.
Han -vs- Joy, 39 CWN 934
Registered letter correctly addressed and posted is presumed to have reached
addressee although signature on acknowledgement not proved.
Rajani -vs- Ba.ikuntha, 39 CWN 1041
The endorsement "refused" is presumptive evidence of due service.
Nirmala -vs- Prabhat, 52 CWN 659
Harihar-vs- Ra,nsha.shi, 23 CWN 77
See also sections 16 and 114, Illustraiion (f), Evidence Act and section 27,
General Clauses Act, 1897. ,
Rule-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.
See also rules 71-72 and note (e) of rule 84, C. R. & 0.
1908: Act VII CIVIL PROCEDURE CODE Or. V Rr. 10-13 121
If the person addressed refuses to receive the process or refuses to

acknowledge, service shall be effected under Order 5, rule IT
See also rules 69-89, 91-92, C. R. & 0.
Rule-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.

For service on partners, see Or. 30, r. 3 and rule 81, C. R. &0.
Rule-12: Service to be on defendant in person when practicable

or on his agent.---(I) 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.
See also rules 69, 78 and 84 (d), C. R. & 0.
When a notice is served by way of summons issued by the court the

authority issuing the notice has to prove that the service had been effected in
accordance with the provision of this rule.
R.P. Shah -vs- Commr. of Tax E.B., 7DLR 587
Non-compliance with the requirements of this rule amounts to non-service.
Hazari Das -vs- Daiba Charan Mandal, 26 DLR 3
Rule-13: Service on agent by whom defendant carries on

business.—(l) 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 charterer.
A mere servant employed to carry out orders or to execute a particular

commission or a factor or commission agent who is not identified with the
he
firm for which acts, is not such an agent.
Gokuldas -i's-Ganeshlal, 4 B 416

122 Or. V Rr. 13-16 CIVIL PROCFDIJRE CoDE [1908: Act V
A notice on a corporation may be served on the Secretary or on the Director

or oil Principal Officer of the corporation. The service by hanging the
notice on the outer dwelling of the Manager-in-charge, is no service on the
corporation.
MaIu,/i,..v,n.i Bank Lid. -vs- Idris Barry Co. 19 DLR (SC) 170
Rule-14: Service on agent in charge in suits for immoveable

property.—Where in a suit to obtain relief respecting, or compensation
for Wrong to, iiinioveahlc property. service cannot he made oil
defendant in person, and the defendant has no agent empowered to accept
the service, it may be made oil agent of the defendant in charge of the
See rules 75 and 76 note. C. R. & 0.
Rule-15: Where service may be on male member of defendant's

family.—Where in any suit the defendant is absent from his residence at
the time when service is sought to he effected oil thereat and there is
no likelihood of his being found thereat within it reasonable time, then
unless he has an agent empowered to accept service Of the sLimmolls On
his hehalf, service ma y he made oil adult male member of the family
of the defendant who is residing with him:
Provided that where such adult male member has all in the suit
and sLich interest is adverse to that of the defendant, a summons so served
Shall he deemed for the purposes of the third column of Article 164 of
Schedule I of the Limitation Act, 1908, not to have been duly served.
Explanation– A servant is not it member of the family within the
meaning of this Rile.
The rule was SLI hsti t ute.d tr the old ]'tile 15 by rule made by the Calcutta
High Court under section 122 vide Notification No. 10428-G dated the 25
.1 u I)'. 1928 published in the Calcutta Gazette dated 2-8-1928 Part-I. Page-
043
See also rules 73, 74, 76 Note and $4 Note (1). C.R. & 0
Rule-16: Person served to sign acknowledgment.—Where the

serving officer delivers or tenders a copy of the summons to the defendant
jersonally, or to an agent or other person oil 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 simmons
See also rule 69 Note 2. CR. & 0.
1908: Act Vi CIVIL PROCEDURE CODE Or. V Rr. 17-I8 123
Rule-17: Procedure when defendant refuses to accept service, or

cannot he found.—Where the defendant or his agent or SLICII other person
as aforesaid refuses to sign the acknowledgement, or where the defendant
is absent from his residence at the time when service is sought to be
effected on hiii thereat and there is no likelihood of his being Found
thereat within a reasonable time and there is no agent empowered to
accept service of the summons on his behalf, nor any other person upon
whom service can be made, the serving officer shall affix a copy of the
summons on the outer door or some other conspicuous part of the house
in which the defendant ordinarily resides or carries on business or
personally works for gain, and shall then retLirn the original to the Court
from which it was issued, with a report endorsed thereon or annexed
thereto stating that he has so affixed the copy, the circumstances under
which he did so. and the name and address of the person (if any) by whom
the hoLise was identified and in whose presence the copy was affixed.
The words, "or where the defendant is absent from his residence at the time
when service is sought to he effected on him thereat and there is no
likelihood of his being fou id thereat Within a reasonable ti me," were
introdUCC(l for the words, "or where the serving officer, after using all clue
diligence, cannot find the defendant'', by the Calcutta High Court by rule
made under section 122 vide Notification No. 10428-G dated the 25' July,
I 928published in the Calcutta Gazette dated the 2' August, 1928 Part-I,
Page- 1643.
See also rules 73, 76 Note. 83 and $4 notes (c). (d) and (f). C.R. & 0.
I
This rule as amended by the Calcutta High Court is applicable to Dhaka
High Court. Under the provisions of the amended rule the service Of a
so mmons b y alIt xation Of a cop y of the so iii niotis on the outer door can otil y
be done, either unclei' the first pall oh the rule, whei'e the defendant refuses to
sign the acknowledgement, or under the second part of the rule, where three
conditions exist, Viz. (I) the defendant is absent from his residence, (2) there
is no likelihood of his being fou id thereat Within it reasonable time- and and ( 3)
there must be no agent or other person upon whom service can he made.
District Board /7ppei'a/i -us- ,Soati1 Ali, 3 DLR $17
Rule-IS: Endorsement of time and manner of service.—The

serving officer shall, in all cases in which the summons has been served
under i'ule 16, endorse or annex, or cause to he 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
124 Or.V Rr. 18-19A CIVIL PROCEDURE CODE [1908: Act
(if any) identifying the person served and witnessing the delivery or
tender of the summons.
See also rule 84 (2) and rule 70 note 2, C.R. & 0.

A party shall not ordinarily be required to supply an identifier, see rule 70
(I), C. R. & 0.
Form of declaration of process-server to accompany return, From No. II,
App. B, Sch I. Form of return of service, H. C. Form No. (P) 1-A.
Rule-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 declaration 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.
This rule was substituted for the old rule by rule made by the Calcutta High
Court under section 122 vide Notification No. 10428-G dated the 25' July,
1938 published in the Calcutta Gazette dated the 2" August, 1928 Part-I,
Page-1643, the only alteration thereby made is substitution of the word,
"declaration", for the word, "affidavit," after the words, "return under that
rule has not been verified by the". It is incumbent upon the court to make a
distinct declaration of due service.
See also rule 83, C. R. & 0.
Court must in terms declare whether the summons has been duly served or
order fresh service.
Santosh Kumar Chakrabarty -vs- M.A. Motaleb Hossa.in, 36 DLR (AD) 248
Compliance with the provisions of rule 19 is mandatory. Non-compliance
legally amounts to non-service of summons.
Rezia Kh.atun -i's- Deiwar Hussain, 36 DLR 260
Rule-19A: Declaration of serving officer.—A declaration made and

subscribed by a serving officer shall be received as evidence of the facts
as to the service or attempted service of the summons.
This rule was inserted by rule made by the Calcutta High Court under
section 122 vide notification No. 10428-G dated the 25" July, •1928
published in the Calcutta Gazette dated 2-8-1928 Part-I, Page-1648.
Although the rule was in existence in the statute book, it was again
sought to be included by Ordinance XLVIII of 1983.
See also rule 82, C.R & 0.
1908: Act V] CIVIL PROCEDURE CODE Or. V Rr. 19B-20 125
Rule-19B: Simultaneous issue of summons for service by post in

addition to personal service.--(I) The Court shall, in addition to, and
simultaneously with, the issue of summons for service in the manner
provided in rules 9 to 19 (both inclusive), also direct the summons to be
served by registered post with acknowledgement due addressed to the
defendant or his agent empowered to accept the service at the place where
the defendant or his agent actually and voluntarily resides, carries on
business or personally works for gain:
Provided that nothing in this sub-rule shall require the Court to issue a
summons for service by registered post where, in the circumstances of the
case, the Court considers it unnecessary.
(2) When an acknowledgement purporting to be signed by the

defendant or his agent is received by the Court or the postal article
containing the summons is received back by the Court with an
endorsement purporting to have been made by a postal employee to the
effect that the defendant or his agent had refused to take delivery of the
postal article containing the summons when tendered to him, the Court
issuing the summons shall declare that the summons had been duly 'served
on the defendant:
Provided that where the summons was property addressed, pre-paid

and duly sent by registe"red post with acknowledgement due, the
declaration referred to in this sub-rule may be made notwithstanding the
fact that the acknowledgement having been lost or mislaid or for any
other reason has not been received by the Court within thirty days from
the date of issue of the summons.
This rule was inserted by Ordinance XLVIII of 1983.
Rule-20: Substituted service.—(1) Where the Court is satisfied that

there is reason to believe that the defendant is keeping out of the way for
the purpose of aodjñg service, or that for any other reason the summons
cannot be served in the ordinary way, the Court shall order the summons
to be served by affixing a copy thereof in some conspicuous , place in the
Courthouse, and also upon some conspicuous part of the house (if any) in
which the defendant is known to have last resided or carried on business or
personally workedfor gain, or in such other manner as the Court thinks fit.
Effect of substituted service.–(2) Service substituted by order Of the

Court shall be as effecnial as if it had been made on the defendant
personally..
126 Or. V Rr. 29-25 CIVIL PROCFDIJRF COI)F [1908: Act V
Where service substituted, time for appearance to be fixed.–(3)

Where service is substitLited by order of the Court, the Court shall fix such
lime for the appearance of the defendant as the case may require.
Where personal service or service on a male member of the family is not

possible, leave of the court should be taken to effect substituted service.
District Boar/ Tipprra -"s- Surafat All, 3 DLR $17
Sec also rI//c 76, C. I? & 0.
Rule-21: Service of summons where defendant resides within

jurisdiction of another Court.—A summons may be sent by the CoLirt
by which it is issued, either by one of its officers or by post to any Court
(not being the Nigh Court Division) having jurisdiction in the place where.
the defendant resides.
See also rules 68, 85 and 86-90, C. R. & 0.
Form of order for transmission of summons for service in the jurisdiction of
another court. Form No. 7, App. B, Sch. I = H. C. Form No. (M) 17.
Rule-22: Omitted by A. 0. 1949.
• Rule-23: Duty of Court to which summons is sent.—The Court to

which a summons is sent under rule 21 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.
See also rules $5 and 86-91, C.R. & 0.
The court issuing the summons must cleteriiiie for itself whether service
MIS sufficient or not and the return made by the serving coLtrt does not carry
any presumption either way.
Raniaiiciih -i's- Gu't'oilo, 22 C 889
Form to accompany returns of summons to another court, Form No. 10, App.
B, Sch. I = H. C. Form No. (M) IS.
Rule-24: Service on defendant in prison.—When 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 he
defendant.
Form of order for transmission of summons, Form No. 8, App. B, Sch. I.
Rule-25: Service where defendant resides out of Bangladesh and

has no agent.—Where the defendant resides out of Bangladesh and has
no agent in Bangladesh empowered to accept service, the summons shall,
190$: Act Vj CIVIL PROCEDuRE CODE Or. V Rr. 25-26A 127
except in the cases mentioned in rule 26 A. he 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.
See also rules 109-112, C. R. & 0.
Rule-26: Service in foreign territory through Political Agent or

Court.—Where-
(a) in the exercise of any foreign or extra territorial jurisdiction vested

in the Government, 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
(h) the 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 SLICh
jurisdiction as aforesaid, that service by such Court of any
sLimmons issued under this Code by a Court of Bangladesh shall
he deemed to he valid service,
the summons may he sent to such Court, by post or otherwise, for the
Purpose of being served upon the defendant: and, if the Court returns the
summons with all signed by the Judge or other officer of the
Court that the summons has been served oil defendant in manner
hereinhefore directed, such endorsement shall be deemed to be evidence
of service.
Rule-26A: Service on civil public officer or on servant of railway

company or local authority in India.—Where the defendant is a 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 oil defendant,–
(a) in the case of a defendant serving in connection with the affairs of
the Government of India or a servant of 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 that Government
or, as the case may he, to the Home Secretary to the Government
ill territories the local aLithority has its Lirisdiction.
128 Or. V Rr. 27-30 CIVIL PROCEDURE CODE [1908: Act V
Rule-27: Service on civil public officer or servant of the railway

company or local authority.—Where the defendant is a public officer
(not belonging to the armed forces of Bangladesh) or is the servant of the
railway or local authority, the Court may., if it appears to it that the
summons may be conveniently so served, send it for service on the
defendant to the head of the office in which he is employed, together with
a copy to be retained by the defendant.
Form of the summons, Form No. 9, App. B, Sch. 1= H. C. Form No. (M) 19.
Rule-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.
Form of the summons. Form No. 9, App. B, Sch 1= H. C. Form No. (M) 19.
Rule-29: Duty of person to whom summons is delivered or sent

for service.—( I) 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
acknowledgement 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:
Rule-30: Substitution of letter for summons.—(I) The Court may,

notwithstanding anything hereinbefore contained, substitute . for a
summons a letter signed 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 all 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 a 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 maybe delivered or sent to such agent.
1908: Act V] CIVIL PROCEDURE CODE Or. VI Rr. 1-4 129
Order VI
PLEADINGS GENERALLY
• Rule-1: Pleading.—"Pleading" shall mean or written

statement.
Rule-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, as the case may be, but not the evidence by which they are to be
proved, and shall, when necessaie divided into paragraphs, numbered
consecutively. Dates, sums and numbers shall be expressed in figures.
See also rules, 17, 2, 21 and 23, C.R& 0 and pages-38-41, Civil Suit
Instructions Manual..
Names of parties, should bear consecutive numbers and a separate line
should be allotted to the name and description of each person. See rule 21,
C.R&.
Pleading or petition shall be written legibly and Bengali dates should be
followed by corresponding English dates. See rule 20, C. R. & 0.
Pleadings and petitions shall be signed by the person writing or typing
stating the capacity in which he writes or types and if he is the registered
clerk of an advocate, his registered number. See rule 17, C. R. & 0.
F model plaints, see Forms Nos. (1),(2),(3), plaints Nos. 1-49, App. A, Sch. I.
'-Iule-3: Forms of pleading.—The forms in Appendix A when

applicable, and where they are not applicable forms of the like character,
as neapl-y as may be, shall be used for all pleadings.
ule-4: Particulars to be given where necessary.—In all cases in

which the pariy 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 if necessary) shall be stated in
the pleading.
If there is disobedience to the order of the court directing giving particulars,

in the case of the plaintiff his action should be stayed and in the case of the
defendant his defence should be struck out.
Gouri -vs- Mt Manki, 45 A 624

130 Or. VI Rr. 4-10 CIVIL PROCEDURE CODE [1908: Act
Particulars of statements, in a petition or affidavit can also be directed to be

furnished.
Sitarain -vs- Harirain, 40 CWN 913
Rule-5: Further and better statement or particulars.—A further

or 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.
See also paras 9, 10 and II, Civil Suit Instructions Manual.

For Form of particulars, see Form No. 16, App. A, Sch. I.
Rule-6: Condition precedent.—Any condition precedent, the

performance or occurrence of which is intended to be 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 precedent necessary for the case of the
plaintiff or defendant shall be implied in his pleading.
For examples, see froms No. 13, para 2; No. 20, para 2; No. 37, para 2; No.
47, para 3; No. 48, para 5; App. A, Sch. I.
Rule-7: Departure.—No pleading shall, except by way of

amendment, raise any new ground of claim or .contain any allegation of
fact inconsistent with the previous pleadings of the party pleading the
same.
Rule-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 the same may be implied, and not as a denial
of the legality on sufficiency in law of such contract.
Rule-9: Effect of document to be stated.—Wherever the contents

of any document are material, it shall be sufficient in any pleading 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.
Rule-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.
1908: Act VI CIVIL PROCEDURE CODE Or. VI Rr. 11-14 131
Rule-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..
See also Or. 19, r.23.
In a suit under section 80 the precise terms of the notice are to be stated.
Rule-12: Implied contract, or relation.—Whenever any contract or

any relation between any persons 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.
Rule-13: Presumptions 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 consideration as a
substantive ground of claim)..
Cf. Se ti ons 79-90 and section 11.4, Evidence Act..
le-14: Pleading to be signed.—Every pleading shall be signed by

the party and his pleader (if any): Provided that where a party pleading is,
by reason of absence or for other good cause, unable to sign the pleading,
it may be signed by any person duly authorised by him to sign the same or
to sue or defend on his behalf.
Omission ti sign or defect in signature may be cured at any stage by

amendment.
Syed Moh.iuddin -vs- Pirthi, 19 CWN 1159
Sasi -Ps- Rashik, 17 CWN989
Rum gopal -vs- Dhirendra, 54C 380
Unintentional failure to sign the pleadings can be rectified by permitting the
person concerned to sign subsequently and this rule is equally applicable to
the stage of an appeal.
Messes Nahi Baksh -vs- Secretary, Ministry of Industries, Govt. of Pakistan,

Karachi, 22 DLR (WP) 99.
Rr. 14A-15 CIVIL PROCEDURE CODE [1908: Act
132 Zul'eV-14A: Every pleading when filed shall be accompanied by a

statement in a prescribed form, signed as provided in rule 14 of this
Order, of the party's address for service. Such address may from time to
time be changed by lodging in Court a form duly filled up and stating the
new address of the party and accompanied by a verified petition. The
address so given shall be called the registered address of the party and
Shall, until duly changed as aforesaid, be deemed to be the address of the
party for the purpose of service of all processes in the suit or in any appeal
from any decree or order thereifi made and for the purposes of execution,
and shall hold good subject as aforesaid for a period of two years, after
the final determination of the cause or matter. Service of any process may
be effected upon a party at his registered address in like manner in all
respects as though such party resided thereat.
section 122 vide Notification No. 10428-G dated the 25 July, 1928
published in the Calcutta Gazette dated 2-8-1928 Part-I, Pagel643.
See a10 rule 18, C.R & 0.
For 7orm of registered address, see H. C. Form No. (J) 17.
le-15: Verification of pleadings.—(l) Save as otherwise

provided by any law for the time being in force, every pleading shall be
verified 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 acquained
with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered

paragraphs of the pleading, what he verifies of his own knowledge and
what he vyIifies upon information received and believed to be true.
(3)/The verification shall be signed by the person making it and shall

state ifie date on which and the place at which it was signed.
Omission to verify or defective verification can be remedied at a later stage
of'the suit and is a mere irregularity within section 99
Ranigopal -vs- Dhirendra, 54 C 380
All petitions requiring judicial investigation or determination should be
verified.
Failure to affix the official seal on the pleading is a mere irregularity.
Md. Moslernul Haque -vs- The Commossioner of income Tax and Sales Tax,
Pakistan, 14 DLR 66
1908: Act V] CIVIL PROCEDURE CODE 0r.V1 Rr. 16-17 133
Rule-11(Y ' Striking out pleadings.—The Court may at any stage of

the prodbe'dings 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.
The rule deals with amendments which a party desires to be made in his
opponent's, pleadings.
See also paras ,J4' and 15, Civil Suit Instructions Manual and rule 17 (3),
0/
An
Rule—:
C.R&^ 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.
This rule deals with amendments which a party desires to be made in his
own pleadings. This rule allows amendment at any stage and has enlarged
the court's power to amend considerably. But, amendment should be
refused where (I) it is not necessary to decide the real questions in
controversy;
Nagendrahala -vs- Secretary of State, 14 CLI 83
(2) It would take away the defendant's legal right which has accrued to
him by tapse of time;
Charan -vs- A,nir, 48 C 110 P.0
Niranka -vs- A nd, 28 CWN 1009
(3) It would introduce a totally different, new and inconsistent case or its
effect would be to substitute one distinct cause of action for another or
change the character of the suit;
Upendra -vs- Janaki, 45 C 305
Pad,na -vs- Gins, 46 C 168;
Ma Shwe Mya -vs- Mg. Po. 48 C 832 PC
Ardesh.ir -vs- Flora Sassoon, 32 CWN 953 PC
Nurul Islam -vs- Abdur Rashid, 32 DLR 259
(4) The application is not made in good faith.
Krishna -vs- Pachiappa, /924 M 883
Bhukhi -vs-Ram Khelawan, /7 CWN 311
Man.jla.f -vs- Harendra, 12 CL] 556
The ultimate test is: Can the amendment be allowed without injustice to the
other side or can it not?
134 Or. V1 Rr. 17-1.8 CIVIL PROCEDURE CODE 111908: Act
Injury to the opposite party caused by an amendment can be generally

compensated for by costs but there are amendments which cannot be
compensated in cost, such as, amendment which deprives a party of the
defence of limitation.
Kisan -vs- Racha.ppa, 33 B 644
Amendment of plaint should be attended with opportunity to defendant to

amend his written statement and vice versa.
Amendment may be granted in appeal but the power should be used in

exceptional cases.
La.liteshwar -i's- Ra,nesh.war, 36 C 481
Pad,nalochan -vs- Girish, 46 C 168
Ga/adhar -vs- Arn,bika., 47A 459 PC
Chartered Bank -vs- Imperial Bank, 57 C 398
Md. Fakirullah. Mia -vs- Bimalendra N. Ma.itra, 12 DLR 704
Where amendment of plaint is allowed it relates back to the date of
institution of the suit.
Nripendra -vs- He,nanta., 63 IC 70/
Effect of addition of party by amendment, see. section 22, Limitation Act,

1908.
Amendment can be allowed if it does not change the nature or character of

the case.
Za.miruddin Ahmed -i's- Government of Bangladesh, 34 DLR 34
Amendment of the plaint can be allowed when it does not alter the
averment of the plaint.
Sultan Ahmed -vs- Puma Chandra, 28 DLR 130
Rule-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.
Time may be extended under section 148.

1908: Act V] CIVIL PROCEDURE CODE Or.VII Rr.1-3 135
Order VII
PLAINT
Rule-1: Particulars to be contained in plaint.—The plaint shall

contain the following particulars:-
i) the name of the Court in which the suit is brought;
,(b) the name, description and place of residence of the plaintiff;
) 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 to that effect;
e) the facts constituting the cause of action and when it arose;
kfl 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.
The word, "shall", in this rule shows that to give the particulars as per this
rule is imperative.
SheoPrasad -vs- Lalit, 18 A 403
See also rule 25, C.R & 0 and para-4, Civil Suit Instructions Manual.
Forms of plaints, App. A, (I), (2), (3) Nos. Ito 49, Sch. I.
Every plaint should show clearly how the valuation has been calculated. Sec
rule 25, C.R. & 0. Valuation and under valuation, see rule 25, C.R. & 0 and
para 4, Civil Suit Instructions Manual. See also section 8A, Court Fees Act.
Rule-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.
Decree for rnesne profits, Or. 20, r. 12.
Decree in suit for account, Or. 20, r. 16.
136 Or. V11 Rr.3-6 CIVIL PROCEDURE CODE [1908: Act V
Rule-3: Where the subject-matter of the suit is immoveable

property.—Where the subject-matter of the suit is immoveable 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, and where the area is mentioned, such description
shall further state the area according to the notation used in the record of
settlement or survey, with or without, at the option of the party, the same
area in terms of the local measures.
The words, "and where the area is mentioned, such description shall further
state the area according to the notation used in the record of settlement or
sLirvey, with or without, at the option of the party, the same area in terms of
the local measures," were inserted by rule made by the Calcutta High Court
under section 122 vide Rule No-11 of 1918 published in the Calcutta
Gazette dated 17-4-1918 Part-I, Page-653.
Rule-4: When plaintiff sues as representative.—Wherë the

plaintiff sues in a representative character the plaint shall show not only
that he 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.
A suit by an executor or administrator as such is a suit in his representative
capacity.
See also sections 212-214, Succession Act
The executor or legatee may sue without the probate but no decree can be
passed until probate is obtained.
Chandra -vs- Prasanna, 38 C 327 PC
Rule-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
plaintiff's demand.
Rule-6: Ground 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.
See sections 12-20, Limitation Act, 1908 for grounds of exemption.
Where the court is closed when the period of limitation expires, the suit
may be filed on the day the court reopens.
See section 4, Limitation Act, 1908.
1908: Act V] CIVIL PROCEDURE CODE Or. VII Rr. 6-9 137
If the suit appears to be barred by limitation from the statement in the

plaint, it shall be rejected under Or. 7, r. 11(d).
Rule-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 think 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.
It is not necessary to ask for general relief but if a plaintiff omits, except
with the leave of the court, to sue for all the reliefs arising out of the same
cause of action he will not afterwards be allowed to sue for any relief so
omitted. See Or. 2, i. 2(3).
Rule-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 grpunds, they shall be stated as far as
may be separately and distinctly.
Rule-9: Procedure on admitting claim.—(l) The plaintiff shall

endorse on the plaint, or annex thereto, a list of the documents (if any)
which he has produced along with it.
(IA) The plaintiff shall present with his plaint: -
(i) as many copies on plain paper of the plaint as there are

defendants, unless the Court by reason of the length of the plaint
or the number of the defendants, 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;
(ii) 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, by leave of the Court, amend such statements
so as to make them correspond with the plaint.
138 Or. VII Rr. 9-11 CIVIL PROCEDURE CODE [1908: Act V
(4) The chief ministerial officer of the Court shall sign such list and
copies or statement if, on examination, he finds them to be
correct.
Sub-rule (I-A) was substituted for the old sub-rule (I) by dividing it into
two and omitting the words, "and if the plaint is admitted", which occurred
before the words, "The plaintiff shall present with his plaint", by the
Calcutta High Court by rule made under section 122 vide Notification No.
10428-G dated the 25' July, 1928 published in the Calcutta Gazette dated 2-
8-1928 Part-I, Page-1643. By this amendment clause (ii) to sub-rule (IA)
was inserted and this clause (ii) was again substituted by Notification No,
3516-G dated the 3' February, 1933 published in the Calcutta Gazette dated
9-2-1933 Part-I, Page-245.
Production of documentary evidence and marking of exhibits, see rules 393-
405, C. R. & 0. See also para 26, Civil Suit Instructions Manual. Examination
of plaint by the chief ministerial officer. See rules 54-55, C. R. & 0.
The requirements of the rule as it stands now are:- (1) Copies of plaint for
service on each of the defendants, (2) draft forms of summons duly filled in,
and (3) process fee for service of summons must be presented with the
plaint by the plaintiff.
Form of list of document, H. C. Form No. (J) 22. Form as to description of
parties in particular cases, Form (2), App. A, Sch. I.
,Rule-7Return of plaint.—(l) 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.
Procedure on returning plant.—(2) 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.
This rule provides for return of plaint for want of jurisdiction, territorial,
pecuniary or other causes.
When a plaint is returned before any action is taken on it, for filing in the
proper court, all the papers filed with it should also be returned to the
person who filed it. See rule 406, C. R. & 0.
Rule-11: Rejection of plaint.—The plaint shall be rejected in the

following cases:-
) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, 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;
1908: Act V] CIVIL PROCEDURE CODE Or. VII Rr. 11-14 1.39
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;
)d) where the suit appears from the statement in the plaint to be
barred by any law.
(e) Where any of the provisions of rule 9 (1 A) is not complied with
and the plaintiff on being required by the Court to comply
therewith within a time to be fixed by the Court, fails to do so.
Clause (e) was added by rule made by the Calcutta High Court under
section 122 vide Notification No. 10428-G dated the 25' July, 1928,
published in the Calcutta Gazette dated 2-8-1928 Part-I, Page- 1643.
It is the duty of the court under this rule to examine a plaint before issuing
summons and to ascertain whether any cause of action has been pleaded and
whether any relief has been claimed against the defendants and to determine
whether the plaint should be rejected or returned for amendment.
Sadhu -vs- Dhirendra, 55C 590
, The provisions of the rule are mandatory.

Midnapore Zeinindary Co. -vs- Secretary of State 44C 352
Court is bound to give time at least once to make up defects in suits falling
under clauses (b), (c) and (e).
Radhakant -vs- Debendra, 49C 880
See also para 4, Civil Suit Instructions Manual and rule 25, C. R & 0.
Rule-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.
Rule 13. Where rejection of plaint does not preclude presentation

of fresh plaint.—The rejection of the plaint on any of the grounds herein-
before 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

Rule-14: Production of document along with the plaint.—(I)
Where a plaintiff relies upon documents in his possession or power as
evidence in support of his claims, he shall produce them in Court when
the plaint is presented and shall at the same time deliver the documents to
be filed with the plaint.
140 Or. V11 Rr. 14-17 CIVIL PROCEDURE CODE [1908: Act
LI
(2) The Court may return such documents on their being substituted
by photostat or true copies attested by the plaintiff's pleader on the
undertaking that they will be produced at the time of hearing or whenever
asked for by the Court.
(3) Where the plaintiff relies on any other documents not in his
possession or power in support of his claim, he shall enter such
documents in a list to be added or annexed to the plaint and state in whose
possession or power they are.
Rule 14 was substituted by Ordinance XLVIII of 1983
Rule-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.
Rule-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.
Rule-17: Production of shop-book.---(l) Save in so far as is

otherwise provided by the Bankers' Books Evidence Act, 1891, where the
document on 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.
Original entry to be marked and returned:—(2) The Court, or

such officer as it appoints in this behalf, shall forthwith mark the
document for the purpose of identification; and, after examining and
comparin g 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.
See section 4, Bankers' Books Evidence Act, 1891
1908: Act VI CIVIL PROCEDURE CODE Or. VII R. 18 141
Rule-18: Inadmissibility of document not produced when plaint

riled.--41) 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 in
evidence on his behalf at the hearing of the suit:
Provided that the Court shall not grant such leave save in exceptional
circumstances.
• (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 defendants or handed to a witness merely to refresh his memory.
The proviso was added by Ordinance XLVIII of 1983.
See also section 159, Evidence Act.

142 Or. V111 R. 1 CIVIL PROCEDURE CODE [1908: Act
Order VIII
WRITTEN STATEMENT AND SET-OFF
Rule-1: Written statement.—The defendant shall, at or before the

first hein orvithiniUEh time no two months as the Court
may permit, save provided in the proviso to sub-section (2) of section
80, pent written statement of his _defencey
(2) Where the defendant relies upon documents in his. possession pr

power as evidence in suppQrt of his defence or claim of sethe shall
duce them J Cpurt when the written siatementis nted and
at the same time deliver the dOcinnts to be filed with the written
sttementZ
(3) The Court may return such documents on their being_substituted

by photostat_or true copies attested by thëdefendant's pleader on the
undertaking that they will be pro tthe time- i hearing or whener
askedjhourt.
(4) Where the defendant relies on any other documents not in his
poss'ioor_püwer in support of ' defence or claim of set-off, he shall
enter such documents in a list to be added or annexed to the written
statement and state in whose possession or power they are.
(5) A document which ought to be produced in Court by the

defendant when the written statement is or to be entered in the
list t_be addedor annexe o the written statement, and which is not
produced or entered accordingly, shall not, wit out the jave of the Court,
be received in evidence on his behalf at the hearing of the suit:
Provided that the Court shall not grant such leave save in exceptional
circumstances.
(6) Nothing in sub-rule (5) applies to documents produced for cross-

examination of the plaintiff's witnesses, or in answer to any case set up by
the plaintiff or handed to a witness merely to refresh his memory.
Rule I was substituted byOrdinance XLVIII of 1983

See Pages3841, Civil Suit Instructions Manual.
See also Paras 10-11, Civil Suit Instructions Manual.
1908: Act V] CIVIL PROCEDURE CODE Or. VIII Rr. 1-5 143
Copies of written statement must be served on the lawyer of each set of

parties whose interests are not joint before filing the written statement.
Se also rule 24, C.R. & 0.
Forms of written statements, Forms (4) Written statements No. 1-15, App.
A, Sch. I.
Rule-2: New facts must be specifically pleaded.—The defendant

must raise by his pleading all matters which show the suit not to be
iis eit her void or voiaAle ' in point of
mThtainable, or that the transaction
land all such -founds 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 facts showing illegality.
,-,"'Rule-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 fact of which he does not admit the truth, except damages.
Facts not specifically denied will be taken to be admitted. See Or. 8, r. 5.
—,,-Rule-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 sum of money, it shall not
be sufficient to deny that he received that particular amount, but he must
deny that he received 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 along with those circumstances.
)ule-5: Specific denial—Every allegation of fact in the plaint, 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.
The rule means that where the material averment is passed over and not
specifically denied, it is taken to be admitted.
The rule also says that an allegation of fact must be denied either
specifically or by necessary implication and if a plea is not taken in that
manner then the allegation of fact should be taken to be admitted.
Syed Ali Sardar -vs- Shahabuddin Ahmed Chowdhury 18 DLR 198
Cf. Section 58, proviso, Evidence Act.
144 OrXHI R.6 CIVIL PROCEDURE CODE [l908: Act V
Rule-6: Particulars of set-off to be given in written statement.—

(1) Where in a suit for recovery of money the defendant claims to set-off
against the plaintiff's demand any ascertained sum of money le ally
recoverable rom the plaintiff, not excee ing t epecuniary limits
of the jurisdiction of the Court, and koth parties -fill the-same character as
they filflplaintiff's suit, may, at the first ring of the
-
suit, but not afterwards unless _permitted by the Coiif present a written
statement containing partiEebt sought tb'et-off.
Effect of set-off.--(24The 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-not affect 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 answer to a claim of set-off.
ILLUSTRATIONS
(a) A bequeaths Taka 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 Taka 1,000 as surety for D; then D sues C for the legacy. C cannot
set-off the debt of Taka 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 Taka 1,000.
(b) A dies intestate and in debt to B.0 takes out administration to A's
effects and B buys part 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 vendor 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 not being ascertained cannot be set -off.
(d) A sues B on a bill of exchange for Tk. 500/- . B holds a judgment

against A for Tk. 1000/-. 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 Tk. 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 Tk. 1,000/-.0 cannot set-off a debt due to him
by A alone.
1908: Act V] CIVIL PROCEDURE CODE Or. VIII Rr.6-9 145
(g) A sues B and C for Tk. 1,000/-. B cannot set-off a debt due to him
alone by A.
(h) A owes the partnership firm of B and C Tk. 1,000/-. .B dies,
leaving C surviving. A sues C for a debt of Tk. 1,5001- due in his separate
character. C may set-off the debt of Tk. 1,000.
The sum to be set-off cannot be unascertained, see illustration (c).
The sum to be set-off must be ascertained, see illustrations (d) and (e).
But, the rule is not exhaustive of all cross-claims by way of set-off and the
defendant may be allowed to claim an equitable set-off for an ffliascertaitied
sum in exercise of his general right under the provisions of the Code.
Nandram -us- Rain Prasad, 27A 145;
Rwndhari -vs- Parmanand, 19 CWN 1183
Kishorechand --'s- Madh.owji, 4 B 407
Equitable set-off can be claimed also in respect of ascertained amount.
Han -i's- Mah.o,ned, 40 CWN 751
" Le g al ly recoverable" means that the claim to set-off must not be barred by
-
limitation or otherwise legally barn Ed-. -
Narendra -vs- Tarubal, 25 CWN 800
See Or. 20 r. 19 (3) which recognises equitable set-off.
Court fee payable on the written statement pleading set--off is the same as in
a plaint.
Rule-7: Defence of 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.
Rule-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.
Rule-9: Subsequent pleadings.—No pleading subsequent to the
written statement of a defendant other than by way of defence to a set-off
shall he 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.
Minor defendant attaining majority can only file additional written
statement under this rule if court permits.
Venkataswami -vs- Uppilipalayain, 1935 M / 17
146 Or. VIII R. 10 CIVIL PROCEDURE CODE [1908: Act V
Rule-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 permitted or fixed by
the Court, the Court may pronounce judgment against him, or make such
order in relation to the suit as it thinks fit.
See as para 10, Civil Suit Instructions Manual.
The penalty provided in, this rule applies only to a written statement and set-
off. Where defendant pleads set-off and the court directs the plaintiff to put in a
counter written statement and plaintiff fails to comply with the order, this rule
does not apply.
Chirnawq -vs- Gangawa, 1929 B 413
1908: Act V] CIVIL PROCEDURE CODE Or. IX Rr.14 147
^er
APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE
Rule-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.
Rule 7'Dismissa1 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 failure of the plaintiff to pay the court-fee o r 2L
char g s(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
byagent.
Where neither party appears, suit to be dismissed.—

Where neither party appears when the suit is called on for hearing s the
Court may make an order that the suit be dismissed.
The dismissal under this rule not being a decree is not appealable and the
remedy lies by an application under Or. 9, r. 4 or a fresh suit. There is also
no review.
Kailash -vs- Nawadwip, 2 CWN 3/8
Rij Plaintiff may bring fresh 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 for 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 befoe the issue of 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 the suit.
148 IX Rr. 4-6 CIVIL PROCEDURE CODE [1908: Act V
No notice to defendant is necessary in an application under this rule but if

the order of dismissal is set aside and the suit is restored, the defendant is
entitled to notice of date of hearing of the suit
p
Moolchan.d - s- Ganga, 55 A 684
If an application under Or. 9, rule 4 is dismissed, another application lies

under, the rule if it is within the period of limitation
J3ipin - s- Abdul, 21 CWN 30
Period of limitation is 30 days from the day of dcsrnissal (Article 163 of the
Limitation Act.).
Rule-5: Dismissal of suit where plaintiff, after summons returned

unserved, fails for three months to apply for fresh summons.--(I)
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 return made to the Court by the
office 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 endeavors 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.
The rule does not apply to appeal
Bahanna -vs- Parava, 50 B. 815
IJ V4i-e-6- Procedure whennly plaintiff ap ea —Where the

plaintiff appears. and the defenda oes not appear e e suit is called
on for hearing, then—
When summons ' duly served. (a) If it is proved that the summons
was duly served, the Court may make an order that the Court may proceed
-Pc1r7

1908: Act VI CIVIL PROCEDURE CODE Or. IX Rr. 6-8 149
Whenmmons not duly served (b) If it is not proved that the

simmns was du y serve , t s all direct a second summons to be
issue served oil defendant;
When summons served,but nE^^R c) If it is proved that

the summons was served on t , ot(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 nolLe of such day to be given tot e e en ant.
(2) 'Where it is owing to t default that the summons was

not duly served or was not s ' ed in icient time, the Court shall order
the pl ai ntiffto pay the costs occasioned by the postp o nement.
The court should not in ex-partc cases act upon anything short or personal
service until it is satisfied that personal service could not reasonably be'
effected.
Sec rule 69, C. R. & 0.

Form ol'noticc under r. 6(I) (c), Fonn No. 12, App.B, Sch. I=H.C. Form No. (P) 8.
Rule-7: Procedure where defendant appears on day of adjourned

hearing and assigns good cause for previous non-appearance.—Where
the Court has adjourned the hearing of the suit ex-parte, and the
defendant, at o r bfore 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.
PIocedure where defendant only appears.—Where the

defendant appears and the plai ntiff does not appear when the suit is called
oil hearin g the Court shall make an order that the suit be disn'iisse
unless t.hefen ant admits the c am or part thereof, in which case the
Court shall ass a c ans e defendant upon such admission, and,
where part only of the claim has been admitted, shall dismiss the slut so
far as it relates to the remainder.
In this rule the court has no option hut to dismiss the suit if the defendant
appeal's and the plaintiff does not appeal' Unless the defendant ad Iits the claim
or part ol' it. The day fixed for settlement of issue is a date fixed for hearing
within this rule.
Fit-in of Harchan4 -i's- Rain 48 IC 192

Kesm'i -i's- National Jute Mills Co. 40 C / 19
Parbutj -i's- Tulsi, 18 CWN 604
150 IX Rr.8-9 CIVIL PROCEDURE CODE [1908: Act
When once there has been a preliminary decree the suit can not be
dismissed for default or failure to appear to take step for making the decree
final. In such case, disciplinary action may be taken by adjourning the,
proceeding sine die.
Lakshminarain -vs- Balmukund, 29 CWN 391 PC
• 1 9: Decree against plaintiff by default bars fresh suit.--(I)

Where a suit is wholly or partly disniissed under rule 8,
be precluded from bringing a frehuit in respect of the same cause of
action. But he may apply for an order to set the dismissal aside, and if he
satisfies thet1 there wasicient cause or his non-aprce
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
t ' s , ppolnt a day for proceeding with the suit.
(2) The plaintiff shall, for service on the opposite parties, present
along with his application under this rule either-
(i) as many copies thereof on plain paper as there are opposite

parties, or
(ii) if the Court by reason of the length of , the application or the
number of opposite parties or for any other sufficient reason
grants permission in this behalf, a like number of concise
statements.
(3) No order shall be made under the rule unless notice of the
application with a copy thereof (or concise statement as the case may be)
has been served on the opposite party.
Sub-rule 2 and the words, "with a copy thereof" and, "(or concise statement
as the case may be)" in sub-rule (3) were inserted by ruk made by the
Calcutta High Court under section 122 Vide Notification No. 3516 dated
the 3" February, 1933, published in the Calcutta Gazette dated 9-2-1933
Part-I, P. 245.
The filing of copies of the application along with the application is a

mandatory rule. An order of dismissal under Order 9, rule-8 not being a
decree is not ap' jabJ The remedy is an ãpplicatio under 'this -rule,
Limitation for an application under this rule is 30 days from date of
dismissal (Article 163, Limitation Act)
"Appearance" may be by a party, or by a pleader, or by a party in person

along with his pleader.
1908: Act VI CIVIL PROCEDURE CODE Or. IX Rr. 9-12 151
Satis -vs- Apara, 34 C 403 PB

Soonder -vs- Goorprasad, 23 B 414
Lalta -vs- Nand, 22 A. 66 FB
Manickam - vs- Mahudam, 47M 819 PB
"Appearance" has a well-recognized meaning and means appearance in

person or through pleader for conducting the case. When a pleader asks for
an adjournment, which is refused but has no further, instructions to represent
the client, there is no appearance within the Code though the party was
present in person in court.
Mahant -vs- Rajkumar, I P 188
Sikandar -vs- Kushal, 59 C 756
Sardarihal -vs- Jaharmal, 59 C 906
,Jfan application under this rule is itself dismissed, for default, another
application lies if.filed within the period of limitation.
Bepin -vs- Abdul, 21 CWN 30
In proper cases section 151 may be invoked for the restoration of such
application.
Sarat -vs- Biseswar, 54 C 405
'Sourendr -vs- Jatindra, 32 CWN 811
Rule-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.
Rule–li: 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, and the other do not appear, the suit shall
proceed, and the C,burt shall, at the time of pronouncing judgment, make
such order as it thinks fit with respect to the defendants who do not
appear.
Rule-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.
52 IX R. 13 CIVIL PROCEDURE CODE [1908: Act V
SETTING ASIDE DECREES EX PARTE.
fdefendant.1)
ualle— 3: Setting side: decree ex-parte gainst In
cas n which a decree is passe ex-parte against a.idan he may
flatp
a ply to the Court by which the decree was passed for an order to set it
as i de; 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
uit was called on for hearing, the Court, shall make an order setting aside
e decree as against him upon such terrn\s to co.ts, payment into Court
r otherwise as it thinks fit, and shall app' nt a day for proceeding with
e suit:
Provided that where the decree is of such a nature that it cannot be set
ide as against such defendant only it may be set aside as against all or
y of the other defendants also.
\(_^J (2) The defendant shall, for service on the opposite party, present
along with his application under this rule either-
(i) as many copies thereof on plain paper as there are opposite

parties, or,
(ii) if the Court by reason of the length of the application or the
number of opposite parties or for any other sufficient reason
grants permission in this behalf, a like number of concise
statements.
(3) Provisions of section 5 of the Limitation Act, 1908, shall apply

to the application under rule 13 (1) of the Order.
Sub-rule (2) was added by rule made by the Calcutta High Court under
section 122 of the Code Vide Notification No. 3516-G dated the 3'
February 1933, published in the Calcutta Gazette dated the 9" February,
1933, Part-I, Page-245.
Sub-rule (3) numbered as sub-rule "(2)" was added by Orders and

Notification by the High Court of Judicature, Dhaka, being Notification No.
2351-0 dated the I0h May, 1967 published in the Dhaka Gazette dated
18-5-1967. Overlooking that there was already sub-rule (2) in rule 13, this
sub-rule was also numbered as sub-rule "(2)". This is a simple legislative
arithmetical error.
Knowledge about institution of the sLut does not dispense with the
requirement of service of summons. If summons is not served on the
1908: Act V] CIVIL PROCEDURE CODE Or. IX Rr. 13-15 153
defendant the decree is liable to he set aside, even if the defendant knew
about the institution of the suit provided the application is within time.
Ka,,i,n. - p r- Johwn nil, 43 C 447
The remedies open in case of an ex parte decree arc:- (i) an application under
this rule; (ii) an application for review under Order 47, rule I.
Lila Chet -vs- Ram, Pal, 16 CWN 643,
Bihi Mutto -ox- lla!i.i, 6 A 65
and (iii) an appeal under section 96. The remedies are concurrent.
Rajn.a rain. - os-A ncina, 26 C 598
Where there is an appeal there is nothing in the Code to confine the
investigation only to the cause of non-appearance.
Baniac/iaran Os- Gac/adha,-, 56 C 21
No exparic decree call set aside under this rule when the defendant fails to
establish either of the two grounds oil such a decree can be set aside.
A1ftn Mw and others -vs- Government of the Peoples Republic of
Bangladesh. 45 DLR (AD) 112
The court has no power to set aside an ex-parre decree under section 151 if' no
case can he made out under Or. 9, r. 13.
Dart - vs- Shamsuddin, 34 C VVN 419
Harihar -vs- Belov, 34 CWN 222
Nec/a Pen.i -Os- Naravana, 43 M 94 PB
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 to g ether with a copy thereof (or concise statement as the
case may be) have been served on the opposite party.
The words, "together with a copy thereof "(or concise statement as the case
may be)" have been substitLited for the word, "there of" by rule made by the
Calcutta High Court under section 122 of the Code vide Notification No.
3516–G, dated the 3" February 1933 published in the Calcutta Gazette
datet9h February, 1933, Part-I, Page-245.
Ie-15: Where the dismissal of a suit is set aside under rule 4 or
rule 9, or a decree is set aside under rule 13, the suit shall, on restoration,
proceed from the stage where it was immediately before the making of the
order of dismissal or passing of the decree.
Rule IS was added by Ordinance No. XLVIII of 1983
'7
154 X Rr. 1-4 CIVIL PROCEDURE CODE [1908: Act V
Order X
EXAMINATION OF PARTIES BY THE COURT
Rule-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 they are made. The Court
shall record such admissions and denials.
See para 16, Civil Suit Instructions Manual.
Rule-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, may 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.
See para –16, Civil Suit Instructions Manual.
Rule-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.
Rule-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 appear in person on 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.
An order dismissing a suit under this rule operates as a decree and bars
another suit on the same cause of action.
Punnam -vs- Mollison, - 13 Bombay Law Report, 658
1908: Act V] CIVIL PROCEDURE CODE Or. XI Rr. 1-3 155
Order XI
DISCOVERY AND INSPECTION
Rule-1: Discovery by interrogatories.—In any suit the plaintiff or

defendant by leave of the Court may, within 10 days from the date of
framing of issues, deliver interrogatories in writing for the examination of
the opposite parties or a1y 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 reqüied to answer:
Provided that no party shall deliver more than one set, of interrogatories to
the same party without an order for that purpose: Pro y ided 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.
The words, "within 10 days from the date of framing of issues", after the
words, "the Court may" were inserted by the Law Reforms 'Ordinance,
1983 (Ordinance XLVIII of 1983).
See also rules 130 and 131, C. R. & 0 and para 13(12), Civil Suit
Instructions Manual.
Form of order for delivery of interrogatories, Form No. '1, App. C, Sch. I =
H. C. Form No. (G) 18.
Rule-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.
Rule-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 thereto shall be paid in any event by the party in fault.
/
156 Xl Rr.4-i1 CIVIL PROCEDURE CODE [1908: Act V
Rule-4: Form of interrogatories.—Interrogatories shall be in Form

No. 2 in Appendix C, with such variations as circumstances may require.
Rule-5: Corporations.—Where any party to a suit is a corporation

or a body of persons, whether incorporated or not, empowered by law to
sue or he 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.
Rule-6: Objections to interrogatories by answer.—Any objection

to answering any interrogatory on the ground that it is scandalous or
irrelevant or not exhibited bonafïde for the purpose of the suit, or that the
matters inquired into. are not sufficiently material at that stage, or on any
other ground, may be taken in the affidavit in answer.
Rule-7: Setting aside and striking out interrogatories.—Any

interrogatories may he set aside 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.
Rule-8: Affidavit in answer, tiling.—Interrogatories shall be

answered by affidavit to be filed within ten days.
Rule-9: From 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.
Rule-10: No exception to be taken.—No exceptions 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.
Rule-11: Order to answer or answer further.—Where any person

interrogated omits to answer, or answers insufficiently, 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 answer further, either by affidavit or by viva
voce examination, as the Court may direct.
1908: Act V] CIVIL PROCEDURE CODE Or.XI Rr. 12-15 157
Rule-12: Application for discovery of documents.—Any party

may, without filing any affidavit, apply to the Court for an order directing
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.
Also see para- 13 (6), Civil Suit Instructions Manual.

Form of order for affidavit as to documents, Form No. 4, App. C, Sch. 1.
Rule–fl: Affidavit of documents.—The affidavit to be made by a

party against whom such order as is mentioned in the last precedin g 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.
Also see para 13 (6), Civil Suit Instructions Manual.
Rule-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.
Also see para 13(10), Civil Suit Instructions Manual.

Form of order to produce documents, Form No. 6, App. C, Sch. I = H. C.
Form No. (J) 19.
Rule-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 of 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 the Court that such document
158 XI Rr.15-18 CIVIL PROCEDURE CODE [l9O8: Act V
relates only to his own title, he being a 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 in evidence on such terms as to costs and otherwise as the
Court shall think fit.
See also section 164, Evidence Act, 1872
Rule-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.
Rule-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
his pleader, or in the case of bankers' books 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 ndtice.shall be in Form No
8 in Appendix C, with such variations as circumstances may require.
Rule-18: Order for inspection.—(1)Where the party served with

notice under rule 15 omits to give such notice of a 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 pleadings, 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.
1908: Act V] CIVIL PROCEDURE CODE Or. XI Rr. 19-20 159
• Rule-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 .otherparty to
state by affidavit whether any one or more specific documents, to be
specified in the application, is or are, or has 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 the party
against whom the application is made has, or has at some time had, in his
possession or power the document or douments specified in the
application, and that they relate to the matters in question in the suit, or to
some of them.
Cf. Sections 130, 131, 162, Evidence Act, 1872.
Rule-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 inspction, order that such
issue or question be' determined first, and reserve the question as to the
discovery or inspection.
160 X1 Rr. 21-23 CIVIL PROCEDURE CODE [1908: Act V
Rule-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.
An order under this rule is an appealable order. See Or. 43, r. I.
Rule-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 whole 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 are 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.
Rule-23: Order to apply to minors.—This Order shall appl y to

minor plaintiffs and defendants, and to the next friends and guardians for
the suit of persons under disability.
1908: Act V] .CIVIL PROCEDURE CODE Or. XII Rr. 1-4 1.61
Order XII
ADMISSIONS
Rule-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.
See also rules 130 and 131, C. R. & 0 and para 13(7), (8), Civil Suit
Instructions Manual
RuIe-2: Notice to admit documents.—Either party may call upon

the other party to admit any document, saving all just exceptions; and in
case of refusal or neglect to admit, after stIch 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 the omission to give the notice is, in the opinion of
the Court, a saving of expense.
See also rules 130 and 163, C.R.& 0. and para 13(7), Civil Suit Instructions
Manual.
RuIe-3: Form of notice.—A notice to admit docuthents shall be .in

Form No. 9 in Appendix C, with such variations as circumstances may
require. . .
Rule-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 to 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 fact or 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 of the particular
suit, and not as an admission to be used against the party on any other
occasion or in favor 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.
See also rule 130, C.R. .& 0. and para 13(8), Civil Suit Instructions Manual.
162 XII Rr. 5-9 CIVIL PROCEDURE CODE [1 908 Act V
Rule-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.
Rule-6- Judgment on admissions.—Any party may, at 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 Court may upon such
application make such order, or give such judgment, as the Court may
think just.
The power of the court to pass judgment on admissions is discretionary and
cannot be claimedas of right.
Gaistaun -vs- Sassoon & Company, 27 CWN 783
Prem.sukhdas -vs- Udairain, 45 C 138
Rule-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 of such
admissions, if evidence thereof is required.
Rule-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 any 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.,
Notice enables secondary evidence of the documents to be given if not

produced. See sections 65 (a) and 66. Evidence Act, 1872.
Rule-9: Costs.—Ifa notice to admit or produce specifies documents

which are not necessary, the costs ,occasioned thereby shall be borne by
the party giving such notice.,
1908: Act V] CIVIL PROCEDURE CODE Or. XIII Rr. 1-5 163
Order XIII
PRODUCTION, IMPOUNDING AND Ri.i !IRN OF DOCUMENTS
Rule-1: Omitted by Ordinance No. XLVIII of 1983

Rule-2: Omitted by Ordinance No. XLVIII of 1983
Rule-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.
See also paras 24 and 26(9), Civil Suit Instructions Manual.,
Rule-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 in the
suit the following particulars, namely: -
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the aate on wiuch it was produced, and
(d) a statement of its having been so admitted;
and the endorsement shall be signed or initialled 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 initialled by the
Judge.
See also 'rules 396 and 403, C.R.&O. and para 26 (8), Civil Suit Instructions
Manual. As to how documents admitted in evidence should be endorsed and
marked with exhibit marks, see rules 396-403, C.R.& 0.
Form of list of documents admitted in evidence, H. C.-Form No. (J) 23.
Rule-5: Endorsements on copies of admitted entries in books,

accounts and records.--(I) Save in so far 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.
164 XIII Rr. 5-7 CIVIL PROCEDURE CODE [1 908: Act V
(2) Where such a document is an entry in a public record produced

from a public office 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, or
(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 or 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.
Return of public document or a document in public custody after placing a

certified copy. See rule 116, C.R.&O.See also rule 403, C.R.& 0.
Rule-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 inadmissible 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 initialled by the Judge.
See also rule 404, C.R.& 0 and para 26 (9), Civil Suit Instructions Manual.
Rule-7: Recording of admitted and return of rejected

documents.—(1) Every document which has been admitted in evidence,
or a 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.
Documents not admitted in evidence shall not be marked and shall be
removed and destroyed if not taken back within the prescribed time. See
rule 407, C. R. & 0.
1908: Act V] CIVIL PROCEDURE CODE Or. XIII Rr. 7-9 165
It is the duty of the court before proceeding to judgment under Or. 20; r. I
to revise the record and to have removed all documents not admitted in
evidence. See para 29, Civil Suit Instructions Manual and, rule 407, C.R. & 0.
Rule-8: Court may order any document to be impounded.—Not-

withstanding anything contained in rule 5 or rule 7 of this Order or in rule
17 of 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.
See also rule 395, C. R. & 0. and sections 33 to 40 of the Stainp Act, 1,899,
Rule-9: Return of admitted documents -(I) 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
document 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 document may be returned at any time earlier than

that prescribed by this rule if the person applying therefor delivers to the
prppe officer a certified copy to be substituted for the original and
undertakes to produce the original if required to do so:
Rrovided 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.
See also rules 404, 407 and 408, C. R. & 0 and para 29(2), note, Civil Suit
Return of exhibited documents transmitted to the District Record Room, see

rule 456, C. R. & 0. Destruction of exhibited documents not taken back, see
rules 480-483, C. R. & 0.
Documents, which shall not be returned, see rule 405, C. R. & 0.

166 XIII Rr. 10-11 CIVIL PROCEDURE CODE [1908: Act V
Rule-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 any other Court, the record of any
other suit or proceeding, 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 applicant
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.
Production of public documents and records. see rules 113 to 120, C. R. & 0.
Production of documents from civil courts, sec rule 117, C. R. &0.
Production of documents called from criminal courts, sec rule 118, C. R. & 0.
Production of post office records, see rule 120, C. R. & 0.
Form of letter calling for records, see H. C. Form No. (M) 10.
Form of summons to witness to produce document, see Form No. 13, App. B.
Sch, I H. C. Form No. (P) 10.
Rule–li: 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 producible as evidence.
See also section 60, proviso, Evidence Act, 1872.

1908: Act V. ] CIVIL PROCEDURE CODE Or. XIV R. 167
Order XIV
SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON
ISSUES OF LAW OR ON ISSUES AGREED UPON
Ru14raming.. of Issues.—(1) Issues arise when a material

propositions 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: (a) 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.
Provided that in any case the issues shall be framed and recorded,
subject to the provisions of rules 4 and 5, within fifteen days from the date
of first hearing of the suit or the date of filing of the written statement,
whichever is later.
(6)Nothing in this rule requires the Court to frame and record issues
where the defendai2t at the first hearing of the suit makes no defence.
Proviso to sub-rule (5) was added by Ordinance XLVIII of 1983
No issues can arise in regard to admitted facts. Issues are to be framed only
in respect of those facts which have been alleged by one party and either
denied or not admitted by the other party.
See para 12, Civil Suit Instructions Manual.
Issues must be framed by the presiding judge himself. See rule 132, C.R.&
0. Issues settled by a judge who knows nothing about the case and usually
signs the issues drafted by lawyers are worse than useless.
Ratna Sabhaparhy -vs- Ammakannammal, 1930 M 78
168 UV Rr. 1-5 CIVIL PROCEDURE CODE [1908: Act V
Date fixed for settlement of issuels date fixed for hearing within Or. 9, r. 8
Firm -vs- Ra,nbah.adur, 48 IC 192 (Patna).
Rule-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
The scope of this rule has been largely limited by amendment of rule 5 of
Order 20 by Ordinance No. XLVIII of 1983 and the decision in
Md. Sultan Mia -vs- Sree Haradhan Saha and others, 40 DLR 236
Rule-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 any persons presnt

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.
See rule 132, C.R. & 0 and para 12, Civil Suit Instructions Manual.
Rule-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.
See para 12(2), Civil Suit Instructions Mannual.
Rule-5: Power to amend, and strike out, issues.—(l) 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
and additional issues as may be necessary for determining the matters in
controversy between the parties shall be so made or framed.
CIVIL PROCEDURE CODE Or. XIV Rr. 5-7 169
1908: Act VI
(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.
Rule-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
th6 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 issue,—
(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.
Form of agreement, see Form No. 1., App. H, Sch. I.
Rule-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.
170 XIV Rr. 7-8 CIVIL PROCEDURE CODE [1908: Act V
The principles laid down in Or. 14 rr. 6-7 are applicable to a case where the
parties agree to refer certain issues to a commissioner. The commissioner's
finding is final and there is no appeal.
Bahir -vs . Nabin, 6 CWN 121
Rule-8: Fixing date for final hearing.---After the issues are framed,
the Court shall, within one hundred and twenty days thereof, fix a date for
final hearing of the suit.
Rule 8 was inserted by Ordinance XLVIII of 1983.

CIVIL PROCEDURE CODE Or. XV Rr. 1-4 171
1908: Act V]
Order XV
DISPOSAL OF THE SUIT AT THE FIRST HEARING
Rule-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 of fact,
the Court may at once pronounce judgment.
Rule-2: One of several defendants not at issue.—Where there are

more defendants than one, and any one of the defendants is not at issue
with the plaintiff on any question of law or of fact, the court may at once
pronounce judgment for or against such defendant and the suit shall
proceed only against the other defendants.
Rule-3: Parties at issue.—(l) Where the parties are at issue on some

question of law or fact, and issues 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 summons 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 the settlement of
issues only, the parties or their pleaders are present and none of them objects.
(2) Where the finding is not sufficient for the decision, the Court
shall postpone the further hearing of the suit, and shall fix a day for the
production of such further evidence, or for such further argument as the
case requires.
Rule-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.
If a suit is dismissed under this rule, the proper course is to appeal and not to
apply under Or. 9
Hingcz -vs- Munna, 8 CWN 97
172 XVI Rr. 1-2 CIVIL PROCEDURE CODE [1908: Act
Order XVI
SUMMONING AND ATTENDANCE OF WITNESSES
Rule-1: Summons to attend to give evidence or produce

documents.—At any time after the suit is instituted, the parties may
obtain, on application to the Court or to such officer as it appoints in this
behalf, summonses to persons whose attendance is required either to give
evidence orto produce documents.
In view of this rule the parties are entitled as of right to obtain summonses
upon witnesses immediately after the institution of the suit.
Bhagwat -vs- Debi, 16A 218; Kazi -vs- Kazi, 9 B. 308,

Abdul -vs- Hrishikesh, 49 CLI 546.
See also rule 63 and 64, C.R. & 0.

Form of summons, Form No. 13, App. B, Sch. I = H. C. Form No. (P) 10.
Rule-2: Expenses of witness to be fixed by Court.— .{1) The Court

shall fix in respect of each summons 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.
Experts (2):–Tn . fixing such an amount 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.
Scale of expenses (3):–Where the Court is subordinate to the High

Court Division, regard shall be had, in fixing the scale of such expenses,
to any rules made in that behalf.
The words, "The Court shall fix in respect of each summons," in sub-rule( I)
in this rule and the words, "In fixing such an amount", in sub-rule (2) in this
rule were respectively substituted for the words, "The party applying for a
summons shall, before the summons is granted and within a period to be
fixed, pay into Court" and "In determining the amount payable under this
rule" by rule made by the Calcutta High Court under section 122 of the
Code Vide Notification No. 10428-G, dated the 25" July, 1928 published in
the Calcutta Gazette dated the 2" August, 1928, Part-I, Page-1643.
See also rules 63, 617 and 619, C.R.& 0.

1908: Act VI CIVIL PROCEDURE CODE Or. XVI Rr. 2-4 173
As under the new rule 7-A the parties themselves can now serve summons
on their witnesses, the former requirement of paying expenses of witnesses
into court has been done away with. Under this rule the court will now only
fix the sum of money to be paid as travelling and other expenses and the
parties will pay the amount to their witnesses at the time of service (Or. 16,
r. 3). The office will return to the parties on their pleaders for service the
processes filed by them after entry of the expenses fixed the court (Rule 99
(2), C. R & 0). In cases in which service is required through the agency of
the court under rule 7-A (iii) process-fees shall be filed by the parties (Rule
63, C. R & 0) as also witness's expenses in cash (Rule 617, C. R & 0).
RuLe-3: Tender of expenses to witness.—The sum so fixed shall be

tendered to the person summoned, at the time of serving the summons, if
it can be served personally.
The words "so fixed" in rule 3 were substituted for the words "so paid into
Court" by rule made by the Calcutta High Court tinder section 122 of the Code
Vide Notification No. 10428-G dated the 25" July 1928 published in the
Calcutta Gazette dated the 2" August, 1928 Part-I, P. 1643.
Rule-4: Procedure where insufficient sum paid in.--(I) Where it

appears to the Court or to such officer as it appoints in this behalf that the
sum so fixed 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 moveable 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.
Expenses of witnesses detained more than one day (2) :—Where it is

necessary to detain the person summoned for a longer period than one
•day, the Court may, form 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 moveable 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.
The words, "so fixed" in sub-rule (I) were substituted for the words, "paid into
Court" by rule made under section 1.22 of Code by the Calcutta High Court,
vide Notification No. 10428-G, dated the 25" July 1928 published in the
Calcutta Gazette dated the 2" August, 1928 Part-I, P. 1643.
174 XVI Rr.4-7 CIVIL PROCEDURE CODE [1908: Act.V
Rule-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.
See also rules 58,60,61,62 and 63, C.R. & 0
Rule-6: Summons to produce document.—Any person may be
summoned to produce a document, without being summoned to give
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.
For procedure to be followed if summons not obeyed, see Or 16, rr. 10,11,12,
17 &• 18. For summons to Collector or other public officer in charge of
documents for their production see rule 115, C. R. & 0.
Rule-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.
Rule:-7A:(i)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. The service shall be effected by or on behalf of such
party in 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.
(ii) 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.
(iii) If such summons, when tendered, is refused or if the person
served refuses to sign an acknowledgment of service or if for
any reason such summons cannot be served personally, the Court
shall, on the application of the party, re-issue such summons to
• be served by the Court in like manner as a summons to a
defendant.
1908: Act V] Clvii PROCEDURE CODE Or. XVI Rr. 7-10 175
This rule was inserted by rule made by the Calcutta High Court under section
122 Vide Notification No. 10428-G dated the 25' July 1928 published in the
Calcutta Gazette dated the 2"' August, 1928, Part-I, Page-1643.
This rule introduces the system of service of summons on witnesses by the
parties themselves without the necessity of payment of process fees. Resort to
clause; (iii) can not he taken unless the party is unable to serve summons under
clause (i)
See also rules 63, 99 and 597, C.R.& 0.
Rule-8: Summons now served.--(l) Every summons under this

Order not being a summons made over to a party for service under rule
7A(i) 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.
(2) The party applying for a summons to be served under this rule
shall, before the summons is granted and within a.period to be fixed, pay
into Court the sum fixed by the Court under rule 2 of this Order.
In consequence of insertion of rule 7A and the amendment of rule 2, the old

rule was substituted by this rule by rule made by the Calcutta High Court
under section 122 Vide Notification No. 10428-0 dated the 25" July, 1928
published in the Calcutta Gazette dated the 2" August, 1928, Part-I, Page-
1643.
Rule-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.
97,
See also rule C.R. & 0.
Rule-10: Procedure where Witness fails to comply with

summons.—(l) 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
176 XVI Rr. 10-12 CIVIL PROCEDURE CODE [1908: Act V
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 immoveable property.
Form of proclamation requiring attendance of witness, see Forms Nos. 14,15,
App. B, Sch. I = H. C. Form No. (P) 12.
Form of order of attachment of property, see Form No. 16 App. B, Sch I = H.
C. Form No. (P) 13. Form of warrant of arrest of witness, see Form No. 17,
App. B, Sch. I H. C = Form No. (P) 11.
Rule-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 avoid 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.
Rule-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 five hundred Taka 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 party thereof, to be
attached and sold or, if already 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:
1908: Act V] CIVIL PROCEDURE CODE Or. XVI Rr. 12-17 177
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.
Before passing an order under this rule it is mandatory to follo' the procedure laid
clown therein.
Na/adwip -vs- Secretary of State, 20 CWN SI /
Shibkumari -vs- Secretary of State, 31 CLJ 363,
Ashutosh -vs- Secretary of Stare, 57 IC 302
Rule-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.
Rule-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 anytime 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.
Rule-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 to be produced, at such time and place.
See also rules 58 and 135, C.R. & 0.
RuIe46: 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.
When a case is adjourned a specific order should be recorded directing the witnesses in
attendance to attend on the day their attendance may be required.
See rules 387, C. R &O.
Rule-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.
178 XVI Rr..18-21 CIVIL PROCEDURE CODE [1908: Act V
Rule-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 has 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.
Form of warrant of committal, see Forms Nos. 18, 19, App. B, Sch. I.
Rule-19: No witness to be ordered to attend in person unless resident
within certain limits.—No one shall be ordered to attend in person to give
evidence 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
convyaiice for five-sixths 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.
Rule-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.
if the document is produced the requirement of law is fulfilled. Where the plaintiff on
being asked by the court, produced a certified copy of a judgment in his possession but
declined to exhibit it as evidence in the case, the court could not pass an order of
dismissal of the suit under this rule.
Radhanath -vs- Uttam. 28 CU 24
Rule-21: Rules as to witnesses to apply to parties summoned.—
(1) Where any:partv to a suit is required by any other party thereto to give
evidence, or to produce a document, the provisions as to witnesses shall
apply to him so far as applicable.
(2) When any party to a suit gives evidence on his own behalf, the
Court may in its discretion permit him to include as costs in the suit a sum of
money equal to the amount payable for travelling and other expenses to other
witnesses in the case of similar standing.
Court under section 122 of the Code, Vide Notification No. 15264-G dated the
11 ' November 1927, published in Calcutta Gazette dated the 17 November,
1927, Part-I, Page-2377.
1908: Act VI CIVIL PROCEDURE CODE Or. XVII Rr. 1-2 179
Order XVII
ADJOURNMENTS
Rule-1: Court may grant time and adjourn hearing.--(I) 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.
Costs of adjournment.—(2) In every such case the Court shall fix a

day for the further hearing of the suit, and 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 from 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.
It is often very right indeed for a Judge to refuse adjournments which are
asked for by both sides.
Durta. - vs- Shamsuddin, 34, CWN P 419
No judicial proceeding shall be adjourned sine die; previous notice should
be given to the opposite party regarding adjournment or advancement of
hearing the suit.
The trial when once commenced shall except for good and sufficient
reasons proceed throughout the day and from day to .day until it is
completed including the hearing of arguments.
See rules 124 to 129, C.R. & 0 and para 18, Civil Suit Instructions Manual;
It is of utmost importance that frequent and unnecessary postponements and
attendance of witnesses should be consistently discouraged.
See rule 128, C.R.. & 0.
As to importance of expeditious disposal of suits and common causes of
delay, see paras 36, 37, Civil Suit Instructions Manual and Report On The
Causes Of Delay In Disposal Of Cases And Recommendations For Their
Elimination And Better Management of Courts published on June 30, 1989.
Rule-.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 IX or make such other order
as it thinks fit.
180 XVII Rr.2-3 CIVIL PROCEDURE CODE [1908: Act
The difference between Order 9änd Order 1 - 7 is that latter applies to

adjourned hearing and not to first hearing:
When • .a 'party who appeared: at the first hearing fails to appear at the
adjourned hearing the court may proceed in One of the modes directed in
Order 9. "Adjourned" under this rule means adjourned at the instance ofthe
parties and not adjournment by the court of its own motion.,
Toolseymonq -vs- Prasadnioney 2. CWN 490
Or. 17,. r. 2 contemplates the absence of one of the parties at an adjourned

hearing no matter for what purpose the adjournment was made. In the
former case the court may proceed uriderOr.:9, r..6 or Or. 9.r. 8, as the case
maybe. In the latter case, it may proceed under Or. 9, r. 3. Or. 17, r. 3 also
applies' to an adjourned hearing but the rule is applicable, only to cases
where a party to whom time has been granted on his own application fails to
do certain specified acts for which time was allowed and who has defaulted
Enatullah-vs- Jiban, , 4!C 956, Krista -us- Pcmcharum., 47 CLI 467
Rule-3: Court may 'proceed notwithstanding either party fails to

produce evidence, etc.—Where any party to a suit to 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.uecide the suit forthwith.
This rule empowers the court to proceed to a decision on the merits upon
the. default if there are proper- materials , on the record for such a decision
ins.teadofaking recourse todispose of the suit under Or. 9..
Mariann.essa -vs- Ramkalpa, 34 C 235

'MiksiMa.rak-vs-, Jogendra.. 39 CWN 859
If a suit is dismissed under Or. 17, r. 2 read with Or. 9, r. 8 the remedy is by
An application under Or. 9, r. 9, but if the suit is dismissed under Or. 17, r. 3
the remedy is by way of appeal
Ch.wzdra,nath.i' -vs- Narayansaini, 33 M 241

1908: Act V] CIVIL PROCEDURE CODE Or. XVIII Rr. 1-3 181
Order XVIII
HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
Rule-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 Qr on some additional facts alleged by the defendant
the plaintiff is not entitled to any part of the relief which he seeks, in
which case the defendant has the right to begin.
The right to begin or the privilege of opening the case is determined by the
rules of evidence. The general rule is that the party on whom the onus
prohandi lies should begin. As to rules governing burden of proof, see
sections 101 - 114, Evidence Act, 1872.
Rule-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.
See also para - 22, Civil Suit Instructions Manual.
Rule-2A. Notwithstanding anything contained in clauses (I) and (2)

Of rule 2, the Court may for sufficient reason go on with the hearing,
although the evidence of the party having the right to begin has not been
concluded, and may also allow either party to produce any witness at any
stage of the suit.
section 22 of the Code Vide Notification No. 15165-0, dated the 8'
November, 1927 published in the Calcutta Gazette dated the II' November,
1927 Part-I, Page-2377.
Rule-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, either 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
182 XVIII Rr.3-7 CIVIL PROCEDURE CODE [1908: Act
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.
Rule-4: Witnesses to be 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.
No person shall testify as a witness except on oath or affirmation. See
section 6, Oaths Act. See also rules 350-351, C.R. & 0.
Privileges of pardanashin women, see section 132; Or. 26 r. I.
Examination of witnesses on commission, see section 75, Or. 26, rr. 1-8 and
rules 234-256, C.R. &O.
Parties are required to file their lists of witnesses in attendance in the
respective courts (not with the Nazir) within the time fixed.
See rule 135, C.R. & 0.
Rule-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.
See also pal-as 23-24, Civil Suit Instructions Manual.
Question by court, see section 155, Evidence Act, 1872, and para 25, Civil
Suit Instructions Manual.
Rule-6: When deposition to be interpreted.—Where the evidence
is taken down in a 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.
Rule-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.
1908: Act V1 CIVIL PROCEDURE CODE Or. XVIII Rr. 8-13 183
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.
Rule-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 take it down.
Rule-10: Any particular question and answer may be taken

clown.—The Court may, of its own motion or on the application of any
party or his pleader, take down any particular question and answer, or any
objection to any question, if there appears to be any special reason for so
doing.
Rule-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.
Rule-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.
See observations qf Lord Atkin: Sitalakshmi –vs- Venkata, 34 CWN 593 P.C.
Rule-13: Memorandum of evidence in unappeable cases.—In-

cases in which an appeal is not allowed, it shall not be necessary to lake
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 shall form part of the record.
See also rules 133– 134, C.R. & 0.

184 XVIII Rr. 14.16 CIVIL PROCEDURE CODE [1908: Act
Rule-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, he 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.

See rule 133, C.R. & 0.
Rule-15: Power to deal with evidence taken before another

Judge.—fl) Where a Judge is prevented by death, transfer or other cause
from concluding the trial of a suit, his successor may deal with any
evidence or memorandum taken down or made under the 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 to evidence taken in a suit transferred under section 24.
Where evidence and arguments were heard by one Judge, his successor can
deliver judgment without hearing the pleaders.
Sub-rule (2) clearly contemplates transfer after the case has been heard in
part.
Palaniscimi -vs. Thondarna, 26, M. 595
Every Judge proceeding on transfer or leave must write judgments in all

cases and appeals heard up to and including the stage of arguirients. See rule
141,C.R. &O.
Rule-. 16: Power to examine witness immediately.—(l) 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.
1908: Act V] CIVIL PROCEDURE CODE Or.XVIH r. 6-19 185
(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 ,.hall sign it and it may then be read at
any hearing of the suit.
Such examination is known as de bene esse.
See also para 18 (14), Civil Suit Instructions Manual.
Form of notice, see Form No. 6, App. H, Sch. I.
Rule-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.

See also 165, Evidence Act, 1872
Rule-18: Power of Court to inspect.—The Court may at any stage

of a suit inspect any property or thing concerning which any qustion may
arise.
Under section 60, proviso 2, Evidence Act, 1872, the court may require the
production of a material thing for its inspection, see section 94 (b) of the
Code and section 165, Evidence Act, 1872. The court may order the
inspection of any property which is the subject-matter of the suit, see Or.
39, r. 7. The court may make local inspection in person, see Or. 18, r. 18
and Or. 26, rule 9. See also
Sahhapaty -vs- Perwn,nal, 44 M 640
Rule-19: Time for completion of hearing.—(1) The Court shall

complete the hearing of a suit within one hundred and twenty days from
the date fixed for its final hearing.
(2) In this rule, in determining the time, only the working days shall
be counted.
Rule 19 was added by Ordinance No. XLVIII of 1983.

186 XIX Rr. 1-3 CIVIL PROCEDURE CODE [1908: Act V
Order XIX
AFFIDAVITS
Rule—i: 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 tide
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.
The power under this rule should he used in special circumstances and the
reasons should always he specified in the order.
Rule-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.
Exemption from personal appearance, see sections 81, 132, 133.
Rule-3: Matters to which affidavits shall be confined.—(l)

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 or argumentative matter, or copies of or extracts from
documents, shall (unless the Court otherwise directs) be paid by the party
filing the same.
Affidavits should clearly express how much is a statement of the declarant's
knowledge and how much is a statement made on his information and belief
and must also state the source or ground of the information or belief with
sufficient particularity.
Pad,naba.ti -i's- Rasik, 37 C 259; Gohin.da -i's- Kunja, 10 CLJ 414
1908: Act V] CIVIL PROCEDURE CODE Or. XX Rr. 1-3 187
Order XX
JUDGMENT AND DECREE
Rule-1: Judgment when pronounced.—The Court, after the case

has been heard, shall pronounce judgment in open Court, either at once or
on some future day, not beyond seven days, of which due notice shall be
given to the parties or their pleaders.
The words, "not beyond seven days," were added by Ordinance No. XLVIII
of 1983.
"Pronouncing" does not require a reading out of the whole judgment.
Kutubuddin -vs- Golam, 94 IC 121

Definite date should be fixed for delivery of judgment if not pronounced
immediately after conclusion of arguments and notice of such date should
be given to the parties or their pleaders. Reserving a judgment without
fixing a certain date is not permissible.
Seerule 140, C.R. & 0. and para 29 (4) Civil Suit Instruction Manual. See also
rules 140-142, C.R. & 0.
Rule-2: Power to pronounce judgment written by Judge's

predecessor.—A Judge may, pronounce a judgment written but not
pronounced by his predecessor.
The words, "may pronounce'.' in this rule are not mandatory. Where a Judge
wrote out a judgment, placed it upon record and was transferred, his
successor who takes a different view may deliver his own judgment.
Lachman -vs- Ram., 33, A 236

Mg Ba -vs- Mg Ye. 76 IC 760
Rule-3: Judgment to be signed.—The judgment shall be dated and

signed by the Judge in open Court at the time of pronouncin g it and, when
once signed, shall not afterwards be altered or added to, save as provided
by section 152 or on review.
See also rule 140, C.R.& 0. and para 29 (5), Civil Suit Instructions Manual.
Judgment once signed alternation therein cannot be made except for

rectifying clerical or arithmetical mistake arising from any accidental slip or
omission.
See also para 29(6), Civil Suit Instructions Manual.
188 XX Rr.4-7 CIVIL PROCEDURE CODE [1908: Act V
Rule-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.
Judgments of other Courts.—(2) 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.
See also rules 138, 143, 144, 145, 146, 147, 148 and 153, C.R. & 0.
Rule-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.
The words after the words, "each separate issue", were omitted by
Ordinance XLVIII of 1983.
Rule• (5a) The decree shall be drawn up within seven days from the
date of pronouncement of the judgment.
Rule-5(a) was inserted by Ordinance XLVIII of 1983
Rule-6: Contents of decree.—(l.) The decree shall agree with the

judgment; it shall contain the number of the suit, the names and
descriptions of the pirties, and particulars of the 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 proportions 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.
See also rules 154-163, C.R. & 0.
Rule-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.
The date of the decree does not mean the date when the decree is reduced to
writing and signed by the court, but the date on which the court delivered
the judgment.
In re-Brenhilda -vs- B.I.S.N. Co. 7 C. 547 P.c
1908: Act V] CIVIL PROCEDURE CODE Or.XX Rr. 7-11 189
For purpose of appeal time runs from the date of pronouncement of

judgment. The time required for copy excluded under section 12, Limitation
Act, 1908.
Bene -vs- Matungini, 13 C 104
Forms of decrees in various kinds of suits, Forms Nos. 1-23, App. D, Sch. I
.: I.I C. Forms Nos. (J) 25- (J) 35.
Form of notification Of decree drawn up, H. C. Form No. (M) 5.
Rule-8: Procedure where Judge has vacated office before signing

decree.—Where a Judge has vacated office after pronouncing judgment
but without signing 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.
Rule-9: Decree for recovery or immoveable property.—Where

the subject-matter of the suit is immoveable 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.
For Form, Form No. I ,App. D, Sch. I = H.C. Form No. (J) 25.
Rule-10: Decree for delivery of moveable property.—Where the

suit is for moveable 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.
In decrees for specific movable property, the court should state an amount
to be paid in case of non-delivery. The decree holder has not the option not
to take delivery of the property and to fall back on the money portion of the
decree.
Balmukund -vs- B.N Ry, 55 C 26
As to suits for specific moveable property, see sections 10, 11, Specific
Relief Act.
Rule–Il: Decree may direct payment by instalments.—( 1) Where

and 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 instalments,
with or without interest, notwithstanding anything contained in the
contract under which the money is payable.
190 XX Rr. 11-13 CIVIL PROCEDURE CODE [1908: Act V
Order, after decree, for payment by instalments.—(2) 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
instalments 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.
This rule applies only to money decrees and not to mortgage decrees.
Hardeo -VS- Hukam., 2 A 320
Principles to be applied in granting instalments.
Manararna -vs- Wa/addi, 6/ CLI 93
Rule-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.
A suit decreed with a direction regarding an inquiry as to mesne profits is in
the nature of a preliminary decree. The suit remains pending so long as a
final decree is not passed under sub-rule (2).
Midnapure Zarnindary Company, -vs- Naresh, 16 CWN 109
Rudra. -vs- Sarda, 47 A 543
Shakar -vs- Gangaram, 52 B 360
Form of decree for recovery of land and mesne profits, H. C. Form No. (J) 29.
Rule-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 other 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 estates 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.
Forms of decree in administration suit, Forms Nos. 17-20, App. D, Sch. I.
Rule-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 (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 degree, 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,
192 XX Rr.14-18 CIVIL PROCEDURE CODE 111908: Act
(b) if and in so far as the claims decreed are different in degree, 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.
Rule-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 Court, 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.
For of decree, Forms Nos. 21,22, App. D, Sch. I.

Rule-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 accounts to be taken
as it thinks fit.
See also rules 275 to 279, C. R. & 0.

The rule is not restricted to suits for an account between a principal and an
agent but applies to all suits on an account. Before directing , an inquiry into
accounts the court must be satisfied about the facturn of the liability to
render account and the necessity of taking accounts.
Bharat -vs- Kiran, 52 C 766
Rule-17: Special directions as to accounts.—The Court may either

by the decree directing an account to be taken or 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
the books of account in which the accounts in question have been kept
shall be taken as prima .tcie 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.

Rule-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,-
(I) if and in so far as the decree relates 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
officer subordinate to the Collector deputed by him in this behalf, in
accordance with such declaration and with the provisions of section 54;
(2) if and in so far as such decree relates to any other immoveable

property or to moveable 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.
See also rule 274. C.R.& 0.
Form of partition decree, App. C, C.R. & 0. Vol. II, Page-409-410.
Rule-19: Decree when set-off is allowed-41) 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.
Appeal from decree relating to set-off.--(2) 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 the set-off is
admissible under rule 6 of Order VIII or otherwise.
Rule-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.
Strangers may also obtain copies of judgment, decrees or orders. See rule
525, C.R. & 0.
For rules relating to certified copies, see chapter 24, C.R. & 0.
194 XXI Rr. 1-2 CIVIL PROCEDURE CODE [1908: Act
Order XXI
EXECUTION OF DECREES AND ORDERS
Payment under decree

Rule-1: Modes of paying money under decree.-41) All money
payable under a decree shall be paid as follows, namely:—
(a) into the Court whose duty it is to execute the decree; or

(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.
Execution of decrees and orders should receive as much attention as
original suits and appeals.
"All" does not imply the entire amount.
Tender of an amount under a decree by money order to the decree-holder is
not valid but valid when addressed to the executing court. Payment out of
court must be certified.
Ashutosh Roy Chowdh.ury -us- Gunamian, 5 DLR 223
See also rules 167 and 168, 179 and 183 to 185, C.R. & 0 and • para 35,
Civil Suit Instructions Manual.
As to service of notice of payñient of decretal amount into the court, see
rule 181, C.R.& 0.
For form of notice, H. C. Form No. (P) 19
Rule-2: Payment out of Court to decree-holder—(l) 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 in 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
1908: Act VI CIVIL PROCEDURE CODE Or. XX! Rr. 2-5 195
service of such notice, the decree-holder fails to show cause why the
payment or adjustment should not be recorded as certified, the Court shall
record the same accordingly.
(3) A payment or adjustment, which has not been certified or

recorded as aforesaid, shall not be recognized by any Court executing the
decree.
An application for adjustment must be made Within 90 days of payment Or

adjustment (see article 174, Limitation Act, 1908.)
See also rule 182, C.R.& 0 regarding certificate of payment out of court.
The rule applies to all kinds of decree. "Adjustment s ' is a transaction which
extinguishes the decree in whole or in part and cannot mean an adjustment
to give effect to the terms of which would be to create a new decree at
variance with the decree under execution and which will again have to be
executed.
Azizur -us; Ali Raza, 32 CWN 434,
Deevendra -vs- Praduinnya, 62 C 28.
The words, "otherwise adjusted", are wide enough to cover an oral

adjustment.
Anandapriva -vs- Bijoy, 1926 C 643
Form of notice to show cause Why an adjustment or payment should not be

recorded as certified, Form No. I, App4 E, Sch. I = H. C. Form No. (P) 20.
COURTS EXECUTING DECREES
Rule-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, any one of such Courts
may attach and sell the entire estate or tenure.
Rule-4: Omitted by A. 0. 1949
Rule-5: Mode of transfer.—Where the Court to which a decree is

to be sent for execution is 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 . .
196 XXI Rr.5-7 CIVIL PROCEDURE CODE [1908: Act
See rule 230, C. R. & 0.

Transferee court to return the decree if no execution application is made
within six months.
See rule 231, C. R. &O.
Rule-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.
There may be simultaneous execution. Court executing a decree may also

send it to another court for execution.
Gurudas -vs- Jnanendra, 39 CWN 165

See rule 228, C.R. & 0.
Form of order sending decree for execution to another court, Form No, .3,
App. E, Sch. I = H. C. Form No. (J) 43.
Form of certificate of non-satisfaction of decree, Form . No. 4. App. E, Sch, I
= H. C. Form No. (J) 46.
Form of certificate of execution of decree transferred to another court, Form
No. 5, App. E, Sch. I = H. C. Form No. (J) 44.
Rule-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 of the .decree or
order for execution, or of the copies thereof, unless the Court, for any
special reasons to be recorded under the hand of the Jude, requires such
proof.
The executing court is competent to refuse to execute the decree when on

the face on it, it would appear that the court which passed it had no
jurisdiction, territorial or pecuniary.
GOrachand -vs- Profulla, 53 C 166 FB

1908: Act VI CIVIL PROCEDURE CODE Or.XXI Rr.8-11 197
Rule-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.
Rule-9: Execution by High Court Division of decree transferred

by other Court,—Where the Court to which the decree is sent for
execution is the High Court Division, the decree shall be executed by such
Court in the same manner as if it had been passed by such Court in the
exercise of its ordinary original civil jurisdiction.
For procedure of sending decree to High Court Division, see rule 229, C. R. & 0.
APPLICATION FOR EXECUTION
Rule-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.
Where application for execution was made to the court passing the decree,
no fresh application need be made to the court to which the decree is
transferred for execution.
Rule-11: Oral application.--(I) 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
if he is within the precincts of the Court.
Written application.—(2) 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
198 XXI Rr. 11-12 CIVIL PROCEDURE CODE [1908: Act V
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 dates of such
applications and their results;
(g) the amount with interest (if any) due upon the decree, or other
relief granted thereby, toge ther 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.
See also rules 167, 168, 169, 170,171, 172 and 187,C.R.&O and also para
35, Civil Suit Instructions Manual,
For Form of decree under sub-rule (1), see H. C. Form No. (J) 27.
Form of application for execution, Form No. 6, App. E, Sch. I = H. C. Form
No. (J) 47.
Rule-12: Application for attachment of moveable property not in

judgment-debtor's possession.—Where an application is made for the
attachment of any moveable property belonging to a judgment—debtor but
on an
not in his possession, the decree—holder shall annex to the applicati
inventory of the property to be attached, containing a reasonably accurate
description of the same.
No inventory is necessary when decree is executed under section 52 against
legal representative.
Birdich.and -i's- Badesaheb, 1927 B. 52.
1908: Act Vi CIVIL PROCEDURE CODE Or. XXI Rr. 1345 199
• Rule-13: Application for attachment of immoveable property to

contain certain particulars.—Where an application is made for the
attachment of any immoveable 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.
Rule-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.
Rule-15: Application for execution by joint decree-holder.--(1)

Where a decree has been passed jointly in favor 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 interests of the persons who
have not joined in the application.
See also rule 175,. C. R. & 0.
Under this rule a person claiming under decree holder, i. e. a person within
the meaning of Order 2!, rule 16 of the Code may also apply for execution.
Dwar -vs- Fatik 26 C 250

A joint decree cannot be executed by one of the decree-holders in respect of
his share only unless the decree specifically determines the extent of the
share of each decree-holder.
Ilurrish -vs- Kalisundari, 9 C 482 PC
200 XXI R,16 CIVIL PROCEDURE CODE [1908: Act
• Rule-16: Application for execution by transferee of decree.—

Where a .decree or, if a decree has been passed jointly in favor 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
conditions 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, and until the Court has heard their
objections (if any) the decree shall not be executed provided that if, with
the application for execution., an affidavit by the transferrer admitting the
transfer or an instrument of transfer duly registered be filed, the Court
may proceed with the execution of the decree pending the hearing of such
objections:
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 others.
The words, "and until the court has heard their objections (if any) the decree
shall not he executed provided that if, with the application for execution, an
affidavit by the transferrer admitting the transfer or an instrument of transfer
duly registered be filed, the Court may proceed with the execution of the decree
pending the hearing of such objections:" in the first proviso were substituted for
the words, "and the decree shall not be executed until the Court has heard their
objections (if any) to its execution," by rule made by the Calcutta High Court
under section 122 vide Notification No. 3516 G dated the 3" February, 1933
published in the Calcutta Gazette dated the 9" February, 1933 Part-I, Page-245.
In this rule, "transfer by operation of law" means transfer on death or by
devolution or by succession e. g. legal representative of deceased decree -
holder, official assignee in the case of an insolvent decree-holder, or the
purchaser of a decree at a court sale in execution of a decree against the
decree —holder.
Gour -vs- Hem. 16 C. 355
Where a decree-holder dies pending execution the legal representative can
not apply for substitution but he may apply immediately for carrying on the
execution proceeding or he may apply for fresh execution, in which case his
name may be brought on record.
Akhoy -vs- Surendra. ,30 CWN 385, Sailendra -vs- Surendra 34 CWN 437,
Manmatha -vs- Rakhal; 10 CLI 396; Jogendra -vs- Shya.in 36 C 543
1908: Act VI CIVIL PROCEDURE CODE Or.XXI Rr. 17-18 201
Rule-17: Procedure on receiving application for execution of

decree.—(1) On receiving an application for 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
shall allow the defect to be remedied then and there or within a time to be
fixed by it. If the defect is not remedied within the time fixed the Court
may reject the application.
(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 a 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.
The words, "the Court shall allow the defect to be remedied then and there
or within a time to be fixed by it. If the defect is not remedied within the
time fixed the Court may reject the application," in sub-rule (I) were
substituted for the words, "the count may reject the application, or may
allow the defect to be remedied then and there or within a time to be fixed
by it", by rule made by the Calcutta High Court under section 122 vide
Notification No. 3516 G dated the 3' February, 1933 published in the
Calcutta Gazette dated the 9" February, 1933, Part-I, Page-245.
A defective execution application can not be rejected without giving an
opportunity to remedy the defect.
See also rules 170-174, C. R. & 0 and para 35, Civil Suit Instructions
Manual.
Rule-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-
202 XXI R.18 CIVIL PROCEDURE CODE [1908: Act V
(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 of 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 decrees are definite.
(4) The holder of a decree passed against several persons jointly and
severally may treat it 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 Taka 1,000, B holds a decree
against A for the payment of Taka 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 Taka 1,000 against C,
and C obtains a decree for Taka 1,000 against B. C cannot treat
his decree as a cross - decree under this rule.
(c) A obtains a decree against B for Taka L000. C who is a trustee
for B, obtains a decree on behalf of B against A for Taka 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 Taka 1,000
under a decree obtained by F. A obtains a decree for Taka 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.
1908: Act V] CIVIL PROCEDURE CODE Or. XXI Rr. 18-22 203
In order that this rule may apply, applications for execution must be made
by both persons. If one decree-holder only applies, execution must proceed
for the full amount and there cannot be any set - off.
Chalmal -vs- Dhara,n, 24 A 481
This rule is applicable to cross-decrees and not to cross claims. As to cross.-

claims, see Or. 2.1 i. 19
Rule-19: Execution in case of cross-claims under same decree.—
Where application is made a Court for the execution of a decree under
which two parties are entitled to recover sums of money from 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.
This rule applies to cross- claims under one decree. The decree-holder is
entitled to execute the difference between the amount recoverable by him
and the amount which the judgment-debtor is entitled to recover against
him. .
Giribala -vs- Mina Kumari 5 CWN 497
The party entitled to the smaller sum can not take out execution.
Madappa -.'s- Jaki, 40, B 60
Rule-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 mortgage or.charge.
Rule-21: Simultaneous execution.—The Court may, in its

discretion, refuse execution at the same time against the person and
property of the judgment-debtor.
Rule-22: Notice to show cause against execution in certain
cases.--(1) Where an application for execution is made–
(a) more than two years 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,
204 XXI R. 22 CIVIL PROCEDURE CODE [1908: Act V
• the Court executing the decree shall issue a notice to the person
against whom execution 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 two years having elapsed between the date of the decree and
the application for execution if the application is made within two years
from the date of the last order against the party 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.
(3) Omission to issue a notice in a case where .notice is required

under sub-rule (1), or to record reasons in a case where notice is
dispensed with under sub-rule(2), shall not affect the jurisdiction of the
Court in executing the decree.
(4) No order of execution of the decree shall be invalid by reason of

the omission to issue a notice under sub-rule (1) or to record reasons in a
case where notice is dispensed with under sub-rule(2) unless the judgment-
debtor has sustained substantial injury by reason of such omission.
Sub-Rule (3) was added by rule made by the Calcutta High Court under
section 122 vide Notification No. 3516-G, dated the 3" February, 1933
published in the Calcutta Gazette dated the 9" February, 1933 Part-I, Page
245. Subsequently, the additional sub-rule (3) was added by Ordinance No.
XLVIII of 1983 and for the sake of convenience, it is shown in this book as
sub-rule (4).
It appears that the objects of sub-rules (3) and (4) are similar. Having
overlooked the existence of sub-rule (3), sub-rule (4) numbering it as sub-
rule (3) was enacted by Ordinance No. XLVIII of 1983.
In this rule the words, "one year", wherever occurring were substituted by
the words, "two years", by Ordinance XLVIII of 1983
1908: Act VI CIVIL PROCEDURE CODE OrXXI Rr.23-25 205
Rule-23: Procedure after issue of notice.—( 1) Where the person to

whom notice is issued under the last proceeding 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 the execution of the
decree, the Court shall consider such objection and make such order as it
thinks fit.
PROCESS FOR EXECUTION
• Rule-24: Process for execution.—(1) When the preliminary

measures (if any) required by the foregoing rules 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 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, and a day shall also be specified on or before which it
shall be returned to the Court.
In sub-rule (3) the words, "and a day shall also be specified on or before
which it shall be returned to the Court," were added by rule made by the
Calcutta High Court under section 122 vide Notification NO. 3516-G dated
the 3" February, 1933 published in the Calcutta Gazette dated the 9"
February, 1933 Part-I, Page-245.
Processes of attachment of movables, delivery of possession and warrant of

arrest should be signed by the Judge himself.
See rule 177, C.R.& 0.
The officer to whom a process is delivered for execution may delegate it to

his subordinate for execution.
Sheo Pro gash -vs- Bhup, 22 C 759;

Abdul -vs- Builen, 6A 385;
Jagannath -vs- E, 1932 A 227
Rule-25: Endorsement on process.---(I) 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, summon and examine witnesses as to
such inability, and shall record the result.
"The officer entrusted with the execution" is the peon who actually
executes and not the nazir. The peon executing derives his authority from
the court and not from the nazir who delegates.
Subed -vs- E, 40 C 849
STAY OF EXECUTION
Rule-26: When Court may stay execution.—fl) 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 the 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.
Power to require security from, or impose conditions upon

judgment-debtor.--43) Before making an order to stay execution or for
the restitution of property or the discharge of the judgment-debtor, the
Court shall require security from the judgment-debtor unless sufficient
cause is shown to the contrary.
The words "the Court shall require security from the judgment-debtor
unless sufficient cause is shown to the contrary," were substituted for the
words, "the Court may require such security from, or impose such condition
upon, the judgment-debtor as it think fit", by rule made the Calcutta High
Court under section 122 vide Notification No. 3516-G dated the 3"
1908: Act VI CIVIL PROCEDURE CODE Or. XXI Rr. 26-29 207
February, 1933 published in the Calcutta Gazette dated the 9 February

1933 Part-I, Page-245.
An order for stay cannot be made under this rule on the application of a
decree-holder.
Allah -vs- Karam 1931, L 690
Rule-27: Liability of judgment-debtor discharged.—No order of

restitution or discharge under rule 26 shall prevent the property or person
of a judgment-debtor from being retaken in execution of the decree sent
for execution.
Rule-28: Order of Court which passed decree or of appellate

Court to be binding upon Court applied to.—Any order of the Court by
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.
Rule-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.
The rule is applicable to the holder of a decree of a court in which the suit is
pending.
Inayet -vs- LJ,nrao, 1930, A 121

The words, "until the pending suit has been decided," mean until the claim.
in the pending suit has been finally decided up to the final appellate stage.
Mohesh -vs- Jogendra, 55, C 5/2

Contrary view, Radha -vs- P yari, 58 C 11/3
The former is preferred.
But, the contrary view has been taken in Tarak N. Sen -vs- Kartick Ch. Sea,
12 DLR 327.
When the court is satisfied that in the interest of justice stay of execution of
a decree should be allowed, it shall stay execution on the terms as to
security of the decree-holder's interest.
Manna jan Begum -vs- Abdus Sarnad, 29 DLR (SC) 233

MODE OF EXECUTION
Rule-30: Decree for 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 in the
civil prison of the judgment-debtor, or by the attachment and sale of his
property, or by both.
Court may refuse simultaneous execution against person and property.
Form of attachment of moveable property, Form No. 8, App. E, Sch. I = H.
C. Form No. (P) 24.
Rule-31: Decree for specific moveable property.--(I) Where the

decree is for any specific moveable, or for any share in a specific
moveable, it may be executed by the seizure, if practicable, of the
moveable 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(l) has remained in force

for three 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 moveable 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 three months from 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.
The words, three months," were substituted for the words, "six months," in
sub-rules (2) & (3) by rule made by the Calcutta High Court under section 122
vide Notification No. 3516-G, dated the 3 February, 1933 published in the
Calcutta Gazette dated the 9 February, 1933 Part-I, Page-245.
This rule is not applicable where the property sought to be attached is not in
the possession of the judgment-debtor e.g. with the Bank.
Pudmanand -vs- Chundi / C. W.N. 170
1908: Act V] CIVIL PROCEDURE CODE Or. XXI R.32 209
Rule-32: Decree for specific performance, for restitution of

conjugal rights, or for an injunction.—(I) Where the party against
whom a • decree for the specific performance of a contract, or for
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 for the specific performance of a contract or for an injunction by
his detention in the civil prison, or by the attachment of his property, or
by both.
(2) Where the party against whom a decree for 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 the civil 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 three 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 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 if 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 no sum realisable 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.
The words, "three months," in sub rule (3) were substituted for the words,
"one year," by rule made by the Calcutta High Court under section 122 vide
Notification No. 3516-G dated the 3' February, 1933 published in the
Calcutta Gazette dated the 9" February, 1933, Part-I, Page-245.
Execution of decree for restitution of conjugal rights can be effected only

by attachment of the property of the husband or wife, as the case may be,
against whom the decree is passed.
Imam. Sh.c,rif-vs- Abdul Mannan, 4 DLR 617
Possession can be granted by the executing court in a decree for specific

performance of contract to sell as it is incidental to execution of document
of sale.
Maksud Au -vs- Eskandar, 28 DLR (SC) 100
The remedy provided in Order 21, rule 32 (5) is not available when a
prohibitory order of injunction is violated.
Moyna Mia -vs- Hazi Abdus Sama.cl, 33 DLR 207
Sub-rule (5) applies only to mandatory injunctions.
Hemchandra -vs- Narendra, 38 CWN /01
Rule-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 any order made
under. sub-rule (2).for the periodical payment of money, either by altering
1908: Act VJ CIVIL PROCEDURE CODE Or.XXI Rr.33-34 211
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 so
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 for the payment of money.
This rule applies to a decree for restitution of conjugal rights against a

husband.
Rule-34: Decree for execution of document, or endorsement of

negotiable instrument.—(l) 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, his objections

shall be stated in writing within such time, and the Court shall make 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 the endorsement of a negotiable

instrument under this rule may be in the following form, namely:–
"CD, Judge of the Court of (or as the case may be), for A. B., in
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
or endorse the same.
(6) The Court, 01 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.

Form of notice to state objections to draft of document, Form No. 10, App.
E, Sch. I.
Rule-35: Decree for immoveable property.—(l) Where a decree is
for the delivery of any immoveable 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 immoveable
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, bein g 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.
Sub-rules (1) and (3) refer to actual khas possession and sub-rule (2) refers to
symbolical possession.
By executing a decree for possession of vacant land the court has no power to
deliver possession by demolition of structures standing thereon.
Md. Mokrram. Ali Laskar -vs- Sekandarul Islam., 17 DLR 673;
Md. Islam -k's- Munshi Abc/u.! Rahman, 6 DLR 81
Form of warrant to bailiff to give possession of land, Form No. II, App.. E, Sch. I =
H.C. Form No. (P) 23.
' J Rule-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 2 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 occupant bea tfof or other customary mode, at
some convenient place, the substace of the decree in regard to the
property.
1908: Act V} CIVIL PROCEDURE CODE Or. XXI Ri-. 37-39 213
ARREST AND DETENTION IN THE CIVIL PRISON
Rule-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 the civil 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 committed to
the civil 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 thejurisdiction 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.
Form of notice to show cause, Form No. 12, App. E, Sch I = H. C. Form No. (P) 25.
Rule-38: Warrant for arrest to direct judgment-debtor to 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.
Form of warrant of arrest, Form No. 13, App. E, Sch I = H. C. Form No. (P) 26.
Rule-39: Subsistence allowance-41) 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 for 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 fixed 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 in charge of the civil prison.
(5) Sums disbursed by the decree-holder for the subsistence of the

judgment-debtor shall be deemed to be costs in the suit:
Provided that the judgment-debtor shall not be detained in the civil

prison or arrested on account of any sum so disbursed.
See also rules 174,222, 223, and note to rule 226, C.R. & 0.
In sub-rule (5), the words, " in the civil prison," which occurred after the
words, "judgment debtor," were omitted by rule made by the Calcutta High
Court under section 122 vide Notification No. 3516-G dated the 3
February, 1933 published in the Calcutta Gazette dated the 9" February,
1933 Part-I, Page. 245.
Rule-40: Proceedings on appearance of judgment-debtor in

obedience to notice or after arrest.—(1) When 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 committed to the
civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the
Court may, in its discretion, order the judgment-debtor to be detained in
the custody of an 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 the
civil prison and shall in that event cause him to be arrested if he is not
already under arrest:
1908: Act VI CIVIL PROCEDURE CODE Or.XXI R.40 215
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.
This rule was substituted for the old rule by the Code of Civil . Procedure
(Amendment) Act., 1936 (XXI of 1936).
The object of this rule is that judgment-debtors will not be sent to prison as
a matter of course merely because he is unable to pay his debt or at the
option of the decree-holder exercised out of spite but to afford protection to
debtors who are incapable of paying their debts by reason of poverty and
who have not committed any act of bad faith.
The effects of the rule may be summarised as follows:—

First, the court shall issue a notice under Order 21, rule 37(1) to show cause
against detention in prison unless notice is dispensed with under the proviso
to the rule. Where the judgment-debtor does not appear to show cause, the
court shall issue a warrant, if the decree-holder so requires. When the
judgment-debtor appears or when he is brought under arrest the court will
proceed to make an inquiry under this rule as to whether it is a fit case for
the sending of the judgment-debtor to prison. The decree-holder shall tender
such evidence as he may be in possession of in support of his application
and the judgment-debtor shall then be heard and any evidence that he may
give against the application shall be taken. In deciding whether detention in
prison should or should not be ordered, the court shall apply the tests
provided in provisos (a), (b) and (c) of section 51 and no judgment-debtor
shall be sent to prison unless the court is satisfied that any ofthe conditions
detailed in the proviso to that section exists. Before ordering detention in
prison, the court may give the jud gment-debtor time not exceeding fifteen
days for satisfaction of the decree. Pending the inquiry, the judgment-debtor
may be discharged oii furnishing security. .
Where the decree-holder sought to arrest one judgment-debtor who was

unable to pay instead of proceeding against the others who, were able to pay
the court rejected the application for arrest.
Lila -vs- Mina, 1922 L 259

Form of warrant of committal of judgment-debtor to civil prison, Form No.
14, App. E, Sch. I = H. C. F 11 No. (P) 27.
ACHMENT OF PROPERTY
Rule-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.
Rule-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.
Rule-43: Attachment of moveable property other than

agricultural produce, in possession of judgment-debtor.—Where the
property to be attached is moveable property, other than agricultural
produce, in the possession of the judgment-debtor, the attachment shall be
made by actual seizure, and, save as otherwise prescribed, 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 does not, in the opinion of
the attaching officer, exceed twenty rupees in value or is subject to speedy
and natural decay, or when the expense of keeping in custody is likely to
exceed its value, the attaching officer may sell it at once.
Court under section 122 vide Notification No. 25585-G, dated the 3
November, 1933 published in the Calcutta Gazette dated the 9" November,
1933 Part-I, Page-1617.
See also rules 189-195, 201, and 209, C.R.& 0.

Procedure to be followed when property falls within the proviso, see rules
193, 201 and 209, C.R. & 0.
Rule-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
a in or the like or fodder-stack on
floor or place for treading out gr
or in which it is deposited,
and another copy 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 he carries on business or personally works for gain or
in which he is known to have last resided or carried on business or
personally worked for gain; and the produce shall thereupon be deemed to
have passed into the possession of the Court.
As to exemption of agricultural produce from attachment, see section 61.
RuIe-45: Provisions as to agricultural produce under

attachment.—( 1) Where agricultural produce is attached, the Court shall
make such arrangements for the custody thereof as it may deem sufficient
and, for the purpose of enablin g 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 and the applicant
shall deposit in Court such sum as the Court shall require in order to
defray the cost of watching or tending the crop till such time.
(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 do
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 recoverable 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.
The words, "and the applicant shall deposit in Court such sum as the Court
shall require in order to defray the cost of watching or tending the crop till
such time," occurring in sub-rule (I) were added by rule made by the
Calcutta High Court under section 122 vide Notification No. 3516-G, dated
February 1933, Part-I, Page 245.
Rule-46: Attachment of debt, share and other property not in

possession of judgment-debtor.---(I) In the case of—
(a) a debt not secured by a negotiable instrument,

(b) a share in the capital of a corporation,
(c) other moveable 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 he Court;
(ii) in the case of the share, the person in whose name .the share may
he standing from transferring the same or receiving any dividend
thereon;
(iii) in the case of the other moveable property except as aforesaid,
the person in possession of the same from giving it over to the
judgment-debtor.
1908: Act Vi CIVIL PROCEDURE CODE Or.XXI Rr.46-46B 219
(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 moveable property (except as
aforesaid), to the person in possession of the same.
(3) A debtor prohibited under clause (i) 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.
Forms of prohibitory order, Forms Nos. 16, 17, 18, App. E, Sch. .1 = H. C.
Forms Nos. (F) 29, (P) 30, (P) 31.
GARNISHEE ORDERS
Rule-46(A):.—The Court may in case of a debt, other than a debt
secured by a mortgage or a charge or by a negotiable instrument, which
has been attached under rule 46 or 5 1. of this Order, upon the application
of the attaching creditor, issue notice to the garnishee liable to pay such
debt calling upon him either to pay into Court the debt due from him to
the judgment- debtor or so much thereof as may be sufficient to satisfy the
decree and costs of execution, or to appear and show cause why he should
not do so:
Provided that if the debt in respect of which the application aforesaid

is made is in respect of a sum of money beyond the pecuniary jurisdiction
of the Court, the Court shall send the execution case to the Court of the
District Judge to which the said Court is subordinate, and thereupon the
Court of the District Judge or any other competent Court to which it may
be transferred by the .District Judge will deal with it in the same manner
as if the case had been originally instituted in that Court.
Such application shall be made on affidavit verifying the facts alleged

and stating that in the belief of the deponent the garnishee is indebted to
the judgment –debtor.
Rule-46(B): Where the garnishee does not forthwith pay into Court
the amount due from him to the judgment-debtor or so much thereof as is
sufficient to satisfy the decree and the costs of execution or does not
appear and show cause in answer to the notice, the Court may order the
garnishee to comply with the terms of such notice, and on such order
execution may issue as though such order were a decree against him.
220 XXI Rr. 46C-47 CIVIL PROCEDURE CODE L 1908: Act V
Rule-46(C): Where the garnishee disputes liability, the Court may

order that any issue or question necessary for-the determination of liability
shall be tried as if it were an issue in a suit, and upon the determination of
such issue shall make such order or orders upon the parties as may seem just.
Rule-46(D): Where it is suggested or appears to be probable that the

debt belongs to some third person or that any third person has a lien or
charge on, or other interest in, such debt, the Court may order such third
person to appear and state the nature and particulars of his claim (if any)
to such debt and prove the same.
Rule-46: (E)—After hearing such third person and any other person
or persons who may subsequently be ordered to appear, or where such
third or other persOn or persons do not appear when so ordered, the Court
may make such order as is hereinbefore provided, or such other order or
orders upon such terms, if any, with respect to the lien, charge or interest
if any of such third or other person as may seem fit and proper.
Rule-46(F): Payment made by the garnishee on a notice under rule

46 (A) or under any such order as aforesaid shall be valid discharge to
him as against the judgment –debtor and any other person ordered to
appear as aforesaid for the amount paid or levied although such judgment
may be set aside or reversed.
Rule-46(G): The costs of any application made under rule 46 (A)

and of any proceeding arising therefrom or incidental thereto, shall be in
the discretion of the Court.
Rule-46(H): An order made under rules 46(B), 46(C) or 46(E) shall

be appealable as a decree.
Rules-46(A) to 46(H) were added by rule made by the Calcutta High Court
under section 122 vide Notification No. 1854-G dated the 26' January 1935
published in the Calcutta Gazette dated the 31 January, 1935 Part-I, Page.
290.
Rule-47: Attachment of share in moveables.—Where the property

to he attached consists of the share or interest of the judgment –debtor in
moveable 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.
Share or interest in movable property is incapable of actual seizure.

Attachment of share or interest in movable property can only be made by
prohibiting the judgment-debtor from transferring the share or interest or
charging it in any way.
Rajendra -vs- District Board, 59 C 808
Rule-48: Attachment of salary or allowances of public officer or

servant of railway or local authority.—(l)Where the property to he
attached is the salary or allowances of a servant of the Republic or of a
servant of the railway 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 instalments as the Court may direct;
and, upon notice of the order to such officer as the 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 instalments, 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
instalments, 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 allowances is

already being withheld and remitted to a Court in pursuance of a previous
and unsatisfied order of attachment, the officer appointed by the
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
notice or other process, bind the Government or the railway 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 Government or the funds of the railway or local
authority in Bangladesh; and the Government or the railway or local
authority, as the case may be, shall be liable for any sum paid in
contravention of this rule.
This rule is an exception to the general rule that the court has no jurisdiction
to attach property outside its local jurisdiction. This rule is applicable also
to a court to which a decree is transferred for execution.
Form of order of attachment, Form No. 19, App. E, Sch I = H. C. Form No.
(P) 32.
Rule-49: Attachment of partnership property.—(l) 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 profits with pa yment 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
Bangladesh.
(5) Every application made 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 Bangladesh.
(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 applications shall
be similarly served.
Sale of partnership property in execution of a money decree against one
partner is invalid.
Rati -vs- Uttain, 1933 C 275
Ravi -vs- Uttarn, 60 CLI 464
Rule-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, a partner;
(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 he 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 is 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.
Rule-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.
Form of order of attachment. Form No. 20, App. E, Sch I = H. C. Form No. (P)33.
Rule-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
he determined by such Court.
This rule does not allow an anticipatory attachment of money expected to
reach the hands of a public officer, but applies only to money actually in his
hands.
To/a/i -vs- V. Ba/ahhai, 22 B 39
Th.akurdas -vs- Joseph., 44 C. 1072
The rule also applies to property in the hands of the same court which
executes the decree.
Surajinall -vs- Rainchandra 20 CWN4/2
Form of prohibitory order, Form No. 21, App. E, Sch. I=H.0 Form No. (P) 34.
Rule-53: Attachment of decrees.—( 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
(h) if the decree sought to be attached was passed by another Court,
then by the issue to such other Court and to any Court to which it
has been transferred for execution of a notice by the Court which
passed the decree sought to be executed, requesting such other
Court or Courts 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
1908: Act VI CIVIL PROCEDURE CODE Or. XXI R.53 225
• (ii) the holder of the decree sought to be executed or his judgment .-

debtor applies to the Court receiving such notice to execute the
attached decree with the consent of the. said decree-holder
expressed in writing or the permission of the attaching Court.
(2) Where a Court makes an order under clause (a) of sub-rule (1)
or receives an application under sub-head (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 sub-rule( ]) shall be deemed to be
the 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 by
sending to such other Court and to any Court to which it has been
transferred for execution 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)Or 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 the said order with knowledge thereof, either through the
Court or otherwise, shall be recognised by any Court so long as the
attachment remains in force.
The words, "and to any Court to which it has been transferred for
execution", and, "or Courts," occurring in clause (b) of sub rule (I), "to
execute the attached decree with the consent of the said decree-holder
expressed in writing or the permission of the attaching Court," occurring in

sub head (ii) of clause (b) of sub-rule (I) "and to any Court to which it has
been transferred for execution," occurring in sub rule (4), and, "in
contravention of the said order with knowledge thereof," occurring in sub-
rule (6) were inserted, by rule made by the Calcutta High Court under
section 122 vide Notification No. 3516-G dated the 3" February, 1933,
published in the Calcutta Gazette dated the 9" February, 1933 Part-I, Page-
245 . In sub-rules (I) and (4) the words, "and to any Court to which the
decree has been transferred for execution," were substituted for the words,
"to execute its own decree," and in sub-rule (6) the words, "in contravention
of the said order with knowledge thereof," were substituted for the words,
"in contravention of such order after receipt of notice thereof."
Decrees for the payment of money or for sale in enforcement of a mortgage

or charge are attached in the manner prescribed in sub-rule (1) and such
attached decrees are realised in the manner prescribed in sub-rule (2) i.e. by
execution. Other decrees are attached in the manner prescribed by sub-rule
(4) and such attached decrees are realised by the sale of the decrees
themselves.
Attachment of decree does not operate as a stay of execution of the decree.
K.B. Ha/i Badi Ahmed Chowdhury -vs- Ainiruzzarnan, 3 DLR (FB) 254
Form of notice of attachment under this rule, Form No. 22, App. E, Sch I =
H. C. Form No. (P) 35
Form of notice of attachment under sub-rules (4) and (6), Form No. 23,
App. E, Sch. I = H. C. Form No. (P) 36.
Rule-54: Attachment of immoveable property.—(1) Where the

property is immoveable, 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.
(3) Such, order shall take effect, where there is no consideration for
such transfer or charge, from the date of the order, and where there is
consideration for such transfer, or charge, from the date when such order
77
came to the knowledge of the person to whom or in whS(favour the

property was transferred or charged, or from the date,hen the order is
proclaimed under sub-rule (2) whichever is earlierV
Sub-rule (3) 'was inserted by rule made by/a1cutta High Court under
section 122 of the Code Vide Notification No. 3516-G dated the 3
February, 1933 published in the Calcutta Gazette dated the 9 February
1933, Part-I, Page-245. See also rule 187, C.R. & 0. Vol-I.
Form of prohibitory order under sub-rule (1), Form 24, App. E, Sch. I H.
C. Form No. (P) 39.
Rule-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 are 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

immoveable 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 proceeding rule.
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 th same.
Form of order under this rule, Form No. 25, App. E, Sch. I = H. C. Form No.
(P) 37.
Rule-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 unless the Court shall make an
order to the contrary.
228 XXI Rt. 57-58 CIVIL PROCEDURE CODE [1908: Act
The words, "unless the Court shall make an order to the contrary," were
added by rule made by the Calcutta High Court under section 122 vide
Notification No. 3516-0 dated the 3'' February, 1933 published in the
Calcutta Gazette dated the 9" February 1933 Part-I, Page-245.
This rule does not apply to attachment before the judgment.
Ga.nesh -vs-. Banwarv, 16 CLJ-86
Sh.ibnath -t's- Sheikh, 56 C 416
Md, Fulari Miah —vs- Benode Beha.ri Roy, 18 DLR 39
Or. 21, r. 57 was intended to put a stop to the practice of "striking oft" execution
proceedings or "removing" them from file which led to doubts as to its effect on
attachment. Under this rule if there is'any default; execution cases must he
"dismissed" and not "struck off". No restricted meaning should be given to the
word "default". It includes a failure to do what the decree-holder is hound to do,
that is, to proceed with the application for execution.
Namuna. - vs- Rosh.a, 38 C 482
INVESTIGATION OF CLAIMS AND OBJECTIONS
Rule-58: Investigation of claims to, and objections to attachment

of, attached property.—(I) Where any claim is preferred to, or any
objection is made to the attachment of, any property attached in execution
of a decree on the ground that such property is not liable to such
attachment, the Court shall proceed to investigate the claim or objection
with the like power as regards the examination of the claimant or objector,
and in all other respects, as if he was a party to the suit:
Provided that no such investigation shall be made where the Court

considers that the claim or objection was designedly or unnecessarily
delayed.
Postponement of Sale—(2) Where the property to which the claim or

objection applies has been advertised for sale, the Court ordering the sale
may postpone it pending the investigation of the claim or objection upon
such terms as to security, or otherwise, as to the Court shall seem fit.
The words, "upon such terms as to security, or otherwise, as to the Court
shall seem fit", occurring in sub-rule (2) were added by rule made by the
Calcutta High Court under section 122 vide Notification No. 3516-G dated
February 1933 Part-I, Page-245.
See also para 35(3) and (10), Civil Suit Instructions Manual.
An inquiry under this rule relates to possession and has no relation to the
question of title.
Mir Laike Ali - p's- Standard Vacuam Oil Company, 16 DLR (SC) 287
Form of notice to attaching creditor, Form No. 26, App. E, Sch.; I H. C.
Form No. (P) 38.
Rule-59: Evidence to be adduced by claimant.—The claimant or

objector must adduce evidence to show that at the date of the .attachment
he had some interest in, or was possessed of, the property attached.
"Some interest" means such interest as would make the possession of the
judgment-debtor, possession not on his account but on account of, or in
trust for the claimant.
•Mohunt -vs- Khetter, I CWN 617

Where claimant alleges possession on his own account and decree-holder
says that he is a benamdar of the judgment-debtor, the property should be
released, as benami is a question of title.
Moninoh.iny -vs- Radha, 29 C 543
Rule-60: Release of property from attachment.—Where upon the

said investigation the Court is satisfied that for the reason stated in the
claim or objection such property was -not, when attached, in the
possession of the judgment-debtor or of some person in trust for him, or
in the occupancy of a tenant or other person paying rent to him, or that,
being in the possession of the judgment-debtor at such time, it was so . in
his possession, not on his own account or as his own property, but on
account of or in trust for some other person, or partly on his own account
and partly on account of some other person, the Court shall make an order
releasing the property, wholly or to such extent as it thinks fit, from
attachment.
Where it is found that the claimant is in possession of half share and the
judgment-debtor is entitled to the other half and the property is attached
under Or. 21 r. 43 it should be released and the decree-holder may then
proceed under Or. 21 r.47.
Rajendra -vs- District Board, 59 C 808
Rule-61: Disallowance of claim to property attached.—Where the
Court is satisfied that the property was, at the time it was attached, in the
possession of the judgment-debtor as his own property and not on account
of any other person, or was in the possession of some other person in trust
for him, or in the occupancy of a tenant or other person paying rent to
him, the Court shall disallow the claim.
An order in favour of a decree-holder does not enure for the benefit of other
decree-holders who are not parties to the proceeding,
Jagannath. -vs- Ganesh, 18 A 413
Rule-62: Continuance of attachment subject to claim of

incumbrancer.—Where the Court is satisfied that the property is subject
to a mortgage or charge in favour of some person not in possession, and
thinks fit to continue the attachment, it may do so, subject to such
mortgage or charge.
In view of this rule the court being satisfied as to the existence of a
mortgage, the property is sold subject to such mortgage i.e. the judgment-
debtor's equity of redemption is sold.
Kalidas -vs- Prasanna, 47C. 446
Shah. -vs- Kailash; 2 CLI 599
Rule-63: Omitted by Ordinance XL VIII of 1983.
Rule-63 A When an attachment of moveable property ceases the

Court may order the restoration of the attached property to the person in
whose possession it was before the attachment.
This rule was added by rule made by the Calcutta High Court under section
122 vide Notification No. 25585-G dated the 3' November, 1933 published
in Calcutta Gazette dated the 9" November, 1933, Part-I, Page- 1617.
SALE GENERALLY
Ru1e—.4 Power to order property attached to be sold and
proceeds to be paid to person entitled.—Any Court executing a decree
may order that any property attached by it and liable to sale, or such
portion thereof as may seem necessary to satisfy the decree, shall be sold,
and that the proceeds of such sale, or a sufficient portion thereof, shall be
paid to the party entitled under the decree to receive the same.
See also rules 187 and 188, C.R. & 0.
If the property is sold without attachment in execution of a decree, the sale
will not be invalid. The omission to attach the property before sale is only
an irregularity and will not vitiate the sale.
Nare.sh -k's- Mollah, 57, C 1206
Where a property has been sold in execution of a decree it cannot be sold
again at the instance of another decree-holder who had effected a prior
attachment.
Kashy -vs- Sarbanant, 12 C 317
Rule-65: Sales by whom conducted and how made.—Save as

otherwise prescribed, every sale in execution of a decree shall be
conducted by an officer of the Court or by such other person as the Court
may appoint in this behalf, and shall be made by public auction in manner
prescribed.
Rule_4clamation of sales by public auction.--(I) Where any

property is ordered to be sold by public auction in execution of a decree,
the Court shall cause a proclamation of the intended sale to be made in the
language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-

holder and the judgment-debtor and shall state the time and place of sale,
and specify as fairly and accurately as possible–
(a) the property to be sold;
(b) the revenue assessed upon the estate or part of the estate, where
the property to be sold is an interest in an estate or in part of an
estate paying revenue to the Government;
(c) any incumbrance to which the property is li.ale;

(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a
purchaser to know in order to judge of the nature and value of
the property.
(3) Every application for an order for sale under this rule shall be
accompanied by a statement signed and verified in the manner herein-
before prescribed for the signing and verification of pleadings and
containing, so far as they are known to or can be ascertained by the person
making the verification, the matters required by sub rule(2) to be specified
in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the

proclamation, the Court may summon any person whom it thinks
necessary to summon and may examine him in respect to any such
matters and require him to produce any document in his possession or
power relating thereto.
Value of the property must be stated as fairly and accurately as possible.

Saadatinand vs- Ph.ulkuar, 20 A 412 PC
See also rule 200-201, C.R.& 0.

Form of order for causing service of sale proclamation, Form No. 30, App.
E,Sch. I=H. C. Form No. (P) 4 1.
Form of notice of the day fixed for settling sale proclamation, Form No. 28,
App. E, Sch. I = H. C. Form No. (P) 42.
Form of warrant of sale of property in execution of decree for money, Form
No. 27, App. E, Sch. I = H. C. Form No. (P) 43.
Form for proclamation of sale of immoveable property, Form No. 29, App.
E, Sch. I = H. C. Form No. (P) 44.
Form for proclamation of sale for moveable property, H. C. Form No. (P) 45.
Rule-67: Mode of making proclamation.— (1) Every proclamation

shall be made and published, as nearly as may be, in the manner
prescribed by rule 54, sub-rule (2).
(2) Where the Court so directs, such proclamation shall also be

published in the official Gazette or in a local newspaper, or in both, and
the costs of such publication shall be deemed to be costs of the sale.
(3) Where property is divided into lots for the purpose of being sold
separately, it shall not be necessary to make a separate proclamation for
each lot unless proper notice of the sale cannot, in the opinion of the
Court, otherwise be given.
]Rule-68 /Tirne of sale.—Save in the case of property of the kind

described in the proviso to rule 43, no sale hereunder shall, without the
consent in writing of the judgment-debtor, take place until after the
expiration of at least thirty days in the case of immoveable property, and
of at least fifteen days in the case of moveable property, calculated from
the date on which the copy of the proclamation has been affixed on the
court-house of the Judge ordering the sale.
See also rule,00,20 1,204, 205, 208 and 209, C.R. &0.
Rule-69:/Adjournment or stoppage of sale.—fl) The Court may,

in its discrtthn, adjourn any sale hereunder to a specified day and hour,
and the officer conducting any such sale may in his discretion adjourn the
sale, recording his reasons for such adjournment:
Provided that, where the sale is made in, or within the precincts of,
the court-house, no such adjournment shall be made without leave of the.
Court.
(2) Where a sale is adjourned under sub-rule (1) for a longer period
than thirty days, a fresh proclamation under rule 67 shall be made, unless
the judgment-debtor consents to waive it.
(3) Every sale shall be stopped if, before the lot is knocked down,
the debt and costs (including the costs of the sale) are tendered to the
officer conducting the sale, or proof is given to his satisfaction that the
amount of such debt and costs has been paid into the Court which ordered
the sale.
The words, "thirty days," in subruIe (2) were substituted by Ordinance No.
XLVIII of 1983. Before the substitution the words, "one calendar month",
were inserted substituting the words, "seven days", by rule made by the
February, 1933 Part-I, Page-245.
Rule-70: Saving of certain sales.—Nothing in rules 66 to 69 shall

be deemed to apply to any case in which the execution of a decree has
been transferred to the Collector.
Rule-71: Defaulting purchaser answerable for loss on re-sale.-

Any deficiency of price which may happen on a resale by reason of the
purchaser's default, and all expenses attending such re-sale, shall be
certified to the Court or to the Collector or subordinate of the Collector, as
the case may be, by the officer or other person holding the sale, and shall,
at the instance of either the decree-holder or the judgment-debtor, be
recoverable from the defaulting purchaser under the provisions relating to
the execution Of a decree for the payment of money.
This rule extends to all sales whether of movable or immovable property

and also to re-sales made under Or. 21, rr. 84-86.
Ramdhani -vs- Ra/rani, 7 C 337

Rajendra -vs- Ram, 2 CWN4/I
Form of certificate, Form No. 31, App. E, Sch I = H. C. Form No. (M) 24.
Rule-72: Decree-holder not to bid for or buy property without

permission.—( 1) No holder of a decree in execution of which property is
sold shall, without the express permission of the Court, bid for or
purchase the property.
Where decree-holder purchases, amount of decree may be taken

as payment.—(2) Where a decree-holder purchases with such permission,
the purchase-money and the amount due on the decree may, subject to the
provisions of section 73, be set off against one another, and the Court
executing the decree shall enter up satisfaction of the decree in whole or
in part accordingly,
(3) Where a decree-holder purchases, by himself or through another

person, without such permission, the Court ma', if it thinks fit, on the
application of the judgment-debtor or any other person whose interests are
affected by the sale, by order set aside the sale; and the costs of such
application and order, and any deficiency of price which may happen on
the re-sale and all expenses attending it, shall be paid by the decree-
holder.
Decree-holder is bound to have express permission.

Ruk,nini -vs- Brojonath., 5 C 308
Leave may be subject to the condition that the highest bid shall not be lower
than the decretal amount.
Syihet C. T. Bank Ps- Rasik, 39 CWN 1293
See also section 136, Transfer of Property Act.

Where a decree-holder purchases without leave the remedy is by an
application under this rule.
Genii. -vs- Sakharam, 22 B 271;

Durga -vs- Balwant, 23 A 478
Decree-holder purchases without court's permission-sale not void but
avoidable.
Jnannendra Sand/an -'s- Nara van Ch. Sarclar, 7 DLR 627
Sylhet C. T. Bank -i's- Rasik, 39 CWN 1293
Rule-73: Restriction on bidding or purchase by officers.—No

officer or other person having any duty to perform in connection with any
sale shall, either directly or indirectly, bid for, acquire or attempt to
acquire any interest in the property sold.

See also section 136. Transfer ol Property Act, 1882
SALE OF MOVEABLE PROPERTY

Rule-74: Sale of agricultural produce.—(l) Where the property to
be sold is agricultural produce, the sale shall be held,–
(a) if such produce is a growing crop, on or near the land on which

such crop has grown, or,
(b) if such produce has been cut or gathered, at or near the threjng-
floor or place for treading out grain or the like or fodder-stack on
or in which it is deposited:
• Provided that the Court may direct the sale to be held at the nearest
place of public resort, if it is of opinion that the produce is thereby likely
to sell to greater advantage.
(2) Where, on the produce being put up for sale,–
(a) a fair price, in the estimation of the person holding the sale, is
not offered for it , and
(h) the owner of the produce or a person authorized to act in his
behalf applies to have the sale postponed till the next day or, if a
market is held at the place of sale, the next market - day,
the sale shall be postponed accordingly and shall be then completed,

whatever price may be offered for the produce.
See also rules 208 and 209, C. R. & 0.
Rule-75: Special provisions relating to growing crops.—(1)

Where the property to be sold is a growing crop and the crop from its
nature admits of being stored but has not yet been stored, the day of the
sale shall be so fixed as to admit of its being made ready for storing
before the arrival of such day, and the sale shall not be held until the crop
has been cut or gathered and is ready for storing.
(2) Where the crop from is nature does not admit of being stored or
can he sold to greater advantage'in an unripe state(e.g. as green wheat),
it may he sold before it is cut and githered , and the purchaser shall be
entitled to enter on the land , and to do all that is necessary for the purpose
of tending or cutting or gathering it.
The words, "or can be sold to greater advantage in an unripe state"(e. g. as

green wheat)," occurring after the words, "Where the crop from its nature
does not admit of being stored," and the word, "or", occurring after the
words, "and to do all that is necessary for the purpose of tending", were
inserted by rule made by the Calcutta High Court under section 122 vide
Notification no.3516-G dated the 3' February 1933 published in the
Calcutta Gazette dated the 9" February' 1993, Part-I, Page-245.
Rule-76: Negotiable instruments and shares in corporation.—
Where the property to be sold is a negotiable instrument or a share in a
corporation, the Court may, instead of directing the sale to be made by
public auction, authorize the sale of such instrument or share through a
broker. /
RuI-77: Sale by public auction.—(l). Where moveable property
is sold by public auction the price of each lot shall be paid at the time of
sale or as soon after as the officer or other person holding the sale directs,
and in default of payment the property shall forthwith be re-sold.
(2)On payment of the purchase- money, the officer or other person
holding the sale shall grant a receipt for the same, and the sale shall
become absolute.
(3) Where the moveable property to be, sold is a share in goods
belonging to the .judgment- debtor and a co-owner, and two or more
persons, of whom one is such co-owner, respectively bid the same sum
for such property or for any lot, the bidding shall be deemed to be the
bidding of the co-owner.
Rule-78: Irregularity not to vitiate sale, but any person injured
may sue.—No irregularity in publishing or conducting the sale of
moveable property shall vitiate the sale; but any person sustaining any
injury by reason of such irregularity at the hand of any other person may
institute a suit against him for compensation or (if such other person is the
purchaser) for the recovery of the specific property and for compensation
in default of such recovery.
This rule prohibits the setting aside of a sale of movable property on the
ground of irregularity.
Baijizath -vs- Benoyendra, 6 CWN 5
1908: Act VI CIVIL PROCEDURE CODE Or.XXI Rr.79-8() 237
Rule-79: Delivery of moveable property, debts and shares.—(1)

Where the property sold is moveable property of which actual seizure has
been made, it shall be delivered to the purchaser.
(2) Where the property sold is moveable property in the possession

of some person other than the judgment- debtor, the delivery thereof to
the purchaser shall be made by giving notice to the person in possession
prohibiting him from delivering possession of the property to any person
except the purchaser.
(3) Where the property sold is a debt not secured by a negotiable

instrument, or is a share in a corporation, the delivery thereof shall be
made by a written order of the Court prohibiting the creditor from
receiving the debt or any interest thereon, and the debtor from making
payment thereof to any person except the purchaser, or prohibiting the
person in whose name the share may be standing from making any
transfer of the share to any person except the purchaser, or receiving
payment of any dividend or interest thereon, and the manager, secretary
or other proper officer of the corporation from permitting any such
transfer or making any such payment to any person except the purchaser.
A purchaser at a court-sale of shares in a limited company is not entitled as

of right to have his name entered in the Register. He is in the same position
as a private purchaser.
ManUal -vs- G.S. Q M. Co. 41 B 76

Form of notice to person under sub-rule (2), Form No. 32, App. E, Sch. I.
Form of prohibitory order against payment of debt, Form No. 33, App. E,
Sch. I = H. C. Form No. (P) 46.
Form of prohibitory order against transfer of shares, Form No. 34, App. E,
Sch. I.
Rule-80: Transfer of negotiable instruments and shares.—( 1)

Where the execution of a document or the endorsement of the party in
whose name a negotiable instrument or a share in a corporation is
standing is required to transfer such negotiable instrument or share, the
Judge or such officer as he may appoint in this behalf may execute such
document or make such endorsement as may be necessary, and such
execution or endorsement shall have the same effect as an execution or
endorsement by the party.
(2) Such execution or endorsement may be in the following form,

namely:-
A. B. by C. D, Judge of the Court of (or as the case may be), in a sui

by E.F. against A. B.
(3) Until the transfer of such negotiable instrument or share, the

Court may, by order, appoint some person to receive any interest or
dividend due thereon and to sign a receipt for the same ; and any receipt
so signed shall be as valid and effectual for all purposes as if the same
had been signed by the party himself.
Rule-81: Vesting order in ease of other property.—In the case of

any moveable property not hereinbefore provided for, the Court may
make an order vesting such property in the purchaser or as he may direct;
and such property shall vest accordingly.
SALE OF IMMOVEABLE PROPERTY
Rule-82: What Courts may order sales.—Sales of immoveable

property in execution of decrees may be ordered by any Court other than a
Court of Small Causes.
Rule-83: Postponement of sale to enable judgment–debtor to

raise amount of decree.—( I) Where an order for the sale of immoveable
property has been made, if the judgment debtor can satisfy the Court that
there is reason to believe that the amount of the decree may be raised by
the mortgage or lease or private sale of such property, or some part
thereof, or of any other immoveable property of the judgment - debtor,
the Court may, on his application, postpone the sale of the property
comprised in the order for sale on such terms and for such period as it
thinks proper, to enable him to raise the amount.
(2) In such case the Court shall grant a certificate to the judgment-
debtor authorizing him within a period to be mentioned therein, and
notwithstanding anything contained in section 64, to make the proposed
mortgage, lease or sale:
Provided that all monies payable under such mortgage, lease or sale
shall be paid, not to the judgment-debtor, but save in so far as a decree-
holder is entitled to set off such money under the provisions of rule 72,
into Court:
Provided also that no mortgage, lease or sale under this rule shall
become absolute until it has been confirmed by the Court.
• (3) Nothing in this rule shall be deemed to apply to a sale of

property directed to be sold in execution of a decree for sale in
enforcement of a mortgage of, or charge on, such property;
The postponement under this rule is discretionary.
Bisheninun -vs- L.M. Bank, II C 244 PC

Form of certificate to judgment-debtor authorising him to mortgage, lease
or sell property, Form No. 35, App. E, Sch. I = H. C. Form No. (J) 48.
Rule-84: Deposit by purchaser and re-sale on default.—(l) On

every sale of immoveable property the person declared to be the purchaser
shall pay immediately after such declaration a deposit of twenty-five per
cent. on the amount of his purchase-money to the officer or other person
conducting the sale, and in default of such deposit, the property shall
forthwith be re-sold.
(2) Where the decree-holder is the purchaser and is entitled to set off
the purchaser-money under rule 72, the Court may dispense with the
requirements . of this rule.
An execution sale does not become complete before the bid is accepted by
the court and the purchaser is declared under this rule.
Surendra -vs- Manmatha, 58 C 788
The nazir is only a recorder of bids and his function is purely ministerial.
Surendra -vs- Manmatha, 58 C .788
See also rule 205, note 3, C.R. & 0.
Court has discretion to accept or not to accept any bid.
See rule, 206, C.R. & 0.
Rule-85: Time for payment in full of purchase money.—The full
amount of purchase-money payable shall be paid by the purchaser into
Court before the Court closes on the fifteenth day from the sale of the
property;
Provided that, in calculating the amount to be so paid into Court, the
purchaser shall have the advantage of any set-off to which he may be
entitled under rule 72.
If the Court is closed, payment on the next open day is good payment.
Peary -vs- Anunda, IS C 63/
Surendra –vs- Sauravini, 10 CWN 535
See also section I 0,General Clauses Act, 1897 (Act X of 1897).
240 XXI Rr. 8649 CIVIL PROCEDURE CODE [1908: Act V
This rule confers a discretion on the court to refund the deposit or a portion
of it, if proper cause is shown.
Rule-86: Procedure in default of payment.—In default of payment

within the period mentioned in the last preceding rule, the deposit may, if
the Court thinks fit, after defraying the expenses of the sale, be forfeited
tothe Government, and the property shall be re-sold, and the defaulting
purchaser shall forfeit all claim to the property or to any part of the sum
for which it may subsequently be sold.
Rule-87: Notification on re-sale.—Every re-sale of immovable

property in default of payment of the purchase money within the period
allowed for such payment, shall be made after the issue of a fresh
proclamation in the manner and for the period hereinbefore prescribed for
the sale.
This rule does not apply when a property is sold forthwith under Or. 21 r. 84
Rajendra -vs- Rain, 2 CWN 4/I
Rule-88: Bid of co-sharer to have preference.—Where the

property sold is a share of undivided immoveable property and two or
more persons, of whom one is a co-sharer, respectively bid the same sum
for such property or for any lot, the bid shall be deemed to be the bid of
the co-sharer.
Rule-89: Application to set aside sale on deposit.—(l) Where

immovable property has been sold in execution of a decree, any person,
whose interest is affected by such sale (provided that such interest has not
been voluntarily acquired by him after such sale), may apply to have the
sale set aside on his depositing in Court,–
(a) for payment to the purchaser, a sum equal to five per cent. of the
put-chase-money, and
(b) for payment to the decree-holder, . the amount spcified in the
proclamation of sale as that for the recovery of which the sale
was ordered, less any amount which may, since the date of such
proclamation of sale, have been received by the decree-holder.
(2) Where a person applies under rule 90 to set aside the sale of his
immoveable property, he shall not, unless he withdraws his application,
be entitled to make or prosecute an application under this rule..
(3) Nothing in this rule shall relieve the judgment-debtor from any
liability he may be under in respect of costs and interest not covered by
the proclamation of sale.
The words, "whose interest is affected by such sale (provided that such
interest has not been voluntarily acquired by him after such sale)," in sub-
rule (I) were substituted for the words, "either owning such property or
holding an interest therein by virtue of a title acquired before such sale," by
rule made by Calcutta High Court under section 122 vide Notification No.
3516 -G dated the 3" February, 1933 published in the Calcutta Gazette
dated the 9" February, 1933 Part–I, Page-245.
The application and deposit must be made within 30 days from the date of
the sale. Article 166, Limitation Act, 1908.
If the court be closed on or before the last day of deposit, it should be made
on the next open day.
Sashi -vs- Gobincl, 18 C 331
See section 10 General Clauses Act, 1897.
Form of application by judgment-debtor to set aside sale on deposit, H. C.
Form No. (J) 50.
Rule-90: Application to set aside sale on ground of irregularity

or fraud.—(l) Where any immoveable property has been sold in
execution of a decree, the decree-holder, or any person entitled to share in
a rateable distribution of assets, or whose interests are affected by the
sale, may apply to the Court to set aside the sale on the ground of a
material irregularity or fraud in publishing or conducting it, or on the
ground of failure to issue notice to him as required by rule 22 of this
Order:
Provided (i) that no sale shall be set aside on the ground of such
irregularity, fraud or failure unless, upon the facts proved, the-Court is
satisfied that the applicant has sustained substantial injury by reason of
such irregularity, fraud or failure,
(ii) that no sale shall be set aside on the ground of any defect in the
proclamation of sale at the instance of any person who after,, notice did, not
attend at the drawing up of the proclamation or of any person in whose
presence the proclamation was drawn up, unless objection was made by
him at the time in respect of the defect relied upon.
The words, "or on the ground or failure to issue notice to him as required by rule 22
of this Order," in sub-section (1) and the word, "such", after the words, "on the
ground of", and the words, "or failure", after the word "fraud" twice in clause (I) of
the proviso to the said sub-section (1) and clause (ii) of the said proviso were added
by the Calcutta High Court by rule made under section 122 vide Notification No.
35 16-G dated the 3" February, 1933 published in the Calcutta Gazette dated the 9"
February, 1933, Part-I, Page- 245.
Under this rule-
(i) the decree-holder, or
(ii) any person entitled to rateable distribution, or
(iii) any person "whose interests are affected by the sale",
may apply for setting aside the sale.
The words, "interests", not only means proprietary or possessory title but also
pecuniary interests.
Dhirendra. -vs- Kainini. 51 C495
It covers every sort of interest recognized by law.
Ravinandan -vs- Jagarnath, 47 A 479
A person obtaining attachment before judgment is entitled to apply.
Sa.chai -vs- Kukari, 38 CWN 172
A share-holder of a company is not a person whose interests are affected by the
sale. So, he is not compatent to apply under this rule.
Haji Abut Quasem -vs- Abdur Rahman Adam, 22 DLR 822
Person purchasing property after attachment and before sale can apply.
I3hupendra -vs- Jatindra, 37 CWN 912
Conditions for setting aside sale are-
(i) material irregularity or fraud in publishing or conducting the sale; or
(2) failure to issue notice as required by rule 22, and
(3) substantial injury of the applicant,, and
(4) such injury must be the result of such material irregularity or fraud or failure.
Limitation for an application under this rule is 30 days from the date of the sale.
See Article 166, Limitation Act, 1908.
Form of notice to show cause why sale should not be set aside, Form No. 36, App.
Rule-91: Application by purchaser to set aside sale on ground of

judgment-debtor having no saleable interest.—The purchaser at any such sale
in execution of a decree may apply to the Court to set aside the sale, on the
ground that the judgment-debtor had no saleable interest in the property sold.
This rule applies only where the. judgment-debtor has no interest at all or when the
interest was not saleable. It does not apply when the judgment-debtor has no
saleable interest in a portion of the property.
Rain Joom.er -vs- Soshee, 9 C 626;
Sonaram -vs- Mahirarn, 28 C 235
Limitation for an application under this rule is 30 days from the date of the sale.
See article 166, Limitation Act, 1908.
Form of notice to show cause why sale should not be set aside, Form No. 37, App.
Rule-92: Sale when to become absolute or be set aside.-( 1.) Where no

application is made under rule 89, rule 90 or rule 91, or where such application is
made and disallowed, the Court shall make an order confirming the sale, and
thereupon the sale shall become absolute.
(2) Where such application is made and allowed, and where, in the case of
an application under rule 89, the deposit required by that rule is made within
thirty days from the date of sale, the Court shall make an order setting aside the
sale:
Provided that no order shall be made unless notice of the application has
been given to all persons affected thereby.
(3) No suit to set aside an order made under this rule shall be brought by
any person against whom such order is made.
On the happening of the event contemplated in sub rule (1), the court is bound to
confirm the sale and no cognizance can be taken of the plea that the decree has
been satisfied or adjusted out of court.
Nanhalal .vs- Umrao, 35 CWN 381 PC
Dismissing an application under rule 90 is not confirming the sale. The court has to
pass an order.
Baruram -vs- Upendra, 38 CWN 924
The sales referred to in rules 89, 90 and 91 are sales in execution of a valid and
subsisting decree. When therefore after the sale and before confirmation the decree
is set aside, the sale cannot be confirmed.
Dayainaye -vs- Sarat, 25 C 175
A Suit to set aside a sale on grounds other than those covered by rules 89, 90 and 91
lies.
Kalipada -vs- Basanta 59 C /17
Form of order confirming sale, H. C. Form No. (J) 51. Form of notice to show
cause why sale should not be set aside, Form No. 36, 37, App. E, Sch I = H. C.
Form No. (P) 47.
Rule-93: Return of purchase money in certain cases.-Where a sale of

immoveable property is set aside under rule 92, the purchaser shall be entitled to
an order for repayment of his purchase-money, with or without interest as the
Court may direct, against any person to whom it has been paid.
Limitation for an application under this rule is three years, Article 181, Limitation
Act.
244 XXI Rr. 94 .95 CIVIL PROCEDURE CODE [1908: Act V
Rule-94: Certificate to purchaser.—Where a sale of immoveable

property has become absolute, the Court shall grant a certificate specifying the
property sold and the name of the person who at the time of sale is declared to be
the purchaser. Such certificate shall bear date the day on which the sale became
absolute.
There is no limitation for application for sale certificate
Kylasa -vs- Rarnasarn.i 4 M 172
Virhal -vs- Vithojirav, 6 B 586
Sale certificate does not create title but is merely evidence of title.
Basir -I'S- Hafiz, 43 C 124
Praniath.a -vs- Swuar, 57 C 783
Ka.Iipada Saha -vs- Nit )'anada Saha, 5 DLR 285
Court has inherent power to correct sale certificate.
Nasirucidin -vs- Savaclur, 19 CLI 209
Bugha -v,r- Ram, 26 C529
Gohinda -vs- Ahho)', 12 CWN 1027
Form of sale certificate, Form No. 38, App. F, Sch. I =H.C. Form No. (J) 52.
Rule-95: Delivery of property in occupancy of judgment-

debtor.—Where the immoveable property sold is in the occupancy of the
judgment-debtor or of some person on his behalf or of some person claiming
under a title created by the judgment-debtor subsequently to the attachment of
such property and a certificate in respect thereof has been granted under rule 94,
the Court shall, on the application of the purchaser, order delivery to be made by
Putting such purchaser or any person whom he may appoint to receive delivery
on his behalf in possession of the property, and, if need be, by removing any
person who refuses to vacate the same.
This rule contemplates actual or khas possession. Purchaser of a share in undivided

property cannot get possession under this rule. His remedy is by a suit for partition.
Balaji -vs- Ganesh, 5 B 499
Where there is an appeal against an order refusing to set aside a sale, the sale does
not become absolute until the disposal of the appeal.
Chan.dra,nani -vs- Anarjan, 61 C 945 PC
Limitation for an application under this rule is three years from the date when the
sale became absolute. See Article 180, Limitation Act, 1908.
As to police aid in delivery of possession and resistance to peon, see rules 226-227,
C.R. & 0.
Form of order for delivery of possession, Form No. 39, App. E, Sch. I = H. C. Form
No. (P) 48.
Rule-96: Delivery of property in occupancy of tenant.—Where the

property sold is in the occupancy of a tenant or other person entitled to occupy
the same and a certificate in respect thereof has been granted under rule 94, the
Court shall, on the application of the purchaser, order delivery to be made by
affixing a copy of the certificate of sale in some conspicuous place on the
property, and proclaiming to the occupant by beat of drum or other customary
mode, at some convenient place, that the interest of the judgment-debtor has
been transferred to the purchaser.
This rule contemplates delivery of symbolical possession.
RESISTANCE TO DELIVERY OF POSSESSION TO

DECREE-HOLDER OR PURCHASER
Rule-97: Resistance or obstruction to possession of immoveable
property.--(]) Where the holder of a decree for the possession of immoveable
property or the purchaser of any such property sold in execution of a decree is
resisted or obstructed by any person in obtaining possession of the property, he
may make an application to the Court complaining of such resistance or
obstruction.
(2) The Court shall fix a day for investigating the matter and shall
summon the party against whom the application is made to appear and answer
the same.
Under this rule, it is only the decree-holder or the auction purchaser who can apply.
Milkhj -vs.. 13a,vant, /93/ L 686
Requisition of police force when resistance is anticipated.

See rules 226, C.R. & 0.
Form of summons to answer charge of obstructing execution, Form No. 40, App. E,
Sch. I = H. C. Form No. (P) 49.
Rule-98: Resistance or obstruction by judgment-debtor.—Where the

Court is satisfied that the resistance or obstruction was occasioned without any
just cause by the. judgment-debtor or by some other person at his instigation, or
on his behalf, it shall direct that the applicant be put into possession of the
property, and where the applicant is still resisted or obstructed in obtaining
possession, the Court may also, at the instance of the applicant, order the
jLldgtTient-debtor or any person acting at his instigation, or on his behalf, to be
detained in the civil prison for a term which may extend to thirty days.
The words, "or on his behalf," occurring twice in this rule were inserted by rule
made by the Calcutta High Court under section 122 vide Notification No. 35 16-G
dated the 3' February, 1933 published in the Calcutta Gazette dated the 9'
February, 1933 Part-I. Page-245.
Possession in this rule includes constructive possession.
Mancharam -vs- Fakir, 25 B 478

Bra jabala -vs- Gurudas, 33 C 487
A tenant of the judgment-debtor is bound by the decree and he is not a person claiming
on his own account.
Jairam -vs- Nowroji, 46 B 887
Jafferji -vs- Mi.yadin, 46 B 536
Appa -vs- Venkappa, 1931 M 534
Yusuf-vs- ,Iotish, 59 C 739
Form of committal warrant, Form No. 41, App. E, Sch. I.
Rule-99: Resistance or obstruction by bona fide claimant.— Where the

Court is satisfied that the resistance or obstruction was occasioned by any person
(other than the judgment-debtor) claiming in good faith to have a right to be in
possession of the property on his own account or on account of some person
other than the judgment-debtor, the Court shall make an order dismissing the
application.
The words, "to have a right," occurring after the words, "claiming in good faith",
were inserted by rule made by the Calcutta High Court under section 122 vide
Notification No. 3516-G, dated the 3'' February, 1933 published in the Calcutta
Gazette dated the 9' February, 1933, Part-I, Page-245.
Rule-100: Dispossession by decree-holder or purchaser —(]) Where
any person other than the judgment-debtor is dispossessed of immoveable
property by the holder of a decree for the possession of such property or, where
such property has been sold in execution of a decree, by the purchaser thereof,
he may make an application to the Court complaining of such dispossession.
(2) The Court shall fix a day for investigating the' matter and shall
summon the party against whom the application is made to appear and answer
the same.
Delivery of symbolic possession under rule 96 does not constitute dispossession. It
is only delivery of actual possession under rule 95, that constitutes dispossession
within this rule.
Ibrahim -vs- Ranijadu, 30 C 710
Bra/aba/a -vs- Gurudas, 33 C 487
Purchaser getting symbolical possession cannot remove crop when land is in actual
possession of third person.
Banka -vs- Abdul, 39 CWN 1306
A person in .joint possession with the judgment-debtor as a member of a joint
family is in possession "on his own account"
Radhagobind vs- Rajhunath, 18 CWN 695
Induhhusan -vs- Haricha ran, 58 C 55
Limitation for an application under this rule is thirty days, Article 165, Limitation
Act.
Rule-101: Bona fide claimant to be restored to possession.—

Where the Court is satisfied that the applicant wasin possession of the
property on his own account or on account of some person other than the
judgment-debtor, it shall direct that the applicant be put into possession of
the property.
Rule-102: Rules not applicable to transferee lite pendente.-

Nothing in rules 99 and 101 shall apply to resistance or obstruction in
execution of a decree for the possession of immoveable property by a
person to whom the judgment-debtor has transferred the property after the
institution of the suit in which the decree was passed or to the
dispossession of any such person.
This rule says that nothing in rr. 99 and 101 applies to resistance by a
transferee from the judgment-debtor during the pending of the suit.
Rule-103: Orders conclusive subject to regular suit.—Any party

not being a judgment-debtor against whom an order is made under rule
98, rule 99 or rule .101 may institute a suit to establish the right which he
claims to the present possession of the property; but, subject to the result
of such suit (if any), the order shall be conclusive.
This rule does not apply unless an order under rule 98, 99 or 101 has been
made.
Hargo -vs- Chandu, 69 IC 557
The pre-condition for a suit under this rule is an order under rule 98, rule 99 or
rule 101. SC), when there is no order under either of those rules, no suit can he
brought under this rule. When the court refers the applicant to a separate suit
without passing any order or dismisses the application for default, this rule does
not apply.
Meerudin -i's- Rahisa, 27 M 25; Sarat -vs- Tarini, 34 C 491
Limitation for a suit under this rule is one year, Article 1 IA, Limitation Act.
248 XXIA Rr. 1-3 CIVIL PROCEDURE CODE [1908: Act V
Order XXIA
Rule-1: Every person applying to a Civil Court to attach movable
property shall, in addition to the process-fee, deposit such reasonable sum
as the Court may direct, if it thinks necessary, for the cost of its removal
to the court –house, for its custody, and, if such property is livestock, for
its maintenance according to the rates prescribed in rule 2 of this Order. If
the deposit, when ordered, be not made, the attachment shall not issue.
The Court may, from time to time, order the deposit of such further fees
as may be necessary. In default of due payment the property shall be
released from attachment.
See rule 133, C. R. & 0.
• Rule-2: The following daily rates shall be chargeable for the custody
and maintenance of livestock under attachment;–
Goat and pig-Annas 2 . to annas 4.

Sheep –Annas 2 to annas 3.
Cow and bullock–Annas 6 to aniias 10.
Calf--Annas 3 to annas 6.
Buffalo–Annas 8 to annas 12.
Horse--Annas 8 to annas 12.
Ass–Annas 3 to annas 5.
Poultry–Annas 2 to annas 3 pies6.
•Explanation-'—Although the rates indicated above are regarded as

reasonable, the Courts should consider individual circumstances and the
local conditions and permit deposit at reduced rates where the actual
expenses are likely to fall short of the minima or maxima. If any specimen
of special value in any of the above classes is seized a special rate may be
fixed by the Court. If any animal not specified is attached, the Court may
fix the cost as a special case.
Rule-3: When the property attached consists of agricultural

implements or other articles which cannot conveniently be removed and
the attaching officer does not act under the provisio to rule 43, Order 21,
he may, unless the Court has otherwise directed, leave it in the village or
place where it has been attached–
(a) in the charge of the judgment-debtor or decree-holder or of

some other person , provided that the judgment-debtor, decree-
holder or other person enters into a bond in Form No. 15A of
1908: Act VI CIVIL PROCEDURE CODE Or. XXIA Rr.3-6 249
Appendix E to this Schedule with one or more sureties for the

production of the property when called for, or,
(b) in the charge of an officer of the Court, if a suitable place for its
safe custody be provided and the remuneration of the officer for
a period of fifteen days paid in advance.
See rules 189-192 and 194-199, C.R. & 0.

Form of bond, Form No. ISA, App. E, Sch. I = H. C. Form No. (M) 29.
Rule-4: If attached property (other than livestock) is not sold under

the proviso to rule 43, Order 21, or retained in the village or place where
it is attached, it shall be brought to the Court-house at the decree-holder's
expense and delivered to the proper officer of the Court. In the event of
the decree-holder failing to make his own arrangement for the removal of
the property with safety, or paying the cost thereof in advance to the
attaching officer, then, unless such payment has previously been made
into Court, the attachment shall at once be deemed to be withdrawn and
the property shall be made over to the person in whose possession it was
before attachment.
See rule 599(4), C.R. & 0
Rule-5: When livestock is attached it shall not, without the special

order of the Court, be brought to the Court or its compound or vicinity,
but shall be left at the village or place where it was attached in the manner
and on the conditions set forth in rule 3 of this Order:
Provided that livestock shall not be left in the charge of any person
under clause (a) of the said rule unless he enters into a bond for the proper
care and maintenance thereof as well as for its production when called for,
and that it shall not be left in charge of an officer of the Court under
clause (b) of the said rule unless in addition to the requirements of the
said clause provision be made for its care and maintenance.
See rules 189-192 and 194-199, C.R & 0.

Form of bond, Form No. ISA, App. E, Sch. I=H.C. Form No. (M) 29.
Rule-6: When for any reason the attaching officer shall find it
impossible to obtain compliance with the requirements of the preceding
rule so as to entitle him to leave the attached livestock in the village or
place where it was attached and no order has been made by the Court for
its removal to the Court, the attaching officer shall not proceed with the
attachment and no attachment shall be deemed to have been effected:
250 XXIA Rr.7-12 CIVIL PROCEDURE CODE [1908: Act
Rule-7: Whenever it shall appear to the Court that livestock under

attachment are not being properly tended or maintained, the Court shall
make such orders as are necessary for their care and maintenance and may
if necessary direct the attachment to cease and the livestock to be returned
to the person in whose possession they were when attached. The Court
may order the decree-holder to pay any expenses so incurred in providing
for the care and maintenance of the livestock, and may direct that any sum
so paid shall be refunded to the decree-holder by any other party to the
proceedings.
See rules 250 and 599 (4), C.R. & 0.
Rule-8: If under a special order of the Court livestock is to be

conveyed to the Court, the decree-holder shall make his own arrangement
for such removal, and if he fails to do so the attachment shall be
withdrawn and -the property made over to the person in whose possession
it was before attachment.
See rule 599(4), C.R. & 0.
Rule-9: Nothing in these rules shall prevent the judgment-debtor or

any person claiming to be interested in attached livestock from making
such arrangements for feeding, watering and tending the same as may not
be inconsistent with its safe custody, or contrary to any order of the Court.
Rule-10: The Court may direct that any sums which have been
legitimately expended by the attaching officer or are payable to him, if not
duly deposited or paid, be recovered from the sale-proceeds of the
attached property, if sold, or be paid by the person declared entitled to
delivery before he receives the same. The Court may also order that any
sums deposited or paid under these rules be recovered as costs of the
attachment from any party to the proceedings.
Rule-11: In the event of the custodian of attached property failing,

after due notice, to produce such property at the place named to the
officer deputed for the purpose, or to restore it to its owner if so ordered
or failing in the case of livestock to maintain and take proper care thereof,
he shall be liable to be proceeded against for the enforcement of his bond
in the execution proceedings. -
Rule-12: When property other than livestock is brought to the Court,

it shall immediately be made over to the Nazir, who shall keep it on his
sole responsibility in such place as may be approved by the Court. If the
property cannot from its nature or bulk be conveniently stored, or kept on
1908: Act V] CIVIL PROCEDURE CODE Or. XXIA Rr. 12-17 251.
the Court premises or in the personal custody of the Nazir, he may,

subject to the approval of the Court, make such arrangements for its safe
custody under his own supervision as may be most convenient and
economical. If any premises are to be hired and persons are to be engaged
for watching the property the Court shall fix the charges for the premises
and the remuneration to be allowed to the persons (not being officers of
the Court) in whose custody the property is kept. All such costs shall be
paid into Court by the decree-holder in advance for such period as the
Court may from time to time direct.
Rule-13: When attached livestock is brought to Court under special

order as aforesaid it shall be immediately made over to the Nazir, who
shall be responsible for its due preservation and safe custody until he
delivers it up under the orders of the Court.
Rule-14: If there be a pound maintained by Government or local

authority in or near the place where the Court is held, the Nazir shall,
subject to the approval of the Court, be at liberty to place in it such
livestock as can be properly kept there, in which case the pound keeper
will be responsible for the property to the Nazir and shall receive from the
Nazir the same rates for accommodation and maintenance thereof as are
paid in respect of impounded cattle of the same description.
Rule-15: If there be no pound available, or, if in the opinion of the

Court, it be inconvenient to lodge the attached livestock in the pound, the
Nazir may keep them in his own premises, or he may entrust them to any
person selected by himself and approved by the Court.
Rule-16: All costs for the keeping and maintenance of the livestock
shall be paid into Court by the decree-holder in advance for not less than
fifteen days at a time as often as the Court may from time to time direct. In
the event of failure to pay the costs within the time fixed by the Court, the
attachment shall be withdrawn and the livestock shall be at the disposal of
the person in whose possession it was at the time of attachment.
See also rules 173 and 599 (4) C.R. & 0.
Rule-17: So much of any sum deposited or paid into Court under these
rules as may not be expended shall be refunded to the depositor.
This Order 21A including rules 1-17 was inserted by rule made by the
the 3' November, 1933 published in the Calcutta Gazette dated the 9"
November, 1933, Part—I, Page— 1617.
252 XXII Rr. 1-3 CIVIL PROCEDURE CODE [1908: Act V
Order XXII
DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
Rule-1: No abatement by party's death if right to sue survives.—

The death of a plaintiff or defendant shall not cause the suit to abate if the
right to sue survives.
As to when the right to sue survives, see section 306, Indian Succession Act
(Act XXXIX of 1925) and section 37, Indian Contract Act, (Act IX of
1872).
Ru1p4irocedure where one or several plaintiffs or defendants

dies and right to sue services.—Where there are more plaintiffs or
defendants thanone, and any of them dies, and where the right to sue
survives to the surviving plaintiff or plaintiffs alone, or against the
surviving defendant or defendants alone, the Court shall cause an entry to
that effect to be made on the record, and the suit shall proceed at the
instance of the surviving plaintiff or plaintiffs, or against the surviving
defendant or defendants.
In a case under Or. 1, r. 8 (representative suit) no substitution of legal

representative of plaintiffs is necessary if one of them dies.
Swna.renclra -vs- Harencira 39 C. W.N.303
e-3: Procedure in case of death of one of several plaintiffs or

of sole plaintiff-( 1) Where one of two or more plaintiffs dies and the
right to sue does not survive to the surviving plaintiff or plãThfl-fs alone,
or a sole plaiiTiff or o1eLlrviving plaintiff dies and the right to. sue
survives, the Court, on an application made in that behalf, shall cause the
legal representative of the deceased plaintiff to be made a party and shall
proceed with the suit.
(2) Where within the time limited by law no application is made

under sub-rule (1), the suit shall abate so far as the deceased plaintiff is
concerned, and, on the application of the déféndant, the CorFiay..award
to him the costs which he may have incurred in defending the suit, to h
recovered from the estate of the deceased plaintiff...........
If on the death of one of several plaintiffs the right to sue does not survive
to the surviving plaintiffs alone and the legal representatives of the
deceased plaintiff are not brought on record within the prescribed time, the
suit shall in the first instance abate so far as the deceased plaintiff is
1908: Act Vi CIVIL PROCEDURE CODE Or. XXII Rr. 3-4 253
concerned. But if the suit is of SLICh a kind that it cannot proceed in the
absence of the legal representatives of the deceased plaintiff, it will abate as
a whole.
Rajchunder -us- Ganga, 31 C 487 PC
Ncirendra -vs- Satva, 30 CLI 203
Abatement on the death of a party follows automatically unless heirs are

substituted within time. No formal order of abatement is imperative
although desirable.
Abdul Aziz -rs- Aba;ij Mohan, 30 DLR (SC), 221
Limitation lor an application under this rule is 90 days, Article 176, Limitation Act.
Rule-4: Procedure in case of death of one of several defendants

or sole defendant.--(I) Where one of two or more defendants dies and
the right to sue does not survive against the surviving defendant or
defendants alone, or a sole defendant or sole surviving defendant dies and
the right to sue survives, the Court, on an application made in that behalf,
shall cause the legal representatives of the deceased defendant to be made
a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate
to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made
under sub-rule (I), the suit shall abate as against the deceased-defendant.
(4) Notwithstanding anything contained in sub-rule (3), the plaintiff
shall not be required to substitute and shall be exempt from the necessity
of substituting the legal representatives of any such defendant who has
failed to file a written statement or who having filed it, has failed to
appear and contest the suit at the hearing and judgment may in such a
case be pronounced against the deceased defendant notwithstanding the
death of such defendant and shall have the same force and effect as if it
had been pronounced before the death took place.
Sub-rule (4) was added by Ordinance XLVIII of 1983.
This rule applies to the case of death of defendant and proceeds on the same
lines as rule 3.
If no application is made within the prescribed period of 90 days (Article
177, Limitation Act. 1908) the suit abates as against the deceased defendant
and the only remedy is an application under Order 22 rule 9 (2) within 60
days from the date of abatement (Article 171, Limitation Act, 1908).
Form of summons to legal representative of deceased defendant, Form No.
6 App. B, Sch. I = H. C. Form No. (P) 6.
Rule-5: Determination of question as to legal representative.—

Where a question arises as to whether any peron is or not the legal
rcpreseñtative of a deceased plaintiff or a deceased defendant, such
question shall be determined by the Court.
When rival parties claim to be the legal representatives of a deceased
plaintiff or a deceased defendant or when there is only one claimant and his
representative character is questioned, the court must determine the
question.
Rule-6: No abatement by reason of death after hearing.—

Notwithstanding anything contained in the foregoing rules, whether the
cause of action survives or not, there shall be no abatement by reason of
the death of either party between the conclusion of the hearing and the
pronouncing of the judgment, but judgment may in such case be
pronounced notwithstanding the death and shall have the same force and
effect as if it had been pronounced before the death took place.
Rule-7: Suit not abated by marriage of female party.—( 1) The

marriage of a female plaintiff or defendant shall not cause the suit to
abate, but the suit may notwithstanding be proceeded with to judgment,
and, where the decree is against a female defendant, it may be executed
against her alone.
(2) Where the husband is by law liable for the debts of his wife, the
decree may; with the permission of the Court, be executed against the
husband also; and, in case of judgment for the wife, execution of the
decree may, with such permission, be issued upon the application of the
husband, where the husband is by law entitled to the subject–matter of the
decree.
Rule-8: When plaintiff's insolvency bars suit.--(I) The insolvency
of a plaintiff in any suit which the assignee or receiver might maintain for
the benefit of his creditors, shall not cause the suit to abate, unless such
assignee or receiver declines to continue the suit or (unless for any special
reason the Court otherwise directs) to give security for the costs thereof
within such time as the Court may direct.
Procedure where assignee fails to continue suit or give security.–

(2) Where the assignee or receiver neglects or refuses to continue the suit
and to give such security within the time so ordered, the defendant may
apply for the dismissal of the suit on the ground of the plaintiff's
1908: Act Vi CIVIL PROCEDURE CODE Or. XXII Rr.. 8-9 255
0
insolvency, and the Court may make an order dismissing the suit and
awarding to the defendant the costs which he has incurred in defending
the same to be proved as a debt against the plaintiff's estate.
In the circumstances of the case as described in this rule, the suit should not
be dismissed for default under Or. 9, r. 8 of the Code for failure of the
plaintiff to appear because there is known to be no person in the position of
the plaintiff who has any right or duty to appear.
Kissen -vs- SukIal, 53 C 844
Effect of abatement or dismissal.—(1) Where a suit abates

or is dismissed under this Order, no fresh suit shall be brought on the
same cause of action.
(2) The plaintiff or the person claiming to be the legal representative

of a deceased plaintiff or the assignee or the receiver in the case of an
insolvent plaintiff may apply for an order to set aside the abatement or
dismissal; and if it is proved that he was prevented by any sufficient cause
from continuing the suit, the Court shall set aside the ement or
dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of sections 4 and 5 of the Limitation Act, 1908

shall apply to applications under sub-rule (2).
The words and figures, "Sections 4 and 5," were substituted' for the word
and figure, "section 5," by Act VIII of .1973 as amended by Act LIII of
1974.
No formal order of abatement is necessary, as abatement is automatic.

Therefore limitation runs from the expiry of the period within which
application to bring legal representatives on record is to be made.
Raingopal -vs- Ha.rkishen, 1925, L 598

Sharat -vs- Maihar, S&L Co. 49 C 62
Abdul Aziz vs- Abanj Mohan, 30 DLR (SC) 221
The following persons can apply:– (a) the plaintiff, Or. 22, r. 4 (3); (b) the
legal representative of a deceased plaintiff, Or. 22, r. 3 (2); (c) the assignee
of an insolvent plaintiff, Or. 22, r.8 (2).
Limitation for an application under this rule is 60 days from the date of
abatement. In a proper case time may be extended under section 5,
Limitation Act (sub-rule (3) of this rule). No formal order of abatement is
necessary as abatement is automatic under rules 3 and 4. Limitation
therefore runs from the expiry of the period within which application to
bring .legal representatives on record is to be made.
Rule-10: Procedure in case of assignment before final order in

suit.—fl) In other cases of an assignment, creation or devolution of any
interest during the pendency of a suit, the suit may, by leave of the Court,
be continued by or against the person to or upon whom such interest has
come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be
deemed to be an interest entitling the person who procured such
attachment to the benefit of sub-rule (1).
"Other cases" mean cases other than those specifically mentioned in the
previous rules.
Bhagwan -vs- Nilkanta, 9 C.W.N. 171
There is no period of limitation for application under this rule as the right to
apply in a pending suit accrues from day to day.
Kedar -vs- Hara, 8 C 420
Ra.jani -vs- Jyoti, 27 CWN 710
Rule-11: Application of Order to appeals.—In the application of

this Order to appeals, so far as may be, the word "plaintiff' shall be held
to include an appellant, the word "defendant" a respondent, and the word
"suit" an appeal.
Provided always that where an Appellate Court has made an order
dispensing with service of notice of appeal upon legal representatives of
any person deceased under Order XLI, rule 14(3), the appeal shall not be
deemed to abate as against such party and the decree made on appeal shall
be binding on the estate or the interest of such party.
The proviso was added by rule made by the Calcutta Figh Court under
section 122 vide Notification No. 10428-G, dated the 25' July, 1928
published in the Calcutta Gazette dated the 2" August, 1928, Part–I, Page-
1643.
Rule-12: Application of Order to proceedings.—Nothing in rules
3, 4 and 8 shall apply to proceedings in execution of a decree or order.
The penalty of abatement does not attach to execution proceedings as
execution applications can be filed any number of times so long as the
decree is alive. On the death of an applicant for execution, it is not
competent to apply for substitution. The legal representatives can apply for
fresh execution or they can apply immediately for carrying on the
proceedings in execution.
Akshay -vs- Surendra, 30 CWN 735
1908: Act VI CIVIL PROCEDURE CODE Or. XXIII R.1 257
Order XXIII
WITHDRAWAL AND ADJUSTMENT OF SUITS
Rule-1: Withdrawal of suit or abandonment of part of claim.—
(I) At any time after the institution of a suit the plaintiff may, as against
all or any of the defendants, withdraw his suit or abandon part of his
claim.
(2) Where the Court is satisfied—
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of a
claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to
withdraw from such suit or abandon such part of a claim with liberty to
institute a fresh suit in respect of the subject-matter of such suit or such
part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a

claim, without the permission referred to in sub-rule (2), he shall be liable
for sLlch costs as the Court may award and shall be precluded from
instituting any fresh suit in respect of such subject-matter or sLlch part of
the claim.
(4) Nothing in this rule shall be deemed to authorize the Court to

permit one of several plaintiffs to withdraw without the consent of the
others.
See also para 33, Civil Suit Instructions Manual. The court should he guided by
the instruction contained in this paragraph while dealing with application for
withdrawal of a suit and from a suit. Withdrawal of a suit under sub-rule (1)
may he done at any time and to do it no order by the court is necessary and in
this case the plaintiff has no right to bring a fresh suit in respect of the same
subject-
matter. Withdrawal from a suit with the right to institute a fresh suit in
respect of the same subject-matter is contemplated by sub-rule (2) and in this
case leave by the court is necessary and the plaintiff must make out a case
within clause (a) or clause (h).
If permission is granted to withdraw with liberty to sue afresh on condition of

payment of costs within a specified time, it is better to record a complete and
final order, such as, that the suit shall stand dismissed on the failure to pay the
costs by the stipulated date, instead of a conditional order, such as, that the suit
shall he dismissed on the failure to pay the costs by the stipulated date in which
case a further order will be necessary to make the order of dismissal.
258 XXIII Rr. 1-4 CIVIL PROCEDURE CODE [1908: Act V
Sital -vs- Goya., 19 CLI 529

Abdul -vs-Susi, 39 CWN 330
Plaintiff may withdraw suit both in the trial court as well as in the appellate
court.
Rarnijuddin Ch.awkider -vs- Ha/i Baser Ahmed MoIla, 25 DLR 222
Formal defect explained, ibid

Court must satisfy itself that formal defect exists and it is incumbent upon it
to record reasons when giving permission under sub-rule (2).
Kiranrn.ayi -k's- Raman.ath, 64 IC 556
Subashini -vs- Ashutosh, 39 CLI 371
Where a suit has been heard and decided on merit no withdrawal should be
granted under sub-rule (2).
Rarn.saran -I's- Radh.a, 55 C 1067
Rule-2: Limitation law not affected by fresh suit.—In any fresh

suit instituted on permission granted under the last preceding rule, the
plaintiff shall be bound by the law of limitation in the same manner as if
the first suit had not been instituted.
Rule-3: Compromise of suit.—Where it is proved to the satisfaction
of the Court that a suit has been adjusted wholly or in part by any lawful
agreement or compromise, or where the defendant satisfies the plaintiff in
respect of the whole or any part of the subject-matter of the suit, the Court
shall order such agreement, compromise or satisfaction to be recorded,
and shall pass a decree in accordance therewith so far as itrelates to the
suit.
An agreement, compromise or satisfaction may he in respect of the whole suit
or a part of the suit. It may also include extraneous matters, which do not relate
to the suit. Where the compromise comprises matters extraneous to the suit the
proper course is to recite the whole of the agreement in the decree but to pass a
decree in accordance therewith only in so far as it relates to the decree.
Govinda -vs- Dwarka, 7 CL.] 492
Jihan -vs- Ramesh, 38 CL] 72
Hemanta Ku.,nari -i's- fvlidnapur Zainindar y Co. 47 C 485
Md. Idris Miah. -Ps- Abdul Motaleb, 27 DLR 599
Rule-4: Proceedings in execution of decrees not affected.—

Nothing in this Order shall apply to any proceedings in execution of a
decree or order.
The rules in this Order do not apply to execution proceedings.
1908: Act VJ CIVIL PROCEDURE CODE Or. XXIV Rr. 1-4 259
Order XXIV
PAYMENT INTO COURT
Rule-1: Deposit by defendant of amount in satisfaction of

claim.—The defendant in any suit to recover a debt or damages may, at
any stage of the suit, deposit in Court such sum of money as he considers
a satisfaction in full of the claim.
Mere allegation of willingness to pay is not sufficient.
Ha/i -vs- Ha/i, 16 B 14/

Deposit must be unconditional.
Bose & Co. -vs- Allen Bros 97 IC 479
Rule-2: Notice of deposit.—Notice of the deposit shall be given

through the Court by the defendant to the plaintiff, and the amount of the
deposit shall (unless the Court otherwise directs) be paid to the plaintiff
on his application.
Form of notice under this rule, Form No. 3, App. H, Sch. I.
Rule-3: Interest on deposit not allowed to plaintiff after notice.—

No interest shall be allowed to the plaintiff on any sum deposited by the
defendant from the date of the receipt of such notice, whether the sum
deposited is in full of the claim or falls short thereof.
The principle of this rule applies to execution proceedings
Am.tul -vs- Muhammad, 40 A 125
Rul-4: Procedure where plaintiff accepts deposit as satisfaction

in part.—(I)Where the plaintiff accepts such amount as satisfaction in
part only of his claim, he may prosecute his suit for the balance; and, if
the Court decides that the deposit by the defendant was a full satisfaction
of the plaintiff's claim, the plaintiff shall pay the costs of the suit incurred
after the deposit and the costs incurred previous thereto, so far as they
were caused by excess in the plaintiff's claim.
Procedure where he accepts it as satisfaction in full.–(2) Where

the plaintiff accepts such amount as satisfaction in full of his claim, he
shall present to the Court a statement to that effect, and such statement
shall be filed and the Court shall pronounce judgment accordingly; and, in
directing by whom the costs of each party are to be paid, the Court shall'
consider which of the parties is most to blame for the litigation.
260 XXVI R. 4 CIVIL PROCEDURE CODE [1908: Act V
ILLUSTRATIONS
(a) A owes B Taka IOU. B sues A for the amount, having made no demand
for payment and having no reason to believe that the delay caused by
making a demand would place him at a disadvantage. On the plaint
being filed, A pays the money into Court. B accepts it in full
satisfaction of his claim, but the Court should not allow him any costs,
the litigation being presumably groundless on his part.
(b) B sues A under the circumstances mentioned in illustration (a). On the
plaint being filed, A disputes the claim. Afterwards A pays the money
into Court. B accepts it in full satisfaction of his claim. The Court
should also give B his costs of suit, A's conduct having shown that the
litigation was necessary.
(c) A owes B Taka 100, and is willing to pay him that sum without suit. B
claims Taka 150 and sues A for that amount. On the plaint being filed
A pays taka IOU into Court and disputes only his liability to pay the
remaining Taka 50. B accepts the Taka 100 in full satisfaction of his
claim. The Court should order him to pay A's costs.
1908: Act VI CIVIL PROCEDURE CODE Or. XXV Rr. 1-2 261
Order XXV
SECURITY FOR COSTS
Rule–I: When security for costs may be required from

plaintiff.—(.l) Where, at any stage of a suit, it appears to the Court that a
sole plaintiff is, or (when there are more plaintiffs than one) that all the
plaintiffs are residing out of Bangladesh, and that such plaintiff does not,
or that no one of such plaintiffs does, possess any sufficient immoveable
property within Bangladesh other than the property in suit, the Court: may,
either of its own motion or on the application of any defendant, order the
plaintiff or plaintiffs, within a time fixed by it, to give security for the
payment of all costs incurred and likely to be incurred by any defendant.
Residence out of Bangladesh–(2) Whoever leaves Bangladesh under

such circumstances as to afford reasonable probability that he will not be
forthcoming whenever he may be called upon, to pay costs shall be
deemed to be residing out of Bangladesh within the meaning of sub-rule (I).
(3) On the application of any defendant in a suit for the payment.of

money, in which the plaintiff is a woman, the Court may at any stage of
the suit make a like order if it is satisfied that such plaintiff does not
possess any sufficient immoveable property within Bangladesh.
The discretion indicated by the word "may" is unfettered and unqualified.

Calico P.A. Ltd. -vs- Jeevanra,n, 40 CWN 51I
Mere poverty is no ground for requiring the plaintiff to give security for
costs; it is otherwise where he is not the real litigant but a mere puppet in
the hands of others.
Kajah. -vs- Soleinon, 14 C 533;

Harinath -vs- Ra,nkumar, 18 CWN / 19
Rule-2: Effect of failure to furnish security.—( 1) In the event of

such security not being furnished within the time fixed, the Court shall
make an order dismissing the suit unless the plaintiff or plaintiffs are
permitted to withdraw thereform.
(2) Where a suit is dismissed under this rule, the plaintiff may apply
for an
an order to set the dismissal aside, and, if it is proved to the
satisfaction of the Court that he was prevented by any sufficient cause
262 Or. XXV R. 2 CIVIL PROCEDURE CODE [1908: Act V
from furnishing the security within the time allowed, the Court shall set
aside the dismissal upon such terms as to security, costs or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit.
(3) The dismissal shall not be set aside unless notice of such
application has been served on the defendant.
Dismissal of a suit for failure to give security does not operate as res
judicata.
Rungrav -i's- Sidhi, 6 B 482
Hariram -vs- Lalbai, 26 B. 637
1908: Act V] CIVIL PROCEDURE CODE Or. XXVI Rr. 1-4 263
Order XXVI
COMMISSIONS
COMMISSIONS TO EXAMINE WITNESSES
Cases in which Court may issue commission to examine

witness.—Any Court may in any suit issue a commission for the
examination on interrogatories or otherwise of any person resident within
the local limits of its jurisdiction who is exempted under this Code from
attending the Court or who is from sickness or infirmity unable to attend it.
See also rules 234-257, C. R. & 0

For exemption from appearance, see section 132.
Protracted examination on commission with irrelevant questions is an abuse
on which disciplinary action should be taken in flagrant cases.
Ra lkuinar -"s- Ramsundar, 55 CLI 120 PC
Rule-2: Order for commission.—An order for the issue of a
commission for the examination of a witness may be made by the Court
either of its own motion or on the application, supported by affidavit or
otherwise, of any party to the suit or of the witness to be examined.
Rule-3: Where witness resides within Court's jurisdiction.—A

commission for the examination of a person who resides within the local
limits of the jurisdiction of the Court issuing the same may be issued to
any person whom the Court thinks fit to execute it.
Rule-4: Persons for whose examination commission may

issue.—(l) Any Court may in any suit issue a commission for the
examination of–
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on
which he is required to be examined in Court; and
(c) any person in the service of the Republic who cannot, in the
opinion of the Court, attend without detriment to the public
service.
(2) Such commission may be issued to any Court, not being the
High Court Division within the local limits of whose jurisdiction such
person resides, or to any pleader or other person whom the Court issuing
the commission may appoint.
264 Or. XXVI Rr. 4-8 CIVIL PROCEDURE CODE [1908: Act V
(3) The Court on issuing any commission under this rule shall direct
whether the commission shall be returned to itself or to any subordinate
Court.
Form of commission to examine absent witness, Form No. 7, App. H, Sch.
I=H.C. Form No. (J) 36.
Rule-5: Commission or Request to examine witness not within

Bangladesh.—Where any Court to which application is made for the
issue of commission for the examination of a person residing at any place
not within Bangladesh is satisfied that the evidence of such person is
necessary, the Court may issue such commission or a letter of request.
Form of letter of request, Form No. 8, App. H, Sch. I.
Rule-6: Court to examine witness pursuant to commission.—
Every Court receiving a commission for the examination of any person
shall examine him or cause him to be examined pursuant thereto.
See also rules 254, 255 and 256, C.R. & 0.
Rule-7: Return of commission with depositions of witnesses.—

Where a commission has been duly executed, it shall be returned, together
with the evidence taken under it, to the Court from which it was issued,
unless the order for issuing the commission has otherwise directed, in
which case the commission shall be returned in terms of such order; and
the commission and the return thereto and the evidence taken under it
shall (subject to the provisions of the next following rule) form part of the
record of the suit.
RuIe-8: When depositions may be read in evidence.—Evidence

taken under a commission shall not be read as evidence in the suit without
the consent of the party against whom the same is offered, unless–
(a) the person who gave the evidence is beyond the jurisdiction of
the Court, or dead or unable from sickness or infirmity to attend
to be personally examined, or exempted from personal
appearance in Court, or is a person in the service of the Republic
who cannot, in the opinion of the Court, attend without detriment
to the public service, or
(b) the Court in its discretion dispenses with the proof of any of the,
circumstances mentioned in clause (a), and authorises the
1908: Act V] CIVIL PROCEDURE CODE Or. XXVI Rr. 8-10 265
evidenëe of any person being read as evidence in the suit,

notwithstanding proof that the cause for taking such evidence by
commission has ceased at the time of reading the same.
COMMISSIONS FOR LOCAL INVESTIGATIONS
Rule-9: Commissions to make local investigations.—In any Suit in

which the Court deems a local investigation to be requisite or proper for
the purpose of elucidating any matter in dispute, or of ascertaining the
market- value of any property, or the amount of any mesne profits or
damages or annual net profits, the Court may issue a commission to such
person as it thinks fit directing him to make such investigation and to
report thereon to the Court within such time not exceeding three months
as may be fixed by the Court:
Provided that the Court may, on the prayer of the Commissioner and
on sufficient cause being shown, extend the time.
The words, "within such time not exceeding three months as may he fixed
by the Court," were added by Ordinance XLVIII of 1983.
See also rules 263-274, C.R. & 0 and para 17, Civil Suit Instructions
Manual.
The order for local investigation should he drawn up by the Judge himself
and must contain the matters enumerated in rule 264, C.R. & 0.
Form commission for local investigation, Form No. 9, App. H, Sch. I = H.
C. Form No. (J) 37.
Form of proceeding to be drawn up if enquiry is ordered, H. C. Form No.
(.J) 38 and see also rule 265, C. R. & 0.
Rule-10: Procedure of Commissioner.—( 1) The Commissioner,

after such local inspection as he deems necessary and after reducing to
writing the evidence taken by him, shall return such evidence, together
with his report in writing signed by him to the Court.
Report and depositions to be evidence in suit. Commissioner may

be examined in person.—(2) The report of the Commissioner and the
evidence taken by him (but not the evidence without the report) shall be
evidence in the suit and shall form part of the record; but the Court or,
with the permission of the Court, any of the parties to the suit may
examine the Commissioner personally in open Court touching any of the
matters referred to him or mentioned in his report, or as to his report, or as
to the manner in which he has made the investigation.
(3) Where the Court is for any reason dissatisfied with the
proceedings of the Commissioner, it may direct such further inquiry to be
made as it shall think fit.
As to objections against commissioner's report, see para 17 (17), Civil Suit

Where the result of local investigation is unsatisfactory the court is not
bound to order another inquiry. It can decide the case on the other evidence
on record.
Garibullah -vs- Moa'ha, 50 IC 301
Judabendra -vs- Gajencira, 28 CLJ 203
Manindra -vs- Saradindu, 27 CLJ 595
COMMISSIONS TO EXAMINE ACCOUNTS

Rule-11: Commission to examine or ad.just accounts.—In any suit
in which an examination or adjustment of accounts is necessary, the Court
may issue a commission to such person as it thinks fit directing him to
make such examination or adjustment.
Form of commission to examine accounts, From No. 9, App. H. Sch. 1= H.
C. Form No. (J) 37
Rule-12: Court to give Commissioner necessary instructions.—

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

inquiry.—(2) The proceedings and report (if any) of the Commissioner
shall be evidence in the suit, but where the Court has reason to be
dissatisfied with them, it may direct such further inquiry as it shall think
fit.
See also rules 275-279, C. R. & 0.
COMMISSIONS TO MAKE PARTITIONS
Rule-13: Commission to make partition of immoveable property.

—Where a preliminary decree for partition has been passed, the Court
may, in any case not provided for by section 54, issue a commission to
such person as it thinks fit to make the partition or separation according to
the rights as declared in such decree.
1908: Act V] CIVIL PROCEDURE CODE Or. XXVI Ri-. 13-15 267

Form of commission to make partition, From No. 10 App. H, Sch. 1= H. C.
Form No. (J) 39.
Rule-14: Procedure of Commissioner.—( 1) The Commissioner
shall, after such inquiry as may be necessary, divide the property into as
many shares as may be directed by the order under which the commission
was issued, and shall allot such shares to the parties, and may, if
authorized thereto by the said order, award sums to he paid for the
purpose of equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the
Commissioners (where the commission was issued to more than one
person and they cannot agree) shall prepare and sign separate reports
appointing the share of each party and distinguishing each share (if so
directed by the said order) by metes and bounds. Such report or reports
shall be annexed to the commission and transmitted to the Court within
such time not exceeding three months as may be fixed by the Court; and
the Court, after hearing any objections which the parties may make to the
report or reports, shall confirm, vary or set aside the same.
Provided that the Court may, on the prayer of the Commissioner and
on sufficient cause being shown, extend the time.
(3) Where the Court confirms or varies the report or reports it shall
pass a decree in accordance with the same as confirmed or varied; but
where the Court sets aside the report or reports it shall either issue a new
commission or make such other order as it shall think fit.
The words, "Court within such time not exceeding three months as may be
fixed by the Court", after the words. "and transmitted to the", and the
proviso in sLIb-rule (2) were inserted by Ordinance XLVIII of 1983.
As a rule the commissioner should first be examined with reference to the
objection, then the parties should be allowed to give evidence if there is
ground for further inquiry.
Ncisir -'s- Sartirciz 1935 L 501
GENERAL PROVISIONS
Rule-15: Expenses of Commission to be paid into Court.—Before
issuing any commission under this Order, the Court may order such sum
(if any) as it thinks reasonable for the expenses of the commission to be,
within a time to be fixed, paid into Court by the party at whose instance or
for whose benefit the commission is issued.
Rule-16: Powers of Commissioners.—Any Commissioner

appointed under this Order may, unless otherwise directed by the order of
appointment,–
(a) examine the parties themselves and any witness whom they or
any of them may produce, and any other person whom the
Commissioner thinks proper to call upon to give evidence in the
matter referred to him;
(b) call for and examine documents and other things relevant to the
subject of inquiry;
(c) at any reasonable time enter upon or into any land or building
mentioned in the order.
Rule-17: Attendance and examination of witnesses before

Commissioner.—( 1) The provisions of this Code relating to the
summoning, attendance and examination of witnesses, and to the
remuneration of, and penalties to be imposed upon, witnesses, shall apply
to persons required to give evidence or to produce documents under this
Order whether the commission in execution of which they are so required
has been issued by a Court situate within or by a Court situate beyond the
limits of Bangladesh, and for the purposes of this rule the Commissioner
shall be deemed to be a Civil Court.
(2) A Commissioner may apply to any Court (not being the High
Court Division) within the local limits of whose jurisdiction a witness
resides for the issue of any process which he may find it necessary to
issue to or against such witness, and such Court may, in its discretion,
issue such process as it considers reasonable and proper.
RuIe-18: Parties to appear before Commissioner—(]) Where a

commission is issued under this Order, the Court shall direct that the
parties to the suit shall appear before the Commissioner in person or by
their agents or pleaders.
(2) Where all or any of the parties do not so appear, the

Commissioner may proceed in their absence.
1908: Act VJ CIVIL PROCEDURE CODE Or. XXVI Rr. 19-21 269
COMMISSIONS ISSUED AT THE INSTANCE OF FOREIGN TRIBUNALS
Rule-19: Cases in which High Court Division may issue

commission to examine witness.—fl) If the High Court Division is
satisfied–
(a) that a foreign Court. situated in a foreign country wishes to

obtain the evidence of a witness in any proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the High Court
Division's appellate jurisdiction,
it may, subject to the provisions of rule 20, issue a commission for the
examination of such witness.
(2) Evidence may be given of the matters specified in clauses (a), (b)
and (c) of sub-rule (I.)–
(a) by a certificate signed by the consular officer of the foreign

country of the highest rank in Bangladesh and transmitted to the
High Court Division through the Government, or
(b) by a letter of request issued by the foreign court and transmitted
to the High Court Division through the Government, or
(c) by a letter of request issued by the foreign court and produced
- before the High Court Division by a party to the proceeding.
Rule-20: Application for commission.—The High Court Division

may issue a commission under rule 19-
(a) upon application by a party to the proceeding before the foreign

Court, ot
(b) upon an application by a law officer of the Government acting
under instructions from the Government.
Rule-21: To whom commission may be issued.—A commission

under rule 19 may be issued to any Court within the local limits of whose
jurisdiction the witness resides, or, where the witness resides within the
local limits of the .ordinary original civil jurisdiction of the High Court
Division, to any person whom the Court thinks fit to execute the
commission.
Rule-22: Issue, execution and return of commissions, and

transmission of evidence to foreign Court.—The provisions of rules
6,15,16,17 and 18 of this Order in so far as they are applicable shall apply
to the issue, execution and return of such commissions, and when any
such commission has been duly executed it shall be returned, together
with the evidence taken under it, to the High Court Division, which shall
forward it to the Government, along with the letter of request for
transmission to the foreign Court.
ExciusIoN OF TIME TAKEN BY COMMISSIONER

Rule-23: Exclusion of time taken by Commissioner.—Where a
commission is issued for any purpose at any stage of a suit, the time taken
by the Commissioner for returning the commission after execution or for
submitting the report, as the case may be, shall be excluded from the time
fixed for doing anything or performing any act at that stage.
This rule was added by Ordinance XLVIII of 1983.

1908: Act V] CIVIL PROCEDURE CODE Or. XXVII Rr. 1-6 271
Order XXVII..
SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC

OFFICERS IN THEIR OFFICIAL CAPACITY
Rule-1: Suits by or against Government.—In any suit by or

against the Government, the plaint or written statement shall be signed by
such person as the Government may, by general or special order, appoint
in this behalf, and shall be verified by any person whom the Government
may so appoint and who is acquainted with the facts of the case.
All suits by or against Government shall be disposed of as speedily as

possible irrespective of the order in which they may stand in the register.
See rule 280, C.R. & 0.
Rule-2: Persons authorized to act for Government.—Persons

being ex-officio or otherwise authorized to act for The Government in
respect of any judicial proceeding shall be deemed to be the recognized
agents by whom appearances, acts and applications under this Code may
he made or done on behalf of the Government.
Rule-3: Plaints in suits by or against Government.—In suits by or

against the Government, instead of insertin g in the plaint the name and
description and place of residence of the plaintiff or defendant, it shall be
sufficient to insert the appropriate name as provided in section 79.
Rule-4: Agent for Government to receive process—The

Government pleader in any Court shall be the agent of the Government
for the purpose of receiving processes against the Government issued by
such Court.
Rule-5: Fixing of day for appearance on behalf of Government.

—The Court, in fixing the day for the Government to answer to the plaint,
shall allow a reasonable time for the necessary communication with the
Government through the proper channel, and for the issue of instructions
to the Government pleader to appear and answer on behalf of the
Government, and may extend the time at its discretion.
Rule-6: Attendance of person able to answer questions relating

to suit against Government.—The Court may also, in any case in which
the Government pleader is not accompanied by any person on the part of
272 Or.XXVII Rr.6-8B CIVIL PROCEDURE CODE [1908: Act
the Government, who may be able to answer any material questions

relating to the suit, direct the attendance of such a person.
Rule-7: Extension of time to enable public officer to make

reference to Government.---(I) Where the defendant is a public officer
and, on receiving the summons, considers it proper to make a reference to
-the Government before answering the plaint, he may apply to the Court to
grant such extension of the time fixed in the summons as, may be
necessary to enable him to make such reference and to receive orders
thereon through the propel- channel.
(2) Upon such application the Court shall extend the time for so long
as appears to it to be necessary.
Rule-8: Procedure in suits against public officer.—(l) Where the

Government undertakes the defence of a suit against a public officer, the
Government pleader, upon being furnished with authority to appear and
answer the plaint, shall apply to the Court, and upon such application the
Court shall cause a note of his authority to be entered in the register of
civil suits.
(2) Where no application under sub-rule (1) is made by the

Government pleader on or before the day fixed in the notice for the
defendant to appear and answer, the case shall proceed as in a suit
between private pal-ties:
Provided that the defendant shall not be liable to al-rest, nor his
property to attachment, otherwise than in execution of a decree.
Rule-8A: No security to be required from Government or a

public officer in certain cases.—No such security as is mentioned in
rules 5 and 6 of Order XLI shall be required from the Government or,
where the Government has undertaken the defence of the suit, from any
public officer sued in respect of an act alleged to be done by him in his
official capacity.
Rule-8B: Omitted by Act VIII of 1973 as amended by Act LIII of

1974.
1908: Act VI CIVIL PROCEDURE CODE Or. XXVIIA Rr. 1-4 273
Order XXVIIA
SUITS INVOLVING ANY SUBSTANTIAL QUESTION AS TO

THE INTERPRETATION OF CONSTITUTIONAL LAW
Rule-1: Notice to the Attorney General.—In any suit in which it

appears to the Court that any substantial question as to the interpretation
of constitutional law is involved, the Court shall not proceed to determine
that question until after notice has been given to the Attorney General for
Bangladesh if the question of law concerns the Government.
Rule-2: Court may add Government as party.—The Court may at

any stage of the proceedings order that the Government shall be added as
a defendant in any suit involving any substantial question as to the
interpretation of constitutional law if the Attorney General for Bangladesh,
whether upon receipt of notice under rule I., or otherwise, applies for such
addition and the Court is satisfied that such addition is necessary or
desirable for the satisfactory determination of the question of law
involved.
RuIe-3: Costs when Government added as party.—Where under

rule 2 Government is added as a defendant in a' suit, the Attorney General
or the Government shall not be entitled to or liable for costs in the Court
which ordered the addition unless the Court having regard to all the
circumstances of the case for any special reason otherwise orders.
Rule-4. Application of Order to appeals.—In the application of

this Order to appeals the word "defendant" shall be held to include a
respondent and the word "suit" an appeal.
274 Or. XXVIII Rr. 1-3 CIVIL PROCEDURE CODE [1908: Act V
Order XXVIII
SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN
Rule-1: Officers, soldiers, sailors or airmen who cannot obtain

leave may authorise any person to sue or defend for them.--(I) Where
any officer, soldier, sailor or airman, actually in the service of the.
Republic in such capacity is a party to a suit, and cannot obtain leave of
absence for the purpose of prosecuting or defending the suit in person, he
may authorize anyperson to sue or defend in his stead.
(2) The authority shall be in writing and shall be signed by the

officer, soldier, sailor or airman in the presence of (a) his commanding
officer, or the next subordinate officer, if the party is himself the
commanding officer, or (b) where the officer, soldier, sailor or airman is
serving in military, naval or air force staff employment, the head or other
superior officer of the officer in which he is employed. Such commanding
or other officer shall countersign the authority, which shall be filed in Court.
(3) When so filed the countersignature shall be sufficient proof that

the authority was duly executed, and that the officer, soldier, sailor or
airman by whom it was granted could not obtain leave of absence for the
purpose of prosecuting or defending the suit in person.
Explanation In this Order the expression "commanding officer"

means the officer in actual command for the time being of any regiment,
corps, ship, detachment or depot to which the officer, soldier, sailor or
airman belongs.
Rule-2: Person so authorized may act personally or appoint

pleader.—Any person authorized by an officer, soldier, sailor or airman
to prosecute or defend a suit in his stead may prosecute or defend it in
person in the same manner as the officer, soldier, sailor or airman could
do if present; or he may appoint a pleader to prosecute or defend the suit
on behalf of such officer, soldier, sailor or airman.
Rule-3: Service on person so authorized, or on his pleader, to be

good service.—Processes served upon any person authorized by an
officer, soldier, sailor or airman under rule 1 or upon any pleader
appointed as aforesaid by such person shall be as effectual as if they had
been served on the party in person.
1908: Act VI CIVIL PROCEDURE CODE Or. XXIX Rr. 1-3 275
Order XXIX
SUITS BY OR AGAINST CORPORATIONS.
Rule-1: Subscription and verification of pleading.—In suits by or

against a corporation, any pleading may be signed and verified on behalf
of the corporation by the secretary or by any director or other principal
officer of the corporation who is able to depose to the facts of the case.
A suit by or against a registered company must be instituted in the name of

the company.
I. G. S. N. & Co. Ltd. -vs- Lalmohan, 43 C 441
A suit by an unregistered or unincorporated society is to be brought in the

names of all members of the society. Where the members are numerous, the
provisions of Order I rule 8 may be availed of.
Hriday -vs- Akhil, 49 CLI 357
Panchaiti -vs . Gauri, 20 A 167
Rule-2: Service on corporation—Subject to any statutory

provision regulating service of process, where the suit is against a
corporation, the summons may be served–
(a) on the secretary, or on any director, or other principal officer of
the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at
the registered office, or if there is no registered office then at the
pLe where the corporation carries on business.
Cf. Section 223, Company Act, 1994 (Act XVIII of 1994)
Rule-3: Power to require personal attendance of officer of
corporation.—The Court may, at any stage of the suit, require the
personal appearance of the secretary or of any director, or other principal
officer of the corporation who may be able to answer material questions
relating to the suit.
Consequence of nonappearance, see Or. 9 r. 12.

276 Oi.XXX Rr 1-2 .C
IVIL PROCEDURE CODE [1908: Act V
Order XXX
SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON
BUSINESS IN NAMES OTHER THAN THEIR OWN
Rule-1: Suing of partners in name of firm.--(]) Any two or more

persons claiming or being liable as partners and carrying on business in
Bangladesh may sue or be sued in the name of the firm (if any) of which
such persons were partners at the time of the accruing of the cause of
action, and any party to a suit may in such case apply to the Court for a
statement of the names and addresses of the persons who were, at the time
of the accruing of the cause of action, partners in such firm, to be
furnished and verified in such manner as the Court may direct.
(2) Where persons sue or are sued as partners in the name of their
firm under sub-rule (1), it shall, in the case of any pleading or other
document required by or under this Code to be signed, verified or certified
by the plaintiff or the defendant, suffice if such pleading or other
document is signed, verified or certified by any one of such persons.
A single person carrying on business in a firm name must sue in his own
name.
Samrathraj -vs-Kastur/,h.aj, 1930 B 216
It he dies, substitution must be ,nade
Harihandh.t, -Ps- Ha.ri,nohan, 57 C 93 /
One partner can bring a suit in the firm name even when the other partners
refuse'to sue. The other partners are not necessary parties, but they can ask
for indemnity against costs from the suing partner.
Bhadreswar Coal Co. -k's- Sa.tish, 40 CWN 824
Suit by unregistered firm not maintainable
See sections 69 and 74(b), Partership Act, 1932 (Act IX of 1932).
Surendra -Ps- Man.ohar, 39 CWN 67

Basanta -vs- Lola 39 CWN 1080
Ramsundar -vs- Madhu, 40 CWN 1180
Rule-2: Disclosure of partners' names.—(l) Where a suit is

instituted by partners in the name of their firm, the plaintiffs or their
pleader shall, on demand in writing by or on behalf of any defenctant,
1908: Act Vi CIVIL PROCEDURE CODE Or. XXX Rr. 2-4 277
forthwith declare in writing the dames and places of residence of all the
persons constituting the firm on whose behalf the suit is instituted.
• (2) Where the plaintiffs or their pleader fail to comply with any
demand made under sub-rule (1), all proceedings in the suit may, upon an
application for that purpose, be stayed upon, such terms as the Court may
direct.
(3) Where the names of the partners are declared in the manner
referred to in sub-rule (1), the suit shall proceed in the same manner, and
the same consequences in all respects shall follow, as if they had been
named as plaintiffs in the plaint:
Provided that all the proceedings shall nevertheless continue in the

name of the firm.
Rule-3: Service.—Where persons are sued as partners in the name

of their firm, the summons shill be served either -
(a) upon any one or more of the partners, or

(b) at the principal place at which the partnership business is carried
oil Bangladesh upon any person having, at the time of
service, the control or management of the partnership business
there.
as the Court may direct; and such service shall be deemed good service
upon the firm so sLied, whether all or any of the partners are within or
without Bangladesh:
Provided that, in the case of a partnership which has been dissolved

to the knowledge of the plaintiff before the institution of the suit, the
summons shall be served upon every person within Bangladesh whom it
is sought to make liable.
The words, "as the Court may direct," indicate that the court's order should
be obtained as to the mode of service.
I. C. Coinpagnie -vs- Meh.ta &

Co. 54 C. 1057. Contrar y view
See Keen Robinson & Co. -vs- Lily Biscuit Co. 59 C 496
In a suit brought against a fib-n in its firm name, a person who has not been
served with a summons as a partner cannot entet appearance and defend the
suit unless he admits that he is a partner.
Sree,nutty Dhai -Ps- Bh.aciar,null, 40 CWN 677

278 Or. XXX Rr.4-6 CIVIL PROCEDURE CODE [1908: Act
Rule-4: Right of suit on death of partner.—(1) Notwithstanding

anything contained in section 45 of the Contract Act, 1872, where two or
more persons may sue or be sued in the name of a firm under the
foregoing provisions and any of such persons dies, whether before the
institution or during the pendency of any suit, it shall not be necessary to
join the legal representative of the deceased as a party to the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise affect any right
which the legal representative of the deceased may have—
(a) to apply to be made a party to the suit, or

(b) to enforce any claim against the survivor or survivors.
This rule applies only where a suit is brought in the name of the firm.
Maninohan -vs- Bidhubhusan, 28 CLI 268
Rule-5: Notice in what capacity served.—Where a summons is

issued to a firm and is served in the manner provided by rule 3, every
person upon whom it is served shall be informed by notice in writing
given at the time of such service, whether he is served as a partner or as a
person having the control or management of the partnership business, or
in both characters, and, in default of such notice, the person served shall
he deemed to be served as a partner.
In the absence of a notice as to the capacity of the person, the person served
shall be deemed to be served as a partner and if he wants to contest that, he
must appear under protest under Or. 30 r. S.
Baishnab -vs- Bank of Bengal, 19 CWN 1008
Rule-6: Appearance of partners.—Where persons are sued as

partners in the name of their firm, they shall appear individually in their
own names, but all subsequent proceedings shall, nevertheless, continue
in the name of the firm.
The word, "individually," is not synonymous with "in person." No partner
can, therefore, be forced to appear in person.
Bridges & Co. -vs- Samas Din & Co. 47 IC 422
The appearance of one partner is appearance of the firm i.e. of all partners.
Ghist.,lal -vs- Gu,iihhirinall, 39 CWN 606
1908: Act V] CIVIL PROCEDURE CODE Or. XXX Rr. 7-10 279
RuIe-7: No appearance except by partner.—Where a summons is

served in the manner provided by rule 3 upon a person having the control
or management of the partnership business, no appearance by him shall be
necessary unless he is a partner of the firm sued.
Rule-8: Appearance under protest.—Any person served with

summons as a partner under rule 3 may appear under protest denying that
he is a partner, but such appearance shall not preclude the plaintiff from
otherwise serving a summons on the firm and obtaining a decree against
the firm in default of appearance where no partner has appeared.
When appearance is entered under protest, the effect is to nullify the service
altogether as regards the defendant firm. A party appearing under protest is
not entitled to file written statement on his own behalf even on denying that
he is a partner.
I.C.C. Comjagnie -vs- Mehta & Co. 54 C 1057
Rule-9: Suits between co-partners.—This Order shall apply to suits

between a firm and one or more of the partners therein and to suits
between firms having one or more partners in common; but no execution
shall be issued in such suits except by leave of the Court, and, on an
application for leave to issue such execution, all such accounts and
inquiries may be directed to be taken and made and directions given as
may be just.
Rule-10: Suit against person carrying on business in name other

than his own.—Any person carrying on business in a name or style other
than his own name may be sued in such name or style as if it were a firm
name; and, so far as the nature of the case will permit, all rules under this
Order shall apply.
A person trading as a firm or in an assumed name may be sued in his trade
name, but he cannot sue in that name.
Sa,narathrai -vs- Kasturbhai, 1930 B. 216;
Raindas - s- Rain, 158 IC 25
If a sole proprietor dies, a suit after his death must be brought against his
legal representative.
Habib -vs- Samuel Fit & Co. 1926 A 16/
If the suit is brought against the single proprietor in his trade name and on his
death during its pendency a decree is passed without bringing his legal
representatives on record, the decree being against a dead person is a nullity.
Haribaudhu -vs- Harimohan 57 C. 931
280 Or. XXXI Rr. 1-3 CIVIL PROCEDURE CODE [1908: Act V
Order XXXI
SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
Rule-1: Representation of beneficiaries in suits concerning

property vested in trustees, etc.—In all suits concerning property vested
in a trustee, executor or administrator, where the contention is between
the persons beneficially interested in such property and a third person, the
trustee, executor or administrator shall represent the persons so interested,
and it shall not ordinarily be necessary to make them parties to the suit.
But the Court may, if it thinks fit, order them or any of them to be made
parties.
See section 3, Succession Act, regarding "executor" and "administrator".
Rule-2: Joinder of trustees, executors and administrators.—

Where there are several trustees, executors or administrators, they shall be
made parties to a suit against one or more of them:
Provided that the executors who have not proved their testator's will,
and trustees, executors and administrators outside Bangladesh, need not
be made parties.
Rule-3: Husband of married executrix not to join.—Unless the

Court directs otherwise, the husband of a married trustee, administratrix
or executrix shall not as such be a party to a suit by or against her.
1908: Act V] CIVIL PROCEDURE CODE Or. XXXII Rr. 1-2 281
Order XXXII
SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
Rule-1: Minor to sue by next friend.—Every suit by a minor shall

he instituted in his name by a person who in such suit shall be called the
next friend of the minor.
Minor is it person who has not completed the age of 18 years. In the case of
a minor of whose person or property a guardian has been appointed by a
Court, it is 21 years. (See section 3, Majority Act).
Where a suit is instituted on behalf of all minor but it is found that

he was not in fact a minor, the plaint should be returned for amendment
Taqui -'s- Obaicluilah, 21 C 866

Where a suit was brought by a minor without next friend but the defendant
although aware of it took no objection and the plaintiff attained majority
before the decree, the irregularity was waived.
Fuli -vs- Khokai, 55 C 712

Where minority is in question, an issue should be framed.
Nc,rsi vs- Sachindra, 54, B 75
Rule-2: Where suit is instituted without next friend, plaint to be

taken off the file.--(I) 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 he paid by the pleader or other person by
whom it was presented.
(2) Notice of such application shall be given to such person, and the
Court, after hearing his objections (if any), may make such order in the
matter as it thinks fit.
This rule applies to cases where the plaint oil face of it appears to have
been filed by a person who was a minor.
Beidrain -vs- Rain/al, 13 C 189
Rule-3: Guardian for the suit to be appointed by Court for

minor defendant.---(]) Where the defendant is a minor, the Court, on
being satisfied of the fact of his minority, shall appoint a proper person to
he guardian for the suit for such minor.
282 Or. XXXII Rr.3-4 CIVIL PROCEDURE CODE [1908: Act
(2) An order for the appointment of a guardian for the suit may be
obtained upon application in the name and on behalf of the minor or by
the plaintiff.
(3) Such application shall be supported by an affidavit verifying the

fact that the proposed guardian has no interest in the matters in
controversy in the suit adverse to that of the minor and that he is a fit
person to be so appointed.
(4) No order shall be made on any application under this rule except
upon notice to the minor and to 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 this 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 throughout all proceedings arising Out
of the suit including proceedings in any appellate Or revisional Court and
any proceedings in the execution of a decree.
For duties of guard an in the suit or appeal.
See rulc 121, C. R.&O.
Sec rule 631, C. R. & 0. for expenses of guardian appointed by the court.
Where a suit is decreed without appointment of a guardian ad litem., it is a nullity as
against the minor.
Dakeshur -Ps- Rewat, 24 C 25; Uinapati -os- Sheikh, 37 GLI 496
Chundv -os- Abbas, 37 CWN /170
Summons on minor should he served in the ordinary way.
Jatindra -os- Srinath 26 C 267; Abdul -vs- Eggar 35 C 182
Form of' notice to minor defendant and guardian for appointment of the guardian
for the Suit Form No. II, App. H, Sch. I = H. C. Form No. (P) 2.
Form of notice to minor defendant and guardian for appointment of another person
to he guardian br the suit, H. C. Form No. (P) 2 (i).
Rule-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.
CIVIL PROCEDURE CODE Or. XXXII Rr.4-5 283
1908: Act VI
(2) Where a minor has a guardian appointed or declared by

competent authority, no person other than such guardian shall act as the
next friend of the minor or be appointed his guardian for the suit unless
the Court considers, for reasons to be recorded, that it is for the minor's
welfare that another person be permitted to act or be appointed, as the
case may be.
(3) No person shall without his consent be appointed guardian for

the suit.
(4) Except as otherwise provided in this Order, the Court may
appoint any of its officers to be such guardian, and may direct that the
costs to be incurred by such officer in the performance of his duties as
such guardian shall be borne either by the parties or by any one or more of
the parties to the .suit, or out of any fund in Court in which the minor is
interested, and may give directions for the repayment or allowance of
such costs as justice and the circumstances of the case may require.
The words, "Except as otherwise provided in this Order," in sub-rule (4) were
substituted for the words, "Where there is no other person lit and willing to act
as guardian for the Suit", by rule made by Calcutta High Court under section
122 vide Notification No. 8318-G dated the 13' June, 1927 published in the
Calcutta Gazette dated the 23' June, 1927 Part-I, Page- 1341.
Sub-rule (3) controls both sub-rules (1) and (2)
Anan.da vs- Upendra, 26 CWN 781.
There can be no appointment of a person as guardian without his express
consent.
Nare,tdra -i's- Jogendrci, 19 CWN 537
Um.apati -i's- Sheik/i., 37 CLI 496
Surendra -vs- Aghore, 25 CWN 525
Satis/i -i's- Hashem, 54 C 450
Balkishen -vs- Choudhury , 17 CWN 219
Rule-5: Representation of minor by next friend or guardian for

the suit.---(I) Every application to the Court on behalf of a minor, other
an application under rule 10, sub-rule (2), shall be made by his next friend
or by his guardian for the suit.
(2) Every order made in a suit or on any application, before the Court
in or by which a minor is in any way concerned or affected, without such
minor being represented by a next friend or guardian for the suit, as the
case may be,-may be discharged, and, where the pleader of the party at
whose instancesuch order was obtained knew, or might reasonably have
known, the fact or such minority, with costs to be paid by such pleader.
284 Or. XXXII Rr. 6-8 CIVIL PROCEDURE CODE
[1908: Act V
Rule-6: Receipt by next friend or guardian for the suit of

property under decree for minor.--(I) A next friend or guardian for the
suit shall not, without the leave of the Court, receive any money or other
moveable property on behalf of a minor either–
(a) by way of compromise before decree or order, or
(b) under a decree or order in favour of the minor.
(2) Where the next friend or guardian for the suit has not been
appointed or declared by competent authority to be guardian of the
property of the minor, or having been so appointed or declared, is under
any disability known to the Court to receive the money or other moveable
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.
RuIe-7: Agreement or compromise by next friend or guardian

for the suit.—( 1) No next friend or guardian for the suit shall, without the
leave of the Court, expressly recorded in the proceedings, enter into any
agreement or compromise on behalf of a minor with reference to the suit
in which he acts as next friend or guardian.
(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.
For compromising a suit or a case by the next friend or guardian of a minor the
following steps are necessary:-
(I) an application by the next friend or guardian for permission to compromise;
.
(2) grant of leave by the court to compromise; (3) the consent of he next friend
M guard an to the proposed compromise.-
Ainan. - ps- Nara'an, 20 A 98
If a next friend or guardian unreasonably withholds consent to a beneficial
compromise , the court may remove him and appoint some other person.
He,nanjnj -vs- Bhagvati, 27 CWN.792
Court must consider whether the compromise will benefit the minor.
Monohar -vs- Jadunath, 10 CWN 898 PC
Rule-8: Retirement of next friend.—(I) 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.
1908: Act V] CIVIL PROCEDURE CODE Or. XXXII Rr. 8-11 285
• (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.
Rule-9: Removal of next friend.--(I) Where the interest of the next

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

an authority competent in this behalf, and an application is made by a
guardian so appointed or declared, who desires to be himself appointed in
the place of the next friend, the Court shall remove the next friend unless
it considers, for reasons to be recorded by it, that the guardian ought not
to be appointed the next friend of the minor, and shall thereupon appoint
the applicant to be next friend in his place upon such terms as to the costs
already incurred in the suit as it thinks fit.
Rule-10: Stay of proceedings on removal, etc. of next friend.—(.l)

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.
Rule-11: Retirement, removal or death of guardian for the

suit.—(l) 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 sLich guardian to retire or may remove him, and may make
such order as to costs as it thinks fit.
(2) Where the gLlardlian 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.
286 Or. XXXII Rr. 12-14 CIVIL PROCEDURE CODE [1908: Act V
Rule-12: Course to be followed by minor plaintiff or applicant on

attaining majority.--(I) A minor plaintiff or a minor not a party to a suit
on whose behalf an application is pending shall, on attaining majority,
elect whether he will proceed with the suit or application.
(2) Where he elects to proceed with the suit or application, he shall
apply for an order discharging the next friend and for leave to proceed in
his own name.
(3) The title of the suit or application shall in such case be corrected
so as to read henceforth thus:–
"A. B., late a minor, by C.D. his next friend, but now having attained
majority."
(4) Where he elects to abandon the suit or 'application, he shall, if a

sole plaintiff or sole applicant, apply for an order to dismiss the suit or
application on repayment of the costs incurred by the defendant or
opposite party or which may have been paid by his next friend.
(5) Any application under this rule may be made ex-parte: but no
order discharging a next friend and permitting a minor plaintiff to proceed
in his own name shall be made without notice to the next friend.
Rule-13: Where minor co-plaintiff attaining majority desires to

repudiate suit.—(l) 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.
Rule-14: Unreasonable or improper suit.—(1) A minor on

attaining majority may, if a sole plaintiff, apply that a suit instituted in his
name by his next friend be dismissed on the ground that it was
unreasonable or improper.
1908: Act V.] CIVIL PROCEDURE CODE Or. XXXII Rr. 14-16 287
(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.
Rule-15: Application of rules to persons of unsound mind.—The

provisions contained in rules I 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.
Rule-16: Saving for Princess and Chiefs.—Nothing in this Order

shall apply to a Sovereign Prince or Ruling Chief suing or being sued in
the name of his State, or being sued by direction of the Government in the
name of an agent or in any other name, or 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.
288 Or. XXXIII Rr. 1-2 CIVIL PROCEDURE CODE [1908: Act V
Order XXXIII
SUITS BY PAUPERS
Rule-1: Suits may be instituted inforina 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 no such fee is pr es cribed, when he is not
entitled to property wotth ndred Taka other than his necessary
the subject-mater
The exemption in this Order does not apply to payment of process-fees. A

firm can be a "person" under this rule.
Peruinal -vs- Th.iruni.ala, 41 M 624

The court has inherent power to allow the defendant to defend in .trrn.a
pauperi.s.
I2oorga -vs- Nirrokally. 5 C 819
The words, "is not possessed of," mean that the applicant has no actual
control over the property e.g. a dower debt due by husband.
Mabia -is- Sheikh, 45 CLI 68

Orname)-ordinarily worn by a woman are of the same class as wearing-
Mahia -vs-Sheikh, 45 CLI 68
/Rule-2: Contents of application.—Every application for permission

a contain the particulars required in regard to plaints,_^
in s a le of
nve immo veab oper ty
the applican , ie estimated
cc value thereof,s 11 be annexed thereto;
aflitIT -Be signed and verified in the manner pres c ribed for the signing
and verificatiotleadings
1 -
.—The right being a personal right, t , application for leave to sue as pauper
,, "annot be continued by his legal representative on the death of the
applicant. He may present a fresh application.
La/it -i's- Satish 33 C 1/63

1908: Act VI CIVIL PROCEDURE CODE Or. XXXIII Rr. 3-5 289
e-3: Presentation of application.—Notwithstanding anything

contained in these rules, the application shall be ,presentedto the Court by
the applicant in person,, unless he is exempted from appearihg-iii.Cgirt,in
which case the application may be presented by an authorized agent who
can answer all material questions relating to the application, and who may
be examined in the same manner as the party represented by him might
have been examined had such party attended in person.
In the case of a person exempted under Sections 132 and 133, his duly
authorised agent may present.
Wazirunnessa -vs- Ilahi, 24 A 172
Authorised agent does not include a recognised agent or pleader.

Sakina -"s- Charanjit, 28 IC 448
Rule-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 appe4Lby
agent, regarding the merits of the claim and thëbperty of the app1icaiñ7
t
If presented by agent, Court may order applicant to be examined

by commission.—(2) Where the application is presented by an agent, the
Court may, if it thinks fit, order that the applicant he examined by a
commission in the manner in which the examination of an absent witness
may be taken.
The applicant can be examined regarding the merits of the claim and
pauperism. No other person can be examined on the merits of the claim.
The examination of other persons should be confined to pauperism only as
- indicated in rr. 6, 7.
J0gCUd4W—V,S—E4 46 C 65/
7'
Rejection of application.—The Court shall- rejn
application for permission to sue as apauper-
(a) where it is not framed and presented in th e man ner p rescribed by

rules 2 and 3, or - - -
(b) where the applicant is not a auper, or
(c) where he has, within t o mo next before the presentation of
the a plication, dispose of any property fraudulently or in order
to be able to apply for permission to sue as a pauper, or
290 Or. XXXIII Rr. 5-7 CIVIL PROCEDURE CODE [1908: Act V
(d) where hiss g's do not show ae of actio , or

(e) where he has entered into any agreement with reference to the
subject-matter of the proposed suit under which any other person
has obtained an interest in such subject-matter.
In determining whether there is any cause of action the court may consider
not only the allegation in the plaint but also the statement made by the
applicant in his examination; but it cannot examine witnesses for deciding
the question of limitation or any other question other than the pauperism.
Jogendra -vs- Doorga 46 C 651

Nowab -i's- Harish, 13 CLI 593
Rule-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.
No evidence can be taken on the question of plaintiff's title but only in

respect of his pauperism.
Shau ran -vs- Abdus Sarnad, 45.4 548

Jogendra -b's- Durga. 46, C 651
Form of notice to apposite party for hearing evidence of pauperism, Form

No. 12, App. H, Sch. .1 = H. C. Form No. (P). 3.
Rule-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 applicant
to sue as a pauper.
1908: Act VI CIVIL PROCEDURE CODE Or. XXXIII Rr.7-1O 291
The only matter on which evidence may be taken is the question of

pauperism or otherwise. No evidence can be taken on the question of
plaintiff's title.
Shauran -vs- Abdu.s, 45 A 548;
Jogendra -"s- Du.rga, 45 C. 651;
Kalliani -.'s- Marahil, 53 IC 239
Rule-8:Procedüre if application admitted.—Where the application

.
is granted, it shall be nurnbe ed and registered, and shall be deemed the
plaint in the suj an the_suitshiL proceed in all other respects as a suit
institutdTn the ordinary manner, except thaf 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.
Rule-9: Dispaupering.—The Court may, on the application of the

defendant, or of the Government pleader, of which seven days' clear
notice in writing has been given to the plaintiff, order 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 -teferencé to the
subject-matter of the suit under which any other person has
obtained an interest in such subject-matter.
When plaintiff is aupered he shall he ordered to pay court-fees. See r. II
Costs where pauper succeeds.—Where the plaintiff

succeeds in the suit, the Court sha1.Lcalulate the amount of court-fees
which would have been p aid b y the p !intiff if he had not been permitted
to -sue as a pauper; sue
fro'a?t5T Td red the de to pay the same,
If the plaintiff succeeds the amount ofcourt fee shall be recoverable by the
Government from the party whom the court directs to pay-it may be
plaintiff or defendant-but it shall be a first charge on the subject-matter of
the suit. Thus, if the plaintiff's suit is decreed and the defendant is directed
292 Or. XXXIII. Rr. 1-IA CIVIL PROCEDURE CODE [1908: Act V
to pay the court-fees to Government and costs to the plaintiff and if -in
execution of the decree for costs by the plaintiff, sale proceeds are realised
by attachment and sale of the defendant's property, the Government have a
prior claim for payment of the court-fees out of the sale–proceeds.
Gyanoda -vs- Butto, 33 C 1040

Discretion under this rule is unfettered by any rule and the court may pass
such order as justice requires.
Rohini -vs- Kusum, 55 C 488
Rule-11: Procedure where pauper fails.—Where the plaintiff fails

in the suit or is dispaupered, 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.
The court shall order the plaintiff, or any person added as a co-plaintiff of
the suit to pay the court-fees as were payable by the plaintiff if he had not
been permitted to sue as a pauper.
Withdrawal may be with or without leave under Or. 23 rule I.
Where the suit is settled out of the court and is dismissed at the request of
the parties, it is a "failure' within this rule.
Secretary of State -vs- Narayan, 35 B 448
Rule-11A: 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 Government from the estate of the
deceased plaintiff.
1908: Act V] CIVIL PROCEDURE CODE Or. XXXIII Rr. 12-16 293
Rule-12: Government may apply for payment of court-fees.----

The 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
hA.
Rule-13: Government to be deemed a party.—All matters arising

between the Government and any party to the suit under rule 10, rule 11,
rule I 1A, or rule 12 shall be deemed to be questions arising between the
parties to the suit within the meaning of section 47.
Although section 47 of the Code was omitted by Ordinance XLVIII of

1983, the rule has been left untouched.
Rule-14: Recovery of amount of court-fees.—Where an order is

made under rule 10, rule 11 or rule 1 IA 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.
Rule-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
Government and by the opposite party in opposing his application for
leave to sue as a pauper.
This rule applies to an application which reached the stage mentioned in Or.
33, it 7.
Rcjendra -vs- Tu.stwnovee, 60 C 630
Rule-16: Costs.—The costs of an application for permission to sue

as a pauper and of an inquiry into pauperism shall be costs in the suit.
294 Or. XXXIV Rr. 1-2 CIVIL PROCEDURE CODE [1908: Act V
Order XXXIV
SUITS RELATING TO MORTGAGES OF IMMOVEABLE PROPERTY
Rule-1: Parties to suits for foreclosure, sale and redemption.—

Subject to the provisions of this Code, all persons having an interest either
in the mortgage - security or in the right of redemption shall be joined as
parties to any suit relating to the mortgage.
Explanation—A puisne mortgagee may sue for foreclosure or for sale

without making the prior mortgagee a party to the suit; and a prior
mortgagee need not be joined in a suit to redeem a subsequent mortgage.
See sections 85-90, 92-94, 96, 97 and 99, Transfer of Property Act, 1882
(Act IV of 1882).
The prior mortgagee is not a necessary party in a suit for foreclosure or sale
by a puisne mortgagee.
Gurdeo -vs- Chandrika, 36 C. 193,°
Dehendra -vs- Ramratan, 30 C 599 FB
A puisnee mortgagee is a necessary party to a suit by a prior mortgagee as

he is entitled to redeem and if he is not made a party his right to redeem is
not affected by the decree.
Hetrain -vs- Shadiram, 40 A 407 Pc,.
Umesh _Vs- Zah.ur, 18 C 164 PC
A puisne mortgagee may sue for sale without making a prior mortgagee a
party; if he seeks to redeem a prior mortgage in the suit he. may make hjm a
party.
Sayainali vs- Anisuddin, 50 CLI 152 FB
An outsider who claims a title independently of the rights of the mortgagor

and mortgagee should not be made a party.
Radhakunwar -vs- Reoti, 38 A 488 PC

A question of paramount title ought not to be agitated in a mortgage suit.
Tinka.ri -vs- Narendra, 59 C 548
Rule-2: Preliminary decree in foreclosure suit.—(l) In a suit for

foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary
decree-
1908: Act VI CIVIL PROCEDURE CODE Or. XXXIV R. 2 295
(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
296 Or. XXXIV Rr.23 CIVIL PROCEDURE CODE 111908: Act
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.
Rule 2 was substituted for the original rule by section 4 of the Transfer of
Property (Amendment) Supplementary Act, 1929 (Act XXI of 1929)
A sub-mortgagee may sue for foreclosure to the same extent as the

mortgagee.
Muthu- vs- Venkara, 20 M 35
Zaki -Ps- Deonctth, 10 CLI 470
Form of decree where accounts are directed to be taken, Form No. 3, App.
D, Sch. I = H. C. Form No. (J) 30.
Form where the court declares the amount due, Form No. 3-A, App. D, Sch.
I = H. C. Form (J) 30 (i).
Rule-3: Final decree in forciosure 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
1908: Act VI CIVIL PROCEDURE CODE Or. XXXIV Rr. 3-4 297
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.
Sub-rule (1) enables the mortgagor to pay even after the day fixed for
payment and before the passing of the final decree. It expressly provides
that the mortgagor has to apply for a decree after payment. Sub-rule (3)
makes it clear that the mortgage-debt is not only extinguished, but all
liabilities are discharged.
Form of decree, Form No. 4, App. D, Sch. I = H. C. Form No. (J) 31.
Rule-4: Preliminary decree in suit for sale.—(l) 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 the expenses of the
sale) be paid into Court and applied in payment of what has been found or
declared under or by the preliminary decree due to the plaintiff, together
with such amount as may have been adjudged due in respect of
subsequent costs, charges, expenses and interest, and the balance, if any,
be paid to the defendant or other persons entitled to receive the same.
(2) The Court may, on good cause shown and upon terms to be fixed
by the Court, from time to time, at any time before a final decree for sale
is passed extend the time fixed for the payment of the amount found or
declared due under sub-rule (I) or of the amount adjudged due in respect
of subsequent costs, charges, expenses and interests.
(3) The Court may in its discretion direct in the decree for sale that if
the proceeds of the sale are not sufficient to pay the mortgage debt, the
mortgagor shall pay the balance personally.
Powers to decree sale in foreclosure suit.—(4) 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.
(5) •Where, in a suit for sale or a 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 or Form No.
11, as the case may be, of Appendix D with such variations as the
circumstances of the case may require.
Sub-rule (3) was inserted by rule made by the Calcutta High Court under
Section 122 vide Notification No. 3516-G dated the 3"' February, 1933
published in the Calcutta Gazette dated the 9' February, 1933. Part-I, Page-245.
Sub-rule (3) enables the court, in a case where there are proper materials
before it, to order in the decree for sale that if the sale proceeds are
insufficient to pay the amount due on the mortgage, the mortgagor shall pay
the balance personally.
Sub-rule (I) lays down that the plaintiff has to apply for a final decree.
Suit for sale can only be brought by a simple mortgagee, an English
mortgagee, an equitable mortgagee and the holder of a charge under section
100, Transfer of Property Act. The power to pass a decree for sale in a
foreclosure suit in the case of an anomalous mortgage is contained in sub-
rule (3).
Form of preliminary decree where accounts are directed to be taken, Form

No. 5, App. D, Sch. I = H. C. Form No. (J) 32.
Form of decree where court declares the amount due. Form No. 5A, App.
D, Sch. I = H. C. Form (J) 32 (i).
Form of decree where subsequent incumbrancers are parties, Form No. 9,

10, II, App. D, Sch. I = H. C. Form No. (J) 32 (ii).
Rule —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
1908: Act VJ CIVIL PROCEDURE CODE Or. XXXIV R. 5 299
defendant in this behalf, pass a final decree or, if such decree has been
passed, an order—
(a) ordering the plaintiff to deliver up the documents referred to in

and, if necessary,—
(b) ordering him to transfer the mortgaged property as directed in
the said decree,
and, also, if necessary,—
(c) ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in
pursuance of a decree passed under sub-rule (3) of this rule, the Court
shall not pass an order under sub-rule (1) of this rule, unless the
defendant, in addition to the amount mentioned in sub-rule (1), deposits in
Court for payment to the purchaser a sum equal to five per cent. of the
amount of the purchase money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to
an order for repayment of the amount of the purchase money paid into
Court by him, together with a sum equal to five per cent. thereof.
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.
This rule does not extinguish the right of redemption until the sale is
confirmed.
Kalipada -vs- Basanta, 59 C /17
If the mortgagor pays the amount due into court he has to apply for a re-
transfer and if he pays the amount after sale and before confirmation he has
to apply for an order of retransfer.
Sub-rule (3) provides that if the mortgagor has not paid the amount due, the
mortgagee has to apply for a final decree for sale. Where an application
for final decree is dismissed for default, a.finaldecree must be passed on a
fresh application within the period of limitation, for a suit once decreed
preliminarily cannot be dismissed by the same court.
300 Or. XXXIV Rr.5-6 CIVIL PROCEDURE CODE [1908: Act
Sri raniutu -i's- Sri rarnulu, 56 M 310

Jodha -vs- Goka ran, 47A 546
See also Lachini Narain -vs- Balmukund, 29 CWN 391 PC
Limitation for an application for final decree, see section 181, Limitation
Act.
Form of final decree for sale under Or. 34, r. 5 (3). Form No. 6, App. D,
Sch. I = H. C. Form No. (J) 33.
Form of final decree in a suit for foreclosure, sate or redemption where the
mortgagor pays the amount of the decree, H. C. Form No. (J) 33 (ii).
Rule-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
found insufficient to pay the amount due to the plaintiff, the Court, on
application by him may, if the balance is legally recoverable from the
defendant otherwise than out of the property sold, pass a decree for such
balance.
A mortgage in Bangladesh does not necessarily import a personal obligation

to pay. In such case the question is one of construction of the mortgage
instrument and the personal liability may become barred. A decree for sale
made in a mortgage suit, unless it contains an express admission as to
personal liability, is not in any way an affirmation that such liability exists,
or ever has existed.
Pelt -i's- Gre gor y, 52 C 828 PB
The words, legally recoverable from the defendant otherwise than out of
the property sold," mean that the balance must be a balance which the
mortgagee is not precluded by the terms of the mortgage from realising
otherwise than out of the property sold, or a balance which is not barred by
limitation.
Mu.saheb -i's- Inayarullah, 14 A 513

Rahainar -i's- Abdut 34 C 672
If a mortgagee dies after preliminary decree, a succession certificate is

necessary before a personal decree can be passed.
Sahadev -vs- Sakh.awat, 12 CWN 145

Abdul -vs- Sarva 35 C 767
Form of decree under this rule, Form No. 8, App. D, Sch. I = H. C. Form
No. (J)34
1908: Act VI CIVIL PROCEDURE CODE Or. XXXIV R.7 301
Rule-7: Preliminary decree in redemption suit.—(l) 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, re-
transfer the property to the plaintiff at his cost free from the
mortgage and from all incumbrances created by the defendant
or any person claiming Linder 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 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 mortgaged 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.
From of decree, Forms Nos. 7-7C, App. D, Sch. I = H. C. Form No. (J) 35-
(J) 35 (iii)
Rule-8: Final decree in redemption suit.—( 1 )Where, befdre 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 his 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

and, if necessary,–
(b) ordering him to re-transfer at the cost of the plaintiff the
mortgaged property as directed in the said decree,
and, also, if necessary,–
(c) ordering him to put the plaintiff in possession of the property.
(2) Where the mortgaged property or a part thereof has been sold in
pursuance of a decree passed under sub-rule (3) of this rule, the Court
shall not pass an order under sub-rule (1) of this rule, unless the plaintiff,
in addition to the amount mentioned in sub-rule (1), deposits in Court for
payment to the purchaser a sum equal to five per cent, of the amount of
the purchase-money paid into Court by the purchaser.
1908: Act VI CIVIL PROCEDURE CODE Or. XXXIV Rr.8-9 303
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.
made, the Court shall, on application made by the defendant in this
behalf,–
(a) in the case of a mortgage by conditional sale or of such an
anomalous mortgage as is hereinbefore referred to in rule 7, pass
a final decree declaring that the plaintiff and all persons claiming
under him are debarred from all right to redeem the mortgaged
property and, also, if necessary, ordering the plaintiff to put the
defendant in possession of the mortgaged property; or
(h) in 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.
Form of decree, Form No. 713, 7E, 7F, App. D, Sch. I = H. C. Form Nos. (J).
31 (i), (J) 33 (i), (i) 33 (I).. ..
Rule-8A: Recovery of balance due on mortgage in suit for

redemption.—Where the net proceeds of any sale held under the last
proceeding 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.
Form of decree, Form No. 8, App. D, Sch I = H. C. Form No. (J) 34.
Rule-9: Decree where nothing is found due or where mortgagee

has been overpaid.—Notwithstanding anything hereinbefore contained,
if it appears, upon taking the account referred to in rule 7, that nothing is
due to the defendant or that he has been overpaid, the Court shall pass a
decree directing the defendant, if so required, to re-transfer the property
and to pay to the plaintiff the amount which may be found due to him: and
the plaintiff shall, if necessary, be put in possession of the mortgaged
property.
This rule applies to a case where nothing is found due to the mortgagee or
when he has been overpaid. .
Rule-10: Costs of mortgagee subsequent to decree.—In finally

adjusting the amount to be paid to a mortgagee in case of a foreclosure,
sale or redemption, the Court shall, unless in the case of costs of the suit
the conduct of the mortgagee has been such as to disentitle him thereto,
add to the mortgage-money such costs of the suit and other costs, charges
and expenses as have been properly incurred by him since the date of the
preliminary decree for foreclosure, sale or redemption up to the time of
actual payment.
As to conduct disentitling mortgagee to costs, see
Kuppuswami -vs- Zamindar, 27M 341
Rule-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 mortgagee in respect of such
further costs, charges, and expenses as may be payable under
rule 10.
1908: Act V] CIVIL PROCEDURE CODE Or. XXXIV Rr. 12.14 305
Rule-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.
See section 96, Transfer of Property Act.
Rule-13: Application of proceeds.—(1) Such proceeds shall be

brought into Court and applied as follows:–
first, in payment of all expenses incident to the sale or properly

incurred in any attempted sale;
secondly, in payment of whatever is due to the prior mortgagee on
account of the prior mortgage, and of costs, properly incurred in
connection therewith;
thirdly, in payment of all interest due on account of the mortgage in

consequence whereof the sale was directed, and of the costs of the suit in
which the decree directing the sale was made;
fourthly, in payment of the principal money due on account of that
mortgage; and
lastly, the residue (if any) shall be paid to the person proving himself
to be interested in the property sold, or if there are more such persons than
one, then to such persons according to their respective interests therein or
upon their joint receipt.
(2) Nothing in this rule or in rule 12 shall be deemed to affect the

powers conferred by section 57 of the Transfer of Property Act, 1882.
Persons "interested in the property sold" include subsequent mortgagees
according to their respective priorities.
Padmanabh -vs- Khemu, .18 B 684
Rule-14: Suit for sale necessary for bringing mortgaged property

to sale.—(1) Where a mortgagee has obtained a decree for the payment of
money in satisfaction of a claim arising under the mortgage, he shall not
be entitled to bring the mortgaged property to sale otherwise than by
instituting a suit for sale in enforcement of the mortgage, and he may
institute such suit notwithstanding anything contained in Order II, rule 2.
Or. XXXIV Rr. 14-15 CIVIL PROCEDURE CODE [1908: Act
(2) Nothing in sub-rule (1) shall apply to any territories to which the
Transfer of Property Act, 1882, has not been extended.
This rule does not apply to cases where the sale takes place in execution of
a decree for money upon a claim not arising out of a mortgage.
Jagadish -vs- Bh.ubaneshwar, 27 CWN 37
A sale held in contravention of this rule is not void but voidable.
Asu.tosh vs- Behari, 35 C 61 FB
4^Lle-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 charge within the
meaning of section 100 of the Transfer of Property Act, 1882.
1908: Act V] CIVIL PROCEDURE CODE Or. XXXV Rr. 1-4
Order xXxVf -
INTER PLEADER
laint interpIeaçuis.-1n every suit of interpleader

Ru1je
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 co1hiTon bètween the plaintiff and any of the
defendants.
Form of laint App A, Pleadings, No. 40.
of thing claimed into Court.—Where the thing

Rule zayment
claimed is capif being idinto ourtorplacedin the custody of the
Court, the plaintiff may be required to so pay or place it before he can be
entitled to any o5der in the suit.
Ru! 3: Procedure where defendant is • sujig_p1aintifl —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 so stayed may be provided for in
such suit; but if, and in so far as, they are not provided for in that suit,
they may be added to his costs incurred in the interpleader-suit.
Ruh31dure at first hearing.—(1) At the first hearing the

Court may–
(a) declare that the plaintiff is discharged from all liability to the
defendants in respect of the, thing claimed, award him his , costs,
and dismiss him from the suit; or
(b) if it thinks that justice or convenience so require, retain all
parties until the final disposal of the suit.
(2) Where the Court finds that the admissions of the parties or other
evidence enable it to do so, it may adjudicate the title to the thing claimed.
(3) Where the admissions of the parties do not enable the Court so to
adjudicate, it may direct-
308 Or. XXXV Rr. 4-6 CIVIL PROCEDURE CODE [1908: Act V
(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.
Rule' –1Tgents and tenants may not institute interpleader-

suits.—Nothing in this Order shall be deemed to enable agents to sue their
principals, or tenants to sue their landlords, for the purpose of compelling
them to interplead with any persons other than persons making claim
through such principals or landlords.
ILLUSTRATIONS:
(a) A deposits a box of jewels with B as his agent. C alleges that the
jewels were wrongfully obtained from him by A, and claims them
from B. B cannot institute an interpleader- suit against A and C.
(b) A deposits a box of jewels with B as his agent. He then writes to
C for the purpose of making the jewels a security for a debt due
from himself to C. A afterwards alleges that C's debt is satisfied,
and C alleges the contrary. Both claim the jewels from B. B may
institute an interpleader–suit against A and C.
Rule-6: Charges for plaintiff's costs.—Where the suit is properly

instituted the Court may provide for the costs of the original plaintiff by
giving him a charge on the thing claimed or in some other effectual way.
/
1908: Act VI CIVIL PROCEDURE CODE Or. XXXVI Rr. 1-3 309/
Order XXXVI
SPECIAL CASE
Rule-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
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, moveable or immoveable, 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.
Rule-2: Where value of subject-matter must be stated—Where

the agreement is for the delivery of any property, or for the doing, oi 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.
Rule-3: Agreement to be filed and registered as suit.--(I) 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.
3 10 Or. XXXVI Rr. 4-5 CIVIL PROCEDURE CODE [1908: Act V
Rule-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.
Rule-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 as it thinks fit,–
(a) that the agreement was duly executed by them,

(h) that they have a bona fide interest in the question stated therein,
and
(c) that the same is fit to be decided,
it shall proceed to pronounce judgment thereon, in the same way as in an
ordinary suit, and upon the judgment so pronounced a decree shall follow.
1908: Act VI CIVIL PROCEDURE CODE Or.XXXVII Rr. 1-2 311
Order XXXVII
SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS
Rule-1: Application of Order.—This order shall apply only to the

High Court Division and to the District Court.
Rule-2: Institution of summary suits upon bills of exchange,

etc. (I) 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 not 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 than 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.
This is an enabling rule. Plaintiff has the option to bring a summary suit or a
suit in the ordinary manner.
Form of summons, Form No. 4, App. B, Sch. I = H. C. Form No. (P) 7.
312 Or.XXXVII Rr.3-7 CIVIL PROCEDURE CODE [1908: Act
Rule-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.
As a rule leave should be granted unconditionally if a prima facie case is
shown or a triable issue is raised; but where bona fides is doubted leave
should be conditional.
Peria -vs- Subramania, 1924 M 612
Rule-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.
Rule-5: Power to order bill, etc., to be deposited with officer of

Court.—In any proceeding under this Order the Court may order the bill,
hundi or note on which the suit is founded to be forthwith deposited with
an officer of the Court, and may further order that all proceedings shall be
stayed until the plaintiff gives security for the costs thereof.
Rule-6: Recovery of costs of noting non-acceptance of

dishonoured bill or note.—The holder of every dishonoured bill of
exchange or promissory note shall have the same remedies for the
recovery of the expenses incurred in noting the same for non-acceptance
or non-payment, or otherwise, by reason of such dishonour, as he has
under this Order for the recovery of the amount of such bill or note.
Rule-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.
1908: Act V] CIVIL PROCEDURE CODE Or. XXXVIII R. 1 313
Order XXX VIII

ARREST AND ATTACHMENT BEFORE JUDGMENT
ARREST BEFORE JUDGMENT
Rue-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 Bangladesh under

circumstances affording reasonable probability that the plaintiff
will or may thereby be obstructed or delayed in the execution of
any decree that may be passed against the defendant in the suit,
the Court may issue a warrant to arrest the defendant and bring him
before the Court to show cause why he should not furnish security for his
appearance:
Provided that the defendant shall no be arrested if he pays to the

officer entrusted with the execution of the warrant any sum specified in
the warrant as sufficient to satisfy the 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.
As to the principles to be applied in the exercise of the power under this rule, see
rule 284, C. R. & 0 and para 30, Civil Suit Instructions Manual.
The affidavit filed in support of an application under this rule should he
critically examined.
As to compensation for obtaining arrest on insufficient grounds, see section 95
Form of warrant, Form No. I, App. F, Sch. I = H. C. Form No. (P) 14.
314 Or. XXXVIII Rr. 2-4 CIVIL PROCEDURE CODE [1908: Act V
Rule-2: Security.—(l) 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 bind

himself, in default of such appearance, to pay any sum or money which
the defendant may be ordered to pay in the suit.
If the defendant can give the security himself, he will give it for the claim by
deposit of money or property. Otherwise he will get some one to go bail for
his appearance.
Goldberg -us- Sarojini. 56 C 700
Form of security, Form No. 2, App. F, Sch. I.
Rule-3: Procedure on application by surety to be discharged.—(l)
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 summon
or warrant, or on his voluntary surrender, the Court shall direct the surety
to be discharged from his obligation, and shall cull upon the defendant to
find fresh security.
After discharging the surety the court should give some time to the
defendant to tind . anothe.r surety without ordering his immediate arrest
Gopal -'s-E. 1929 L 163
Form of summons to defendant, Form No. 3, App. F, Sch. I = H. C. Form
No. (P) 15.
Rule-4: Procedure where defendant fails to furnish security or

find fresh security.—Where the defendant fails to comply with any order
under rule 2 or rule 3, the Court may commit him to the civil prison until
the decision of the suit or, where a decree is passed against the defendant,
until the decree has been satisfied:
CIVIL PROCEDURE CODE Or.XXXVIII R.4-5 315
1908: Act V]
Provided that no person shall be detained in prison under this rule in

any case for a longer period than six mon1hs, nor for a longer period than
six weeks when the amount or value of the subject- matter of the suit does
not exceed fifty Taka:
Provided also that no person shall be detained in prison under this
rule after he has complied with such order.
Form of order for committal, Form N/4, App. F, Sch. I.
ATTACHMENT BEFORE JUDGMENT
Rule-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.
As to the principles to be applied in the exercise of the power under this rule,
see rule 284, C. R. & 0 and para 30, Civil Suit Instructions Manual.
In order to apply this rule, the court must be satisfied (I) not only that the
defendant is about to dispose of his property or about to remove it from its
jurisdiction, but (2) also that his object is to obstruct or delay the execution
of any decree that may be passed, and a party must have definite evidence to
satisfy the court and general or vague allegations that the defendant is about
to remove property are insufficient.
3 16 Or. XXXVIII R. 5 CIVIL PROCEDURE CODE [1908: Act V
Ch.andrjka -vs- Hira, 73 IC 721

Badri -Ps- Chokke, 48A 510
Khoka -vs- Ramchandra, 44 IC 240
Senaji -vs- Pannaji, 46 B 431
Uni,nari.ne S.A. Panama -vs- Bangladesh, 3]DLR (AD) 112
Merely because the defendant attempted to sell some property pending the
suit, it does not follow that he had the intention contemplated in the rule.
Nowroji -vs- Deccan Bank Ltd. 45 B 1256
The defendant must have a present intention of disposing of property with

the intent to delay or obstruct execution. The mere fact that in the past he
mortgaged property or otherwise disposed of it would be insufficient.
Man,natha -vs- Nagendra 1926 C 855

Durga -Ps- Na/in, 38 CWN 771
Under this rule the court may direct either to furnish security, or (b) to
appear and show cause why he should not furnish security. It may also in the
order direct a conditional attachment of property. But a conditional order of
attachment cannot be passed sunder sub-rule (3) without an accompanying
order either to furnish security or to show cause.
Abc/ui -vs- Nur 57 IC 907

A conditional order of attachment requires to be made absolute and it may
be passed after the issue of notice under Or. 38 r. 5 (1) and failure to furnish
security or to show cause.
Court cannot attach before judgment property outside the local limits of the
jurisdiction.
Surendra -vs- Bansi, 22 CWN 160

Zubeda -vs- Komanna, 88 IC 430
The attachment of the property can be effected even after passing of the
decree.
Mohiuddin Mo/la -vs- Province of East Pakistan, 14 DLR (SC) 112

The Court's power under this rule is an extraordinary power whereby a party
in the suit may be prevented from use and enjoyment of his own properties
before any decree has at all been passed against him, and when there is no
certainty that a decree will at all be passed against him. This power must,
therefore, be used with utmost caution and should be sparingly exercised.
Sh.ainsul Huda -vs .- Mozaminel Huq, 27 DLR 256
1908: Act VI CIVIL PROCEDURE CODE Or. XXXVIII R. 5-7 317
Form of order to call, for security with or without conditional attachment,

Form No. 5, App. F, Sch. I = H. C. Form No. (P) 16;
Form of security for the production property, Form No. 6, App. F, Sch. I;
Form of attachment in proof of failure to furnish security, Form No. 7, App.
F, Sch. I = H. C. Form No. (P) 17.
Rule-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.
Sub-rule (I) of the rule is applicable after issue of notice under sub-rule (1)
of Order 38, rule 5. There can be no order of attachment before judgment
under this rule until after the defendant has either failed to furnish security or
to show cause.
Abdul -vs- Nur, 57 IC 907

Karnafully Traders Ltd. -vs- Joya Engineering corporation 25 DLR 428
Where a court issues notice upon the defendant to show cause why an
attachment should not issue before judgment and at the same time directs
him not to part with properties in any way such order is not in accordance
with Or. 38, r. 5.
Mahendra -vs- Gurudas, 23 CLI 392
Form of attachment before judgment on proof of failure to furnish security,
Form No. 7, App. F, Sch. I = H. C. Form No. (F) 17.
• Rule-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.
The mode of attachment is the same as in the attachment after decree and
fresh attachment after decree in unnecessary if a conditional attachment has
been made absolute.
Naresh. -vs- Jogesh, 37 CWt'J 1164

318 Or. XXXVIII Rr. 8-11 CIVIL PROCEDURE CODE [1908: Act V
Rule-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 hereinbefore
provided for the investigation of claims to property attached in execution
of a decree for the payment of money.
The same procedures as provided in Or. 21, rr. 58-63 are to be followed.
Sushi vs- Nanda, 48 CLI 594
Rule-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.
When a suit is dismissed, .either on merits or for default, the attachment
ceases automatically although no formal order withdrawing the attachment
has been recorded. It is not revived by the reversal of the decree in appeal or
by restoration.
Abdul -vs- Amin, 45 C 780
Sasirama -vs- Meherban, 13 CLI 243
Sailes -vs- Jai, 871C 756
So also is the case when the suit abates
Jyotish -vs- Hur. 47 CLI 282
Rule-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.
A decree-holder is entitled to have the property attached and sold in spite of
an attachment before judgment by the plaintiff and the latter has no right of
priority.
Bisheswar -vs- Ambika, 37A 575
Sewdut -vs- Sreekanta, 10 CWN 634
Rule-11: Property attached before judgment not to be re-attached

in execution of decree.—Where property is under attachment by virtue of
the provisions of this Order and a decree is subsequently passed in favour
of the plaintiff, it shall not be necessary upon an application for execution
of such decree to apply for a re-attachment of the property.
1908: Act VI CIVIL PROCEDURE CODE Or. XXXVIII Rr. 11-13 319
Fresh attachment is not necessary in execution after decree when there is an

attachment before judgment, but, in order to render fresh attachment
unnecessary a conditional attachment under Or. 38, rule 5(3) is required to
be made absolute.
Naresh -vs- Jogesh, 37 CWN 1/64
Although fresh attachment after decree is not required, an application for
execution under Or. 21, rule 11 must be filed as usual.
Rule-12: Agricultural produce not attachable before judgment.—

Nothing in this Order shall be deemed to authorize 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.
Rule-13 Small Cause Court not to attach immoveable

property.— Nothing in this Order shall be deemed to empower any Court
of Small Causes to make an order for the attachment of immoveable
property.
320 Or. XXXIX Rr. 1 CIVIL PROCEDURE CODE [1908: Act V
Order XXXIX
TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

TEMPORARY INJUNCTIONS
Rule-1: Cases in which temporary injunction may be
granted.—Where in any suit it is proved by affidavit or otherwise–
(a) that any property in dispute in a suit is in danger of being wasted,

damaged or alienated by any party to ' thesuit, 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 and preventing
the wasting, damaging, alienation, sale, removal or disposition of the
property as the Court thinks fit, until the disposal of the suit or until
further orders.
(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.
Sub-rules (2) and (3) were added by rule made by the Calcutta High Court
under section 22, vide Notification No. 3516-G dated the 3" February, 1933
published in the Calcutta Gazette dated the 9" February 1933 Part-I, Page-
245.
As to the principles governing the granting of temporary injunction, see para
31, Civil Suit Instructions Manual and rule 273, C.R. & 0. See also
instructions in Chapter XLV of the Report of the Civil Justice Committee
reproduced in the Civil Suit Instructions Manual, Pages-42-45.
An injunction under this rule cannot be issued to a court but only to a party
Sant -vs- Ishar, 51IC 108
1908: Act Vi CIVIL PROCEDURE CODE Or. XXXIX Rr. 1-2 32 1
No injunction against a person not a party to the suit can be granted. Court
has no power to issue a temporary injunction to restrain the defendant form
executing a decree lawfully obtained by him.
Varada -vs- Narsi,th.a, 92 IC 615
In granting temporary injunction the court will first see that there is a
bonafide contention between the parties, and then on which side, in the event
of obtaining a successful result of the suit, will be the balance of
inconvenience if the injunction do not issue bearing in mind the principle of
retaining immovable property in status quo.
f3egg Dunlop & Co. -vs- Satish, 46 C 1001
Krishna -vs- Hem, 21 CLI 462
Durgadas -i's- Na/in, 6] C814
Three will-established principles governing the grant of temporary
injunction are, first, the plaintiff must establish a prima facie case; secondly,
it must be shown that the plaintiff will suffer irreparable injury if the
injunction prayed for is not granted; and, lastly, the balance of convenience
lies in favour of the plaintiff and in favour of granting the temporary
injunction prayed for.
Mosamnniat Avmnun Nassa -vs- Md. Obaic/ul Haque, 35 DLR 25
Abdul
x ia/il Munshi -Ps- Abu. Bakar Sic/clique, 35 DLR (AD) 43
Election tribunals cannot be regarded as "civil courts' as contemplated under

the Code of Civil Procedure. As such, the Election Tribunals are not
competent to grant temporary injunction under Order 39 of the Code.
Md. Sharifidla -vs- Election -Tribunal, 31 DLR / 19
Form of temporary injunction, Form No. 8, App. F, Sell = H. C. Form No.
(P) 18.
Rule-2: Injunction to restrain repetition or continuance of

breach.— (I) 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
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
relating 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, giving Security or
otherwise, as the Court thinks fit.
322 Or. XXXIX Rr. 2- CIVIL PROCEDURE CODE 11908: Act V
(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 he 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.
(4) No attachment under this rule shall remain in force for more than
one yew-, at the end of which time, if the disobedience or breach
continues, the property attached may be sold, and out of the proceeds the
Court may award such compensation as it thinks fit, and shall pay the
balance, if any, to the party entitled thereto.
The words, or other injury of any kind," hi sub-rule (1) mean any legal injury
or wrongful act other tlian that arising from hrcach of contraci, e. g ., trespass to
of
property, or cases tort.
Rule-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 a debt in respect of which the goods
were pledged with any bank, the Court may, where it appears that the
object of granting injunction would be defeated by the delay. dispense
with such notice.
As a rule notice must be given to the opposite party unless the matter is so
urgent that injunction would be defeated by the delay or irreparable
mischief might ensue if injunction was delayed.
Hari Pandurang -vs- Sec'y of Slate, 27 B 424
Dr A hat! Ali KIia,i. -vs- Eizavet UI/a/i Main/al, /6 DLI? 4
Gaiswldin Ahmed -i's- Pi-aejuce at East Pakistan, 17 DLR 611
A/ia Mozaiftir Mutual/i -i's- Sasanka Sekhar 18 DLR 166
- Rule-4: Order for in 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.
Rule-5: Injunction to corporation binding on its oflicers.—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.
1908: Act V] CI\'IL PROCEDURE. CC) Dr; Or. XXXIX Rr. 6-8 323
I
INTERLOCUTORY ORDERS
Rule-6: Power to order interim sale.—Thc Court may. on the

application of any party to a Suit, order the sale, by any person named in
such order, and in sLich manner and on such terms as it thinks fit, of any
moveable 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.
Rule-7: Detention, preservation, inspection, etc., of subject-

matter of suit.—( 1) The Court may, oil application on 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:
(h) for all or any of the purposes aiorcsaicl authorize any person to
enter upon or into any land or building in the possession of any
other party to such suit: and
(c) for all or any of the purposes aforesaid authorize any samples to
be taken, or any observation to be made or experiment to he 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, nuUaiis

,nuu,iidis, to persons authorized to enter under this rule.
Under itilS rule, the court ma'' make an order for inspection of a house to
determine the alleged damage or alleged in 10 it or to determine its age
all
or to prepare or to produce the property pledged.
Dhoroney - ys- Radlia, 24 C. 117

A,iijad -i's- Ali, 15 CWN $53
Ainti/va -I'S- AI?UII(I(I, 37 CWN 143
Girt /70/a -vs- I','Ok(t,S/I, 49 CLI 484
,Iite,idia -iv- AsIioIe,$O CLJ 64
Rule-8: Application for such orders to he 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.
324 Or.XXXIX Rr.8-10 CIVIL PROCEDURE CODE [1908: Act
(2) An application by the defendant for a like order may be made

after notice to the plaintiff at any time after appearance.
Rule-9: When party may be put in immediate possession of land

the subject-matter of suit.—Where land paying revenue to Government,
or a tenure liable to sale, is the subject-matter of a suit, if the party in
possession of such land or tenure neglects to pay the Government
revenue, or the rent due to the proprietor of the tenure, as the case may be,
and such land or tenure is consequently ordered to be sold, and 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
Curt orders, in any adjustment of accounts which may be directed in the
decree passed in the suit.
Rule-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.
This rule applies only when the party making the admission holds the
property or other thing which the party in whose favor the order is made,
seeks to have delivered to him.
Raja Parthasarathi -vs- Raja Rangiah, 27 M. 168.

1908: Act VI CIVIL PROCEDURE CODE Or. XL R.1 325
^0
.16

Order XL 99'
APPOINTMENT OF RECEIVERS
Where it appears to the

Court to be just and!enie t, 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, management, protection,
prrviton 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 authorize the Court to remove from the
possession or cLlstody of property any person whom any party to the suit
has not a present right so to remove.
A receiver may be appointed even in proceedings other than a suit.
Ascict -vs- Mohaininad, 43 C 986
"Just and convenient" mean that the court should appoint a receiver for the
protection of property or prevention of injury, according to legal principle,
and not because the court simply thinks convenient to do so.
Hahthulla vs- Abtia, 23 CLI 567

He,ne,iclra -vs- Prakash, 35 CWN 1066
As to the principles to be applied in the exercise of the power,

Beiwy -.'s- Satis, 55 C 720
Prosonnomoyi -vs- Beni, 5 A 556
Satya -vs-. Rani, 18 CWN 537,
Alkaina -i's- Syeci, 29 CW/V 836
The receiver is the servant of the Court.
Manick -vs- Surrat, 22 C 648

326 Or. XL Rr. 1-3 CIvIL PROCEDURE CODE I I9V
The receiver is a pur)Iic oflicei

J(Iç'Cl(/iX -i'X- DCi7(/211dI(_I, 5$ C $50
Si nce
the receiver is merely an officer o the court, he cannot sue or he sued
Without the leave of the court appointing him.
lU/i//er -tv- Ra,Iirw,fuIl., /0 C. 1014
A receiver appointed with power under clause (d) cannot be sued without
notice under section 80.
.Iat(td,s -vs- De/,e,,dra.5$' C 850
Property in the hands of a receiver cannot be attached without previous

leave.
Khan -vs- il/i. /6 B 577
"Remove any person" refers to a person other than the receiver. It refers to
persons in possession of the property prior to the order appointing a receiver.
Sri pail -vs- Bibhuti, 53 C 3 / 9
Form of appointment of receiver, Form No. 9, App. F, Sch. I = H. C. Form

No. (.1) 24.
Ru1e/tiiei.atioiFhe Court may by g eneral or special order

fix the amount to be paid as remuneration for the set-vices of the receiver.
Rule— : Duties.—Every receiver so appointed shall—

(a) furnish such security (if any) as the Court thinks fit, duly to
account for what he shall receive in respect of the property;
(b) submit his accounts at such periods and in such form as the Court
directs;
(c) pay the amount due from him as the Court directs; and
(ci) be responsible for any loss occasioned to the property by his wilful
default or gross negligence.
The court has a discretion to appoint receiver without security, but it should
be done in most exceptional cases.
Brij Inilar -vv- .101 /iidar 36 CWN $82 PC
Form of bond, Form No. 10, App. F, Sch. I = H. C. Form No. (M) 25.
1908: Act Vi CIVIL PROCEDURE CODE Or. XL Rr.4-5 27
Rule-4ement of receiver's duties.—Where a receiver—

fails to submit his accounts at such periods and in such form as the
Court directs, or
c fails to pay the amount due from him as the Court directs, or
occasions loss to the property by his WilifLil default or gross
negligence,
the Court may direct his property to he attached and may sell such
property, and may apply the proceeds to make good any amount found to
he due from him or any loss occasioned by him, and shall pay the balance
if any) to the receiver.
The provision for attachment implies that it is the only way for enforcement
of receiver's liability and an order for arrest or imprisonment is illegal.
Guniini fri/ic - 'v- Ra,nn,s warn i, 193/ IV! 760
Rule– When Collector may be appointed receiver.—Wherc the

property is land paying revenue to the Government, or land of which the
revenue has been assigned or redeemed, and the Court considers that the
interests of those concerned will he promoted by the management of the
Collector, the Court ma y , with the consent of the Collector, appoint him
to he receiver ot such property.
328 Or. XLI Rr. 1-2 CIVIL PROCEDURE CODE [1908: Act V
Order XLI
Rule-1: Form of appeal. What to accompany memorandum.--(I)

Every appeal shall be preferred in the form of a memorandum signed by
the appellant or his pleader and presented to the COurt or tdücofficei-
as it appoints in this behalf. The memorandum s a e accompanied by a
copy of the decree appealed from and (unless the Appellate Court
dispenses therewith) of the judgment on which it is founded.
Contents of memorandum.—(2) 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.
Memo, of appeal must be presented in open court. It cannot be sent by post.

See also rules 10 and 286, C. R. & 0. Section 5, Limitation Act applies in
case of an appeal but an appeal presented after expiry of the period of
limitation should not be admitted without notice to all parties concerned.
Headers presenting momorendurn of appeal must append a certificate, see
rr. 286 - 288 C.R. & 0. and 292– 306, C. R. & 0.
Rule-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 con!id to the
grounds of objection set forth in the memorandum of appeal or taken by
leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground
unless the party who may be affected thereby has had a sufficient
opportunity of contesting the case on that ground.
The appellant must not be permitted to make out a new case or a case
different from and inconsistent with the case set up in the lower court.
iflh/Ur -vs- Radha, 19 C 507 PC

The question of limitation may be allowed to be argued though not raised
before when the point arises on the face of the plaint-and no question of fact
has to be enquired into.
Balarain -vs- Man gta, 34 C 941 SB
1908: Act Vi CIVIL PROCEDURE CODE Or. XLI Rr. 3-5 329
/Rule-3: Rejection or amendment of memorandum.—(I) Where

the memorandum of appeal is not drawn up in the manner hereinbefore
prescribed, it may be rejected, or be returned to the appellant for the
purpose of being amended within a time to be fixed by the Court or be
amended then and there.
(2) Where the Court rejects any memorandum, it shall record the
reasons for such rejection.
(3) Where a memorandum of appeal is amended, the Judge, or such

officer as he appoints in this behalf, shall sign or initial the amendment.
Rule-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.
The object of rule 4 is to enable one of the parties to a suit to obtain relief in
appeal when the decree appealed from proceeds on a ground common to
him and others. The court may reverse or vary the decree in favor of all the
parties who are in same interest as the appellant.
Ratanlal -vs- Lalinon, 1970 SC 108
Appeal by one of several plaintiffs is competent.
Mohabir -vs- Jage, 1971 SC 742
STAY OF PROCEEDINGS AND OF EXECUTION
Rule-5: Stay by Appellate Court.—(1) An appeal shall not operate

as a stay of proceedings under a decree or order appealed from except so
far as the Appellate Court may order, nor shall execution of a decree be
stayed by reason only of an appeal having been preferred from the decree;
but the Appellate Court may for sufficient cause order stay of execution
of such decree.
330 Or. XLI R. 5 CIVIL PROCEDURE CODE [1908: Act V
Stay by Court which passed the decree.—(2) 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 tinder sub-rule (1)
or sub—rule (2) unless the Court making it is satisfied—
(a) that substantial loss may result to the party applying for stay of
execution unless the order is made;
(b) that the application has been made without unreasonable delay
and
(C) that security has been given by the applicant for the due
performance of such decree or order as may ultimately he binding
upon him.
(4) Notwithstanding anything contained in sub-rule (3), the Court

may make an ex purre order for stay of execution pending the hearing of
the application.
This rule applies to stay by appellate court of execution Ofa decree appealed
from or stay by the trial court of execution of an appealable decree.
An appellate court may stay proceedings in execution of a decree when an

appeal has been preferred from the decree, but it has no jurisdiction to stay
execLition of a decree when an appeal is preferred from an order, e.g.. an
order rejecting an application under Order 9, rule 13.
Bhcigit;at -vs- She goiain., 31 C 1081

Appellate Court has no jurisdiction to stay execution on the assurance of a
pleader that an appeal will be filed and at that stage the application shOL11(i be
made under sub-rule (2) to the Court which passed the decree and without
unreasonable delay:
Purshoran -vs- Ha,'u. 43 A 131
C/wrturhhttj -i's- Boscieo, 25 CWN 928
An order by an appellate Court staying execution becomes operative the

moment it is passed and a sale held before communication of the order to the
executing court is invalid.
1-Itikani -vs- Kanwianand, 33 CWN 927
1908: Act V] CIVIL PROCEDURE CODE Or. XLI Rr. 5-7 331
Where after filing of appeal no order staying execution of the decree was
made, the executing court on its 0WI1 can not stay execution of decree which
will be beyond its jurisdiction.
Mrs. S. Nurwi Nahar Beç'uin. -vs- Secv, Deft'nce, 28 DLR 309
Court making oil under this rule call or very it at any time.
Amir vs- Ah,ned, 9 A 36
Form of security bond, Form No. 2, App. G, Sell. I=H. C. Form No. (M) 26.
Rule--6: Security in case of order for execution of decree appealed

frorn.—( 1) Where an order is made for the execution of a decree from
which an appeal is pending, the Court which passed the decree shall, on
sufficient cause being shown by the appellant, require security to be taken
for the restitution of any property which may be or has been taken in
execution of the decree or for the payment of the value of such property
and for the due performance of the decree or order of the Appellate Court,
or the Appellate Court may for like cause direct the Court which passed
the decree to take such security.
(2) Where all 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.
This rule applies only where (I) an order has been made for the execution of
the decree or (2) all is pending from that decree.
The appellate court can not pass all under this rule for stay until an
order has been made for the execution of the decree.
Janardan -vs- Niikanth. 25 B 583
Sub-rule (2) makes it clear that the power of staying sale of immovable
property is exercisable by the court which passed the decree.
Ha.r Narain -vs- Sadhu, 54 A 874
Form of security bond, Form No. 3, App. G, Sch. 1=14. C. Form No. (M) 27.
Rule-7: Repealed by A. 0., 1937
C.
Rule-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.
This rule applies to cases where a person does not object to a decree but
appeals from an order passed in execution of that decree.
Pasupati -"s- Nancict 28 C 734
PROCEDURE ON ADMISSION OF APPEAL

/
'i Rule-9: Registry of memorandum of appeal.--(]) Where a
memorandum of appeal is admitted, the Appellate Court or the proper
officer of that Court shall endorse thereon the date of presentation, and
shall register the appeal in a book to be kept for the purpose.
Register of appeals.–(2)Such books shall be called the Register of

Appeals.
Form of Register of appeal, Form No. 15, App. H, Sch. I = H. C. Form Nos.
(R) 6(i), (R) 6(u), (R) 6(iii).
Rule-10: Appellate Court may require appellant to furnish

/
ecurity for costs. Where appellant resides out of Bangladesh43
The Appellate Court may, in its discretion, either before the respondent is
called upon to appear and answer or afterwards on the application of the
respondent, demand from the appellant security for the costs of the
appeal, or of the original suit, or of both:
Provided that the Court shall demand such security in all cases in
which the appellant is residing out of Bangladesh, and is not possessed of
any sufficient immovable property within Bangladesh other than the
property (if any) to which the appeal relates.
Where such security is not furnished within such time as the

Court orders, the Court shall reiect the appeal..
This rule applies not only to appeals from substantive decrees, but also to
appeals from interlocutory orders under section 104.
Dagdu -vs- Chandrahhan, 24 B 314

Form of security of costs of appeal, Forni No. 4, App. C, Sch. 1= H.C. Form
No. (M) 28.
1908: Act VI CIVIL PROCEDURE CODE Or. XLI Rr. 11-13 333
A,eRule-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) [f 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.
Dismissal of an appeal under sub-rule (I) is a decree.
A hap - s- Jam.sur, 30 CWN 334
A summary dismissal under sub-rule (I) does not dispense with the writing
of ajudgrnent in accordance with Or. 41, r.31 which controls this rule.
Surendra - ys- Raghuna.rh, 27 CWN 501,
Hardasi -vs- Gadadhar, 43 CLI 499
Bipin -vs- Jogenclra, 65 IC 479
\/"Rule_.12: Day for hearing appeal.—( 1) Unless the Appellate Court

dismisses the appeal under rule 1.1, it shall fix a day for hearing the appeal.
(2) Such day shall he fixed with reference to the current business of
the Court, the place of residence of the respondent, and the time necessary
for the service of the notice of appeal, so as to allow the respondent
sufficient time to appear and answer the appeal on such day.
See also rule 291,C.R. & 0.
Rule-13: Appellate Court to give notice to Court whose decree

appealed from.--(I) Where the appeal is not dismissed under rule I!,
the Appellate Court shall send notice of the appeal to the Court from
whose decree the appeal is preferred.
Transmission of papers to Appellate Court.–(2) 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 as may
be specially called for by the Appellate Court.
Copies of exhibits' in Court whose decree appealed from.-.-(3)

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.
For procedure for transmission of record from the Record Room, see rule
454, C. R. & 0.
Form of notice, Form No. 5, App. G, Sch I;
Form of letter advising dispatch of record, H. C. Form No. (M) II;
Form of letter to accompany record, H. C. Form No. (M) 12.
Rule-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 shaiLbe sent by the Appellate
Court to the Court from whose decree the appeal is preferred, and shall be
served on the respondent in the manner provided for the service on a
defendant of a summons to appear and answer. Simultaneously with the
issue of such summons a copy of the notice shall be served by registered
post with acknowledgement due addressed to the respondent and all the
provisions applicable to summons upon a defendant in a suit, and to
proceedings with reference to the service thereof, shall apply to the
service of such notice.
Appellate Court may itself cause notice to be served.–(2) 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.
(3) It shall be in the discretion of the Appellate Court to make an

order, at any stage of the appeal whether on its motion, or ex pane,
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:
Provident that–
(a) The Court may require notice of the appeal to be published in any
newspaper or newspapers as it may direct.
(b) No such order shall preclude any such respondent or legal
representative from appearing to contest the appeal.
1908: Act VI CIVIL PROCEDURE CODE Or. XLI Rr. 1447 335
Sub-rule (3) was inserted by rule made by the Calcutta High Court under
section 122 by Notification No. 10428-G dated the 25' July, 1928 published
in the Calcutta Gazette dated the 2' August, 1928 Part-I, Page- 1643.
Rules relating to service of notice, etc., issued by the High Court Division,
see rules 86-90, C. R. & 0.
Form of notice to respondent. Form No. 6, App. G, Sch. I =H.C. Form No.
(P) SI. Form of report to the High Court Division of SCFVICC of notice to
respondent, H. C. Form No. (J) 42. -
Rule-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.
15A. Where, after admission of an appeal in the High Court Division,

the rules of the High Court Division rquire the appellant to take any steps
in the prosecution of the appeal, an j,the appellant fails to take such steps
within the time allowed or extended under the said rules, the Court, may
direct the appeal to be dismissed for want of prosecution or may pass such
other order as it thinks fit.
This rule was added by the Dhaka High Court vide notification No. 4497 C
dated the 6' June, 1952, published in the Dhaka Gazette, 1952, Part-I Page-
264.
PROCEDURE ON HEARING
RuIe-16: Right to begin.---(I) 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.
RuIe-17: Dismissal of appeal for appellant's default.----(I) Where

on the clay fixed, or on any other day to which the hearing may be
adjourned , the appellant does not appear when the appeal is called on for
hearing, the Court may make an order that the appeal be dismissed.
Hearing appeal ex parte.– (2) Where the appellant appears and the
respondent does not appear, the appeal shall be heard ex parte.
Where the appellant does not appear the court is authorized to dismiss the
appeal for default, but it has no power to decide the appeal on merits in his
absence.
Ta her -i's- Otaruddi, 56 C 412
Rule-18: Dismissal of appeal where notice not served in

consequence of 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.
Rule-19: Re- admission of appeal dismissed for default.----(I)

Where an appeal is dismissed under rule 11, sub-rule (2), or rule 15A or
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.
(2) Provisions of section 5 of the Limitation Act, 1908 shall apply to
applications under sub-rule (1).
Rule-20: Power to adjourn hearing and direct persons 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.
This rule applies not only to case where the court itself discovers the defect
but also to cases where the appellant applies for addition of party.
Chirajdin -;s- Samanda, 1926 L 689
The power of the appellate court to make a person who was a party to the
proceedings in the court below to be added as a party is not affected by any
rule of limitation.
Girish -i's-Sasi, 33 C 929
1908: Act VI CIVIL PROCEDURE CODE Or.XLI Rr.20-22 337
Form of notice to a party to a suit not made a party to the appeal, Form No.
7, App. G, Sch. I = H. C. Form No. (P) 52.
Rule-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 terns as to costs or otherwise as it thinks fit to
impose upon him.
V!€ u62:Upon hearing respondent may object to decree as if he

had preferred separate appeal.—(l) 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
AppetCourt may see fit to allow.
eZ^"Form of objection and provisions applicable thereto.-2) 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 a written

acknowleigement 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
objecn, on such party or his pleader at the expense of the respondent.
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.
338 Or.XLI Rr.22-23 CIVIL PROCEDURE CODE [1908: Act
If no cross-objections are filed at all by a respondent, the appellate court has

no power to grant any relief to him in a case where the granting of such
relief is not necessarily incidental to the relief granted to the appellant.
Casperz -vs- Kishori, 23 C 922 PC

Cross- objection raising a question as between co- respondents inter se is
not permitted.
Co-operative H. Bank -vs- Surendra, 26 CWN 263
Form of memo. of cross-objection, Form No. 8, App. G, Sch. I.
Remand of case by Appellate Court.—Where the Court

from whose decree an appeal is preferred has disposed of the suit upon a
preliminary point and the decree is reversed in appeal, the Appellate
Court may, if it 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.
The evidence recorded in the original trial can be used during the trial after
remand. There can be no remand under this rule unless the following
conditions exists:—
(a) the disposal of the suit, i.e., the entire suit and not a portion of it, by the
lower court,
(b) disposal must be on a preliminary point ; and
(c) reversal of the decree by the appellate court.
Even if a suit is decided on a preliminary point, it is further necessary to
find that the preliminary point has been wrongly decided before a remand
can be made.
Ban wan -vs- Saininan II A 488
Jawahir -vs- Fa.teh, 1926 Patna 5/4
Gaindo -vs- Radhe 1932 L 219
Haliballah -vs- Latta, 34 A 612
Where a suit is decided on several preliminary points the appellate court
should not make an order of remand after deciding only one of the
preliminary points. All preliminary points should be decided.
B.N. Railway -vs- Behani 52 C. 783

1908: Act Vi CIVIL PROCEDURE CODE Or. XLI Rr. 23-24 339
Where all evidence has been duly placed before the trial court and it has
decided the suit on merits on the several issues involved, the appellate court
has no power to remand. If it does not agree with the decisions, it must
come to proper findings of its own, but it is a shirking of duty and entirely
wrong to send the case on remand.
Pramatha -vs- Nagendra, 33 CWNI2I

Muzhar -vs- Bociha, /7A 112 PC
Injad -vs- Mohini, 27 CWN 1025
A remand order should not be lightly made if the evidence on the record is
sufficient for the appellate court to decide the question itself.
Promoth.o Naili Chowclhttry -vs- Kamir Ma,IdaI, 17 DLR sc 392
A case should not be remitted for a new trial to enable a party to prove the
existence of an agreement in writing which was essential to his case and
which he had failed to do during the hearing.
Emanuel Grech -vs- Antonio Grich, 6 DLR PC 598
Remand cannot be allowed to bring a position which would change the

nature and character of the suit.
Ha ran Chandra Do radi -vs- EjIia r Mo i/a 36 DLR 41
The appellate court has also inherent power (section 15]) to remand a suit
for the ends of justice even though a suit has not been disposed of on a
preliminary point.
Ghuzna'i -vs- Allahaclbad Bank, 44 C 929 FB

Brij fader -vs- Kanshi, 45 C 94 PC
Bhairab - y.v- Kali, 37 CU 491
Rule-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.
Where all the evidence is on the record, the appellate court is competent to
determine the suit finally although the suit has been decided on a
preliminary point. There is no need for a remand under Or. 41, r. 23
Bandi -vs- Madalapalli, 3 M 96

The rule does not enable an appellate court to declare a right in favor of a
party where no issue has been framed on the point, and the right has not
been set up in the lower court.
Official Trustee -vs- Krishna, 12 C 239 PC
Rule-25: Where Appellate Court may frame issues and refer

them for trial to Court whose decree appealed from.—Where the
Court from whose decree the appeal is preferred has omitted to frame or
try any issue, or to determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit upon the merits,
the Appellate Court may, if necessary, frame issues, and refer the same
for trial to the Court from whose decree the appeal is preferred, and in
such case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the
evidence to the Appellate Court together with its findings thereon and the
reasons therefor.
Under this rule specific issues are sent to the trial court for findings and not
to retry or decide the case. After the return of the findings, the appeal is to
be heard under Or. 41, r. 26.
If the appellate court is of opinion that a particular issue should be framed
and tried or that certain findings of fact are necessary for the proper
disposal of an appeal and that further evidence should be taken on these
points, the proper procedure is to make an order under this rule and not
remand the whole case.
Mansur A 1 -vs- Jainiran, 44 CLI /01
Rakhit -vs- Puddo 9 CWN 54
Krishna vs- Manindra, 1926 C 954
RuIe-26: Findings and evidence to be put on record. Objections

to finding.—( 1) Such evidence and findings shall form part of the record
in the suit; and either party may, within a time to be fixed by the
Appellate Court, present a memorandum of objections to any finding.
Determination of appeal.–(2)After the expiration of the period so

fixed for presenting such memorandum the Appellate Court shall proceed
to determine the appeal.
1908: Act VJ CIVIL PROCEDURE CODE Or.XLI R.27 341
Rule-27: Production of additional evidence in Appellate

Court.—(l) 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 orany
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.
This rule should he read with rules 28 and 29. The admissibility of additional
evidence under this rule depends not upon the relevancy or materiality of the
evidence sought to he admitted or upon the fact whether or not the applicant had
an opportunity of adducing it at some earlier stage, but upon whether or not the
appellate court requires the evidence to enable it to pronounce judgment or for
any other substantial cause.
In re Premlal, 21 C 484
It must he the court that requires the additional evidence though the defect may
he pointed out by a party or a party may move the court to supply the defect.
The legitimate occasion for the use of additional evidence is when on examining
the evidence as it stands, some inherent lacuna or defect becomes apparent, not
when a discovery is made of fresh evidence.
Parsotim, -vs- Lalrnohon, 35 CWN 786 PC
Kessowji -i's- G. I. PR. II CWN 721 PC
Bank of Bengal -L's- Lucas, 54 C 185
The essential condition in which the appellate court may allow additional
evidence is that the evidence was not available at the trial and that reasonable
diligence would not have made it available.
Kesar Mal, -vs- N.K. V. Valiappa Chetiar 7 DLR PC /
Production of additional evidence in appellate court is permissible when it was
not available to the party in spite of reasonable diligence and also that it was
likely to have a determining influence on the court.
Cecil Weldon, Andrew -vs- Helen. Andrew 9 DLR 682 PC
Order 41 rule 27 provides that the party to an appeal shall not he entitled to
produce additional evidence, whether oral or documentary, in the appellate
342 Or.XLI Rr.27-31 CIVIL PROCEDURE CODE 11908: Act
court. This is a general provision prohibiting admission of additional evidence at

the appellate stage. This general provision has been relaxed in certain
circumstances. One such circumstance is that if the court from whose decree the
appeal has been preferred has refused to admit the evidence, which is sought to
he admitted.
Ibrahim -s- Abbas Sheikh. 16 DLR 65
See also Abdul Latif -vs- A yesha Beguin, 25 DLR 108
Mon.tar Uilah -vs- Farat U/ia/i. 26DLR 31
Azizur Rahinan -i's- The Burma Oil Co. 13 DLR 458
Sunil Krishna Biswas -i's- Kalilash Ch. Sen, -36 DLR, AD, 220
Rule-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.
Rule-29: Points to be defined and recorded.—Where additional

evidence is directed or allowed to be taken, the Appellate Court shall
specify the points to which the evidence is to be confined, and record on
its proceedin g s the points so specified.
JUDGMENT IN APPEAL
Rule-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 the 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.
A definite date should be fixed for delivery of judgment if not pronounced

after conclusion of argument and notice of the date should be given to the
parties or pleaders. The practice of reserving judgment without fixing a
certain day for its pronouncement is not permissible.
See also para 29 (I) and (2), Civil Suit Instructions Manual.
Rule-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) the decision thereon;
1908: Act VI CIVIL PROCEDURE CODE Or. XLI Rr. 31-32 343
(c) the reasons for the decision; and,

(d) where the decree appealed from is reversed or varied, the relief to
which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the
Judge or by the Judges concurring therein.
See also rules 136-153, C. R. & 0. and para 29, Civil Suit Instructions
Manual.
It is imperative that the appellate court should state the reasons for its
decision.
Santish war -vs- Lakhikanta, 13 CWN 177
Reasons should be stated not only when the decree is set aside or varied but
even when it is confirmed.
Rani -b's- Brojo, 25 C 97
Nitva -Ps- Nani, 35 CWN 660
The court of appeal should have indicated briefly the reasons for dismissing
an appeal.
Mohd. Sagir Bhatti -vs- Federation of Pakistan, 10 DLR Sc 169
The appellate court whether reversing or affirming a decree of the trial court
must arrive at its own independent findings on the issues involved in the
case.
Mah.eruddin Khair -vs- Jogendra Kishore, 27 DLR 398
Law enjoins that the appellate court must give reasons whether affirming or
reversing a finding and it is more so, when the appellate court is reversing it.
Md. Ibrahim -vs- Md. Alauddin, 27 DLR 413
Only to say that "the appeal is dismissed with costs," or "appeal rejected," "I
see no reason to differ from the finding of the lower court" is no judgment in
accordance with law, in such case the decree should be set aside and the case
remanded for disposal of the appeal according to law.
Ra,ni -vs- Brojo, 25 C. 97
Sah.arulla -us- Bangoo, 13 CWN 143
Saravana -us- Sesha, 31 M. 469 FB
Rule-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 agree as to the form which the
decree in appeal shall take, or as to the order to be made in appeal, the
Appellate Court may pass a decree or make an order accordingly.
Rule-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 favor of X. It has power to
pass a decree against Y.
By this rule, the appellate court has been given the fullest power to do
complete justice between the parties, though the appeal does not extend to
the whole of the decree and though some of the parties appeal and others do
not. The court has ample power to pass such order as may be necessary for
the ends of justice and when so doing a party who has not appealed may be
benefited by the order.
Naresh - ps- Hyc/er, 49 CLI 83
Tricamcia.s -vs- Gopinath, 44 C 759 PC
But the power must be exercised in the interest of and for the furtherance of
justice, and not as a mode of evading other statutory rules and orders.
Bhu.tnath -vs- Sashimukhi, 30 CWN 885
Rule-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
Rule-35: Date and contents of decree.—(1) The decree of the

Appellate Court shall bear date the day on which the judgment was
pronounced.
1908: Act V] CIVIL PROCEDURE CODE Or.XLI Rr.35-37 345
(2) The decree shall contain the number of the appeal, the names and
descriptions of the appellant and respondent, and a clear specification of
the relief granted or other adjudication made.
(3) The decree shall also state the amount of costs incurred in the
appeal, and by whom, or out of what property, and in what proportions
such costs and the costs in the suit are to be paid.
(4) The decree shall be signed and dated by the Judge or Judges who
passed it:
Judge dissenting from judgment need not sign decree.–Provided

that where there are more Judges than one and there is a difference of
opinion among them, it shall not be necessary for any Judge dissenting
from the judgment of the Court to sign the decree.
See also rules 1.54 to 163, C. R. & 0.
Rule-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.
Rule-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.

3 4 Or.XLII R. I CIVIL PROCEDURE CODE [1908: Act V
Order XLII
APPEALS FROM APPELLATE DECREES
Rule—I: Procedure.—The rules of Order XL1 shall apply, so far as

may be, to appeals from appellate decrees.
1908: Act Vi CIVIL PROCEDURE CODE Or. XLIII R. 1 347
Order XLIII
APPEALS FROM ORDERS
Rule—I.: Appeals 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 1.3 of Order IX rejecting an application (in a
case open to appeal) for an order to set aside a decree passed ex
pa rte,
(e) an order 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;
(Ii) an order under rule 20 of Order XVI pronouncing judgment
against a party;
(i) an order under rule 34 of Order XXLon an objection tothe draft of
a document or of an endorsement;
(i) an order under rule 57 of Order XXI, directing that an attachment
shall cease or directing or omitting to direct that an attachment
shall continue;
(ii) an order under rule 60 of Order XXI releasing a property from
attachment;
(iii) an order under rule 61 of Order XXI disallowing a claim to
property attached;
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;
348 Or. XLII Ri-. 1-2 CIVIL PROCEDURE CODE [1908: Act V
(1) 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 mortgage-money;
(p) orders in interpleader- suits under rule 3, rule 4 or rule 6 of Order
XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 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 the High Court Division
refusing the grant of a certificate under rule 6 of Order XLV;
(w) an order under rule 4 of Order XLVII granting an application for
review.
Rule- i(a) has been inserted by rule made by the calcutta High Court under
section 122 vide Notification No. 3516-G, dated the 3"' February, 1933,
published in the Calcutta Gazette dated the 9"' February 1933, Part-I, Page- 245,
Rule-2: Procedure.—T-he rules of Order XLI shall apply, so far as

may be, to appeals from orders.
This rule should be read with section 104 which enumerates other
appealable orders.
In view of clause (a) no appeal lies against an order of an appellate court
returning a "memo of appeal" for presentation to the proper court—an appeal
lies when a "plaint" is returned.
Rcighunath -vs- Shamo, 31 C. 344
Nuruddin -vs- Pran 40 A 659
CIVIL PROCEDURE CODE Or. XLIV Rr. 1-2 349
1908: Act V]
Order XLIV
PAUPER APPEALS
Rule-1: Who may appeal as pauper.—Any person entitled to

prefer an appeal, who is unable to pay the fee required for the
memorandum of appeal, may present an application accompanied by a
memorandum of appeal, and may be allowed to appeal as a pauper,
subject, in all matters, including the presentation of such application, to
the provisions relating to suits by paupers, in so far as those provisions are
applicable:
Procedure on application for admission of appeal.—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.
The proviso is imperative and the appellant must satisfy the court on the
points stated therein.
Vidyabanti -vs- Jai, 1925 L 391
Form of application, Form No. 10, App. G, Sch I

Form of notice of appeal, Form No. II, App. G, Sch I = H. C. form No. (P) 50.
Rule-2: Inquiry into pauperism.—The inquiry into the pauperism

of the applicant may be made either by the Appellate Court or under the
order 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 his pauperism shall be necessary, unless the
Appellate Court sees cause to direct such inquiry.
350 Or.XLV Rr. 1-5 CIVIL PROCEDURE CODE [1908: Act V
Order XLV
APPEALS TO THE APPELLATE DIVISION
Rule-1: "Decree" defined.—In this Order, unless there is something

repugnant in the subject or context, the expression "decree" shall include
a final order.
Rule-2: Application to Court whose decree complained

of.—Whoever desires to appeal to the Appellate Division shall apply by
petition to the Court whose decree is complained of.
Limitation is six months from the date of decree under article 179,
Limitation Act. Under section 12, Limitation Act the time required for
obtaining copy of judgment is to be excluded.
Rule-3: Certificate as to value or fitness_( I) Every petition shall

state the grounds of appeal and pray for a certificate either that, as regards
amount or value and nature, the case fulfils the requirements of section
110, or that it is otherwise a fit one for appeal to the Appellate Division.
(2) Upon receipt of such petition, the Court shall direct notice to be
served on the opposite party to show cause why the said certificate should
not be granted.
Rule-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 jud g ments shall not be consolidated,
notwithstanding that they involve substantially the same questions for
determination.
"Judgment" under this rule refers to the judgment appealed against

and not the judgment of the trial court.
Rule-5: lemission of dispute to Court of first instance.—In the

event of any dispute arising between the parties as to the amount of 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
Appellate Division, 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
1908: Act V] CIVIL PROCEDURE CODE Or. XLV Rr.5-8 351
of first instance, which last-mentioned Court shall proceed to determine

such amount or value and shall return its report together with the evidence
to the Court by which the reference was made.
Rule-6: Effect of refusal of certificate.—Where such certificate is

refused, the petition shall be dismissed.
Rule-7: Security and deposit required on grant of

certificate.—(1) Where the certificate is granted, the applicant shall,
within six weeks from the date of the grant of the certificate or such
further period as the Court may upon cause shown allow except when the
Government is the applicant--
(a) furnish security in cash or in Government securities for the costs

of the respondent except when the Government is the applicant,
and
(b) deposit the amount required to defray the expense of translating,

transcribing, indexing, printing and transmitting to the Appellate
Division a correct copy of the whole record of the suit, except,–
(I) formal documents directed to be excluded by any RLIIC of the
Appellate Division 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 Division 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.
"Date of the decree" means the date on which the decree is pronounced and
not the date on which it is signed.
Hareiulrci -vs- Hariciasi, 14 CWN, 20
Rule-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-
352 Or.XLV Rr. 8-1.1 CIVIL PROCEDURE CODE [1908: Act V
(a) declare the appeal admitted,

(b) give notice thereof to the respondent,
(c) transmit to the Appellate Division under the seal of the Court a
correct copy of the said record, exbept as aforesaid, and
(d) give to either party one or more authenticated copies of any of the
papers in the suit on his applying therefor and paying the
reasonable expenses incurred in preparing them.
•Rule-9: Revocation of acceptance of security.—At any time before

the admission of the appeal the Court may, upon cause shown, revoke the
acceptance of any such security, and make further directions thereon.
Rule-9A: Power to dispense with notices in case of deceased

parties.—Nothing in these rules requiring any notice to be served on or
given to an opposite party or respondent shall be deemed to require any
notice to be served on or given to the legal representative of any deceased
opposite party or deceased respondent in a case, where such opposite
party or respondent did not appear either at the hearing in the Court whose
decree is complained of or at any proceedings subsequent to the decree of
that Court:
Provided that notices under sub-rule(2) of rule 3 and under rule 8 shall
be given by affixing the same in some conspicuous place in the Court-
house of the Judge of the District in which the suit was originally brought,
and by publication in such newspapers as the Court may direct.
Rule-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 Appellate Division, 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. ..
Rule-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
Appellate Division,
1908: Act VI CIVIL PROCEDURE CODE Or. XLV Rr. 11-14 353
and in the meantime execution of the decree appealed from shall not
be stayed.
Rule-12: Refund of balance deposit.—When the copy of the record,

except as aforesaid, has been transmitted to the Appellate Division, the
appellant may obtain a refund of the balance (if any) of the amount which
he has deposited under rule 7.
Rule-13: Powers of Court pending appeal.—(l) 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 moveable 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 Appellate Division 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 Appellate Division 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.
Rule-14: Increase of security found inadequate.—(I) Where at any

time during the pendency of the appeal the security furnished by either
party appears inadequate, the Court may, on the application of the other
party, require further security.
(2) In default of such further security being furnished as required by

the Court,–
(a) if the original security was furnished by the appellant, the Court
may, on the application of the respondent, execute the decree
appealed from as if the appellant had furnished no such security;
(b) if the original security was furnished by the respondent, the
354 Or. XLV Rr. 14-16 CIVIL PROCEDURE CODE [1908: Act V
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.
Rule-15: Procedure to enforce orders of the Appellate Division.—

(1) Whoever desires to obtain execution of any order of the Appellate
Division 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 Appellate Division was preferred.
(2) Such Court shall transmit the order of the Appellate Division to
the Court which passed the first decree appealed from, or to such other
Court as the Appellate Division by such order may direct, and shall (upon
the application of either party) give such directions as may be required for
the execution of the same; and the Court to which the said order is so
transmitted shall execute it accordingly, in the manner and according to
the provisions applicable to the execution of its original decrees.
(3) When any monies expressed to be payable in British currency are

payable in Bangladesh under such order, the amount so payable shall be
estimated according to the rate of exchange for the time being fixed at the
date of the making of the order for the adjustment of financial transactions
between the Government and His Majesty's Government in the United
Kingdom.
(4) Unless the Appellate Division is pleased otherwise to direct, no

order of the Appellate Division 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 oxder shall have the same force and
effect as if it had been made before the death took place.
Rule-16: Appeal from order relating to execution.—The orders

made by the Court which executes the order of the Appellate Division,
relating to such execution, shall be appealable in the same manner and
subject to the same rules as the orders of such Court relating to the
execution f its own decrees.
1908: Act VI CIVIL PROCEDURE CODE Or. XLVI Rr. 1-4 355
Order XLVI
REFERENCE
Rule-1: Reference of question to High Court Division.—Where,

before or on the hearing of a suit or an appeal in which the decree is not
subject to appeal, or where, in the execution of any such decree, any
question of law or usage having the force of law arises, on which the
Court trying the suit or appeal, or executing the decree, entertains
reasonable doubt, the Court may, either of its own motion or on the
application of any 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 the decision of the High Court
Division. .
There can be no reference in a proceeding other than a suit or an appeal in a Suit.
Damodar -vs- Kitrappa, 56 M 16
Tancred -vs- Mullick, 1925 C 391
Rule-2: Court may pass decree contingent upon decision of High

Court Division.—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 Division 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 Division upon the reference.
Rule-3: Judgment of High Court Division to be transmitted, and

case disposed of accordingly.—The High Court Division, 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 Division.
The court making the reference cannot allow a party to withdraw a suit instead
of disposing of the case in accordance with the judgment of the High Court
Division.
Yule and Co. -vs- Mahomed, 24 C 129
Rule4: Costs of reference to High Court Division.—The costs (if
any) consequent on a reference for the • decision of the High Court
Division shall be Costs in the case.
356 Or. XLVI Rr. 5-7 CIVIL PROCEDURE CODE [1908: Act V
Rule-5: Power to alter, etc., decree of Court making reference.—

Where a case is referred to the High Court Division under rule 1, the High
Court Division 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.
Rule-6: Power to refer to High Court Division questions as to

jurisdiction in small causes.—(l) 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 Division 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 Division
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.
Rule- .7: Power to District Court to submit for revision

proceedings had under mistake as to jurisdiction in small causes.--(I)
Where it appeairs 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 ncitto 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 Division 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 Division
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 Division under this rule, the High Court
Division may make such order as in the circumstance appears to it to be
just and proper.
(4) A Court subordinate to a District Court shall comply with any

requisition which the District Court may make for any record or
information for the purposes Of this rule.
The word "shall" in sub-rule (I) is mandatory.
Suresh -vs- Kristo Ran gini, 21 C 249
1908: Act V] CIVIL PROCEDURE CODE Or.XLVII R. 1 357
Order XL VII
REVIEW
Rule-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 frohi

which no appeal has been preferred,
(b) by a decree or order form which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within his knowledge
or could not be produced by him at the time when the decree was passed
or order made, or on account of some mistake or error apparent on the
face of the record, or for any 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 except where the ground of such appeal is common to
the applicant and the appellant, or when, being respondent, he can present
to the Appellate Court the case on which he applies for the review.
This rule should be read with section 114.

Any person aggrieved by a decree or order, or decision specified in clauses
(a), (b), or (c) of sub-rule (I) may apply for a review on any of these
grounds:—
(I) 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 was
made;
(2) mistake or error apparent on the face of the record; or
(3) for any other sufficient reason.
It has been held by the Judicial Committee that the words, "any other
sufficient reason," mean a reason sufficient on grounds at least analogous to
those specified immediately previously, viz., (1) or (2).
Chhajurci;n -vs- Neki, 26 CWN 697 PC

3 5 8 Or. XLVII Rr. 1-2 CIVIL PROCEDURE CODE [1908: Act V
Review application should be filed before the appeal is lodged.
Secreta.y of State -vs- Hiridustan, I. Co., 36 CWN 40

An appeal may be filed after an application for review, but once the appeal is
heard the review cannot be proceeded with.
Pyari -vs- Kalu, 44 C 1001

A review is incompetent after appeal is preferred.
Indrajit -vs- Pratap, 2 Patna 675

Pandu -vs- Devji, 7 B 287
Rule-2: To whom applications for review may be made.—An

application for review of a decree or order of a Court, not being the High
Court Division, 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), be disposed of by his
successor.
In the case of a decree passed by a Judge other, than the High Court
Division–,
(I) If the review is sought on grounds other than the grounds specified in
this rule, the application must be made to the very judge who passed the
decree and not to his successor.
Sarangapari -vs- Narayanasami, 8 M 567

but such an application may be disposed of by his successor, provided that
the Judge who passed the decree has ordered notice to issue under Or 47,
rule 4, proviso (a)
Gaizpat -vs- Jivan, 16, B 603
(2) If the review is sought on the grounds mentioned in this rule viz.
discovery of new matter or clerical or arithmetical mistake or error
apparent on the face of the record, the application may be made to the
Judge who passed the decree or his successor-in-office.
Kathyum.ma -vs- Muhammad, 1926 M. 1083
In the case of a decree passed by a High Court Division Judge, the review
application may be made to that Judge or his successor–in–office whatever
may be the grounds on which the review is sought.
1908: Act V1 CIVIL PROCEDURE CODE Or.XLVII Rr.3-6 359
Rule-3: Form of applications for review.—The provisions as to the

form of preferring appeals shall apply, mutatis mutandis, to applications
for review.
Rule-4: Application where rejected.—l) Where it appears to the

Court that there is not sufficient ground for a review, it shall reject the
application.
Application where granted.– (2) 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) so 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.
A review application may be summarily rejected under sub-rule (I). No.
review can be admitted without notice which is imperative.
Abdul -vs- Hem, 42 C 433
Rule-5: Application for review in Court consisting of two or

more Judges.—Where the Judge or Judges, or any one of the Judges,
who passed the decree or made the order, a review of which is applied for,
continues or continue attached to the Court at the time when 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 hear the application, and
no other Judge or Judges of the Court shall hear the same.
The rule is imperative. An application for review preferred to a District

Judge cannot be transferred to an Additional District Judge. If the District
Judge is transferred, his successor can hear the application.
Bansidhar -vs- Ratanlal, 1930 A 785
Rule-6: Application where rejected.—( l) Where the application

for a review is heard by more than one Judge and the Court is equally
divided, the application shall be rejected.
360 Or. XLVII Rr. 69 CIVIL PROCEDURE CODE [1908: Act V
(2) Where there is a majority, the decision shall be according to the

opinion of the majority.
Rule-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 consequence of the

failure of the applicant to appear, he may apply for an order to have the
rejected application restored to the file, and, where it is proved to the
satisfaction of the Court that he was prevented by any sufficient cause
from appearing when such application was called on for hearing, the
Court shall order it to be resorted to the file upon such terms as to costs or
otherwise as it thinks fit, and shall appoint a day for hearing the same.
(3) No order shall be made under sub-rule (2) unless notice of the
application has been served on the opposite party.
Rule-8: Registry of application granted, and order for re-

hearing.—Where 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.
Where a review is granted for additional evidence, neither party will be
allowed to adduce evidence which was available and which with reasonable
diligence could have been produced at the first trial.
Bh.ainrarn. -vs- Ambika, 53 C 856
Rule-9: Bar of certain applications.—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.
1908: Act VJ CIVIL PROCEDURE CODE Or. XLVIII Rr. 1-3 361
Order XL VIII
MISCELLANEOUS
Rule-1: Process to be served at expense of party issuing.—(1)

Every process issued under this Code shall be served at the expense of the
party on whose behalf it is issued, unless the Court otherwise directs.
Costs of service.– (2) The court fee chargeable for such service
shall be paid when the process is applied for, or within such time, if any,
as the Court may, when ordering its issue, fix for the purpose.
The words, "when the process is applied for, or within such time, if any, as
the Court may, when ordering its issue, fix for the purpose," in sub-rule (2)
were substituted for the words, "within a time to be fixed before the process
is issued" by rule made by the Calcutta High Court under section 122 vide
Notification No. 1154-G dated the 17' January, 1934 published in the
Calcutta Gazette dated the 25" January, 1934, Part-I, Page- 149.
See register in Form No. (R) 37, C. R. & 0. Vol. II
Rule-2: Orders and notices how served.—All orders, notices and

other documents required by this Code to be given to or served on any
person shall be served in the manner provided for the service of summons.
Rule-3: Use of form in appendices.—The forms given in the

appendices or such other forms as may be prescribed by the High Court of
Judicature at Fort William in Bengal, with such variation as the
circumstances of each case may require, shall be used for the purposes
therein mentioned.
The words, "or such other forms as may be prescribed by the High Court of
Judicature at Fort William in Bengal", were inserted by rule made by the
Calcutta High Court under section 122 vide Notification No. 7987-G, dated
the 18" April, 1935 published in the Calcutta Gazette dated the 25" April,
1935, Part-I, Page-776.
The words, "High Court of Judicature at Fort William in Bengal," in this

rule should probably be substituted by the words, "Supreme Court," by
amendment.
362 Or. XLIX Rr. 1-2 CIVIL PROCEDURE CODE [1908: Act V
Order XLIX
HIGH COURT DIVISION
Rule-1: Who may serve processes of High Court Division.—

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 Division, and of its matrimonial, testamentary and
intestate jurisdictions, except summonses to defendants, writs of
execution and notices to respondents may be served by the advocates in
the suits, or by persons employed by them, or by such other persons as the
High Court Division, by any rule or order, directs.
Rule-2: Saving in respect of High Court Division.—Nothing in

this schedule shall be deemed to limit or otherwise affect any rules in
force at the commencement of this Code for the taking of evidence or the
recording of judgments and orders by the High Court Division.
Rule-3: Application of rules, - The following rules shall not apply

to High Court Division in the exercise of its ordinary or extraordinary
original civil jurisdiction, namely—
(1) rule 10 and rule 11, clauses (b) and (c), of order VII;
(2) rule 3 of order X;
(3) rule 2 of order XVI;
(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the
manner of taking evidence) of Order XVIII;
(5) rules I 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 XLI shall not apply to the High Court Division in
the exercise of its appellate jurisdiction.
1908: Act V] CIVIL PROCEDURE CODE Or. L Or. LI R. 1 363
Order L
SMALL CAUSE COURTS
Rule-1: Small Cause Courts.—The provisions hereinafter specified

shall not extend to Courts constituted under the Small Causes Courts Act,
1887. or to Courts exercising the jurisdiction of a Court of Small Causes
under the said Act, that is to say—
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 immoveable property or the
interest of a partner in partnership property;
(iii) the settlement of issues; and
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 XVIII, rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Orders XLVII, rules 2, 3, 5, 6, 7 (review);
Order Ll.
Order LI
Presidency Small Cause Courts.—Omitted by A. 0. 1949.
364 CIVIL PROCEDURE CODE [1908: Act
THE FIRSTSCHEDULE. APPENDiX-A —PLEADING (Title of Suits
Description of Parties in Particular Cases)
APPENDIX A
PLEADINGS
(1) Titles of Suits
IN THE COURT OF
A. B. (add description and residence) .. .. .. .. .. Plaintiff

against
C. D. (add description and residence) .. .. .. .. .. Defendant.
(2) Description of Parties in Particular Cases

[Bangladesh) -
The Advocate General of -
The Collector of -
2 ***
The A.B. Company, Limited, having its registered office at
A. B. a public officer of the C.D. Company.
A. B. (add description and residence), on behalf of himself and all other

creditors of C.D., late of (add description and residence).
A. B. (add description and residence), on behalf of himself and all other

holders of debentures issued by the Company, Limited.
The Official Receiver
A. B., a minor (add description, and residence), by C.D. for by the Court of
Wards], by C.D., his next friend.
A. B., (add description and residence), a person of unsound mind [or of weak
mind], by C. D., his next friend.
A. B., a firm carrying on business in partnership at
A. B. (add description and residence) by his constituted attorney C.D. (add

description and residence).
A. B. (add description and residence), Shehait of Thakur.

A. B. (add description and residence), executor of C.D., deceased.
A. B. (add description and residence), heir of C.D., deceased.

1908: Act Vi CIVIL PROCEDURE CODE 365
THE. FIRSTSCHEDULE. APPENDIX-A —PLEADING (Title of Suits
Description of Parties in Particular Cases. Plaints)
(3) Plaints
No.1
MONEY LENT
(Title)
A. B., the above-named plaintiff, states as follows:-
1. On the ..........................day of.................19 , he lent the defendant

[Taka] repayable on the .............................day of ........................................
2. The defendant has not paid the same, except ..........................[Takai paid
onthe ..........................day of..........................19 ............................
[if the plaintiff claims exemption from any law of'limitation, say:-]
3 The plaintiff was a minor [or insane] from the ...........................day of

........till the ..........................day of...........................
4. [Facts showing when the cause of action arose and that the Court has
Jurisdiction.]
5. The value of the subject-matter of the suit for the purpose of jurisdiction is
........[Taka] and for the purpose of court-fees is ..........................[Taka].
6. The plaintiff claims ..........................[Thka], with interest at ...................

percent from the ..........................day of .......................... 19 ...........................
No.2
MONEY OVER PAID

(Title)
A. B., the above-named plaintiff, states as follows:—
I. On the ..........................day of ..........................19 , the plaintiff agreed

to buy and the defendant agreed to sell ..........................bars of silver at
[Taka] per tola of fine silver.
2. The plaintiff procured the said bars to be assayed by E.F., who was paid
by the defendant for such assay, and E.F.declared each of the bars to contain 1,500
tolas of fine silver, and the plaintiff accordingly paid the defendant ...............[Taka].
3. Each of t he said bars contained only 1,200 tolas of fine silver, of which
fact the plaintiff was ignorant when he made the payment.
4. The defendant has not repaid the sum so overpaid.

[As in paras 4 and 5 of From No. I, and Relief claimed]
366 CIVIL PROCEDURE CODE [1908: Act V
THE FIRST SCHEDULE. APPENDIX-A -PLEADING (Plaints)
No.3
GOODS SOLD AT A FIXED PRICE AND DELIVERED

(Title)
I. On the .................................day of ...........................19 , E.F. sold and

delivered to the defendant [one hundred barrels of flour, or the goods mentioned in
the schedule hereto annexed, or sundry goods].
2. The defendant promised to pay ..........................[Taka] for the said goods

on delivery [or on the ..........................day of ........................... some day before the
plaint was fled].
3. He has not paid the same.
4. E. F. died on the ..........................day of .......................... 19 . By his last

will he appointed his brother, the plaintiff, his executor.
[As in paras 4 and 5 of form No. 1]
7. The plaintiff as executor of E.F. claims [Relief claimed]..
No.4
GOODS SOLD AT A REASONABLE PRICE AND DELIVERED

(Title)
1. On the ..................................day of ................................. 19 , plaintiff sold

and delivered to the defendant [sundry articles of house-furniture], but no express
agreement was made as to the price.
2. The goods were reasonably worth ........... . .............. [Taka] .........................
3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. I, and Relief claimed]
No.5
GOODS MADE AT DEFENDANT'S; REQUEST, AND NOT ACCEPTED

(Title)

1908: Act V] CIVIL PROCEDURE CODE 367
THE FIRST SCHEDULE. APPENDIX-A —PLEADING (Plaints)
1. On the ..........................day of ..........................19 , E.F. agreed with the

plaintiff that the plaintiff should make for him [six tables and fifty chairs] and that
E.F. should pay for the goods on delivery ..........................[Taka]
2. The plaintiff made the goods, and on the ................day of ...............19

offered to deliver them to E.F., and has ever since been ready and willing so to do.
3. E.F., has not accepted the goods or paid for them.
No.6
DEFICIENCY UPON A RE-SALE [GOODS SOLD AT AUCTION]

(Title)
1. On the ..........................day of ..........................19 , the plaintiff put up at

auction sundry [goods], subject to the condition that all goods not paid for and
removed by the purchaser within [ten days] after the sale should be re-sold by
auction on his account, of which condition the defendant had notice.
2. The defendant purchased [one crate of crockery] at the auction at the price
of ..........................[Taka].
3. The plaintiff was ready and willing to deliver the goods to the defendant
on the date of the sale and for [ten days] after.
4. The defendant did not take away the goods purchased by him, nor pay for
them within [ten days] after the sale, nor afterwards.
5. On the ..........................day of ..........................19 , the plaintiff re-sold

the [crate of crockery], on account of the defendant, by public auction, for
..........[Taka] ..........................
6. The expenses attendant upon such re-sale amounted to ...................[Take].
7. The defendant has not paid the deficiency thus arising, amounting to
..........[Taka] ..........................


THE FIRST SCHEDULE. APPENDIX-A —PLEADING (Plaints)
No.7
SERVICES AT A REASONABLE RATE

(Title)
1. Between the ..........................day of 19 , and the ....................day of 19

at . .......... plaintiff /executed sundry drawings, designs and diagrams] for the
defendant, at his request; but no express agreement was made as to the sum to be
paid for such service.
2. The services were reasonably worth ..........................[Takal.
[As in paras 4 and 5 of Form No. 1, and Relif claimed]
No.8
SERVICES AND MATERIALS AT A REASONABLE COST

(Title)
I. On the ..........................day of ..........................19 , at ......the plaintiff

built a house [known as No........in..........], and furnished the materials therefor, for
the defendant, at his request, but no express agreement was made as to the amount to
be paid for such work and materials.
2 The work done and materials supplied were reasonably worth

......[Taka].
fAsin paras, 4 and 5 of Form No. 1, and Relief claimed]
No.9
USE AND OCCUPATION

(Title)
A. 9., the above-named plaintiff, executor of the will of X.Y., deceased, states
as follows:— .
1. That the defendant occupied the [house No . ............ Street], by permission

of the said X.Y., from the ........day of .......19, until the .............day of ...............19
and no agreement was made as to payment for the use of the said premises.
1908: Act V I CIVIL PROCEDURE CODE 369
Tiii En? .srS( f/rr)CLL. .4 PPENDIX-A - Pt j: 11)/Vt (P/u/nix)
2. That the usc 01 ' 01C said premises for the said period was rcasonahly worth
.........[Takal.
[As in pa,ii.s. 4 and 5 of Form No. /I

6. The plaintilT as executor ol ' X.Y.. claims [Relief'claimcd.I.
No. 10
ON AN AWARD
(Title)
A. B., the above-named plaintiff, states as lollows:-
On the ..........................day of .......................... I 9 , the plaintiff and

defendant, having a difference between them concerning [a demand of the plaintiff
for the price of ten barrels of oil which the defendant refused to pay], agreed in
writinIz to submit the difference to the arbitration of E.F. and G.H., and the original
document is annexed hereto.
2. On the .............day of ..............19, the arbitrators awarded that the

defendant should [pay the plaintiff ...........................Taka}.
I Ax in parax 4 and 5 of Form No. I, and Relief claimned/

No. 11
ON A FOREIGN JUDGMENT
(Title)
On the ..........................day of ..........................19 , at in the State or

Kingdom I. of ..
............the Court of that State l ot- Kingdom , in a suit therein
pending between the plailititi and the defendant, duly adjudged that the defendant
should pay 10 the plainti IT .......................... I Taka I. with interest from the said date.
As it, /)(!I'(IS 4 coldS of Form No. I, cuid Relief claimed!

370 CIVIL PROCEDURE CODE 1190: Act V
Tin, Fut.s7' S(7IED OLE. A PPENfflX-A —PLEADING ('Plainis)
No. 12
AGAINST SURITY FOR PAYMENT OF RENT

(Title)
A. B., the above-named plaintiff states as follows:—

I. On the ..........................day of ..........................19 , E.F. hired from the
plaintiff for the term of ................years, the [house No . ...... Street], at the annual
rent of ..........................jTaka[, payable [monthly],
2. The defendant agreed, in consideration of the Jetting of the premises to
E.F., to guarantee the punctual payment of the rent.
3. The rent for the month of .................19 , amounting to ..................[Taka},
has not been paid.
I it by the terms of the agreement, notice is required to be given to the surety, add:-]
4. On the .....................day of ....................19 , the plaintiff gave notice to
the defendant of the non-payment of the rent, and demanded payment thereof.
5. The defendant has not paid the same.

lAs in paras 4 and 5 of Form No. / and Relief claimnedl
No. 13
BREACH OF AGREEMENT TO PURCHASE LAND

(Title)

1. On the .....................day of .....................19 , the plaintiff and defendant
entered into an agreement, and the original document is thereto annexed.
[Or, on .....................the day of .....................19 the plaintiff and defendant
mutually agreed that the plaintiff should sell to the defendant and that the defendant
should purchase from the plaintiff forty highas of land in the village of .....................
br .....................[Taka].
2. On the .....................day of .....................19 , the plaintiff, being then the
absolute owner of the property [and the same being free from all incumbrances as
was made to appear to the defendant], tendered to the defendant a sufficient
instrument of transfer of the same [or, was ready and willing, and is still ready and
willing, and offered, to transfer the same to the defendant by a sufficient instrument]
on the payment by the defendant of the sum agreed upon.
[As in paras 4 and 5 of Form No I and Relief claimed]
190: Act VI CIVIL PROCEDURE CODE 371
TIlE FlI?siSCWEDULE. APPENDIX-A —PLEADING (Plaints)
No. 14
NOT DELIVERING GOODS SOLD

(Title)
A. B., above-named plaintiff, states as follows:—
I. On the .....................day of .....................19 , plaintiff and defendant

mutually agreed that the defendant should deliver [one hundred barrels of flour to
the plaintiff on the ...........................day of .....................19 , and that the plaintiff
should pay therefor ..................... [Taka . 1 on delivery.
2. On the Isaid] day the plaintiff was ready and willing, and offered, to pay
the defendant the said sum upon delivery of the goods.
3. The defendant has not delivered the goods, and the plaintiff has been
deprived of tile profits, which would have accrued to him from such delivery.
[As in para,s- 4 and 5 0/' Form No. I, and Relief claimed I
No. 15
WRONGFUL DISMISSAL
(Title)
I. On the .....................day of .....................19 , the plaintiff and defendant

mutually agreed that the plaintiff should serve the defendant as ]an account, or in the
capacity of foreman, or as the case may be], and that the defendant should employ
the plaindff as such for the tcrnl of lone year] and pay him for his services
I TakaI [nlonth ly .1.
2. On the .........day of ........19 , the plaintiff entered upon the service of the
defendant and has ever since been, and still is, ready and willing to continue in such
service during the remainder of the said year whereof the defendant always has had
notice.
3; On the .....................day of .....................19 , the defendant wrongfully

discharged the plaintiffs, and refused to permit him to serve as aforesaid, or to pay
ilirn for his services.
[As in paras 4 and 5 of Form No. I, and Relief claimed I

Ti/i; FIRs'7'.S iii;in 'Li;. /l pp EA'DJ.v-/l —Pi.i;jni.v; (I'la(ni.v)
No. 16
BREACH OF CONTRACT TO SERVE

(Title)
A. B., the above-named plaintiff, states as to!lows:-
On the .............day of .............1 9, the plaintiff and defendant mutually

agreed that the plaintiff should employ, the defendant at an lannual I salary of ITakal,
and that the defendant shoti Id serve the plaintiff as Ian artist] for the term 01 [One
yearl.
2. The plaintiff has always been ready and willing to perform his part of the
agreement I and oil .....................day ol .....................1 9 , offered so to do I.
3. The defendant [entered upon the service of the plaintiff on the above-
mentioned day, hut afterwards on the ..............................day of .......................19
he refused to serve the plaintiff as atoresaid.
lAs in pains 4 and 5 of Form No. I, and Relief claimed I
No. 17
AGAINST A BUILDER FOR DEFECTIVE WORKMANSHIP

(Title)
A. B., the ahove-named plaintiff, states as follows:—
I . Oil the .....................day of .....................19 , the plaintiff and defendant

entered into an agreenlent, and the oriiinal document is hereto annexed. br state
the tenor of the <o,,tractb
12. The plaintiff duly performed all the conditions of the agreement on his
part. I
3. The defendant Ihuilt the house referred to in the agreement in a had and
u n work man like manner].
I As in pala.s 4 aitd5 of Form No. I, and Relief claimed]

'171/: FIR.vr,S' 'I-IL/it I.E. ,IPPEJVDLV-/I —l'/,LAI)LVC (l'lainix)
No. 18
ON A BONE) FOR THE FIDELITY OFACLERK

(Title)
A. B., the above-named plaintiff, states as jo! lows:—
On the .....................day of .....................19 . the plainti [I ' Look E.F., into

his employment as a clerk.
2. In consideration thereof'. on tile .....................day of ..................... I 9

the de!cndant agreed with the plaintiff that if' E.F. should not laithiully perlorm his
dillies asaclerk to the plainlill, or should fail to account to the plainti! For all
monies, evidences OF debt or other property received by him for the use of the
piai Ilti 1 .1. . the defendant would pay to the p1 ai nti If whatever loss he might sustain by
reason tliereoI. not exceedillg .....................[Takal.
0,', 2. In consideration tileI'Col, the defendant by his bond ol the saIlle date
llmscl If ' to pay the plaintiff the penal sim ui ..................... I Taka I, subject to
hoLlnd himsel
the condition that if' E.F. should faith lu! ly perform his duties as clerk and cashier to
the illailitill and should jilstiy account to tile plaintili l'or all Il1011iCS. evidences 01.
debt or other property which should silou Id he at any time held by him in trust for the
p I a ill tilt, the bond should he void.]
I Or 2. In consideration thereol, 00 tile same date the defendant executed a holld

ill favour of tile plaint i fl. and the original docil mclii is hereto an nexed. I
3. Between the .....................day of ..................... 19 . and the ....................

day ui .....................19 . E.F. received money and other property alllolllltillg to the
he
valuc of .....................ITakal. 101' tile use of tile plailltilt, For which 50111 has not
accounted to hi Ill, and tile SUI11C still renlaills due and unpaid.
I As in paras 4 a105 oj Foriii No./, and Relief c.'lainiedl
No. 19
BY TENANT AGAINST LANDLORD. WITH SPECIAL DAMAGE

(Title)
A. B., tile above-named lllai nti fi'. states as l'ol lows:-
1. On the .....................day of' ...........................19 . tile defendant. by a

registered i nstruillelit. let to the plainti if [tile House No . .......... ............ Street I or tile
term of. ..................... Years, contracting with the plai 111111. that lie, tile plaintiff, and
his legal representatives should quietly enjoy possession thereof 101' the said term.
771E FJI?sTSC/iIDUi.E. APPENDIX-A —PLEADING (Plaints)
2. All conditions were fulfilled and all things happened necessary to entitle
the plaintiff to maintain this suit.
3. On the .....................day of .....................19 , during the said term. E.F.,

who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom,
and still withholds the possession thereof from him:
4. The plaintiff was thereby Iprevented from continuing the business of a

tailor at the said place, was compelled to expend .....................{Takaj in moving,
and lost the custom of G.H., and Ii., by such removal.
[As in para.v 4 and 5 of Form No. I, and Relief claimed I
No. 2()
ON AN AGREEMENT OF INDEMNiTY
(Title)
I. On the .....................day of .....................19, the plaintiff and defendant,

being partners in trade under the style of A. B. and C.D., dissolved the partnership,
and mutually agreed that the defendant should take and keep all the partnership
property, pay all debts of the firm and indemnify the plaintiff against all claims that
might he made upon him on account of any indebtedness of the firm.
2. The plaintiff dilly performed all the conditions of the agreement on his
part.
3. On the .....................day of ..................... 19 , 1a judgment was

recovered against the plaintiff and defendant by E.F., in the [High Court Division]
*
* at ..................upon a debt due from the firm to E.F., and on the ...............
day of ..................... 19 ,J the plaintiff paid .....................[jaka] [in satisfaction of
the same].
4. The defendant has not paid the same to the plaintiff.
lAs in paras 4 and 5 of Form No. I, and Relief claimed. I

THE FIRSTSCI-IEDULE. APPENDIX-A --PLEADING (Plaints)
No. 21
PROCURING PROPERTY BY FRAUD

(Title)
I. On the .....................day of . ..................... 19 , the defendant, for the

purpose of inducing the plaintiff to sell him certain goods, represented to the
plaintiff that I he, the defendant, was solvent, and worth .....................[Taka] over all
his liabilities I.
2. The plaintiff was thereby induced to sell [and deliver] to the defendant,
Idry goodsi of the value of .....................I.Taka.I.
3. The said representations were false for state the particular ftilsehoods/
and were then known by the defendant to he so.
4. The defendant has not paid for the goods. [Or, if the goods were not
deltverecl. I The plaintiff, in preparing and shipping the goods and procuring their
restoration, expended .....................[Taka].
[As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No. 22
FRAUDULENTLY PROCURING CREDIT TO BE GIVEN TO ANOTHER PERSON

(Title)
A.B., the above-named plaintiff, states as follows:—

I. On the .....................day of .....................19 , the defendant represented
to the plaintiff that E.F. was solvent and in good credit, and worth .....................
[Takal over all his liabilities [or that E.F. then held a responsible situation and was
in good circumstances, and might safely he trusted with goods on credit.]
2. The plaintiff was thereby induced to sell to E.F. [rice] of the value of
..................... [Taka] [on .....................months credit].
3. The said representations were false and were then known by the defendant
to he so, and were made by him with intent to deceive and defraud the plaintiff [or to
deceive and injure the plaintiff].
4. E.F. [did not pay for the said goods at the expiration of the credit
aforesaid, or.1 has not paid for the said rice, and the plaintiff has wholly lost the
same.
[As in. paras 4 and 5 of Form. No. I, and Relic/claimed.]
Tiii EIRs7S( /IE/)(!LE, APPENDIX-A —PLLIDLVG (Plain(s)
No. 23
POLLUTING THE WATER UNDER THE PLAINTIFF'S LAND

(171/c)
A. B., the above-named plaintiff, stales as follows:—
I . The plaintiff is, and at all the times hereinafter mentioned was, possessed
of certain land called .....................and situate in .....................and of a well therein,
and of water in the well, and was entitled to the use and benefit of the well and of thc
water there n. and to have certain springs and slseams of water which flowed and ran
into the well to supply the same to flow or run without being [01-lied or polluted.
2. Oil .....................day of .....................19 . the defendant wrongfully

fouled and polluted the well and the water therein and the springs and streams of
Water which flowed into the well.
3. In consequence the water in the well became irnpLlrc and unfit for
domestic and other necessary purposes, and tile plaintiff and his family are deprived
of the use and benefit of the well and water.
lAs at puras 4 and 5 of Form No. I, and Relief claimed 1
No. 24
CARRYING ON A NOXIOUS MANUFACTURE

(Title)
A. B.. the above-named plaintiff, states as fol lows:—
The plaintiff is, and at all the times hereinafter mentioned was, possessed
of certain lands called ..................... . si tuatcd in .....................
2. Ever since the ---------------------day of .............19 , the defendant has

wrongfully caused to issue from certain smelting works carried on by the defendant
large quantities of offensive and unwholesome smoke and other vapours and noxious
matter, which spread themselves over and upon the said lands and corrupted the air,
and settled on the surface of the lands.
3. Thereby the trees, hedges and crops of the plaintiff growing on the lands
were damaged and deteriorated in value, and the cattle and live-stock of the plaintiff
oil lands became unhealthy, and many of them, were poisoned and died.
4. The plaintiff was unable to graze the lands with cattle and sheep as he
otherwise might have done, and was obliged to remove his cattle, sheep and
farming-stock therefrom, and has been prevented from having so beneficial and
healthy a use and occupation of the lands as he otherwise would have had.
[As in paras 4 and 5 of Form. No. I, and Relief claimed.]

1909: Act VI Civil. PROCEDURE CODE 377
TI/k Fuar Ski/EL/oLE. /1 PPENDIA'-A —PLEADING (Plaints)
No. 25
OBSTRUCTING A RIGHT OF WAY

(Title)
A. B., the ahovc-narncd p1 ai nti ft. states as tollows:-
The plaintiff is. and at the time hereinafter mentioned was, possessed of In
house in the vi Ilae of ..................... ..................... ..................... I.
2. He was entitled to a right of way from the I house 1 over a certain lie Id to a
public highway and hack again from the hi g hway over the Field to the house, for
hi msc If and his servanis j with vehicles, or on foot I at all times of the year.
3. On the .....................day of .....................19 , defendant wrongfully

obstructed the said way, so that the p1 ainti IT coo Id not pass I with vehicles, or on fool,
or in any mannerl along the way land has ever since wrongfully obstructed the
same I.
4. (State special daiii.age, fwiv)

[As in paras 4 and 5 of For/I? No. I, and Relief claimed.1
NO. 26
OBSTRUCTION A HIGHWAY
(Title)
I. The defendant wrongfully dug a trench and heaped up earth and stones in
the public highway leading from' .....................to .....................so as to obstruct it.
2. Thereby the plaintiff, while lawfully passing along the said highway, fell
over the said earth and stones [or into the said trench] and broke his arm, and
suffered great pain, and was prevented from attending to his business for a long
Lime, and incurred expense for medical attendance.
lAs in paras, 4 (1,1(1 5 of Form No. / ci,,cl Relief claiinedl.

Tilt- FIRSTSCHEDULE. APPENDIX-A —PLEADING (Plaints)
No. 27
DIVERTING A WATER-COUSE
(Title)
I. The plaintiff is, and at the time hereinafter mentioned was, possessed of a
mill situated oil Istreami known as the ......................in the village of
....district.of
2. By reason of such possession the plaintiff was entitled to the flow of the
stream br working the mill.
3. Oil .....................day of .....................19 , defendant, by cutting the

hank of the stream, wrongfully diverted the water thereof, so that less water ran into
the plaintiff's mill.
4. By reason thereof the plaintiff has been unable to grind more than sacks
per day, whereas, before the said diversion of water, he was able to grind
.......................acks per day.
[As in parc.s 4 and 5 of Form No. I, and Relief claiinedl
No. 28
OBSTRUCTING A RIGHT TO USE WATER FOR IRRIGATION

(Title)
I. The plaintiff is, and was at the time hereinafter mentioned, possessed of
certain lands situate, etc., and entitled to take and use a portion of the water of a
certain stream for irrigating the said lands.
2. On the .................day of ............. 19 , the defendant prevented the

plaintiff from taking and using the said portion of the said water as aforesaid, by
wrongfully obstructing and diverting the said stream.
[As in paras 4 and 5 qtForm. No. I, and Relief clairned]

I90: Act Vi CIVIL PROCEDURE CODE 379
TilE F/loT SChEDULE. APPENDIX-A —['LEADING (Plaints)
No. 29
INJURIES CAUSED BY NEGLIGENCE ON A RAILROAD

(Title)
I. On the ........................day of ............................19 , the defendants were

common carriers of passengers railway between
and
2. On that day the plaintiff was a passenger in one of the carriages of the
dcl'cndants on the said railway.
3 While he was such passenger, at ..................... [or near the station of

..or between the stations of .....................and ....................., a collision
occurred on the said railway caused by the negligence and unskilfulness of the
defendants' servants, whereby the plaintiff was much injured [having his leg broken,
his head cut, etc., and state the special damage, if any, as], and incurred expense for
medical attendance, and is permanently disabled from carrying on his former
business as a [salesman].
[As in paras 4 and 5 of Form. No. I, and Relifclaiinedi
[Or thus . -2. On that day the defendants by their servants so negligently and
unskillfully drove and managed an engine and a train of carriages attached thereto
upon and along the defendants' railway which the plaintiff was then lawfully
crossing, that the said engine and train were driven and struck against the plaintiff,
whereby etc., as in para 3.1
No. 30
INJURIES CAUSED BY NEGLIGENT DRIVING

(Title)
The plaintiff is a shoemaker, carrying on business at

The defendant is a merchant of ...........................................
2. On the .....................day of .....................19 , the plaintiff was walking

[northward] along [Mirpur Road], in the City of [Dhaka], at about 3 o'clock ill the
afternoon. He was obliged to cross 4[New Elephant Road], which is a street running
into [Mirpur Roadi at right angles. While he was crossing this street, and just before
he could reach the loot-pavement on the further side thereof, a carriage of the
defendant's drawn by two horses under the charge and control of the defendant's
servants, was negligently, suddenly and without any warning turned at a rapid and
dangerous pace out of [New Elephant Road[ into [Mirpur Road]. The pole of the
380 CIVIL PROCEDURE CODE If 90: Act V
TIlE Fll?srS lIEl)1iL/.APPEA'DfX-/I —PLE . IDIX'c] (Plaints)
carriage struck the plaintiff and knocked him down, and hc was much trampled by
the horses.
3. By the blow and fall and tranipling the plainti It's left arm was broken and
he was bruised and injured on the side and hack, as well as internally, and in
consequence thereol the plaintill was or tour months ill and in suliering and unable
to attend to his business, and incurred heavy medical and other expenses, and
sustained great loss ol business and prolils.
I As in paius, 4 antl 5 01 /o,i;, No. I, and Relief clainiecI!.
No. 31
FOR MALICIOUS PROSECUTION

(771/c)
A. B., the above-named plaintiff. states as follows:—
On the .....................day of .....................19 , the defendants obtained it

warrant 01 , arrest h-o in ...............................................................................................
..... I a Magistrate of the said City, or as the case mm' bel oil charge of
and the plainti IT was arrested thereon, and imprisoned
for ..................... 1dm, or hours, and gave hail in the sum of .....................ITakal to
obtain his release I.
2. In so doin g the defendant acted maliciously and without reasonable or

probable cause.
3. On the ---------------------day of ---------------------19 , the Magistrate dismissed the

complaint of the defendant and acquitted the plaintiff.
4. Many persons, whose names arc unknown to the plainti IT, hearing of the
arrest, and supposing the pl-aiitilI to he a criminal, have ceased to do business with
hi iii; or in consequence of the said arrest, the plainti IT lost his situation as clerk to
one E.F., or in consequences the plaintiff suffered pain of body and mind, and was
prevented from transacting his htisiness, and was injured in his ci'edit, and incurred,
expense in obtaining his release from the said imprisonment and ill
himself against the said complaint.
lAs in para.v 4 and 5 of Po,'ni No. I, ((FiLl Relief claimed!.

1908: Act V I CIVIL PROCEI)URE CODE 381
TIlE FIRSTS C111101 'LE. APPENDIX-A —PLL..!/)/.V( (Plaints)
No. 32
MOVEABLES WRONGFULLY DETAINED

(Title)
A. B.. the hove-nanied plaintiff, states as follows:—
On the .....................day of .....................19 plaintiff owned br state

facts showing (I rig/It to the possession/ the goods mentioned in the schedule hereto
annexed br describe the goods!, the estimated value of which is ..................ITakal.
2. From that day until the commencement of this suit the defendant has
detained the same from the plaintiff.
3. Before the commencement of the suit, to wit, on the .....................day of

...19 . the plaintiff demanded the same from the defendant hut he
refused to deliver them.
[As in paras 4 and 5 of Form No. I I
6. The p1 a nti if claims—

I ) delivery of the said goods, orETakal, in case delivery cannot he had;
(2) ITaka I compensation for the detention thereof.
No. 33
AGAINST A FRAUDULENT PURCHASER AND HIS TRANSFEREE WITH NOTICE

(Title)

I. On the .....................day of .....................19 . the defendant CD., for the
purpose of inducing the plaintiff to sell him certain goods, represented to the
plaintiff that I he was solvent, and worth ITaka I over all.....................his liabilities].
2. The piaintiff was thereby induced to sell and deliver to C.D. lone hundred
boxes of tea I the estimated value of which is ..................... ITakal
3. The said representations were false, and were then known by C.D. to he so
Ir at the time of making the said representations. C.D. was insolvent, and knew
himself to he 501.
4. Cl). afterwards transferred the said goods to the defendant E.F. without
consideration I or who had notice of the falsity of the representation I.
I A s in pa ens 4 and 5 of Form No. / I
7. The plaintiff claims:—
I ) deliver y of the said goods. or ..................... ITaka I in case delivery
...............................cannot he had:
(2) .....................I Taka I compensation for the detention thereof.
THE FIRSTScIILTDULE. APPENDIX-A —PLEADING (Plain1s)
No. 34
RESCISSION OF A CONTRACT ON THE GROUND OF MISTAKE

(Title)
I. On the .....................day of ....................19 , the defendant represented to

the plaintiff that a certain piece of ground belonging to the defendant, situated
at......................contained [ten bighasi.
2 The plaintiff was thereby induced to purchase the same at the price of
..... I. Takal in the belief that the said representation was true, and signed an
agreement of which the original is hereto annexed. But the land has not been
transferred to him.
3. On the .........................day of ........................19 , the plaintiff paid the

defendant .....................ITakal as part of the purchase-money.
4. That the said piece of ground contained in fact only [five highas.
As in paras 4 and 5 of Form No. lJ
7. The plain if c I ai ins-
(1) .....................ITaka], with interest from the

dayof ..........................................19
(2) that the said agreement he delivered up and cancelled.
No. 35
AN INJUNCTION RESTRAINING WASTE

(Title)

I. I
The plaintiff is the absolute owner of describe the properivI.
2.
The defendant is in possession of the same under a lease from the plaintiff.
3. The defendant has jcut down a number of valuable trees, and threatens to
cut down many more for the purpose 01 sale without the consent of the plaintiff.
[As in paras 4 and 5 of Form. No. 11
6. The plaintiff claims that the defendant he restrained by injunction from
committing or permitting any further waste on the said premises.
[Pecuniary compensation. may also be claimed].

THE F1RSTSC'HEDULE. APPENDIX-A —PLEADING (Plain!)
No. 36
INJUNCTION RESTRAINING NUISANCE

(Title)

1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute
owner of [the House No. ..................... . .............. . ...... Street, [Chittagong].
2. The defendant is, and at all the said times was, the absolute owner of [a
plot of ground in the same street .....................
3. On the .....................day of .....................19 , the defendant erected upon
his said plot a slaughter-house, and still maintains the same; and from that day until
the present time has continually caused cattle to he brought and killed there I!and has
caused the blood and offal to he thrown into the street opposite the said house of the
plaintiff].
4. In consequence the plaintiff has been compelled to abandon the said
house, and has been unable to rent the same.]
[As in paras, 4 and 5 of Form No. 1]
7. The plaintiff claims that the defendant he restrained by injunction from
committing or permitting any further nuisance.
No. 37
PUBLIC NUISANCE
(Title)

1. The defendant has wrongly heaped up earth and stones on a publics road
known as .....................Street at ..........................................so as to obstruct the
passage of the public along the same and threatens and intends, unless restrained
1mm so doing, to continue and repeat the said wrongful act.
2. The plaintiff has obtained the consent in writing of the Advocate General
101 of the Collector or other officer appointed in this behalf] to the institution of this
suit.
[As in paras, 4 and 5 ctfform. No. 1]
5. The plaintiff claims-
(1) a declaration that the defendant is not entitled to obstruct the passage
of the public along the said public road;
(2) an injunction restraining the defendant from obstructing the passage
of the public along said public road and directing the defendant to
remove the earth and stones wrongfully heaped up as aforesaid.
384 CIVIL PROCEDURE CODE 11 908: Act V
171E FIRS/SC 11L7)(1LE. APPENDIX-A —FlEw/AG (Plaints)
No. 38
INJUNCTION AGAINST THE DIVERSION OF A WATER-COURSE

(Title)
A. B., the ahovc-named plaintiff, states as lollows:-
I As in Form No. 271

The plaintiff claims that the defendant he restrained by injunction Irom
diverting the water as aloresaid.
No. 39
RESTORATION OF MOVABLE PROPERTY THREATENED WITH DESTRUCTION, AND FOR

AN INJUNCTION
(Title)
Plaintiff is, and at all times hereinafter mentioned was, the owner o I a
portrait of his grand-lather which was executed by an eminent painterl, and of which
no duplicate exists tar state any facts showing that the propert y is ol a kind tli.ctt
(U/I/lot he replaced by 1)10/IC V J.
2. On the .....................day 01' .....................19 , he deposited the same for

sale-keeping with the defendant.
3. On the ....................day of .....................19 , he demanded the same from

the defendant and offered to pay all reasonable charges for the storage of the same.
4. The defendant refuses to deliver the same to the plaintiff and threatens to
conceal, dispose of, out or injure the same il required to deliver it up.
5. No pecuniary compensation would he an adequate compensation to the

plaintif for the loss of the ipaintingl.
IA .v in pa/its 4 (111(1 5 at J'or,ii No. / I
8. The p1 ai ii tilT c I aims—

I ) that the defendant he restrained by injunction from disposing of
injuring or concealing the said I pai ntingl
(2) that he he compelled to deliver the same to the plaintiff.
TIlE F/I?s/ScHFDUI.E. APPENDIX-A .—PLEADING (Plaints)
No. 40
INTERPLEADER
(Title)
I. Before the date of the claims hereinafter mentioned G.H. deposited with
the plaintiff describe the property] for [safe-keeping].
2. The defendant C.D. claims the same [Linder an alleged assignment theredf
to him from G.H.l
3. The defendant E.F. also claims the same [under an order of G.H.
transferring the same to himi.
4. The plaintiff is ignorant of the respective rights of the defendants.
5. He has no claim upon the said property other than for charges and costs,
and is ready and willing to deliver it to such persons as the Court shall direct.
6. The suit is not brought by collusion with either of the defendants.
lAs in. pares 4 and 5 of Form No. /]
9. The plaintiff claims:—

(I) that the defendants he restrained, by injunction From taking any
proceedings against the plaintiff in relation thereto;
(2) that they he required to interplead together concerning their claims to
the said property;
1(3) that some person he authorised to receive the said property pending
such litigation; I
(4) that upon delivering the same to such [person] the plaintiff he
discharged from all liability to either of the defendants in relation
thereto.
TIlE F1R.s7S 'llED1LE. /lPl'ENDIX-A —PLllfllN(i (P/a/Ills)
No. 41
ADMINISTRA1'ION BY CREDITOR ON BEHALF OF HIMSELF AND ALL OTHER

CREDITORS
(171e)
A. /3., the above-named plainti ll,s tales as lollows:-
E.F.
E. l ate of ......................was at the time of his death. and his estate still
is. indebted to the plai nti If in the sum of ..................... there lose,i nature at del)!
(111(1 SC( 'UriI\', •t U • \' /
2. F. F.. died on or about the .....................day of ......................By his last

will, dated the .....................dayol ..........................................he appointed .C.D. his
executor I or deeLscd his estate in trl(s1, etc. 01 died intestate, as the case mae he I.
3. The will was proved hy C. I). I or letters a/ (,d,unislratio,, here 'ra,ited,

etc. I.
4. The defendant has possessed himsell of the movable land immovable or

the proceeds of the immovable I property of E.F., and has not paid the plaintilT his
debt.
[ As in /l(lra.s 4 (I/Id 5 of Form ,?.jo I I
7. The plaintiff claims that an account may he taken of the movable I and
immovahlej property of E.F., deceased, and that the same may he administered
under the decree of the Court.
No. 42
ADMINISTRATION BY SPECIFIC LEGATEE
IA her torm No. 41 I/ins I-

I. Omir paragraph / ( 111(1 (OIfl/fleIice paI'a,h,'I'(I/)h 21 F. F., late of ......................
died on or ahout the ......................day of .......................By his last will, dated the
....day of ..........................he appointed C.D. his executor, and
bequeathed to the plaintiff there slate the specific legac'l.
For paragraph 4 substi;ute-

The defendant is in pO5SCSSiO11 of the movable property of E.F., and, amongst
other things, of the said [here ilanie the subject of the specific bequesti
For the commencement of paragraph 7 substitute–
The plaintill claims that the dcl'cndant may he ordci'ed to deliver to him the said
[here i,wiie the St/b/eLI oft/ic spectfic I,c'cit . iest], or that, etc.
1 908: Act V CIVIL PROCEDURE CODE 387
Till-* / 1R.V7S( I/EL)t'LE. .4PPEt /f)fX-4 —P/.E.Jn/V(; (Plaints)
No. 43
ADMINISTRATION BY PECUNIARY LEGATEE

(Title)
IA/Icr toll? No, 41 thusl-
I Omit paragraph / (I/ui commence paragraph 21 E.F., late ol.......................

...................... died on or about the ......................day of ...................... . By his last
will, dated the ......................day of ......................he appointed CD: his executor,
and bequeathed to the plaintiff a legacy of ........................................... [Taka I.
In paragraph 4 ,'.uh.stitute "legacy" tor "debt''.

Another form
(Title)
E. F.. the ahovenarned plaintiff, stales as follows:—
A B. of K. in the .....................died on the .....................day of

....By his last will, dated the .....................day of .......................he
appointed the defendant and M.N. I who died in the testator ' s lifctimej his executors.
and bequeathed his property, whether movable or immovcahlc, to his executor in
trust, to pay the rents and income thereof to the plaintiff for his life; and after his
decease, and in default of his having a son who should attain twenty-one, or a
daughter who should attain that age or marry, upon trust as to his immovable
property for the person who would he the testator's heir-at-law, and as to his
movable properly for the persons who would he the testator's next-of-kin it' he had
died intestate at tile time of the death ()['tile plaintiff, and such failure of his issue as
aforesaid.
2 Tile will was proved by the defendant, on the .....................day of

...The plaintiff has not been married.
The testator was at his death entitled to Illovahic and immovable property: the
defendant entered into tile receipt of the rents of the immovable property and got in
the movable property: he has sold some part of the immovable property.
I As in paras 4 and 5 of Porn,. No. I

6. The p1 ai Ill iIF ci ai ins—
I ) to have tile Illovahie and immovable property of A. B. administered
ill this Court, and For that purpose to have all proper directions given
and accounts taken;
(2) such further or other relief as the nature of the case may require.


Tin. FIRST SC/-lED ULE. APPENDIX-A —PLEADING (Plainis)
No. 44
EXECUTION OF TRUSTS
(Title)
A. B.. the ahove-narned plaintiif, states as lollows:-
1. He is One 41,11C trustees under all of settlement hearing date on

or about the .....................day of .....................made upon the marriage of E.F. and
G.H., the father and mother of the defendant or an instrument of transfer of the
estate and effects of E. F. for the benefit of CD., the defendant and the other
creditors of E.F. I
2. A. B., has taken upon himself the burden of the said trust, and is in
possession of (or of the proceeds of) the movable and immovable property
transferred by the said instrument.
3. C.D. claims to he entitled to a beneficial interest under the instruments.
I A.s in pciras 4 and of Form No. / I
6. The plaintiff is desirous to account for all the rents and profits of the said
immovable property. (and the proceeds of the sale of the said, or of part of the said,
immovable property, or movable, or the proceeds of the sale of, or of part of, the
said movable property, or the prolits accruing to the plaintiff as such trustee in the
execution of the said trust!; and he prays that the Court will take the accounts of the
said trust, and also that the whole of the said trust estate may he administered in the
Court for the benefit of CD., the defendant, and all other persons who may he
interested in such administration, in the presence of CD., and such other persons so
interested as the Court may direct, or that C.D. may show good cause to the contrary.
I. N.B.—Where the suit is b y it be,,e t,ctar s', the plant may be modelled11ljt(lfI5
inittan.di.s, on the plant by a /egateel.
No. 45
FORECLOSURE OR SALE
(Title)
The plaintiff is mortgagee of lands belonging to the defendant,
2. The following are the particulars of the mortgage:—
(a) (date);
(h) (names of mortgagor and mortgagee);
(c) (sum secured);
(d) (rate of interest);
TilE FIJ?sTScIITwULE. APPENDiX-A —PLEADING (Plaints)
(c) (Property subject to mortgage);

1) (arnou lit now due);
(g) (if the plaintiff's title is derivative,
derii'atn'e, state shortl y the traiist rs or
devolution under which he claims)
1 4 the /)l(lIJItl/j IS /uortgul,'ee in possession, add]
3 The plaintiff took possession of the mortgaged property on the day of
..and is ready to account as mortgagee in possession from that time.
(As in pa ins 4 and 5 of Form. No. I)
6. The plaintiff claims:-
payment, or in default Isale on foreclosure [and possession J;
I Where Order 34, rule 6, (ipplIesj.
(2) in case the proceeds of the sale are found to he insufficient to pay the
amount due to the plaintiff, then that liberty he re-served to the
plaintiff to apply for a decree for the balance.
No. 46
REDEMPTION
(Title)
A. B., the above-named plai nti IT, states as follows:—

The pl2lilltif is mortgagor of lands of which the defendant is mortgagee.
2. The following are the particulars of the mortgagee:-
(a) (date).
(b) (names of mortgagor and mortgagee);
(c) (sii Iii secured):
(d) (rate of interest):
(e) (Property subject to mortgage);
(1) (amount now (lue);
(g) (f the p/aiiittt'.s title is derivative, state short/j , the transfers or
devolution under which he claims).
1ff/ic plaiiititt ...mortgagee in possession, (1(1(11

3. The defendant has taken possession or has received the rents I 01 the
mortgaged property.
I As in paras 4 (1/1(15 of For n No. I
6. The plaintiff claims to redeem the said property and to have the same
reconvcycd 10 him land to have possession thereof I.
171/: ScIi/./uLE. APPENDIX-A —PLEAD/v(; (Plaints)
No. 47
SPECIFIC PERFORMANCE (NO. I)

(Title)
A. B.. [he ahovc-namcd plaintiff, states as follows:—
I. By all dated the .....................day of .....................and signed
by the dcicndant. he contracted to buy of br sell lob the plaintiff and signed by the
defendant, he contracted to buy of jor sell lob the plaintiff certain imrnovcahlc
property therein described and referred to, for the sum of (Takal.
2. The plaintiff has applied to the del'cndant specifically 10 ierform the
aerccmcnt on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform
the agreement on his part of which the defendant has had notice.
[As in paras 4 and 5 of Form No. /I
6. The plai nti fl claims that the Court will order the defendant specifically to
perloim the agreement and to do all acts necessary to put the plaintiff in lull
possession of the said property j or to accept a transfer and possession of the said
property I and to pay the costs of the suit.
No. 48
Specific Performance (No. 2)
(Title)
On the .....................day of ..................... 19 , the plaintiff and defendant
all
entered into in writing, and the original document is hereto annexed.
The defendant was absolutely entitled to the immovable property described in
the agreement.
2 On the .....................day of .....................19 , the plaintiff tendered
....tTakaI to the defendant, and demanded a transfer of the said property
by a sufficient instrument.
3. On the .....................day of ..................... 19 , the plaintiff again
demanded stich transfer. j Or the defendant refused to transfer the same to the plaintiff]
4. The defendant Has not executed any instrument of transfer
5. The plaintiff is still ready and willing to pay the purchase-money of the
said property to the defendant.
lAs ill 4 and 5 of Form No. 11
8. The p1 ai nti IT claims:—
I ) that the defendant transfers the said property to the plainlill by a sufficient
instrument [ft.'llowi,,g the terms of the agreement]
(2) ITakal compensation for withholding the same.
TIlE FIR.srS('//i:tn./.E. AI'PEt'DI,V-A —PLEIDlAG (!'Vritten Siatenienis)
No. 49
PARTNERSHIP
(Title)
,4. ii.. the ahove-named plaintili, state.,; as ollows:-
He and CD., the delendant, have been br ..........................................years

or months I past carrying on business together II ndcr articles o partnership in
writing I oi under a deed. a, under a verbal agreement I.
2 Several disptitcs and differences have arisen between the plaintiff and
defendant as such partners whereby it has become impossible to carry on the
business in partnership with advantage to the partncrs.IOr the defendant has
committed the following breaches ol the partnership articles:—
(I)
(2)
(3)
I As in paras. 4 and 5 of Form No. II
5. The plaintiff claims-

dissolution of the partnc rsh i p:
(2) that accounts he taken:
(3) that a receiver be appointed.
(N.B.— Insuits tar the winding-up at cuiv partnership, 0/nit the claim for
(/iX,rO/Utt01I; aiid i,,stead insert (I paragraph stating the facts of the partnership
haiuig he(!/) dissolved.)
(4) Written Statements

Generals defences
Denial/The defendant denies that (set 01(1 facts).
The defendant does not admit that (set out facts).
The defendant admits that .....................hut says that .....................................
The defendant denies that he is a partner in the defendant firm of
Protest/The defendant denies that he made the contract alleged or any contract
with the plainLiff.
The defendant denies that he contracted with the plainti ft as alleged or at all.
The defendant admits assets hilt not the plaintiff's claim.
The defendant denies that the plaintiff sold to him the goods mentioned in the
plaint or any of them.
Tilt , FIR,v'rS ilEin/LE. A PPENDJX-A —P/.E.11)1NG (Written Statements)
The suit is barred by article .....................or article .....................of the second

schedule to the ILinhilation Act, 1909 I/Limitation
The Court has no jurisdiction to hear the suit on the ground that (set ftrth the
grounds)/Jurisdiction
Oil .....................day of .....................a diamond ring was delivered by the
e
defendant to and accepted by the plaintiff in discharge of the alleg d cause of action.
The defendant has been adjudged an insolvent! Insolvency
The plaintiff before the institution of the suit was adjudged an insolvent and the
right to sue vested in the receiver.
The defendant was a minor at the time of making the alleged contract! Minority
The defendant as to the whole claim (or as to ITakal ......................part 01 the
money claimed, or as the case mar he) has paid into court ITakal and says that this
SUM is enough to satisfy the plaintiff' claim br the part aloresaid]/pavment into Court
The performance of. the promise alleged was remitted on the ..................
(Date )/Performance remitted
The contract was rescinded by agreement between the plaintiff and
defendant/Rescission
The plaintiff's claim is barred , by the decree in suit (give the reference)/Res
.Judicata
The plaintiff's estopped from denying the truth of (Insert statements as to
which estoppel is claime(l) because (here state the fticts relied oil creating the
estoppel)/Estoppel
Since the institution of the suit, that is to say, oil .....................day of
.....................(set out facts)! Ground of defence subsequent to institution of suit
No. I
DEFENCE IN SUITS FOR GOODS SOLD AND DELIVERED

The defendant did not order the goods.
2. The goods were not delivered to the defendant.
3. The price was not ITaka.I.
101-1
4. } 11 .............................
5, } except as to I . Takal ........ same as 12.............................
6. 1 (3. ............................
7. The defendant [or A. B., the defendant's agentl satisfied the claim by
payment before suit to the plaintiff br to C.D., the plaintiff's agent] oil
.....day of 19
K. The defendant satisfied the claim by payment after suit to the plaintiff on
tile....................day of ..........................................19
THE FfR.s7SCIIEDL/LE. APPENDIX-A —PLEADING (Written Statements)
No.2
DEFENCE IN SUITS ON BONDS
I. The bond is 1101 the defendant's bond.
2. The defendant made payment to the plaintiff on the day according to the
condition of the bond.
3. The defendant made payment to the plaintiff after the day named and
before suit of the principal and interest mentioned in the bond.
No.3
DEFENCE IN SUITS ON GUARANTEES
1. The principal satisfied the ciairn by payment before suit
2. The defendant was released by the plaintiff giving time 10 the principal
debtor in pursuance of a binding agreement.
3. The dcl'cndallt made payment to the plaintiff after tile day named and
before suit ol tile principal and interest mentioned in the bond.
No.4
DEFENCE IN ANY SUITS FOR DEBT
As to ITakal 200 of tile motley claimed, the defendant is entitled to set off
for goods sold and delivered by the defendant to the plaintiff.
Particulars are as follows:—

['Taka]
ISo
1907, January. 25t1l
1907, February, 1st 50
Total= 200
2. As to tile whole [or as to ITakal ......................part of the money ciaimedj

the defendant made tender before suit of ITaka! .....................arid has paid the same
into Court.
Ti/i; H/?siSci/L/uLt;. APPEA'DIX-A —I'/.EIfliv(; (I11r,fIen Siale,nenfs)
No. 5
DEFENCE IN SUITS FOR INJURIES CAUSED BY NEGLIGENT DRIVING
The defendant denies that the carriage mentioned in the plaint was the
defendant's carriage, and that it was under the charge or control of the dc fendant s
servants. The carriage belonged to .....................of .....................Street, I Dhaka
livery stable keeper employed by the defendant to supply him with carriages and
horses; and the person under whose charge and control the said carriage was, was the
servant of the said
2. The defendant does not admit that the said carriage was turned out of
jNcw Elephant Roadi either negligently, suddenly or without warning, or at a rapid
or dangerous pace.
3. The defendant says the plaintiff might and could, by the exercise of
reasonahle care and diligence, have seen the said carriage approaching him, and
avoided any collision with it.
4. The defendant does not admit the statements contained in the third
paragraph of' the plaint.
DEFENCE IN ALL SUITS FOR WRONGS

Denial of the several acts tar mattersi complained of.
No.7
DEFENCE IN SUITS FOR DETENTION OF GOODS

The goods were not the property of the plaintiff.
2. The goods were detained for a lien to which the defendant was entitled.
Particulars are as follows:-
1907.
May 3' To carriage of the goods claimed from [Dhakaj to
IC h itiagong
45 maunds at ITakal 2 per matlnd .... .... .... {Taka 190.
NO.8
DEFENCE IN SUITS FOR INFRINGEMENT OF COPYRIGHT
The plainti IT is not the author j ossigliee, etc. j.
2. The hook was not registered.
3. The defendant did not infringe.
9 08: Act VI CIVIL PROCEDURE CODE
Tin., Fii?.s'TS 'm/c1.L. A p PENDIX-A —PLEADING (Writ/el? S/a/amen(s)
No.9
DEFENCE IN SUITS FOR INFRINGEMENT OF TRADEMARK
The trade mark is not the p1 ai liii fl's.

2. The alleged trade mark is not a trade mark.
3. The defendant did not infringe.
No. 10
DEFENCES IN SUITS RELATING TO NUISANCES
I. The plaintiff's lights are not ancient jor deny his oilier alleged prescriptive.
righisi.
2. The plaintiff's lights will not he materially interfered with by the

defendant's buildings.
3. The defendant denies that lie or his servants pollute the water br do what
is complained oft
I tf the dctcndanr clainis the. right 1)

,\: prescrIptIon or otherwise to tin what is
camp/awed of, lie must sa y so, (I/ill must stale the grounds of the cia/in, i.e. whether
by prescription, grant or what. I
4. The plaintiff has been guilty of laches of which the following are
particuIars:-
I 870, plaintiff's mill began to work.
1871, plaintiff came into possession.
1883, First complaint.
5. As to the Plaintiffs claim for damages the defendant will rely on the
above grounds of defence, and says that the acts complained of have not produced
any damage to the plaintiff. I If other grounds are relied on, the y must be stated, e.g.,
limitation (IS to past damage.]
No. 11
DEFENCE TO SUIT FOR FORECLOSURE
The defendant did not execute the mortgage.
2. The mortgage was not transferred to the plaintiff (if more than one
t rans fer is alleged, sa y which IS denied.)
TIlE FIRSTS( 'iiEDuLI. APPENDIX-A —PLEADING (Written Statenienis)
3. The suit is barred by article .....................of the second schedule to the

I Limitation Act, 19081
4. The loIIoiin g payment have been made. I'iz.:-

(Insert date) .... .... .... .... ..... .... .... .... I .000
Insert date)
5. The plai nti If took possession on the .....................of ......................and

has received the rents ever since.
6. That plaintiff released the debt oil .....................of ......................
7. The defendant transferred all his interest to A. B. by a document dated
No. 12
DEFENCE TO SUIT FOR REDEMPTION
The plai nti fl's right to redeem is barred by article .....................of the
second Schedule to the ILimitation Act, 19081
2. The plaintiff transferred all interest in the property to A. B.
3. The defendant, by a document dated the .....................day of

transferred all his interest in the mort g age debt and property comprised in the
mortgage to A. B.
4. The defendant never took possession of ' the mortgaged property, or

received the rents thereof.
(If the c/e te,idw,,t athnit.r possession ft/i (I time oiilv, he should stare the time (111(1
(le/,\' posse.s.rjon. I,eonc/ what he admits)
No. 13
DEFENCE TO SUIT FOR SPECIFIC PERFORMANCE
The defendant did not enter into the agreement.

2. A. B. was not the agent of the defendant (if alleged by plaintft).
3. The plaintiff has not performed the following conditions—
(Conditions).
4. The defendant did not—(alleged acts t part perfirmance)
5. The plaintiff's title to the property agreed to he sold is not such as the
defendant is hound to accept by reason of the following matter—(state why).
908: Act V CIVIL PROCEDURE CODE 397
Tiit F/R.s7ScI11.-1)uLE. APPENDIX-A —PLEADING (Written Statements)
(i. The agreement is uncertain in the following respects( tate them).

7. (or) The plaintiff has been guilty of delay.
8. (or) The plaintiff has heell guilty of fraud(or misrepresentation)..
9. (or) The agreement is unfair.
10. (em') The agreement was entered into by mistake.
II. The following are particulars of (7),(8),(9),( 10) (or as the case ma y be).
12. The agreement was recinded under conditions of sale. No. II (or by
mutual agreement).
(In c'a,ses where damages are claimed and the clefrnclant disputes his ltalnlitv to
(/alfl(9,'es, he must ciemiv the agreement or the alleged breaches, or show whatever
other gI'oiifld of ifrtencc' he intends to re/v on, e.g., .t/i.e Limitation Act, accord and
.vattsftictwii, ,'eiet.i,re. fraud, etc.
No. 14
DEFENCE IN ADMINISTRATION SUIT BY PECUNIARY LEGATEE
A. B's will contained a charge of debts; he died insolvent; lie was entitled
at his death to. S011ie immovable property which produced the net sum of ITakal
.......and the testator had sum movable property which the defendant got in,
and which produced the net SLIM of[Takal.
2. The defendant applied the whole of the said sums and the sum of ITaka[
.......which the defendant received from rents of the immovable property, in
the payment of the funeral and testamentary expenses and some of the debts of the
testator.
3. The defendant made up his accounts and sent it copy thereof to the
plaintiff on the .....................day of .....................1 9 , and offered the plaintiff free
access to the vouchers to verify such accounts, but he declined to avail himself of the
defendant's oIler.
4. The defendant submits that the plaintiff ought to pay the Costs of this suit.
No. 15
PROBATE OF WILL IN SOLEMN FORM
The said will and codicil of the deceased were not duly executed
according to the ISLICCCSSion Act, 1925 1 [or of the Hindu wills Acts, 18701.
2. The deceased at the time the said will and codicil respectively purport to
have been executed, was not of sound mind, memory and understanding.
TUE FIR.S'TS('IIE/)U/.E. rIPPENDIX-A —PLEl/)ff\G (Wrilfen Statements)
3. The execution of the said will and codicil was obtained by the undue
in fluence of the plainti fl land others acting with him whose names are at present
Unknown to the defendant I.
4. The execution of thcsaid will and codicil was obtained by the fraud of the
plaintiff, such fraud so far as is Within the defendant's, present knowledge, being
state the fl(ItU.,e ot the traudl.
5. The deceased at thc time of the execution of the said will and codicil did
not know and approve of the contents thereof I or of the contents of the residuary
clause in the said will, as the case may bej.
6. The deceased made his true last will, dated the ist January, 1873, and
thereby appointc.d the defendant sole executor thereof.
The defendant claims:—

I ) that the Court will pionouiicc against the said will and codicil propounded
by the plaintifT
(2) that the Court will decree probate of the will of the deceased, dated the 1st
Jan ii ary. 1973.
in solemn form of law.
No. 16
PARTICULARS (0. (,, r. 5)

(Title of suit)
The following are the particulars of (here state the matters in respect of Ii'hich
particulars have been ordere(l) delivery to the order of the .....................
.............................................................
(Here set out the particulars ordered in. paragraphs if necessary)
APPENDiX-B - PROC 'is:s
TilE F/R,sTS lJl-J)(ILL.
APPENDIX B
PIoc:Ess
No. I
SUMMONS FOR DISPOSAL OF StilT (O,Srr. I. 5)

([tile)
To
I Name. (les()iptwIl and /)f(!Ce Of ,'c.sicle,,ce I
WHEREAS
has institute a Suit acainst you for ...............................................................YOU are
hereby summoned to appear in this Court in person or by a plcudcr dilly instructed,
and able to answer all Illaterial questions relatmg to the suit, or who shall he
accompanied by some person able to answer all such questions, on the .....................
day of .....................19 . at .....................oclock iii the .....................iiooii. to
answer the claim and as the day lixed or your appearance is appointed For the hnal
disposal of the suit, you must he prepared to produce on that day all the witnesses
upon whose evidence and all the docu ments u pun Which you intent to rely ill Support
of you r dc Fe nec.
Take notice that, in dc Fail It of your appearance on the day he Fore mentioned,
the suit will he heard and determined in your absence.
GIVEN under m y hand and the seal of the Court, thuis .....................day of
......19
Judge
NOTICE- 1 . Should you apprehend your witnesses will not attend OF their own
accord. y ou can haVC a SLI 1111110115 Irom (his Court to compel the
attendance of any witness, and the production ol any document that
upon the witness to produce, on applying to
You have a ri g ht to call
the Court and oil the necessary expenses.
2. If you admit the claim, you should P1Y the money into Court together
with the costs of the suit, to avoid execution of the decree, which
may he agai list your person or property, or both.
400 CIVIL PROCEDURE CODE 11908: Act V.
Tiii FI/?,srS /IED(ILE. APPENDIX-B - P/?0 ESS
No.2
SUMMONS FOR SETTLEMENT OF ISSUES. (0. 5. rr. 1. 5)

(Title)
To
I Name, description and place of residence I
WHEREAS.........................................................................................................
has instituted a suit against you for ........................................................................
You
are hereby summoned to appear in this Court in person or by a pleader duly
instructed, and able to answer all material questions relating to the suit, or who shall
he accompanied by some person able to answer all such questions, on the
.day 01 .....................19 , at .....................o'clock in the .....................
noon, to answer the claim; and you are directed to produce on that day all the
documents upon which you intent to rely in support of your defence.
Take notice that, in default of your appearance oil day before mentioned,
the suit will he heard and determined inyour absence.
GIVEN under my hand and the seal of the Court, this .....................day
19
Judge
NOTICE— 1. Should you apprehend your witnesses will not attend of their own
accord, you can have a summons form this Court to compel the
attendance of any witness, and the production of any document that
You have a right to call on the witness to produce, oil to the
Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together
With the costs of the suit, to avoid execution of the decree, which may
he against your person or property, or both.
No.3
SUMMONS TO APPEAR IN PERSON. (0.5, 0)

(Title)
To
I Name, description ((ltd place qt residence I
WHEREAS..........................................................................................................
has institute a suit against you for ...............................................................you are
hereby summoned to appear in this Court in person on the .....................day of
..19 . at ......................)'clock in the .....................noon, to answer the
claim; and you are directed to produce oil day all the documents upon which you
intent to rely in support of your defence.
THE FIRSTSCI-IEDULE. APPENDIX-B - PROCESS
Take notice that, in default of your appearance on the day before mentioned,
the suit will he heard and determined in your absence.
of ..................... 19,
Judge
No.4
SUMMONS IN SUMMARY SUIT ON NEGOTIABLE INSTRUMENT. (o.37, r.2)

(Title)
we
[Name, description and place of residence]
WHEREAS ...............................................................has instituted a suit against

YOU under order XXXVII of the Code of Civil Procedure, 1908, for [Taka], balance
of principal and interest due to him as the .....................of a .....................of which a
copy is hereto annexed, you are hereby summoned to obtain leave from the Court.
within ten days from the service hereof to appear and defend the suit , and within
such time to cause an appearance to he entered for you. In default whereof the
plaintiff will be entitled at any time after the expiration of such ten days to obtain a
decree for any sum not exceeding the sum of [Taka] .....................and the sum of
[ .Taka] .....................for costs [together with such interest, if any, from the date of
the institution of the suit as the court may order].
Leave to appear may be obtained on an application to the Court supported by

affidavit or declaration showing that there is a defence to the suit on the merits, or
that it is reasonable that YOLI should he allowed to appear in the suit.
GIVEN under my hand and the seal of the Court, this .....................day of
.....19
Judge
No.5
NOTICE TO PERSON WHO, THE COURT CONSIDERS, SHOULD BE ADDED

As CO- PLAINTIFF. (0. 1, r. 10)
(Title)
To
[Name, description and place qf residence]
WHEREAS ...................... .......................................... has instituted the above suit
against .....................for ........................................and, whereas it appears necessary
that you should he added as a plaintiff in the said suit in order to enable the Court
effectually and completely to adjudicate upon and settle all the questions involved:
TIlE FmsTScI-lEIuI.E. APPENDIX-B - P/?ocEs,s'
Take notice that you should oil before the .....................day of ..............19
signify to this Court whether you consent to he so added.
GIVEN under my hand and the seal of the Court, this day of .....................19
Jud'e
NO. 6
SUMMONS TO LEGAL REPRESENTATIVE OF A DECEASED DEFENDANT. (0. 22, r. 4)

(Title)
To
WHEREAS the plaintiff ..........................................instituted a suit in this Court

on the .....................day of .....................19 , agai n st the defendant .....................
who has since deceased, and whereas the said plaintiff has made an application to
this Court alleging that you are the legal representative of the said.....................
deceased, and desiring that you he made the defendant in his stead:
You are hereby summoned to attend in this Court on the ............................day

01......................19 , at .....................AM. to defend the said suit and, in default of
Your appearance on the day specified, the said suit will he heard and determined in
Your absence.
..19,
Judge
No.7
ORDER FOR TRANSMISSION OF SUMMONS FOR SERVICE IN THE JURISDICTION OF

ANOTHER COURT. (0. 5, r.21)
(Title)
To
WHEREAS it is stated that ..........................................defendant/witness in the

above suit is at present residing in ......................It is ordered that a summons
returnable on the .....................day of .....................19 , he forwarded to the
..Court of .....................for service on the said defendant/witness with a
duplicate of this proceeding.
The court-fee of .....................chargeable in respect to the summons has been

realised in this Court in stamps. Dated .....................19
Judge
TI-fE FIRSTSCI-IEDULE. /1 PPETVD1X-B - PROCESS
No.8
ORDER FOR TRANSMITION OF SUMMONS TO BE SERVED ON A

PRISONER (0.5, r.24)
(Title)
To
The Superintendent of the Jail at ........................................................Under the

provisions of' order v, rule24, of the Code of Civil Procedure. 1908, a summons in
duplicate is herewith forwarded for service on the defendant .....................who is
.....i prisoner in jail. You are requested to cause a copy of the said
summons to he served upon the said defendant, and to return the original to this
Court signed by the said defendant, with a statement of service endorsed thereon by
You.
Judge
No.9
ORDER FOR TRANSMISSION OF SUMMONS TO BE SERVED ON A PUBLIC SERVANT OR
SOLDIER. (0. 5, rr.27. 28)
(Title)
To
UNDER the provisions of Order V. rule27 (or 28, as the case may he), of the
Code of Civil Procedure, 1908, a summons in duplicate is herewith forwarded for
service oil defendant .....................who is stated to he serving under you. You
are requested to cause a copy of the said summons to he served upon the said
defendant and to return the original to this Court signed by the said defendant, with a
statement of service endorsed thereon by you.
Judge
No. 10
To ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT (0.5, r.23)
(Title)
Read proceeding from the ..................... .................. forwarding ..................... for

service on .....................in Suit No . ..................... of' 19 .....................of that Court.
Read Serving officer's endorsement stating that the .....................and ])too['

the above having been duly taken by me oil of .....................and .....................it
is ordered that the .....................he returned to the .....................with a copy of this
proceeding.
.Iudge
NOTE:—This form will be applicable to process other than summons, the

service of which may have to he effected in the same manner.
THE FIRSTSCHEDULE. APPENDIX-8 - PI?ocEss
No. 11
AFFIDAVIT OF PROCESS-SERVER TO ACCOMPANY RETURN OF A SUMMONS OR

NOTICE. (0.5, r. 18)
(Title)
The Affidavit of ...........................................on of

make oath/affirm and say as follows:-
(1) I am a process-server of this Court.
(2) On the .....................day of .....................................19 , I received a

summons/notice.....................issued by the Court of .....................in Suit No.
.of 19 , in the said Court, dated the .....................day of .....................
19 , for service on .....................
(3) The said ..........................................was at the time personally known to

me, and I served the said .........................................summons/notice on him/her on
the .....................day of .....................19 , at about .............. o'clock .....................in
the noon at him/her about .....................o'clock in the ................noon at .................
by tendering a copy thereof to him/her and requiring his/her signature to the original
summons/notice
(a)
(h)
(a) Here state whether the person served signed or refused to sign the process,
and in whose presence.
(h) Signature of process-server.

or
(3) The said .....................not being personally known to .....................
.accompanied me to .....................and pointed out to me a person
whom he stated to he the said ......................and I served the said summons/nOtice
on him/her .....................on .....................on the .....................day of .....................
19 , at about .....................o'clock in the noon at .....................by tendering a copy
thereof to him/her and requiring his/her signature to the original summons/notice.
(a)
(h)
(a) Here state whether the person served sign the process, and in whose
presence.

Or
1908: Act V II CIVIL PROCEDURE CODE 405
TuE FIRSTSCHEDULE. APPENDIX-B - PROCESS
(3) The said .....................and the house in which he ordinarily resides being
personally known to me, I went to the said house, in .....................and thereon the
.........day of .....................19 , at about o'clock in the .....................noon, I
did not find the said .....................
(a)
(h)
(a) Enter fully and exactly the manner in which the process was served, with
special reference to Order 5, rules 15 and 17.

Or.
(3) One .....................accompanied me to .....................and there pointed out
to me .....................which he said was the house in which .....................ordinarily
resides. I did not find the said .....................there.
(a)
(h)
(a) Enter fully and exactly the manner in which the process was served with
special reference to order 5, rules 15 and 17.
(b) Signature of process-server.
Or
If substituted service has been ordered, state fully and exactly the manner in
which the summons was served with. special reference to the terms qf the order iCr
substituted service.
Sworn/Affirmed by the said .....................before me this .....................day of

..........19
Empowered under section /39 of the Code of

Civil Procedure, 1908, to administer the oath to
deponents.
No. 12
NOTICE TO DEFENDANT (0.9, r. 6)

(Title)
[Name, description and place of residence]
To
WHEREAS this day was fixed for the hearing of the above suit and a summons
was issued to you and the plaintiff has appeared in this Court and you did not so
THE FIRSTSCI-IEDULE. APPENDIX-B-- PROCESS
appear, but from the return of the Nazir it has been proved to the satisfaction of the
Court that the said summons was served on you but not in sufficient time to enable
You to appear and answer on the day fixed in the said summons;
Notice is hereby given to you that the hearing of the suit is adjourned this day
and that the .....................day of .....................19 is now fixed for the hearing of the
same; in default of your appearance on the day last mentioned the suit will be heard
and determined in your absence.
GIVEN under my hand and the seal of the Court, this ...................................day
of .....................19
.Judge
No. 13
SUMMONS TO WITNESS (0. 16, rr. 1, 5)

(Title)
To
WHEREAS your attendance is required to .....................on behalf of the

in the above suit, you are hereby required IPersonallyl to appeal-
before this Court on the .....................day of .....................19 at .....................
o ' clock in the forenoon, and to bring with you lOr to send to this -----Court.!.
A sum of [Takal ......................being your travelling and other expenses and

subsistence allowance for one day, is herewith sent. Ii you fail to comply with this
order without lawful excuse, you will he subject to the consequences ob non-
attendance laid down in rule 12 01 order XVI of the Code of Civil Procedure, 1908.
of.....................19
Judge
Notice:— (1) If you are summoned only to produce a document and not to give
evidence, you shall he deemed to have complied with the summons
I you cause such document to he produced in this Court on the day
and hour aforesaid.
(2) If you are detained beyond the day aforesaid, a sum of ITakal
will he tendered to you for each day's
attendance beyond the day specified.
THE FIRSTSCHEDULE. APPENDIX-B - PROCESS
No. 14
PROCLAMATION REQUIRING ATTENDANCE OF WITNESS. (0. 16, r. 10)

(Title)
To
WHEREAS it appears From the examination on oath of the serving officer that
the summons could 1101 he served upon the witness in the manner prescribed by law;
and whereas it appears that the evidence of the witness is material, and hd absconds
and keeps out of the way for the purpose of evading the service of the summons:
This proclamation is therefore, under rule 10 of Order XVI of the Code of Civil
Procedure. 1908, issued requiring the attendance of the witness in this Court on the
....day of .....................19 at .....................o'clock in the forenoon and
from day to day until he shall have to depart; and if the witness fails to attend on the
day and hour aforesaid he will he dealt with according to law.
....19
,Jt,ch,'e
No. 15
PROCLAMATION REQUIRING ATTENDANCE OF WITNESS. (0. 16, rIO)

(Title)
To
WHEREAS it appears from the examination on oath of the serving officer that
the summons has been duly served upon the witness, and whereas it appears that the
evidence of the witness is Illateri al and he has failed to attend in compliance with
such summons: This proclamation is therefore, under rule 10 of order XVI of tile
Code of Civil procedure, 1908, issued, requiring the attendance of the witness in this
Court on the .....................day of ..................... 19 at ..................... o'clock in the
forenoon and from day to day until lie shall have leave to depart; and if the witness
tails to attend on the day and hour afor'esaid lie will he dealt with according to law.
GIVEN Linder lily hand and the seal of the Court, this .....................day of
...19.


TIlE FIRST SCHEDULE. APPENDIX-B - PROCESS
No. 16
WARRANTOFATTACHMENTOF PROPERTY OF WITNESS (0. 16, r. /0)

(Title)
To
The Bailiff of the Court......................................................................................

..........................................................................................cited
WHEREAS the witness .....................cited .....................has not, after the

expiration of the period limited in the proclamation issued for his attendance,
appeared in Court; You are hereby directed to hold under attachment .....................
property belonging to the said witness to the value of .....................and to submit a
return, accompanied with an inventory thereof, within .....................days.
GIVEN under my hand and the seal of the Court, this .....................days of
........................19.
Judge
No. 17
WARRANT OF ARREST OF WITNESS. (0. 16, r. 10)

(Title)
To
The Bailiff of the Court .....................................................................................
WHEREAS .....................has been duly served with a summons but has failed to
attend [absconds and keeps out of the way for the purpose of avoiding service of a
summons]; You are hereby ordered to arrest and bring the said .....................before
the Court.
You are further ordered to return this warrant on or before the day of
........................19 with an endorsement certifying the day on and the
manner in which it has been executed, or the reason why it has not been executed.
...19
CIVIL PROCEDURE CODE 409
1908 Act Vi
THE FIRSTSCHEDULE. APPENDIX-B -PROCESS
No. 18
WARRANT OF COMMITTAL. (o. 16, r. 16)

(Title)
To
The officer in charge of the Jail at ....................................................................
WHEREAS the plaintiff ( or defendant) in the above- named suit has made
application to this Court that security he taken for the appearance of .....................
...to give evidence ( or to produce a document), on the .....................day
of .....................19 ; and whereas the Court has called upon the said ....................
to furnish such security, which he has failed to do ; This is to require you to receive
the said .....................into your custody in the civil prison and to produce him before
this Court at .....................on the said day and on such other day or days as may he
hereafter ordered.
ol. ..................... 19
Judge
No. 19
WARRANT OF COMMITTAL. (0. 16, r.18)

(Title)
To
The officer in charge of the Jail at................................................................
WHEREAS ......................whose attendance is required before this Court in the

above-named case to give evidence (or to produce a document), has been arrested
and brought before the Court in custody; and whereas owing to the absence of the
plaintiff (or defendant), the said .....................cannot give such evidence (or produce
such document); and whereas the Court has called upon the said .....................to
give security for his appearance on the .....................day of .....................19 . at
..which he has failed to do; This is to require you to receive the said
..into your custody in the civil prison and to produce him before this
Court at .....................on the .....................day of .....................19
GIVEN under my hand and the seal of the Court, this ....................................day
of..................... 19---.
Judge
THE FIR.sTSCI-IEnuL& APPENDIX-C - Discovery, Inspection and Admission
APPENDIX C
DISCOVERY, INSPECTION AND ADMISSION
No. I
ORDER FOR DELIVERY OF INTERROGATORIES. (0. 11, r. 1)
Inthe Court 01 ............................................................................................

Civilsuit No. ..................... ..................... ui ...........................................19
A. B...... ................ ..................... ..................... ..................... ................ plaintiff,

against
CD., E.F. and G.H. .................... ..................... ..................... .......... Deièndants
Upon hearing .....................and upon reading the aiTidavit of ....................

filed the .....................day of .....................19 It is ordered that the ....................
he at liberty to deliver to the ..................... i nterrogatories in writing, and that the
said .....................do answer the interrogatories as prescribed by order XI, rule 8,
and that the costs of this application be ...........................................
No.2
INTERROGATORIES (0. II, r.4)

Title (IS in No. I, supra)
Interrogatories on behalf of the above-named I plaintiff or deftn.dant C.D. I fir

the e.VWflifI000fl of the ahove-n(lIfle(//(iCfeJI(/aits F. F. And G.H. or p/al ntiff/.
I. Did not, etc................................................................
2. Has not, etc................................................................
etc. etc. etc.
I The defendant E. F. is required to (i,isn'er the interrogatories numbered ........
................... I
/The defendant G.H.is required to answer the interrogatories numbered
..................... ..................... I
No.3
ANSWER TO INTERROGATORIES. (0. 11, r.9)

(Title as in No. I, supra)
(he
The answer of the above-named defendant E.F. to interrogatories br his
examination by the above-named plaintiff.
In answer to the said interrogatories, I, the above-named F. F., make oath say
as follows:-
411
190: Act Vi CIVIL PROCEDURECODE
THE FIRST SCHEDULE. APPENDIX-C —Discovery, Inspection and Admission
I. ) Enter answers to interrogatories in paragraphs numbered Con

2, 1 Secutively
3. 1 object to answer the interrogatories numbered .....................on the
ground that tstate grounds qtoIjecti01ii.
No.4
ORDER FOR AFFIDAVIT AS TO DOCUMENTS. (0. 11, r.12)

......It
is
Upon hearing................................................................................. .
ordered that the .....................do within .....................days from the date this of
order, answer on affidavit stating which documents are or have been in his
possession or power relating to the matter in question in this suit, and that the costs
() ('this application he.....................
No.5
AFFIDAVIT AS TO DOCUMENT (0. 11, r.13)

(Title as in No. I. supra)
I. the above- named defendant C.D., make oath and say as follows:-
1. 1 have in my possession or power the documents relating to the matters in

question in this suit set forth in the first and second parts of the first schedule hereto.
2. 1 object to produce the said documents set forth in the second part of the
First schedule hereto [slate grounds of objection
3. 1 have had but have not now, in my possession or power the documents
rclaling 10 the matters in question in this suit set forth in the second schedule hereto.
4. The last- mentioned documents were last in my possession or power on

Istate when and what has become ojthe,n. and in. whose /JOSSCSSIOO the y now are I.
5. According to the best of my knowledge, information and belief I have not

now, and never had, in my possession, custody or power, or in the possession,
custody or power of' my pleader or agent, or in the possession, custody or power of
any other person on my behalf, any account, hook of' account, voucher, receipt,
letter, memorandum, paper or writing, or any copy of or extract from any such
document, or any other document what-soever, relating to the matters in question in
this suit or any of them, or wherein any entry has been made relative to such matters
or any of them, other than and except the documents set forth in the said first and
second schedules hereto.
412
CIVIL PROCEDURE CODE [1908: Act V
THE FIRST SCHEDULE APPENDIX-C —Discoveiy, Inspection and Admission
No.6
ORDER TO PRODUCE DOCUMENTS FOR INSPECTION (0.1 1, r. 14)

Upon hearing ........................................................and upon reading the affidavit

of ...................filed the ..........................day of ...........................19 It is
ordered that the ......................................do, at all reasonable times, on reasonable
notice, produce at ......................ituated at ......................the following documents,
namely. ..................... .......................................... .and that the .....................he at
liberty to inspect and peruse the documents so produced, and to make notes of their
contents. In the meantime, it is ordered that all further proceedings to be stayed and
that the costs of this application be ......................
No.7
NOTICE TO PRODUCE DOCUMENTS. (o. 11, r. 16)
Take notice that the Iplaintiff or deftndanti

requires you to produce for his
inspection the following documents referred to in your [plaint or
or affidavit, dated the .....................day of .....................19 written statement
].
[Describe documents required]

X. Y., pleader for the
To Z., pleader for the ..........................................
No.8
NOTICE TO INSPECT DOCUMENTS (0. 11, r. 17)
(Title as in No. 1, supra)
Take notice that you can inspect the documents mentioned in your notice of the
........day of . ................... .I 9
/except the documents numbered ......................
in that notice] at (in. err place of inspection. ]
On Thursday next, the .....................
instant, between the hours of 12 and 4 o'clock.
Or, that the [plaintiff or clekn.clant] objects to givin

g you inspection of
documents mentioned in your notice of the .....................day of .....................19
on the ground that [state the ground:-
TilE F,RsTScHEDtJLE. APPENDIX-C —Discovery, Inspection and Admission
No.9
NOTICE TO ADMIT DOCUMENTS (0. 12, r. 3)

(Title as in No. / supra)
Taka notice that the plaintiff for defendant] in this suit proposes to adduce in
evidence the several documents hereunder specified and that the same may be
inspeoted by the defendant [or plaintiffj, his pleader or agent at .......................on
...between the hours of ....................; and the defendant [or plaintiff], is
hereby required within forty-eight hours from the last-mentioned hour, to admit that
such of the said documents as are specified to he originals were respectively written
signed or executed as they purport respectively to have been; that such as are
specified as copies are true copies; and such documents as are stated to have been
served sent or delivered were so served, sent or delivered respectively, saving all just
exceptions to the admissibility of all such documents as evidence in this suit.
G.H. pleader [or agent] .for plaintiff

......................................................... [or defendant]
To E.F., pleader [or agent] .thr deft-'ndant [or plaintiftl
[Here describe the documents and specify as to each document whether it is

original or a COPY]
No. 10
NOTICE TO ADMIT FACT (0. 12, r. 5)

(Title as in No. I supra)
Take notice that the plaintiff [or defendant] in this suit requires the defendant
[or plaintiff] to admit for the purposes of this suit only the several facts respectively
hereunder specified; and the defendant [or plaintiff] is hereby required within six
days ftorn the service of this notice to admit the said several facts, saving all just
exceptions to the admissibility of such facts as evidence in this suit.
G.H., pleader [or agentl jhr plaintiff [or defendant]
I
To E. F. Pleader [or agent fhr defCndant [or plaintiff]
Thu facts, the admission of which is required, are–

I. That M. died oil 1st January 1890.
2. That he died intestate
3. That N. was his only lawful son
4. That 0. died on the 1St April, 1896
5. That 0. was never married.


THE FIRSTSCHEDULE. APPENDIX-C —Discoveiy, inspection and Admission
No. 11
ADMISSION OF FACTS PURSUANT TO NOTICE (0. 12, r. 5)

(Title cis in No. I supra)
The defendant br plaintiff] in this Suit for the purposes of this suit only, hereby
admits the several facts respectively hereunder specified, subject to the qualifications
or limitations, if any, hereunder specified, saving all just exceptions to the
admissibility of any such facts, or any of them, as evidence in this suit:
Provided that this admission is made for the purposes of this suit only, and is
not an admission to be used against the defendant [or plaintiff] oil other occasion
or by any one other than the plaintiff [or defendant, or party requiring the
admission
E.F. pleader l or agent] for defendant lot- piainttff].
To G.H. pleader (or agent for picuntt/j (or defendant].
Facts admitted Qualifications or limitations, if any,

____________________ subject to which they arc admitted
1 . That M. died on the I' January, 1
1890 2.
2. That he died intestate .. .. 3. But not that he was his only lawful
3. That N. was his lawful son .. son
4. That 0. died .. .. .. .. 4. But not that he died on the 1st April,
5. That 0. was never married .. 1896
5.
No. 1.2
NOTICE TO PRODUCE (GENERAL FORM (0. 12, r. 8)

(Title as in. No. I supra)
Take notice that you arc hereby required to produce and show to the Court at
the first hearin g of this suit all books, papers, letters, copies of letters and other
writings and documents in your custody, possession or power, containing any entry,
memorandum or minute relating to the matters in question in this suit, and
particularly.
G.H., pleader tar agent] for plaintiff (or defendant]I

To E. F., pleader br agent] for defendant j or plain.tifll
1908: Act V i CIVIL PROCEDURE CODE 415
THE FIRSTSCHEDULE. APPEND!X-D —DECREES
APPENDIX D
DECREES
No. 1
DECREE IN ORIGINAL SUIT (0. 20, rr. 6,7)

(Title)
Claimfor .........................................................................................................
Ti-its suit coming on this day for final disposal before .................................in
the presence of ................................................................(or the plaintiff and of for
the defendant, it is ordered and decreed that ..........................................and that the
SLIM of [Taka .....................he paid by the ............................................. to the
..................on account of the costs of this suit, with interest thereon at the
rate of ....................................per cent. Per annum from this date to date of
realisation.
Given under my hand and the seal of the Court, this.................................day of

.....................19.....
Judge
Cost of Suit
Plaintiff Defendant
Tk Tk
Stamp for plaint .. Stamp for power

2. Do for power .. Do for petition
3. Do for exhibits .. Pleader's fee
4. Pleader's fee on Tk .. Subsistence for witnesses
5. Suhsistancc for witnesses Service of process
6. Commissioner's lee.. Commissioner's fee
7. Service of process
Total . . - Total
No.2
SIMPLE MONEY DECREE (SECTION 34)

(Title)
Claimfor .........................................................................................................
THIS suit coming on this day for final disposal before .................................in
the presence of ....................................for the plaintiff and of .........................for the
defendant, it is ordered that the ...........................do pay to the ................................
the sum of [Takal ..............................with interest thereon at the rate of .......per
cent. per annum from .........................to the date of realization of the said sum and


THE FIRSTSCHEDULE. APPENDIX-D —DECREES
do also pay [Taka] ....................................the costs of this suit, with interest thereon
at the rate of ..................................per cent, per annum from this date to the date of
realization.
Given under my hand and the seal of the Court, this.................................day of

...................19.....
Judge
Costs of Suit
Plaintiff Defendant
Tk Tk
8. Stamp for plaint .. Stamp for power

9. Do for power .. Do for petition
10. Do for exhibits .. Pleader's fee
II. Pleader's fee on Tk .. Subsistence for witnesses
12. Subsistence for witnesses Service of process
13. Commissioner's fee.. Commissioner's fee..
14. Service of process
Total .. 'Total .. -
No.3
PRELIMINARY DECREE FOR FORECLOSURE
(Order XXXIV, rule 2—Where accounts are directed to he taken)

(Title)
THIS suit coming on this .................................day, etc.; It is hereby ordered and

decreed that it he referred to ..................................................................as the
Commissioner to take the accounts following:—
(I) an account of what is due on this date to the plaintiff for principal and
interest on his mortgage mentioned in the plaint (such interest to be
computed at the rate payable on the principal or where no such rate is
fixed, at six per cent, per annum or at such rate as the Court deems
reasonable)
(ii) an account of the income of the mortgaged property received up to this
date by the plaintiff or by any other person by the order or for the use of
the plaintiff or which without the wilful default of the plaintiff or such
person might have been so received;
(iii) an account of all sums of money properly incurred by the plaintiff up to
this date for costs, charges and expenses (other than the costs of the suit)
in respect of the mortgage-security, together with interest thereon (such
interest to he computed at the rate agreed between the parties, or, failing


such rate, at the same rate as is payable on the principal, or, failing both
such rates, at. nine per cent, per annum);
(iv) an account of any loss or damage caused to the mortgaged property before
this date by any actor omission of the plaintiff which is destructive of, or
permanently injurious to, the property or by his failure to perform any of
the duties imposed upon him by any law for the time being in force or by
the terms of the mortgage-deed
2. And it is hereby further ordered and decreed that any amount received
under clause (ii) or adjudged due under clause (iv) above, together with interest
thereon, shall first be adjusted against any sums paid by the plaintiff under clause
(iii) together with interest thereon, and the balance, if any, shall be added to the
mortgage-money or, as the case may he, be debited in reduction of the amount due to
the plaintiff on account of interest on the principal sum adjudged due and thereafter
in reduction or discharge of the principal.
3. And it is hereby further ordered that the said Commissioner shall present
the account to this Court with all convenient despatch after making all just
allowances on or before the ..............................day of ...................................and that
upon such report of the Commissioner being received, it shall be confirmed and
countersigned, subject to such modification as may be necessary after consideration
of such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed:-
(i) that the defendant do pay into Court on or before .............................the

day of .......................................................................or any later date up to
which time for payment may be extended by the Court, such sum as the
Court shall find due, and the sum of [Taka] ...........................for the costs
of the suit awarded to the plaintiff:
(ii) that, on such payment and on payment thereafter before such date as the
Court may fix of such amount as the Court may adjudge due in respect of
su costs of the suit and such costs charges and expenses as may be
payable under rule 10, together with such subsequent interest as may be
payable under rule 11, of Order XXXIV of the First Schedule to the Code
of Civil Procedure, 1908, the plaintiff shall bring into Court all documents
in his possession or power relating to the mortgaged property in the plaint
mentioned, and all such documents shall be delivered over to the
defendant, or to such person as he appoints, and the plaintiff shall, if so
required, re-convey or re-transfer the said property free from the said
mortgage and clear of and from all incumbrances created by the plaintiff
or any person claiming under him or any person under whom he claims
and free from all liability whatsoever arising from the mortgage or this
suit and shall, if so required, deliver up to the defendant quiet and
peaceable possession of the said property.
THE FIRSTSCHEDULE. APPENDIX-D -DECREES
5. And it is hereby further ordered and decreed that, in default of payment as

aforesaid, the plaintiff shall be at liberty to apply to the Court for a final decree that
the defendant shall thenceforth stand absolutely debarred and foreclosed of and from
all right to redeem the mortgaged property described in the Schedule annexed hereto
and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of
the said property; and that the parties shall he at liberty to apply to the Court from
time to time as they may have occasion, and on such application or otherwise the
Court may give such directions as it thinks fit.
SCHEDULE
Description of the mortgaged property
No. 3A
PRELIMINARY DECREE FOR FORECLOSURE
(Order XXX1V, rule 2—Where Court declares the amount due)

(Title)
THIS suit coming on this .................................day, etc.; It is hereby declared

that the amount due to the plaintiff on his mortgage mentioned in the plaint
calculated up to this .........................................day of ................................is the sum
of [Taka] .........................for principal, the sum of [Taka] ............for interest on the
said principal, the sum of [Taka] ...........for costs, charges and expenses (other than
the costs of the suit) properly incurred by the plaintiff in respect of the mortgage
security, together with interest thereon, and the sum of [Taka] .........................for
the costs of this suit awarded to the plaintiff, making in all the sum of [Taka]:-
2. And it is hereby ordered and decreed as follows:-
(i) that the defendant do pay into Court on or before .............................the

day of .................or any later date up to which time for payment may
be extended by the Court of the said sum of [Taka] ................... .
(ii) that, on such payment and on payment thereafter before such date as
the Court may fix of such amount as the Court may adjudge due in
respect of such costs of the suit and such costs, charges and expenses
as may be payable under rule 10, tOgether with such subsequent
interest as may he payable under rule 11, of Order XXXIV of the First
Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring
into Court all documents in his possession or power relating to the
mortgaged property in the plaint mentioned, and all such documents
shall he delivered over to the defendant, or to such person as he
appoints, and the plaintiff shall, if so required, re-convey or re-transfer
the said property free from the said mortgage and clear of and from all
incumbrances created by the plaintiff or any person claiming under
him or any person under whom he claims and free from all liability
1908: ActV] CIVIL PROCEDURE CODE 419
TI-FE FIRSTSCHEDLILE. A PPENDIX-D —DECREES
whatsoever arising from the mortgage or this suit and shall, if so

required, deliver up to the defendant quiet and peaceable possession of
the said property.

aforesaid, the plaintiff may apply to the Court for a final decree that the defendant
shall thenceforth stand absolutely debarred and foreclosed of and from all right to
redeem the mortgaged property described in the Schedule annexed hereto and shall,
if SO required, deliver up to the plaintiff quite and peaceable possession of the said
property; and that the parties shall he at liberty to apply to the Court from time to
time as they may have occasion and on such application or otherwise the Court may
give such directions as it thinks fit.
SCHEDULE
No.4
FINAL DECREE FOR FORECLOSURE

(Order XXXIV, rule 3)
(Title)
Upon reading the preliminary decree passed in this suit on the .....................day
of .....................and further orders (if any) dated the ...............................day of
......and the application of the plaintiff dated the ..............................
..day of ..........................................................for a final decree and after
hearing the parties and it appearing that the payment directed by the said decree and
orders has not been made by the defendant or any person on his behalf or any other
person entitled to redeem the said mortgage:
It is hereby ordered and decreed that the defendant and all persons claiming
through or under him he and they are hereby absolutely debarred and foreclosed of
and from all ght of redemption of and in the property in the aforesaid preliminary
decree mentioned; [and (if the defrndant he in possession of the said mortgaged
property) that the defendant shall deliver to the plaintiff quiet and peaceable
possession of the said mortgaged property].
2. And it is hereby further declared that the whole of the liability whatsoever
of the defendant up to his day arising from the said mortgage mentioned in the plaint
or from this suit is hereby discharged and extinguished.
THE FIRST SCHEDULE. APPENDIX-D —DECREES
No.5
PRELIMINARY DECREE FOR SALE

(Order XXXIV, rule 4—Where accounts are directed to be taken)
(Title)
THIS suit coming on this ....................day, etc.; It is hereby ordered and decreed
that it be referred to ............................................................................................as the
Commissioner to take the accounts following:-
(i) an account of what is due on this date to the plaintiff for principal and
interest on his mortgage mentioned in the plaint (such interest to he
fixed, at six per cent per annum or at such rate as the Court deems
reasonable);
date by the plaintiff or by any other person by the order or for the use of
the plaintiff or which without the wilful default of the plaintiff or such
(iii) an account of all sums of money properly incurred by the plaintiff up to
in respect of the mortgage-security, together with interest thereon (such
interest to be computed at the rate agreed between the parties, or, failing
such rates, at nine per cent per annum);
this date by any act or omission of the plaintiff which is destructive of, or
permanently injurious to, the property or by his failure to perform any of
the duties imposed upon him by any law for the time being in force or by
the terms of the mortgage-deed.
under clause (ii) or adjudged due under clause (iv) above, together with interest
thereon, shall first be adjusted against any sums paid by the plaintiff under clause
(iii), together with interest thereon, and the balance, if any, shall be added to the
mortgage-money or, as the case may be, be debited in reduction of the amount due to
the plaintiff on account of interest on the principal sum adjudged due and thereafter
in reduction or discharge of the principal.
allowances on or before the ..........................day of ................................and that
upon such report of the Commissioner being received, it shall be confirmed and
countersigned, subject to such modification as may be necessary after consideration
such objections as the parties to the suit may make.
4. And it is hereby further ordered and decreed-

T,IE FIRsTSCHEDULE. APPEND!x-D —DECREES
(i) that the defendant do pay into Court on or before the day of .................or
any later date up to which time for payment may be extended by the
Court, such sum as the Court shall find due and the sum of [Taka]
for the costs of the suit awarded to the plaintiff;
such costs of the suit, and such costs, charges and expenses as may he
required, re-convey or re-transfer the said property free from the mortgage
and clear of and from all incumbrances created by the plaintiff or any
person claiming under him or any person under whom he claims and
shall, if so required, deliver up to the defendant quiet and peaceable
possession of the said property.

aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the
mortgaged property; and on such application being made the mortgaged property or
a sufficient part thereof shall be directed to he sold; and for the purposes of such sale
the plaintiff shall produce before the Court, or such officer as it appoints, all
documents in his possession or power relating to the mortgaged property.
6. And it is hereby further ordered and decreed that, the money realised by
such sale shall he paid into Court and shall he duly applied (after deduction there
from of the expenses of the sale) in payment of the amount payable to the plaintiff
under this decree and under any further orders that may be passed in this suit and in
payment of any amount which the Court may adjudge due to the plaintiff in respect
of such costs of the suit, and such costs, charges and expenses as may he payable
under rule 10, together with such subsequent interest as may be payable under rule
11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and
that the balance, if any shall be paid to the defendant or other persons entitled to
receive the same.
7. And it is hereby further ordered and decreed that, if the money realised by
such sale shall not he sufficient for payment in full of the amount payable to the
plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to
him under the terms of his mortgage and is not barred by any law for the time being
in force) to apply for a personal decree against the defendant for the amount of the
balance; and that the parties are at liberty to apply to the Court from time to time as
they may have occasion, and on such application or otherwise the Court may give
such directions as it thinks fit.
SCHEDULE
Description of the mortgaged properly
THE F/RSTSCHEDLJLE. A PPEND!X-D -DECREES
No. 5A

(Order XXXIV, rule 4—Where Court declares the amount due)
(Title)
THIS suit coming on this ....................day, etc.; It is hereby declared that the
amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to
this ................................... day of ...........................is the sum of [Taka] ..................
for principal, the sum of [Taka] ....................for interest on the said principal, the
sum of [Taka] ...............for costs, charges and expenses (other than the costs of the
suit) properly incurred by the plaintiff in respect of the mortgage-security, together
with interest thereon, and the sum of [Takal ..............................for the costs of the
suit awarded to the plaintiff, making in all the sum of [Taka] ...........................
2. And it is hereby ordered and decreed as follows:-

(i) that the defendant do pay into Court on or before the ............................
day of ................................or any later date up to which time for payment
may he extended by the Court, the said sum of [Taka]
(ii) that, .. such payment and on payment thereafter before such date as the
such costs of the suit and such costs, charges and expenses as may be
payable under rule 10, together with such subsequent interest as may he
required, reconvey or retransfer the said property free from the said
mortgage and clear of and from all incumbrances created by the plaintiff
or any person claiming under him or nay person under whom he claims
and shall, if so required, deliver up to the defendant quiet and peaceable

aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the
mortgaged property; and on such application being made, the mortgaged property or
a sufficient part thereof shall be directed to be sold; and for the purposes of such sale
the plaintiff shall produce before the Court or such officer as it appoints all
documents in his possession Or power relating to the mortgaged property.
4. And it is hereby further ordered and decreed that the money realised by
such sale shall he paid into Court and shall be duly applied (after deduction there
from of the expenses of the sale) in payment of the amount payable to the plaintiff
under this decree and under any further orders that may be passed in this suit and in
payment of any amount which the Court may adjudge due to the plaintiff in respect
1908: Act VI CIVIL PROCEDURE CODE. 423
THE FIRST SCHEDULE. A PPENDIX-D -DECREES
Of such costs of the suit, and such costs, charges and expenses as may he payable
under rule 10, together with such subsequent interest as may he payable under rule
11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and
that the balance, if any, shall be paid to the defendant or other persons entitled to
receive the same.
5. And it is hereby further ordered and decreed that, it the money realised by
such sale shall not he sufficient for payment in full of the amount payable to the
plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to
him under the terms of his mortgage and is not barred by any law for the time being
in force) to apply for the personal decree against the defendant for the amount of the
balance; and that the parties are at liberty to apply to the Court from time to time as
they may have occasion, and on such application or otherwise the Court may give
SCHEDULE
No.6
FINAL DECREE FOR SALE
(Title)
Upon reading the preliminary decree passed in this suit on the ................day of
................and further orders (if any) dated the ....................day of
....and the application of the plaintiff dated ....................................day of
................................for a final decree and after hearing the parties and it
appearing that the payment directed by the said decree and orders has not been made
by the defendant or any person on his behalf or any other person entitled to redeem
the mortgage:
It is hereby ordered and decreed that the mortgaged property in the aforesaid
preliminary decree mentioned or a sufficient part thereof be sold, and that for the
purposes of such sale the plaintiff shall produce before the Court or such officer as it
appoints all documents in his possession or power relating to the mortgaged
property.
2. And is hereby further ordered and decreed that the money realised by such
sale shall he paid into the Court and shall he duly applied (after deduction therefrom
of the expenses of the sale) in payment of the amount payable to the plaintiff under
the aforesaid preliminary decree and under any further orders that may have been
passed in this suit and in payment of any amount which the Court may have
adjudged due to the plaintiff for such costs of the suit including the costs of charges
and expenses as may he payable under rule 10, together with such subsequent
interest as may he payable under rule 11, of Order XXXIV of the First Schedule to
the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the
defendant or other persons entitled to receive the same.
TIlE FIRST SCHEDULE. APPENDJX-D —DECREES
No.7
PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT

BY MORTGAGOR A DECREE FOR FORECLOSURE IS PASSED
(Order XXXIV, rule 7)—Where accounts are directed to be taken)
(Title)
THIS suit coming on this ........................day, etc.; It is hereby ordered and

decreed that it he referred to .............................as- the Commissioner to take the
accounts following:-
i) an account of what is due on this date to the defendant for principal and
interest on the mortgage mentioned in the plaint (such interest to be
fixed, at six per cent per annum or at such rate as the Court deems
reasonable);
ii) an account of the income of the mortgaged property received up to this
date by the defendant or by any other person by order or for the use of the
defendant or which without the wilful default of the defendant or such
iii) an account of all sums of money property incurred by the defendant up to
in respect of the mortgage-security together with interest thereon (such
such rates, at nine per cent, per annum).
iv) an account of any loss or damage caused to the mortgaged property
before this date by any act or omission of the defendant which is
destructive of, or permanently injurious to, the property or by his failure
to perform any of the duties imposed upon him by any law for the time
being in force or by the terms of the mortgage-deed.
2. It is hereby further ordered and decreed that any amount received under
clause (ii) or adjudged due under clause (iv) above, together with interest thereon,
shall be adjusted against any sums paid by the defendant under clause (iii) together
with interest thereon, and the balance, if any, shall he added to the mortgage-money
or, as the case may he, he debited in reduction of the amount due to the defendant on
account of interest on the principal sum adjudged due and thereafter in reduction or
discharge of the principal.
allowances on or before the .................................day of ........................and that
upon such report of the Commissioner being received, it shall be confirmed and -
countersigned, subject to such modification as may he necessary after consideration

of such objection as the parties to the suit may make.
4. And it is hereby further ordered and decreed--
(i) that the plaintiff do pay into Court on or before the .......................day of
................................or any later date up to which time for
payment may he extended by the court, such sum as the Court shall find
due and the sum of [Taka] .........................for the costs of the suit
awarded to the defendant;
(ii) that, on such payment, and on payment thereafter before such date as the
of Civil Procedure, 1908, the defendant shall bring into Court all
documents in his possession or power relating to the mortgaged property
in the plain mentioned, and all such document shall be delivered over to
the plaintiff, or to such person as he appoints, and defendant shall, if so
required, reconvey or re-transfer the said property free from the said
mortgage and clear of and from all incumbrances created by the defendant
or any person claiming under him or any person under whom he claims
suit and shall, if so required, deliver up to the plaintiff quiet and

aforesaid, the defendant shall he at liberty to apply to the Court for a final decree that
the plaintiff shall the henceforth stand absolutely debarred and foreclosed of and
from all right to redeem the mortgaged property described in the Schedule annexed
hereto and shall, if so required, deliver up to the defendant quiet and peaceable
possession of the said property; and that the parties shall be at liberty to apply to the
Court from time as they may have occasion, and on such application or otherwise the
Court may give such directions as it thinks fit.
SCHEDULE
No. 7A

BY MORTGAGOR A DECREE FOR SALE IS PASSED
(Order XXXIV, rule 7)–Where accounts are directed to be taken)
(Title)
THE FIRST SCHEDULE. A PPEND!X-D -DECREES
THIS suit coming on this .............................day, etc; It is hereby ordered and

decreed that it he referred to ....................................................................as the
Commissioner to take the accounts following:--
(i) an account of what is due on this date to the defendant for principal and
interest on the mortgage mentioned in the plaint (such interest to he
fixed, at six percent, per annum or at such rate as the Court deems
reasonable):
date by the defendant or by any other person by the order or for the use of
the defendant or which without the wilful default of the defendant or
such person might have been so received:
(iii) an account of all sums of money properly incurred by the defendant up to
this date for costs, charges and expenses ( other than the costs of the suit)
in respect of the mortgage-security together with interest thereon (such
such rates, at nine per cent, per annum);
this date by any act or omission of the defendant which is destructive of,
or permanently injurious to, the property or by his failure to perform any
of the duties imposed upon him by any law for the time being in force or
by the terms of the mortgage-deed.
tinder clause (ii) or adjudged due under clause (iv) above, together with interest
thereon, shall first he adjusted against any sums paid by the defendant under clause
(iii) together with interest thereon, and the balance, if any, shall he added to the
mortgage-money, or, as the case may be, he debited in reduction of the amount due
to the defendant on account of interest on the principal sum adjudged due and
thereafter in reduction or discharge of the principal.
allowances on or before the ...........................day of ........................and that, upon
such report of the Commissioner being received, it shall be confirmed and
countersigned, subject to such modification as may he necessary after consideration
of such objections as the parties to the suit may make.
3. And it is hereby further ordered and decreed-
(i) that the plaintiff do pay into Court on or before the ......................day of
............................or any later date up to which time for
payment may he extended by the Court, such sum as the Court shall find
1908; Act Vi CIVIL PROCEDURE CODE 427
THE FIRST SCHEDULE. APPEND!X-D -DECREES
due and the sum of [Taka] .........................................for the costs of the

suit awarded to the defendant;
payable under rule 10, together with such subsequent interest as may he
payable tinder rule 11, of Order XXXIV of the First Schedule to the Code
in the plaint mentioned, and all such documents shall be delivered over to
the plaintiff, or to such person as he appoints, and the defendant shall, if
so required, reconvey or retransfer the said property free from the said
or any person shall, if so required, deliver up to the plaintiff quiet and

aforesaid, the defendant may apply to the Court for a final decree for the sale of the
a sufficient part thereof shall he directed to he sold; and for the purposes of such sale
the defendant shall produce before the Court or such officer as it appoints, all
documents in his possession or power, relating to the mortgaged property.
such sale shall he paid into Court and shall be duly applied (after deduction
therefrom of the expenses of the sale) in payment of the 'amount payable to the
defendant under this decree and under any further orders that may he passed in this
suit and in payment of any amount which the Court may adjudge due to the
defendant in respect of such costs of the suit and such costs, charges and expenses as
may he payable under rule 10, together with such subsequent interest as may he
payable under rule II, of Order XXXIV of the First Schedule to the Code of Civil
Procedure, 1908, and that balance, if any, shall be paid to the plaintiff or other
persons entitled to receive the same.
such sale shall not be sufficient for payment in full of the amount payable to the
defendant as aforesaid, the defendant shall he at liberty (where such remedy is open
to him under the terms of his mortgage and is not barred by any law for the time
being in force) to apply for a personal decree against the plaintiff for the amount of
the balance; and that the parties are at liberty to apply to the Court from time to time
as they may have occasion, and on such application or otherwise the Court may give
SCHEDULE
THE FIRST SCI-IEDULE. A P°ENDJX-D -DECREES
No. 7B
PRELIMINARY DECREE FOR REDEMPTION WHEREON DEFAULT OF PAYMENT

(Order XXXIV, rule 7)—Where the Court declares the amount due)
(Title)
THIS suit coming on this.................................day, etc.; It is hereby declared
that the 'amount due to the defendant on the mortgage mentioned in the plaint
calculated up to this ..................................day of ..............................is the sum of
[Taka] .........................for principal, the sum of [Taka] ...........for interest on the
said principal, the sum of [Taka] .........................for costs, charges and expenses
(other than the costs of the suit) properly incurred by the defendant in respect of the
mortgage-security together with interest thereon, and the sum of [Taka] .............for
the costs of the suit awarded to the defendant, making in all the sum of [Taka].
3. And it is hereby ordered and decreed as follows: -
(i) that the plaintiff do pay into Court on or before the ........................day of
or any later date up to which time for payment may he
extended by the Court the said sum of [Taka]....................................
such costs of the suit and such cost, charges and expense as may he
payable under rule II, of Order XXXIV of the First Schedule to the Code
in the plaint mentioned, and all such documents shall be delivered over to
the plaintiff, or to such person as he appoints, and the defendant shall, if
so required, reconvey or retransfer the said property free form the said
or any person claiming under him or any person under whom he claims,
suit and shall, if so required, deliver up to the plaintiff quiet and peaceable

aforesaid, the defendant may apply to the Court for a final decree that the plaintiff
shall thenceforth stand absolutely debarred and foreclosed of and from all right to
redeem the mortgaged property described in the Schedule annexed hereto and shall,
if so required, deliver up to the defendant quiet and peaceable possession of the said
property; and that the parties shall he at liberty to apply to the Court from time to
time as they may have occasion, and on such application or otherwise the Court may
give such directions as it thinks fit.
SCHEDULE
No. 7C

(Order XXXIV, rule 7)—Where the Court declares the amount due)
(Title)
THIS suit coming on this .........................day, etc.; It is hereby declared that the
amount due to the defendant on the mortgage mentioned in the plant calculated up to
this .................day of ...........................is the sum of the said principal, the sum of
[Taka] ..........................for costs, charges and expenses (other than the costs of the
suit) properly incurred by the defendant in respect of the mortgage-security together
with interest thereon, and the sum of [Taka] ......................for the cost of this suit
awarded to the defendant, making in all the sum of [Taka]
2. And it is hereby ordered and decreed as follows: -
(I) that the plaintiff do pay into court on or before the ..........................day of
.....or any later date up to which time the payment may he
extended by the Court the said sum of [Taka]..............................
payable under rule 11, of Order XXXIV of the First Scheduleto the Code
in the plaint mentioned, and all such documents shall he delivered over to
the plaintiff, or such person as he appoints, and the defendant shall, if so
required, reconvey or retransfer the said property to the plaintiff free from
the said mortgage and clear of and from all incumbrances created by the
defendant or any person claiming under him or any person under whom
he claims and shall, if SO required, deliver up to the plaintiff quiet and

aforesaid, the defendant may apply to the Court for a final decree for the sale of the
a sufficient part thereof shall he directed to he sold; and for the purposes ofsuch sale
the defendant shall produce before the Court or such officer as it appoints all
documents in his possession or power relating to the mortgaged property.
such sale shall he paid into Court and shall he duly applied (after deduction
therefrom of the expenses of the sale) in payment of the amount payable to the
defendant under this decree and under any further orders that may he passed in this
suit and in payment of any amount which the Court may adjudge due to the


TIlE FIRSTSCHEDULE. APPENDIX-D —DECREES
defendant in respect of such costs of the suit and such costs, charges and expenses as
may he payable under rule 10, together with such subsequent interest as may be
payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil
Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other
persons entitled to the same.
such sale shall not be sufficient for the payment in full of the amount payable to the
defendant as aforesaid, the defendant shall be at liberty (where such remedy is open
to him under the terms of the mortgage and is not barred by any law for the time
being in force) to apply for a personal decree against the plaintiff for the amount of
the balance; and that the parties are at liberty to apply to the Court from time to time
as they may have occasion, and on such application or otherwise the Court may give
SCHEDULE
No. 7D
FINAL DECREE FOR FORECLOSURE IN A REDEMPTION SUIT ON DEFAULT

OF PAYMENT BY MORTGAGOR
(Title)
Upon reading the preliminary decree in this suit on the .................................

day of ...................................and further orders (if any) dated the ........................day
of .....................................and the application of the defendant dated the ....................
day of .....................for a final decree and after hearing the parties, and it appearing
that the payment as directed by the said decree and orders has not been made by the
plaintiff or any person on his behalf or any other person entitled to redeem the
mortgage:
It is hereby ordered and decreed that the plaintiff and all persons claiming
through or under him be and they are hereby absolutely debarred and foreclosed of
and from all right of redemption of and in the property in the aforesaid preliminary
decree mentioned [and (if the plaintiff be in possession of the said mortgaged
properly) that the plaintiff shall deliver to the -defendant quiet and peaceable
possession of the said mortgaged property]..
2. And it is hereby further declared that the whole of the liability whatsoever
of the plaintiff up to this arising from the said mortgage mentioned in the plaint or
from this suit is hereby discharged and extinguished.
No. 7E
PRELIMINARY DECREE FOR SALE IN A REDEMPTION SUIT ON DEFAULT

BY MORTGAGOR
(Title)
Upon reading the preliminary decree passed in this suit on the ...................day
of ..............................and further orders (if any) dated the .................day of
and the application of the defendant dated the .......................day of
.....for a final decree and after hearing the parties and it appearing that the
payment directed by the said decree and orders has not been made by the plaintiff or
any person on his behalf or any other person entitled to redeem the mortgage:
It is hereby ordered and decreed that the mortgaged property in the aforesaid
preliminary decree mentioned or a sufficient part thereof he sold and that for the
purposes of such sale the defendant shall produce before the Court, or such officer as
it appoints, all documents in his possession or power relating to the mortgaged
property.
2. And is hereby further ordered and decreed that the money realised by such
sale shall be paid into Court and shall he, duly applied (after deduction therefrom of
the expenses of the sale) in payment of the amount payable to the defendant under
the aforesaid preliminary decree and under any further orders that may have been
passed in this suit and in payment of any amount which the Court may have
adjudged due to the defendant for such costs of this suit including the costs of this
application and such cost, charges and expenses as may he . payabie under rule 10,
together with the subsequent interest as may be payable under rule 11, of Order
XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the
balance, if any, shall be paid to the plaintiff or other persons entitled to receive the
same.
No. 7F
FINAL DECREE IN A SUIT FOR FORECLOSURE, SALE OR REDEMPTION WHERE THE

MORTGAGOR PAYS THE AMOUNT OF THE DECREE
(Order XXXIV, rules 3,5 and 8)
(Title)
THIS suit coming on this ...............day for further consideration and it

appearing that on the .........day of ...........................the mortgagor or .................the
same being a person entitled to redeem, has paid into Court all amounts due to the
mortgagee under the preliminary decree dated the .........................day of
........It is hereby ordered and decreed that:-
(i) the mortgagee do execute and deed of reconveyance of the property in the
aforesaid preliminary decree mentioned in favour of the mortgagor [or, as
the case may he. ................. who has redeemed the property] or an
acknowledgement of the payment of the amount due in the his favour;
(ii) the mortgagee do bring into Court all documents in his possession and
power relating to the mortgaged property in the suit.
And it is hereby further ordered and decreed that, upon the mortgagee
executing the deed of recoveyance or acknowledgement in the manner aforesaid,-
(i) the said sum of [Taka] ......................be paid out of Court to the
mortgagee;
(ii) the said deeds and documents brought into the Court be delivered out of
Court to the mortgagor [or the person making the payment] and the
mortgagee do, when so required, concur in registering, at the cost of the
mortgagor [or other person making the payment], the said deed of
reconveyance or the acknowledgement in the office of the Sub-registrar of
;and ....................
(iii) [if the mortgagee, plaintiff or defendant, as the case may be, is in
possession of the mortgaged property] that the mortgagee do forthwith
deliver possession of the mortgaged property in the aforesaid preliminary
decree mentioned to the mortgagor [or such person as aforesaid who has
made the payment].
No.8
DECREE AGAINST MORTGAGOR PERSONALLY FOR BALANCE AFTER THE SALE OF
THE MORTGAGED PROPERTY
(Order XXXIV, rules 6 and 8A)
(Title)
Upon reading the application of the mortgagee (the plaintiff or defendant, as the
case may he) and reading the final decree passed in the suit on the ......................day
of ....................and the Court being satisfied that the net proceeds of the sale held
under the aforesaid final decree amounted to [Taka] .....................and have been
paid to the applicant out of the Court on the ....................day of ...............................
and that the balance now due to him under the aforesaid decree is [Taka]
And whereas it appears to the Court that the said sum is legally recoverable
from the mortgagor (plaintiff or defendant, as the case may be) personally;
It is hereby ordered and decreed as follows: -

That the mortgagor (plaintiff, or defendant, as the case. may be) do pay to the
mortgagee (defendant or plaintiff, as the case may he) the said sum of [Taka]
......with further interest at the rate of six per cent, per annum from the
day of .............................(the date of payment Out of Court referred to
above) up to the date of realisation of the said sum and the costs of this application.


THE FInSTSCHEDULE. APPENDIX-D —DECREES
No.9
PRELIMINARY DECREE FOR FORECLOSURE OR SALE

[Plaintiff Mortgagee

Defendant No. I Mortgagor
iS
Defendant No. 2 Mortgagee]
(Order XXXIV, rules 2 and 4)

(Title)
The suit coming on this ................day, etc.; It is hereby declared that the
amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to
this .................day of ...................is the sum of [Taka] ..............for principal, the
sum of [Taka] ..... ......... for interest on the said principal, the sum of [Taka] ............
for costs, charges and expenses (other than the costs of the suit) incurred by the
plaintiff in respect of the mortgage-security with, interest thereon and the sum of
[Takal .................for the Costs of this suit awarded to the plaintiff, making in all the
SLIM of [Taka] ................................. .
(Similar declarations to he introduced with regard to the amount due to

defendant No. 2 in respect of his mortgage if the mortgage-money due there under
has become pa'ahle at the date of the suit)
2. It is further declared that the plaintiff is entitled to payment of the amount

due to him in priority to defendant NC). 2 [or (if there are several subsequent
mortgagees) that the several parties hereto are entitled in the following order to the
payment of the sums due to them respectively:—]
3. And it is hereby ordered and decreed as follows -
(i) (a) that defendants or one of them do pay into Court on or before the
day of .......................or any later date up to which time for
payment has been extended by the Court the said sum of [Taka]
due to the plaintiff; and
(h) that defendant No. I do pay into Court on or before the day of
or any later date up to which time for payment has been,
extended by the Court the said sum of E.Takai .............due to
defendant NO. 2; and
(ii) that, on payment of the sum declared to he due to the plaintiff by
defendants or either of them in the manner prescribed in clause (i) (a)
and on payment thereafter before such date as the Court may fix of
such amount as the Court may adjudge due in respect of such costs of
434. CIVIL PROCEDURE CODE 1 1908: Act V
TIlE F/RsTSCIIEDULE. APPEA'D!X-D —DECREES
the Suit and such costs, charges and expenses as may he payable
under rule 10, together with such subsequent interest as may he
payable under rule 11, of Order XXXIV of the First Schedule to the
Code of Civil Procedure, 1908, the plaintiff shall bring into Court all
documents in his possession or power relating to the mortgaged
property in the plaint mentioned and all such documents shall he
delivered over to the defendant No . ......... (who has made the
payment), or to such person as he appoints, and the plaintiff shall, if
SO required, reconvey or re-transfer the said property free from the
said mortgage and clear of and from all incumbrances created by the
plaintiff or any person claiming under him or any person under whom
he claims, and also free from all liability whatsoever arising from the
mortgage or this suit and shall if SO required, deliver up to the
defendant No . ............... (who has made the payment) quiet and
(Similar declarations to be introduced, if cleft'n,danr no. I pays the amount

fbun.d or declared to he due to defendan.t No. 2 with such variations as ma y be
necessary having regard to the nature of his mortgage).

aforesaid of the amount due to the plaintiff, the plaintiff shall he at liberty to apply to
the Court for a final decree-
(i) [in the case q1 'a mortgage by conditional sale or on anomalous mortgage
where the only remedy provided for in the mortgage- deed is threclosure
and not sale] that the defendants jointly and severally shall thenceforth
stand absolutely debarred and foreclosed of and from all right to redeem
the mortgaged property described in the Schedule annexed hereto and
shall, if so required, deliver to the plaintiff quiet and peaceable possession
of the said property: or
(ii) *[in the case of any other mortgage] that the mortgaged property or a
sufficient part thereof shall he sold; and that for the purposes of such sale
the plaintiff shall produce before the Court or such officer, as it appoints,
all documents in his possession or power relating to the mortgaged
property; and
(iii) *[in the case where a sale is ordered under clause 4(ü) above] that the
money realised by such sale shall he paid into Court and he duly applied
(after deduction therefrom of the expenses of the sale) in payment of the
amount payable to the plaintiff under the decree and under any further
orders that may have been passed in this suit and in payment of the
amount which the Court may adjudge 'due to the plaintiff in respect of
such costs of this suit and such costs, charges and expenses as may he
payable under rule 10,together with such subsequent interest as may he
of Civil Procedure, 1908, and that the balance, if any, shall he applied in

1908: Act V II CIVIL PROCEDURE CODE 435

TI-IE F//?STScIIEDULE. A PPENDIX-D —DECREES
payment of the amount due to defendant No. 2; and that if any balance he
left, it shall he paid to the defendant No. I or other persons entitled to
receive the same; and
(iv) that, if the money realised by such sale shall not he sufficient for payment
in full of the amounts due to the plaintiff and defendant NC). 2, the plaintiff
or defendant No. 2 or both of them, as the case may he, shall he at liberty
(when such remedy is open under the terms of their respective mortgages
and is not barred by any law for the time being in force) to apply for a
personal decree against defendant No. I for the amounts remaining due to
them respectively.
5. And it is hereby further ordered and decreed—
(a) that if defendant No. 2 pays into Court to the credit of this suit the amount
adjudged due to the plaintiff, but defendant NC). I makes default in the
payment of the said amount, defendant No. 2 shall he at liberty to apply to
the Court to keep the plaintiff's mortgage alive for his benefit and to apply
for a final decree (in the same manner as the plaintiff might have done
under clause 4 above)-
(i) that defendant NC). I shall thenceforth stand absolutely debarred and
foreclosed of and from all right to redeem the mortgaged property
described in the Schedule annexed hereto and shall, if so required, deliver
Lip to defendant NC). 2 quiet and peaceable possession of the said property;i
or
(ii) that the mortgaged property or a sufficient part thereof he sold and that for
the purposes of such sale defendant No. 2 shall produce before the Court or
such officer as it appoints, all documents in his possession or power
relating to the mortgaged property;]
and (h) (ii' oil the application of defendant No. 2 such a final decree for foreclosure
is passed), that the whole of the liability of defendant No. I arising from
the plaintiff's mortgage or from the mortgage 01' defendant No. 2 or from
this suit shall he deemed to have been discharged and extinguished.
6. And it is hereby further ordered and decreed lin the case where a sale is
ordered under clause 5 (dove I-
(i) that the money realised by such sale shall he paid into Court and be duly
applied (after deduction therefrom of the expenses of the sale) first in
payment of the amount paid by defendant No. 2 in respect of the
plaintiff's mortgage and the costs of the suit in connection therewith and
in payment of the amount which the Court may adjudge due in respect of
subsequent interest on the said amount; and that the balance, if any, shall
then he applied in payment of the amount adjudged due to defendant No.
2 in respect of his own mortgage under this decree and any further orders
that may he passed and in payment of the amount which the Court may

436 CIVIL PROCEDURE CODE 11908: Act

THE FIRSTSCHEDULE. APPEJVDJX-D —DECREES
adjudge due in respect of such costs of this suit and such costs, charges
and expenses as may he payable to defendant No. 2 under rule 10,
together with such subsequent interest as may he payable under rule II,
of Order XXXIV of the First Schedule to the Code of Civil Procedure,
1908, and that the balance, if any, shall be paid to defendant No. I or
other persons entitled to receive the same; and
(ii) that, if the money realised by such sale shall not be sufficient for payment
in lull of the amount due in respect of the plaintiff's mortgage or
defendant No. 2's mortgage, defendant No. 2 shall he at liberty (where
such remedy is open to him under the terms of his mortgage and is not
barred by any law for the time being in force) to apply for a personal
decree against defendant No. 1 for the amount of the balance.
7. And it is hereby further ordered and decreed that the parties are at liberty
to apply to the Court from time to time as they may have occasion, and on such
application or otherwise the Court may give such directions as it thinks fit:
SCHEDULE
Description qt the mortgaged property
No. 10
PRELIMINARY DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND FORECLOSURE

OR SALE ON SUBSEQUENT MORTGAGE

[Plaintiff 1' Mortgagee
VS.

Defendant No. I I Mortgagor

Defendant No. 2 V Mortgaged
(Order XXXIV, rules 2 and 7)

(Title)
The suit coming on this ....................day, etc.; It is hereby declared that the
amount due to defendant No. 2 on the mortgage mentioned in the plaint calculated
LIP to this ..............................day of ................................is the sum of [Takal
...for principal, the sum of [Taka] ................................for interest on the
Said principal, the sum of [Taka] ....................for costs, charges and expenses (other
than the costs of the suit) properly incurred by defendant No. 2 in respect of the
mortgage-security with interest thereon and the sum of [Taka] ......................for the
costs of this suit awarded to defendant No. 2 making in all the sum of [Taka]


THE FIRST SCHEDULE. A PPENDIX-D —DECREES
(Similar declarations to be introduced with regard to the amount due from

defendant No. / to the plaintiff in respect of his mortgage f the mortgage mo/ic y clue
thereunder has become pa y able at the date of the suit)
• 2. It is further declared that defendant No. 2 is entitled to payment of the

amount due to him in priority to the plaintiff [or (if there are several subsequent
mortgagees) that the several parties hereto are entitled in the following order to the
payment of the sums due to them respectively:-
3. And it is hereby ordered and decreed as fo!lows:-
(i) (a). that the plaintiff or defendant No. I or one of them do pay into
Court on or before the ...................day of .......................or any
later date up to which time for payment has been extended by the
Court the said sum of [Takal ............due to defendant No.2: and
(h) that defendant No. I do pay into Court on or before the day of
or any later date up to which time for payment has. been
extended by the Court the said sum of Taka due to the plaintiff
and
(ii) that, on payment of the sum declared due to defehdant No. 2 by
the plaintiff and defendant No. I or either of them in the manner
prescribed in clause (i) .and on payment thereafter before such date
as the Court may fix of such amount as the Court may adjudge due
in respect of such costs of the suit and such costs, charges and
expenses as may be payable under rule 10, together with such
subsequent interest as may he payable under rule 11, of Order
XXXIV of the. First Schedule to the Code of Civil Procedure,
1908, defendant No. 2 shall bring into Court all documents in his
possession or power relating to the mortgaged property in the
plaint mentioned, and all such documents shall he delivered over
to the plaintiff or defendant No. I (whoever has made the
payment), or to such person as he appoints, and defendant No. 2
shall, if so required, re-convey or re-transfer the said property free
from the said mortgage and clear of and from all incumbrances
created by defendant NC). 2 or any person claiming under him or.
any person under whom he' claims, and also free, from all liability
whatsoever arising from the mortgage or this suit and shall, if SC)
required, deliver up to the plaintiff or defendant No. I (whoever
has made the payment) quiet and peaceable possession of the said
property.
(Similar 'declarations to he introduced, if defendant No. I pays the amount

found or declared due to the plaintiff with such variations as may be necessary
having regard to the nature qf his mortgage.)
TIlE FIRsTScJ-1EDULE. APPE!VD!X-D -DECREES
4. And it is hereby further ordered and decreed that, in default of payments

as aforesaid, of the amount due to defendant No. 2, defendant No. 2 shall he at
liberty to apply to the Court that the suit he dismissed or for a final decree.
(i) I ill case q a mortgage by conditional sale or an anomalous mortgage

where the only remedy prp'ided fi.'r.in the mortgage deed is ftreclosure
and not said that the plaintiff and defendant No. I jointly and severally
shall thenceforth stand absolutely debarred and foreclosed of and from all
right to redeeni the mortgaged property described in the Schedule annexed
hereto and shall, if so required, deliver to the defendant No. 2 quiet and
peaceable possession of the property; or
(ii) [ill cave of any other mortgage] that the mortgaged property or a
sufficient part thereof shall he sold: and that for the purposes of such sale
defendant NC). 2 shall produce before the Court or such officer as it
appoints, all documents in his possession or power relating to the
mortgaged property; and
(iii) I iii the case where a sale is ordered under clause 4(u) ahovei that the
money realised by such sale shall he paid into Court and he duly applied
(after deduction therefrom of the expenses of the sale) in payment of the
amount payable to defendant NO. 2 tinder the decree and any further
orders that may he passed in this suit and in payment of the amount which
the Court may adjudge due to defendant No. 2 in respect of such costs of
the suit and such costs, charges and expenses as may he payable to the
plaintiff under rule 10, together with such subsequent interest as may he
ptyahlc under rule II, of Order XXXIV of the First Schedule to the Code
of Civil Procedure, 1908, and that the balance, if any, shall be applied in
payment of the amount due to the plaintiff and that, if any balance he left,
it shall he paid to defendant NC). I or other persons entitled to receive the
same: and
(iv) that, if the money realised by such sale shall not he sufficient for payment
in lull of the amounts due to defendant No. 2 and the plaintiff, defendant
No. 2 or the plaintiff or both of them, as the case may he, shall he at
liberty (when such remedy is open under the terms of their respective
mortgages and is not barred by any law for the time being in force) to
apply for a personal decree against defendant No. I for the amounts
remaining due to them respectively.
5. And it is hereby further ordered and decreed,—

(a) that, if the plaintiff pays into Court to the credit of this suit the
amount adjudge due to defendant No. 2 but defendant NC). I makes
default in the payment of the said amount, the plaintiff shall he at
liberty to apply to the Court to keep defendant No. 2's mortgage
alive for his benefit and to apply for a final decree (iii the sane
manlier as th.e de kndant No. 2 might have clone under clause 4
cihove)-
THE FIRST Sci EDULE. A PPENDIX-D —DECREES
(i) that defendant No. I shall thenceforth stand absolutely debarred

and foreclosed of and from all right to redeem the mortgaged
property described in the Schedule annexed hreto and shall, if so
required, deliver up to the plaintiff quiet and peaceable possession of
the said property;] or
and (h) (if on the application of defendant No. 2 such a final decree for
foreclosure is passed), that the whole of the liability of defendant No.
I arising from the plaintiff's mortgage or from the mortgage of
defendant No: 2 or from this suit shall he deemed to have been
discharged and extinguished
6. And it is hereby further ordered and decreed (in the case where a sate is
ordered under clause 5 above)-
(i) that the money realised by such sale shall he paid into Court and he
duly applied (after deduction therefrom of the expenses of the sale)
first in payment of the amount paid by the plaintiff in respect of
defendant NC). 2's mortgage and the costs of the suit in connection
therewith and in payment of the amount which the Court may
adjudge due in respect of subsequent interest on the said amount; and
that the balance, if any, shall then he applied in payment of the
amount adjudged due to the plaintiff in respect of his own mortgage
under this decree and any further orders that may he passed and in
payment of the amount which the Court ma y adjudge due in respect
of such costs of the suit and such costs, charges and expenses as may
he payable to the plaintiff tinder rule 10, togetherwith such
subsequent interest as may be payable under rule II, of Order
XXXIV of the First Schedule to the Code of Civil Procedure, 1908,
and that the balance if any, shall he paid to defendant No. I or other
persons entitled to receive the same; and
(ii) that, if the money realised by such sale shall not he sufficient for
payment in full of' the amount due in respect of defendant No. 2's
mortgage or the plaintiff's mortgage, defendant No. 2 shall be at
liberty (where such remedy is open to him tinder the terms of his
mortgage and is not barred by any law for the time being in force) to
apply for a personal decree against defendant No.. I for the amount of
the balance.
7. And it is hereby further orddrcd and decreed that the parties are at liberty
to apply to the Court from time to time as they may have occasion, and on such
application or otherwise the Court may give such directions as it thinks fit.
SCHEDULE
TI-fE FIRSTSCHEDULE. APPENDIX-D —DECREES
No. 11
I Plain tiff .... Sub or derivative mortgagee

vs.

Defendant No. I Mortgagor

Defendant No. 2 Original Mortgagee]

(Title)
THIS suit coming on this ..........................day, etc.; it is hereby declared that the
amount due to defendant No. 2 on his mortgage calculated up to this .............day of
.........is the sum of [Taka] ................for principal, the sum of [Taka]
.for interest on the said principal, the sum of [Taka] ..............for costs,
charges and expenses (other than the costs of the suit) in respect of the mortgage-
security together with interest thereon and the sum of [Taka] ...........for the costs of
the suit awarded to defendant No. 2, making in all the sum of [Takal .......................
(Similar declarations to be introduced with regard to the amount clue from.

detn.dant No.. 2 to the plaintiff in respect of his mortgage.)
2. And it is hereby ordered and decreed as follows:—
(I) that defendant No. I do pay into Court on or before the said ............
day of ..............or any later date up to which time for payment may
he.extended by the Court the said sum of [Taka] ................due to
defendant No. 2.
(Similar declarations to he introduced with regard to the amount due to the

plain.t,j deft'ndant No 2 being at liberty to pay such amount.)
(ii) that, on payment of the sum declared due to defendant No. 2 by

defendant No. I in the manner prescribed in clause 2(i) and on
payment thereafter before such date as the Court may fix of such
amount as the Court may adjudge due in respect of such costs of the
suit and such costs, charges and expenses as may he payable under
rule 10, together with such subsequent interest as may be payable
under rule 11, of Order XXXIV of the First Schedule to the Code of
Civil Procedure; 1908, the plaintiff and defendant No. 2 shall bring
into Court all documents in their possession or power relating to the
mortgaged property in the plaint mentioned, and all such documents
(except such as relate only to the sub-mortgage) shall he delivered
THE FnsrSCHEDuLE. APPEND1X-D —DECREES
over to defendant No. I, or to such person as he appoints, and

defendant No.2 shall, if SC) required, re-convey or retransfer the
property to defendant No. I free from the said mortgage clear of and
from all incumbrances created by defendant No. 2 or any person
claiming under him or any person under whom he claims, and free
from all liability arising from the mortgage or this suit and shall, if SC)
required, deliver up to defendant NC). I quiet and peaceable
possession of the said property; and
(iii) that, upon payment into the Court by defendant No. I of the amount
due to defendant No. 2, the plaintiff shall he at liberty to apply for
payment to him of the sum declared due to him together with any
subsequent costs of the suit and other costs, charges and expenses as
may he payable under rule 10, together with such subsequent interest
as may be payable under rule 11, of Order XXXIV of. the First
Schedule to the Code of Civil Procedure, 1908, and that the balance,
if any, shall then he paid to defendant No. 2; and that if the amount
paid into the Court he not sufficient to pay in full the sum due to the
plaintiff, the plaintiff shall he at liberty (if such remedy is open to
him by the terms of the mortgage and is not barred by any law for the
time being in force) to apply for a personal decree against defendant
NC). 2 for the amount of the balance.
3. And it is further ordered and decreed that if defendant NC). 2 pays into
Court to the credit of this suit the amount adjudged due to the plaintiff s the plaintiff
shall bring into the Court all documents, etc. [as in suh-claue (ii) of clause 2].
4. And it is hereby further ordered and decreed that, in default of payment by

defendants Nos. I and 2 as aforesaid, the plaintiff may apply to the Court for a final
decree for Sale, and on such application being made the mortgaged property or a
sufficient part thereof shall he directed to he sold; and that for the purposes of such
sale the plaintiff and defendant No. 2 shall produce before the Court. or such officer
as it appoints, all documents in their possession or power relating to the mortgaged
property.
such sale shall he paid into Court and he duly applied (after deduction therefrom of
the expenses of the sale) first in payment of the amount due to the plaintiff as
specified in clause I above with such costs of the suit and other costs, charges and
expenses as may he payable under rule 10, together with such subsequent interest as
may he payable tinder rule 11, of Order XXXIV of the First Schedule to the Code of
Civil Procedure, 1908, and that the balance if any shall be applied in payment of the
amount due to defendant No. 2; and that, if any balance he left, it shall he paid to
defendant No. I or other persons entitled to receive the same.
such sale shall not he sufficient for payment in full of the amounts payable to the
TIlE FIRSTSCHEDLILE. APPENDIX-D —DECREES
plaintiff and defendant No. 2, the plaintiff or defendant No. 2 or both of them, as the
case may be, shall he at liberty (if such remedy is open under their respective
mortgages and is not barred, by any law for the time being in force) to apply for a
personal decree against defendant No. 2 or defendant No. 1 (as the case may he) for
the amount of the balance.
7. And it is hereby further ordered and decreed that, if defendant No. 2 pays
into Court to the credit of this suit the amount adjudged due to the plaintiff, but
defendant No. I makes default in payment of the amount due to defendant No. 2,
shall he at liberty to apply to the Court for a final decree for foreclosure or sale (as
the case may he)—(declarations in the ordinary . form to he introduced according to
the nature qfcfrftndant No. 2's mortgage and the remedies open to him thereunder).
8. And it is hereby further ordered and decreed that the parties are as liberty
to apply to the Court as they may have occasion, and on such application or
otherwise the Court may give some directions as it thinks fir.
SCHEDULE
Description oft/ia mortgaged property
No. 12
DECREE FOR RECTIFICATION OF INSTRUMENT

(Title)
It is hereby declared that the ...........................dated the ........................day of

...l9, does not truly express the intention of the parties to such
And it is decreed that the said ...........................................he rectified by
No. 13
DECREE TO SET ASIDE A TRANSFER IN FRAUD OF CREDITORS

(Title)
It is here by declared that the .....................dated the .............................day of

19, and made between ....................and ....................is void as against the
plaintiff and all other the creditors, if ally, of the defendant.
Ti/i; FIRSTS 1JED(/LE, APPENDIX-D —DECREES
No. 14
INJUNCTION AGAINST PRIVATE NUISANCE

(Title)
Let the defendant ..........................his agents, servants and workmen, he

perpetually restrained from burning, or causing to he burnt, any bricks on the
defendant's plot of land marked B in the annexed plan, SO as to occasion a nuisance
to the plaintiff as the owner or occupier of the dwelling-house and garden mentioned,
in the plaint as belonging to and being occupied by the plaintiff.
No. 15
INJUNCTION AGAINST BUILDING HIGHER THAN OLD LEVEL

(Title)
Let the defendant ...........................his contractors, agents and workmen, he

perpetually restrained from continuing to erect upon his premises in ...............any
house or building of a greater height than the buildings which formerly stood upon
his said premises and which have been recently pulled down, so or in such manner
as to darken, injure or obstruct such of the plaintiff's windows in his said premises
as are ancient lights.
No. 16
INJUNCTION RESTRAINING USE OF PRIVATE ROAD

(Title)
Let the defendant .......................his agents, servants and workmen, he

perpetually restrained from using or permitting to he used any part of the lane at
belongs to the plaintiff, as a carriageway for the
........the soil of which belongs
passage of carts, carria g es or other vehicles, either going to or from the land marked
B in the annexed plan or for any purpose whatsoever.
No. 17
PRELIMINARY DECREE IN AN ADMINISTRATION-SUIT

(Title)
It is ordered that the Following accounts and inquiries he taken and made; that
is to say:—
in Creditor s suit-
1. That an account be taken of what is due to the plaintiff and all other the
creditors of the deceased.
In suits b' legatees-
THE FIRsT SCHEDULE. A PPENDIX-D -DECREES
2. That an account he taken of the legacies given by the testator's will.

In suits by next-of -kin.
3. That an inquiry he made and account taken of what or of what share, if

any, the plaintiff is entitled to as next-of-kin [or one of the next-of-kin] of the
intestate.
[After the first paragraph, the decree will, where necessary, order, in a
creditor's suit, inquiry and accounts for legatees, heirs-at-law and next-of-kin. In
suits by claimants other than creditors, after the first paragraph, in all cases, an' order
to inquire and take an account of creditors will fellow the first paragraph and such of
the others as may be necessary will follow, omitting the first formal words. The form
is continued as in a creditor's suit]
4. An account of the funeral and testamentary expenses.
5. An account of the moveable properly, of the deceased come to the hands of

the defendant, or to the hands of any other person by his order or his use.
6. An inquiry what part (if any) of the moveable property of the deceased is
outstanding and undisposed of.
7. And it is further ordered that the defendant do, on or before the day of
next, pay into Court all sums of 'money which shall be found to have
come to his hands, or to the hands of any person by his order or for his use.
S. And that if the .............................."shall find it necessary for carrying out

the objects of the suit to sell any part of the moveable property of the deceased that
the same he sold accordingly, and the proceeds paid into Court.
9. And that Mr. E.F. he receiver in the suit (or proceeding) and receive and
get in all outstanding debts and outstanding moveable property of the deceased, and
pay the same into the hands of the ............................(and shall give security by bond
for the due performance of his duties to the amount of .....................[Taka]................
10. And it is further ordered that if the moveable property of the deceased he
found insufficient for carrying out the objects of the suit, then the following further
inquiries he made, and accounts taken, that is to say—
(a) and inquiry what immoveable property the deceased was seized of or
entitled to at the time of his death;
(h) an inquiry what are the incumbrances (if any) affecting the
immoveable property of the deceased or any part thereof;
(c) an account, so far as possible, of what is due to the several
incumbrancers, and to include a statement of the priorities of such of
the incumbrancers as shall consent to the sale hereinafter directed.
THE FIRSTSCHEDULE. APPEND!x-D —DECREES
II. And that the immoveable property of the deceased, or so much thereof as
shall he necessary to make up the fund in Court sufficient to carry out the object of
the suit, he sold with the approbation of the Judge, free from incumbrances (if any)
of such incumbrancers as shall consent to the sale and subject to the incumbrances of
such of them as shall not consent.
12. And it is ordered that, G.H. shall have the conduct of the sale of the
immoveable property, and shall prepare the conditions and contracts of sale subject
to the approval of the ....................................................."and that in case any doubt
or difficulty shall arise the papers shall he submitted to the Judge to settle.
13. And it is further ordered that, for the purpose of the inquiries hereinbefore
directed, the .....................shall advertise in the newspapers according to the practice
of the Court, or shall make such inquiries in any other way which shall appear to the
....................to give the most useful publicity to such inquiries.
14. And it is ordered that the above inquiries and accounts he made and taken,
and that all other acts ordered to he done he completed, before the ..............day of
................ . ......... .and that the .............................do certify the result of the inquiries,
and the accounts, and that all other acts ordered are completed, and have his
certificate in that behalf ready for the inspection of the partieson the ..................day
of..............................
15. And, lastly, it is ordered that this suit [ . or proceeding] stand adjourned for
making final decree to the ............................day of ...............................
ISuch part only of this decree is to he used as is applicable to the particular

case.]
No. 18
FINAL DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE

(Title)
I. It is ordered that the defendant ......................................do, on or before

the .................................day of .........................................pay into Court sum of
[Taka] ........the balance by the said certificate found to be due from the said
defendant on account of the estate of ............the testator, and also the sum of ITakal
..br interest, at the rate of (Takal ..................per cent, per annum, from
the.........................day of .......................to the ......................day of ...................
amounting together to the sum of [Taka] ..............................
2. Let the .....................of the said Court tax the costs of the plaintiff and
defendant in this suit, and let the amount of the said costs, when so taxed, he paid
out of the said sum 01 [Taka] ......................ordered to he paid into court as
aforesaid, as follows:-
TWL FIRsrScI-IEDuLJ. APPENDIX-D —DEcREEs
(a) The costs of the plaintiff to Mr . ................................................ his Pleader

or and the costs of the defendant to Mr. ................................ his Pleader.
(h) And (if any debts are due) with the residue of the said sum of [Takal
after payment of the plaintiff's and defendant's Costs as aforesaid,
let the sums found to he owing to the several creditors mentioned in the
.......schedule to the certificate, of the ........................together
with subsequent interest on such of the debts as hear interest, he paid; and,
alter making sllch payments, let the amount coming to the several legatees
mentioned in the ..................schedule, together with subsequent interest
(to he verified as aforesaid), he paid to them.
3. And if thee should then he any residue, let the same he paid to the
residuary legatee.
No. 19
PRELIMINARY DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE, WHERE AN

EXECUTOR IS HELD PERSONALLY LIABLE FOR THE PAYMENT OF LEGACIES
(Title)
It is declared that the defendant is personally liable t pay the legacy of

[Taka] ..............................bequeathed to the plaintiff;
2. And it is ordered that an account he taken of what is due for principal and
interest oil said legacy;
3. And it is also ordered that the deléndant do, within .....................weeks

after the date of the certificate of the ...........................pay to the plaintiff the amount
of what the ................................shall certify to he due for principal and interest;
4. And it is ordered that the defendant do pay the plaintiff his Costs of suit,
the same to he taxed in case the parties differ.
No. 20
FINAL DECREE IN AN ADMINISTRATION-SUIT BY NEXT-OF-KIN

(Title)
1 . Let the .................................of the said Court tax the Costs of the plaintiff
and defendant in this suit, and let the amount of the said plaintiff's costs, when so
taxed, he paid by the defendant to the plaintiff out of the sum of Il Ta
kal ..............the
balance by the said certificate found to he due from the said defendant on account of
the personal estate of E.F. the intestate, within one week after the taxation of the said
Costs by the said ................................and let the defendant retain for her own use
out of such sum her costs, when taxed.
Till; FIJST SCHEDULE. APPENDIX-D -DECREES
2. And it is ordered that the residue of the said sum of [Takal .............after
payment of the plaintiff's and defendant's costs as aforesaid, he paid and applied by
defendant as follows:—
(a) Let the defendant, within one week after the taxation of the said costs by
the ......................................as aforesaid, pay one-third share of the said
residue to the plaintiffs A.B., and C.D., his wife, in her right as the isister
and one of the next-of-kin of the said E.F., the intestate.
(b) Let the defendant retain for her own use one other third share of the said
residue, as the mother and one of the next-of-ken of the said E.F., the
intestate.
(c) And let the defendant, within one week after the taxation of the said Costs
by the ......................................as aforesaid, pay the remaining one-third
share of the said residue to G.H., as the brother and the other next-of-kin
of the said E.F., the intestate.
No. 21
PRELIMINARY DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP, AND THE

TAKING OF PARTNERSHIP ACCOUNTS
(Title)
'It is declared that the proportionate shares of the parties in the partnership are
as follows:—
It is declared that this partnership shall stand dissolved [or shall he deemed to
have been dissolved] as from the ........................ day of ......................and it is
ordered that the dissolution thereof as from that day he advertised in the ....................
Gazette, etc.
And it is ordered that .......................he the receiver of the partnership-estate

and effects in this suit and do get in all the outstanding book-debts and claims of the
partnership.
And it is ordered that the following accounts he taken:—
An account of the credits, property and effects now belonging to the said
partnership;
2. An account of the debts and liabilities of the said partnership
3. An account of all dealings and transactions between the plaintiff and

defendant, from the foot of the settled account exhibited in this suit and
marked (A), and not disturbing any subsequent settled accounts.
THE FIRSTSCHEDULE. A PPENDIX-D —DECREES
And it is ordered that the goodwill of the business heretofore carried on by the
plaintiff and defendant as in the plant mentioned, and the stock-in-trade, he sold on
the premises, and that the .......................may on the application of any of the parties,
fix a reserved bidding for all or any of the lots at such sale, and that either of the
parties is to he at liberty to hid at the sale.
And it is ordered that the above accounts be taken, and all the other acts
required to he done he completed, before the .........................day of ............... .and
that the .................do certify the result of the accounts, and that all other acts are
completed, and have his certificate in that behalf ready for the inspection of the
parties on the ......................day of .....................................
And, lastly, it is ordered that this suit stand adjourned for making a final decree
tothe ........................day of .......................................................
No. 22
FINAL DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE TAKING

OF PARTNERSHIP ACCOUNTS
(Title)
It is ordered that the fund now in Court, amounting to the sum of [Taka]
....he applied as follows:-
In payment of the debts due by the partnership set forth in the certificate
of the .............................amounting in the whole to [Taka] .................
2. In payment of the costs of all parties in this suit, amounting to [Taka] ......
[These costs must be ascertained hefhre the decree is drawn. up.]
3. In payment of the sum of [Takal ............to the plaintiff as his share of the
partnership- assets, of the sum of [Taka] ...................being the residue of the said
SLIM of [Taka] ......................now in Court, to the defendant as his share of the
partnership-assets.
[Or, And that the remainder of the said sum of [Taka] .......................he paid to
the said plaintiff (or defendant) in part payment of the sum of [Taka]
certified to he due to him in respect of the partnership-accounts.]
4 And that the defendant [or plaintiff] do on or before the ...............day of

pay to the plaintiff [or defendant] the sum of [Taka] ................being the
balance of the said sum of [Taka] ...............due to him, which will then remain due.
1908: Act VJ CIVIL PROCEDURE CODE 449
No. 23
DECREE IN FOR RECOVERY OF LAND AND MESNE PROFITS

(Title)
It is hereby decree as follows:-
I. That the defendant do put the plaintiff in possession of the property

specified in the schedule hereunto annexed,
2. That the defendant do pay to the plaintiff the sum of [Taka] ....................
With interest thereon at the rate of ......................percent, annum to the date of
realization on account of Mesne profits which as accrued due prior to the institution
of the suit.
Or
That an inquiry he made as to the amount of mesne profits which have accrued
due prior to the institution of the suit.
3. That an inquiry he made as to the amount of mesne profits from the

institution of the suit until [the delivery of possession to the decree-holder]
[the relinquishment of possession by the judgment-debtor with notice to the

decree-holder through the Court] [the expiration of three years from the date of the
decree]
SCHEDULE


THE FIRST SCHEDULE. A PPENDIX-E —EXECUTION
APPENDIX E
EXECUTION
No.1
NOTICE TO SHOW CAUSE WHY A PAYMENT OR ADJUSTMENT SHOULD NOT BE
RECORDED AS CERTIFIED (0.2 1, r. 2)
(Title)
To
WHEREAS in execution of the decree in the above-named suit has applied to this
Court that sum of [Taka] .....................recoverable under the decree has been
paid/adjusted and should he recorded as certified, this is to give you notice that you
are to appear before this Court on the .....................day of .....................19 , to show
cause why the payment] adjustment aforesaid should not he recorded as certified.
............19
No.2
PRECEPT (Section 46)
(Title)
UPON hearing the decree-holder it is ordered that this precept be sent the Court
of .....................at ..........................................under section 46 of the Code of Civil
Procedure, 1908, with directions to attach the property specified in the annexed
schedule and to hold the same pending any application which may he made by the
decree-holder for execution of the decree.
Schedule
Datedthe ..........................................day of ..........................................19
Judge
No.3
ORDER SENDING DECREE FOR EXECUTION TO ANOTHER COURT (0.21, r. 6)
(Title)
WHEREAS the decree-holder in the above suit has applied to this Court for a
certificate to he sent to the Court of .....................at .....................for execution of
the decree in the above suit by the said Court, alleging that the judgment-debtor
resides or has property within the local limits of the jurisdiction of the said Court,
and it is deemed necessary and proper to send a certificate to the said Court under
Order XXI, rule 6, of the Code of Civil Procedure, 1908, it is
Ordered:
• That a copy of this order be sent to .....................with a copy of the decree and
of any order which may have been made for execution of the same and a certificate
of non-satisfaction.
Dated the .....................day of .....................19

Judge


THE FIRST SCHEDULE. APPENDIX- E —EXECUTION
No.4
CERTIFICATE OF NON-SATISFACTION OF DECREE (0. 2 I, r. 6)

(Title)
Certified that no (I) satisfaction of the decree of this Court in suit No.
.............. of 19 , a copy which is hereunto attached, has been
obtained by execution within the jurisdiction of this Court.
Dated the ............................ day oL .......... .................. 19

Judge
(I) If partial, strike out "no" and state to what extent.
No.5
CERTIFICATE OF EXECUTION OF DECREE TRANSFERRED TO ANOTHER COURT

(0.21, r. 6)
.9
. .
a
..
a .
-.
o) C 0 ..
.0.0 .0 0 .0 u 0
E E E E 0
C 2 0 0 C
z z a z L) <
I 2 3 4 5 6 7 8 9
Taka Ps.
Signature of Muharrir in charge Signature of Judge


THE FIRST SCHEDULE. APPENDIX- E -EXECUTION
No.6
APPLICATION FOR EXECUTION OF DECREE (0. 21, r. Ii)
(Title)
In the Court of .............................I ...................................decree holder, hereby apply for execution of
the decree herein below set forths:-
a -
a
.2
0
a
-C ° 0a 'C -d
0 a a
.2 a a a Mode in which the
E
assistance of the Court is
a
a required
en a
acl, o a 2
a a a U
a0 E
>. a . ' a 0
ul a 0 2es
a Ca
'E .2 a E
o 0 a
Z Z 0 - t <oc <
2 3 4 5 6 7 8 9 10
[When attachment and sale

a of moveable property is
2o sought]
0
0 1 pray that the total amount

a of [Taka] together with
e
O'e interest on the principal sum
Lo E up to date of payment) and
the costs of taking out this
2
03
-a execution, be realized by
C
attachment and sale of
a- defendants moveable
a property as per annexed list
0'
00 0
C
a0 and paid to me.
-
CO a-Nfl0
[When attachment and sale
00
N 0 — immoveable properly is
a a N00 el
u-, sought]
.9 a
2
0 -
I pray that the total amount
C
o a -4
of [Taka] together with

- a 2E a P
F —
interest on the principal sum
00
tt:Cl N . up to date of payment] and
the costs of taking out this
execution be realized by the
--0
a-a OC attachment and sale of

'C 0
N
-
a defendant's immoveable
II C-
.0 a .
CO
.
CO CO C property specified at the foot
2 c 0. CO
0 0 0 . of this application and paid
< 0 0
— z z . t Jo)
tome.
declare that what is stated herein is true to the best of my Knowledge and belief ......... ..... ....... Signed.
decree-holder. Dated the ..........................clay of .........................19
THE FIRST SCHEDULE. APPENDIX-E —EXECUTION
[When attachment and sale of immoveable property is sought]
The undivided one-third share of the judgment-debtor in a house situated in the

village of ......................value [Taka] 40, and bounded as follows:—
East by G's house; West by H's house; South by public road; North by private
land and J's house.
I ......................, declare that what is stated in the above description is true to the
best of my knowledge and belief, and so far as I have been able to ascertain the
interest of the defendant in the property therein specified.
...................................Signed .......................................... . decree-holder.
No.7
NOTICE TO SHOW CAUSE WHY EXECUTION SHOULD NOT ISSUE [(0. 21, r. 16)]
(Title)
To
WHEREAS ........................................................................................................has
made application to this Court for execution of decree in suit No . .............. of 19
on the allegation that the said decree has been transferred to him by assignment, this
is to give you notice that you are to appear before this Court ...................on the
.....day of .....................19 , to show cause why execution should not be
granted.
of.....................19
Judge


THE FJRSTSCHEDULE. APpENDJx-E —EXECUTION
No.8
WARRANT OF ATTACHMENT OF MOVABLE PROPERTY IN EXECUTION OF A DECREE

FOR MONEY (0. 21, r. 30)
(Title)
To
The Bailiff of the Court
Decree
Principal
Principal
Interest
Cost
Costs of execution
Further interest
Total
WHEREAS .....................was ordered by decree of this Court passed on

..the day of ..................... 19 .....................in Suit No . ..................... of
. . 19 , to pay to the plaintiff the sum of [Taka] as noted in the margin;
and whereas the said sum of [Taka] .....................has not been paid; These are to
command you to attach the movable property of the said ..........................................
as set forth in the schedule hereunto annexed, or which shall he pointed out to you
by the said .....................and unless the said .....................shall pay to you the said
sum of [Takal .....................together with [Taka] ......................the costs of this
attachment, to hold the same until further orders from this Court.
You are further commanded to return this warrant on or before the

day of ..................... 19 , with an endorsement certifying the day on which and
manner in which it has been executed, or why it has not been executed.
..19
SCHEDULE
JL.Iclge
1908: Act V} CIVIL PROCEDURE CODE 455
No.9
WARRANT FOR SEIZURE OF SPECIFIC MOVABLE PROPERTY ADJUDGED BY DECREE
(0. 21, r. 31)
(Title)
To
TheBailiff of the Court .........................................................................................
WHEREAS ..........................................was ordered by decree of this Court

passed on the .....................day of ..........................................19 , in Suit No.
......of 19 , to deliver to the plaintiff the moveable property (or a
...........................share in the moveable property specified in the schedule
hereunto annexed, and whereas the said property (or share) has not been delivered;
These are to command you to seize the said moveable property (or a
............................hare of the said moveable property) and to deliver it to
the plaintiff or to such person as he may appoint in his behalf.
.....19
SCHEDULE•
Judge
No. 10
NOTICE TO STATE OBJECTIONS TO DRAFT OF DOCUMENT (0 21, r.34)
(Title)
To
TAKE notice that on the .....................day of .....................19

the decree-holder in the above suit presented an application to this Court that the
Court may execute on your behalf a deed of ......................whereof a draft is
hereunto annexed, of the immovable property specified hereunder, and that the
.....day of .....................19 , is appointed for the hearing of the said
application, and that you are at liberty to appear on the said day and to state in
writing any objections to the said draft.
Description qtpr(perty
....19
Judge


THE FIRSTSCHEDULE. APPENDIX-E —EXECUTION
No. ii
WARRANT TO THE BAILIFF TO GIVE POSSESSION OF LAND, ETC (0. 21, r. 35)
(Title)
To
WHEREAS the undermentioned property in the occupancy of .....................has

been decreed to .....................the plaintiff in this suit. You are hereby directed to put
the said .....................in possession of the same, and you are hereby authorized to
remove any person bound by the decree who may refuse to vacate the same.
...19
SCHEDULE
Judge
No. 12
NOTICE TO SHOW CAUSE WHY WARRANT OF ARREST SHOULD NOT ISSUE (0. 21, r. 37)
(Title)
To
WHEREAS ...............................................................has made application to this
Court for execution of decree in Suit No . ..................... of 19 by arrest and
imprisonment of your person, you are hereby required to appear before this Court on
the .....................day of .....................19 ,to show cause why you should not be
committed to the civil prison in execution of the said decree.
...19
No. 13
WARRANT OF ARREST IN EXECUTION (0. 21, r. 38)

(Title)
To
TheBailiff of the Court..........................................................................................
Decree -
Principal .. ..
Interest .. ..
Cost .. ..
Execution ..
Total
1908: Act VI . CIVIL PROCEDURE CODE 457
WHEREAS .....................was adjudged by a decree of the Court in Suit No.

.....of 19 , dated the day of .....................19 , to pay to the decree-holder
the sum of [Taka] .....................as noted in the margin, and whereas the said sum of
[Taka] .....................has not been paid to the said decree-holder in satisfaction of the
said decree; These are to command you to arrest the said judgment-debtor and unless.
the said judgment-debtor shall pay to you the said sum of [Taka] .....................
together with [Taka] .....................for the costs of executing this process, to bring
the said defendant before the Court with all convenient speed.
You are further commanded to return this warrant on or before the

.....day of .....................19 , with an endorsement certifying the day on
which and manner in which it has been execution, or the reason why it has not been
executed.
.....................19
Judge
No. 14
WARRANT OF COMMITTAL OF JUDGMENT-DEBTOR TO JAIL (0. 21, r. 40)
(Title)
To
The Officer in Charge of the Jail at .......................................................................
WHEREAS ..........................................who has been brought before this Court

this .....................day of .....................19 , under a warrant in execution of a decree
which was made and pronounced by the said Court the .....................day of
....19 , and by which decree it was ordered that the said .....................
should pay ..........................................; And whereas the said .....................
....has not obeyed the decree nor satisfied the Court that he is entitled to
be discharged from custody; You are hereby [* * * commanded and required to
take and receive the said ..........................................into the civil prison and keep
him imprisoned therein for a period not exceeding .....................or until the said
decree shall he fully satisfied, or the said ......................shall be otherwise entitled to
be released according to the terms and provisions of section 58 of the Code of Civil
Procedure, 1908; and the Court does hereby fix .....................annas per diem as the
rate of the monthly allowance for the subsistence of the said .....................during his
confinement under this warrant Of committal.
GIVEN under my signature and the seal of the Court, this .....................day
...19.
Judge


THE FIRST SCHEDULE. A PPENDIX-E —ExEcurIoIv
No. 15
ORDER FOR THE RELEASE OF A PERSON IMPRISONED IN EXECUTION OF A DECREE

(Sections 58, 59)
(Title)
To
The Officer in Charge of the Jail at .....................................................................
UNDER orders passed this day, you are hereby directed to set free .....................
............................................judgment-debtor now in your custody.
Dated....................................................................................
Judge
No. 16
ATTACHMENT IN EXECUTION
PROHIBITORY ORDER, WHERE THE PROPERTY TO BE ATTACHED CONSISTS OF
MOVABLE PROPERTY TO WHICH THE DEFENDANT IS ENTITLED SUBJECT TO A LIEN OR
RIGHT OF SOME OTHER PERSON TO THE IMMEDIATE POSSESSION THEREOF
(0. 21, r, 46)
(Title)
To
WHEREAS..............................................................................................................
has failed to satisfy a decree passed against .....................on the .....................day of
...19 , in suit No . ..................... of 19 ;....................in favour of
...for [Taka] ......................It is ordered that the defendant he, and is
hereby, prohibited and restrained until the further order of this Court, from receiving
from .....................the following property in the possession of the said .....................
that is to say . ..................... . to which the defendant is entitled, subject to any claim
of the said ..................... . and the said .....................is hereby prohibited and
restrained, until the further order of this Court, from delivering the said property to
any person or persons whomsoever.
...19
Judge
THE F/RSTSCHEDULE. APPENDIX-E —EXECUTION
No. 17
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF DEBTS NOT SECURED BY
NEGOTIABLE INSTRUMENTS (0. 21, r. 46)
(Title)
To
WHEREAS..............................................................................................................
has failed to satisfy a decree passed against .....................on the .....................day of
...19 , in suit No . ..................... of 19 , in favour of .....................for
[Taka] .....................; It is ordered that the defendant he, and is hereby, prohibited
and restrained, until the further order of this Court, from receiving from you a
certain debt alleged now to be due from you to the said defendant, namely,
........................and that you , the said ..........................................he, and
You are hereby, prohibited and restrained, until the further order of this Court, from
making payment of the said debt, or any part thereof, to any person whomsoever or
otherwise than into this Court.
...19
Judge
No. 18
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF SHARES IN THE CAPITAL

OF A CORPORATION (0. 21, r. 46)
(Title)
To
............................................................................................Defendant and
to ..........................................Secretary of ...............................................Corporation.
WHEREAS ..........................................has failed to satisfy a decree passed

against .....................on the .....................day of .....................19 , in suit No.
..of 19 , in favour of ......................for [Taka] .......................It is
ordered that you, the defendant, be, and you are hereby, prohibited and restrained,
until the further order of this Court, from making any transfer of .....................shares
in the aforesaid Corporation, namely . .......................................... or from receiving
payment of any dividends thereon; and you ..........................................the Secretary
of the said corporation are hereby prohibited and restrained from permitting any
such transfer or making any such payment.
GIVEN. under my hand and the seal of the Court, this .....................day
.19
Judge


THE FIRST SCHEDULE. A PPEND!X-E -EXECUTION
No. 19
ORDER TO ATTACH SALARY OF PUBLIC OFFICER OR SERVANT OF RAILWAY COMPANY

OR LOCAL AUTHORITY (0.21, r. 48)
(Title)
To
WHEREAS
judgment-debtor in the above-named case, is a (describe o fficer ofjudgment-debtor)
receiving his salary (or allowances) at your hands; and whereas ......................
decree-holder in the said case, has applied in this Court for the attachment of the
salary (or allowances) of the said .....................to the extent of .....................due to
him under the decree you are hereby required to withhold the said sum of ................
from the salary of the said .....................in monthly instalments of .....................
.....and to remit the said sum (or monthly instalments) to this Court.
.....19
Judge
No. 20
ORDER OF ATTACHMENT OF NEGOTIABLE INSTRUMENT (0.21, r. 51).
(Title)
To
The bailiff of the Court
WHEREAS an order has been passed by this Court on the .....................day of

..........................19 , for the attachment of .....................; You are hereby
directed to seize the said .....................and bring the same into Court.
.....19
Judge
No. 21
ATTACHMENT
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF MONEY OR OF ANY

SECURITY IN THE CUSTODY OF A COURT ON JUSTICE OR [PUBLIC OFFICER] (0.21, r.52)
(Title)
To
Sir,
The plaintiff having applied, under rule 52 of order XXI of the Code of Civil
Procedure, 1908, for an attachment of certain money now in your hands (here state
how the money is supposed to be in the hands of the person addressed, on what
THE FIRST SCHED OLE. APPENDIX-. E -EXECUTION
account, etc.), I request that YOU will hold the said money subject to the further order.
of this Court.
I have the honour to he,

Sir,
Your most obedient Servant,
Judge
Datedthe ..........................................day of ..........................................19
No. 22
NOTICE OF ATTACHMENT OF A DECREE TO THE COURT WHICH PASSED IT (0.21, r. 53)

(Title)
To
The judge of the Court of
Sir,
I have the honour to inform you that the decree obtained in your Court on the
..day of .....................19 , by in suit No . ..................... of 19 , in which
hewas .......................................... .....................was ---------------has been
attached by this Court on the application of the ......................in the suit specified
above. You are therefore requested to stay the execution of the decree of your Court
until you receive an intimation from this Court that the present notice has been
cancelled or until execution of the said decree is applied for by the holder of the
decree now sought to he executed or by his judgment-debtor.
I have the honour, etc.,
Judge
Dated the .....................day of .....................19
No. 23
NOTICE OF ATTACHMENT OF A DECREE TO THE HOLDER OF THE DECREE (0. 21, r. 53)
(Title)
To
Whereas an application has been made in this Court by the decree holder in the
above suit for the attachment of a decree obtained by you on the .....................day of
..................... 19,in the Court of ..................... in suit No. ..................... ofl9 ,in
which.....................was .............................and ., ........................was
..; It is ordered that you, the said .....................be, and you are hereby,
prohibited and restrained, until the further order of this . Court, from transferring or
charging the same in anyway.
..19
Judge


TIlE FIRST SCHEDULE. A PPENDIX-E —EXECUTION
No. 24
PROHIBIYORY ORDER WHERE THE PROPERTY CONSISTS OF IMMOVABLE PROPERTY
(0. 21, r. 54)
(Title)
To
..............................................................................................Defendant.
Whereas you have failed to satisfy a decree passed against You on the
...day of .....................19 , in Suit No . ..................... of 19 , in favour
of .....................for I .Takal ......................It is ordered that you, that said
........................he, and your are hereby, prohibited and restrained, until
the further order of this Court, from transferring or charging the property specified in
the schedule hereunto annexed, by sale, gift or otherwise, and your are hereby,
prohibited and restrained, until the further order of this Court, from transferring or
charging the property specified in the schedule hereunto annexed, by sale, gift or
otherwise, and that all persons he, and that they are hereby, prohibited from
receiving the same by purchase, gift or otherwise.
...19
SCHEDULE
Judge
No. 25
ORDER FOR PAYMENT TO THE PLAINTIFF, ETC., OF MONEY, ETC., IN THE HANDS OF A
THIRD PARTY. (0.21, r. 56)
(Title)
To
WHEREAS the following property ..........................................has been attached

in execution of a decree in Suit No . ..................... of .....................19 , passed on the
....day of .....................19 , in favour of .....................for [Taka]
It is ordered that the property so attached, consisting of [Taka]
....in money and [Taka] .....................in currency-notes, or a sufficient
part thereof to satisfy the said decree, shall be paid over by you, the said ...................
.............to .....................
...19
Judge
TI-fE FIRT SCHEDULE. .-4PPENDJX-E -ExECUTIOV
No. 26
NOTICE TO ATTACHING CREDITOR (0.2 1, r. 58)

(Title)
To
WHEREAS ...............................................................has made application to

this Court for the removal of attachment on .....................placed at your instance in
execution of the decree in suit No . ..................... of 19 , this is to give YOU notice to
appear before this Court on .....................the .....................day of .....................19
either in person or by a pleader of the Court duly instructed to support your claim, as
attaching creditor.
of.....................19
Judge
No. 27
WARRANT OF SALE OF PROPERTY IN EXECUTION OF A DECREE FOR MONEY

(0. 21, r. 66)
(Title)
To
TheBailiff of the Court .........................................................................................
THESE are to command you to sell by auction, after giving .....................days

previous notice, by affixing the same in this Court-house, and after making due
proclamation, the ..........................................property attached under a warrant from
this Court, dated the ..................... day of ......................19 , in execution of a decree
in favour of .....................in suit No . ..................... o f 19 , or so much of the said
property as shall realise the sum of [Taka] ......................being the .....................of
the said decree and costs still remaining unsatisfied.
You are further commanded to return this warrant on or before

day of .....................19 , with an endorsement certifying the manner in which it has
been executed, or the reason why it has not been executed.
of..................................19
Judge
THE FIRSTSCHEDULE. APPENDIX-E -EXECUTION
No. 28
Notice of the day fixed for settling a Sale PrOclamation (0. 21, r. 66)
(Title)
To
............................... . .................... ....................... Judgment-debtor.
Whereas in the above-named suit ...........................................the decree-holder,

has applied for the sale of ..............................................................; You are hereby
informed.................................................that the .....................day of ...............19
has been fixed for setting the terms of the proclamation of sale.
..19
Judge
No. 29
PROCLAMATION OF SALE (0. 21, r. 66)

(Title)
Notice is hereby given that, under rule 64 of order XXI of the Code of Civil
Procedure, 1908, an order has been passed by this Court for the sale of [(I) Suit No.
of 19 , decided by the of ....... in which .......was plaintiff and ........was defndant.]
the attached property mentioned in the annexed schedule, in satisfaètion of the claim
of the decree holder in the suit (1) mentioned in the margin, amounting with costs
and interest up to date of sale to the sum of ......................
The sale will be by public auction, and the property will be put up for sale in
the lots specified in the schedule. The sale will be of the property of the judgment-
debtors above-named as mentioned in the schedule blow; and the liabilities and
claims attaching to the said property, so far as they have been ascertained, are those
specified in the schedule against each lot.
In the absence of any order of postponement, the sale will be held by
..............................................................................................at the monthly
sale commencing at .....................o'clock on the .....................at .....................In the
event, however, of the debt above specified and of the costs of the sale being
tendered or paid before the knocking down of any lot, the sale will be stopped.
At the sale the public generally are invited to bid, either personally or by duly
authorised agent. No. bid by, or on behalf of, the judgment-creditors above-
mentioned, however, will be accepted, nor will any sale to them be valid without the
express permission of the Court previously given. The following are the further.
Conditions of Sale


TI-IE FIRSTSCHEDULE. APPENDIX-E —EXECUTION
1. The particulars specified in the schedule below have been stated to the
best of the information of the Court, but the Court will not he answerable for any
error, misstatement or omission in this proclamation.
2. The amount by which the biddings are to be increased shall be determined
by the officer conducting the sale. In, the event of any dispute arising as to the
amount hid, or as to the bidder, the lot shall at once he again put up to auction.
3. The highest bidder shall he declared to be the purchaser of any lot,
provided always that he is legally qualified to bid, and provided that it shall he in the
discretion of the Court or officer holding the sale to decline acceptance of the
highest hid when the price offered appears so clearly inadequate as to make it
advisable to do so.
4. For reasons recorded, it shall be in the discretion of the officer conducting
the sale to adjourn it subject always to the provisions of rule 69 of order XXI.
5. In the case of movable property, the price of each lot shall he paid at the
time of sale or as soon after as the officer holding the sale directs and in default of
payment the property shall forthwith he again put up and re-sold.
6. In the case of immovable property, the person declared to he the purchaser
shalt pay immediately after such declaration a deposit of 25 percent on the amount
of his purchase-money to the officer conducting the sale, and in default of such
deposit the property shall forthwith be put up again and re-sold.
7. The full amount of the purchase-money shall be paid by the purchaser
before the Court closes on the fifteenth day after the sale of the property, exclusive
of such day, or if the fifteenth day he a Sunday or other holiday, then on the first
office day after the fifteenth day.
8. In default of payment of the balance of purchase-money within the period
allowed, the property shalt be re-sold after the issue of a fresh notification of sale.
The deposit, after defraying the expenses of the sale, may, if the Court thinks fit, be
forfeited to government and the defaulting purchaser shall forfeit all claim to the
property or to any part of the sum for which it may he subsequently sold.
GIVEN under may hand and the seal of the Court, this ...............................day
01......................19
Schedule qf Property Judge
Description of The revenue Detail of any Claims, if any,

No. of lot, property to he assessed upon the incumbrances which have been
sold, with the estate or part of the to which the put forward to the
name of each estate if the property property is property and any
- owner where to he sold is an liable other known
there are more interest in an estate particulars
judgment- or a part of an estate hearing on it
debtors than one, paying revenue to nature and value
Government


THE FIRST SCHEDULE. A PPEJVDIX-E —EXECUTION
No. 30
ORDER ON THE NAZIR FOR CAUSING SERVICE OF PROCLAMATION OF SALE
(0.21, r.66)
(Title)
To
The Nazir of the Court........................................................................................
WHEREAS an order has been made for the sale of the property of the judgment-
debtor specified in the schedule hereunder annexed, and whereas the .....................
day of ..................... 19 , has been fixed for the sale of the said property
............................................copies of the proclamation of sale are by this
warrant made over to you, and you are hereby ordered to have the proclamation
published by beat of drum within each of the properties specified in the said
schedule, to affix a copy of the said proclamation on a conspicuous part of each of
the said properties and afterwards on the Court-house, and then to submit to this
Court a report .showing the dates on which and the manner in which the
proclamations have been published.
Dated the .....................day of .....................19
Schedule
Judge
No. 31
CERTIFICATE BY OFFICER HOLDING A SALE OF THE DEFICIENCY OF PRICE ON A RE-
SALE OF PROPERTY BY REASON OF THE PURCHASER'S DEFAULT (o. 21, r. 71)
(Title)
Certified that the re-sale of the property in execution of the decree in the above-
named suit, in consequence of default on the part of ......................purchaser, there
was a deficiency in the price of the said property amounting to [Taka] ......................
and that the expenses attending such re-sale amounted to [Taka] ......................
making a total of [Taka] ......................which sum is recoverable from the defaulter.
Dated the .....................day of ..................... 19

..........................................................officer holding the sale.
THE FIRSTSCHEDULE. APPENDJX-E —EXECUTION
No. 32
Notice to person in possession of moveable property sold in execution (0.21, r.79)

(Title)
To
WHEREAS ..............................................................................................................
has become the purchaser at a public sale in execution of the decree in the above suit
of .................................................................................now in your possession, you
are hereby prohibited from delivering possession of the said ......................................
to any person except the said .....................
... . 19
Judge
No. 33
Prohibitory order against payment of debts sold in execution to any other than the
purchaser (0. 21, r. 79)
(Title)
To
........................................ and to
WHEREAS .....................................................................................has become

the purchaser at a sale in execution of the decree in the above suit of ....................
being debts due from you .....................
............................ . ....................................................... ; It is ordered that you
.........................he, and you are hereby, prohibited from receiving, and
you ..........................................from, making payment , of the said debt to any person
or persons except the said .....................
GIVEN under my hand and the seal of the Court , this .....................day of
....19
Judge


THE FIRSTSCUEDULE. ,4PPEJVD!X-E —EXECUTION
No. 34
PROHIBITORY ORDER AGAINST THE TRANSFER OF SHARES SOLD IN EXECUTION

(0.21, r. 79)
(Title)
To
.............and ...............................................................Secretary of
................................................................Corporation.
WHEREAS ..........................................has become the purchaser at a public sale

in execution of the decree, in the above suit, of certain shares in the above
Corporation, that is to say, of ..............................in the name of you
........standing ordered that you .....................; It is .....................he, and
you are hereby, prohibited from making any transfer of the said shares to any person
except the said .....................the purchaser aforesaid, or from, receiving any
dividends thereon and you ......................Secretary of the said Corporation, from
permitting any such transfer or making any such payment to any person except the
said .......................................................................the purchaser aforesaid.
GIVEN under my hand and the seal of the court, this .....................day of
Judge
No. 35
CERTIFICATE TO JUDGMENT-DEBTOR AUTHORIZING HIM TO MORTGAGE, LEASE OR

SELL PROPERTY (0. 21, r. 83)
(Title)
WHEREAS in execution of the decree passed in the above suit an order was
made on the .....................day of .....................19 , for the sale of the under-
mentioned property of the judgment-debtor ......................and whereas the Court
has on the application of the said judgment-debtor, postponed the said sale to enable
him to raise the amount of the decree by mortgage, lease or private sale of the said
property or of some part thereof:
This is to certify that the Court both hereby authorise the said judgment-debtor
to make the proposed mortgage, lease or sale within a period of .....................from
the date of this certificate provided that all monies payable under such mortgage,
lease or sale shell be paid into this Court and not to the said judgment-debtor.
Description of property
...19 .
Judge
THE FIRSTSCKEDULE. APPENDJX-E —EXECUTION
No. 36
NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE (0.2 1, rr. 90, 92)
(Title)
To
Whereas the under mentioned property was sold on the .....................day of

....19 1 in execution of the decree-holder for judgment-debtor], has
applied to this Court to set aside the sale of the said property on the ground of a
material irregularity [or fraud] in publishing [or conducting] the sale, namely that
Take notice that if you have any cause to show why the said application should
not be granted, you should appear with your proofs in this Court on the ..................
day of .....................19 , when the said application will be heard and determined.
..19
Judge
No. 37
NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE (0. 21, rr. 90, 92)
(Title)
To
WHEREAS ...........................................the purchaser of the under-mentioned

property sold on the ...................day of .....................19 , in execution of the decree
passed in the above-named suit, has applied to this Court to set aside the sale of the
said property on the ground that .....................the judgment-debtor, had no saleable
interest therein:
Take notice that if you have any cause to show why the said application should
not he granted, you should appear with your proofs in this Court on the .....................
day of .....................19 , when the said application will he heard and determined.
....19
THE FIRST SCHEDULE. ,4PPENDIX-E —EXECUTION
No. 38
CERTIFICATE OF SALE OF LAND. (0. 21, r. 94)

(Title)
THIS is to certify that ..........................................has been declared the

purchaser at a sale by public auction on the .....................day of .....................19
of..........................................................................................in execution of
decree in this suit, and that the sale has been duly confirmed by this Court.
......19
Judge
No. 39
ORDER FOR DELIVERY TO CERTIFIED PURCHASER OF LAND AT A SALE IN EXECUTION
(0.21, r. 95)
(Title)
To
The Bailiff of the Court........................................................................................
WHEREAS ...............................................................has become the certified

purchaser of .....................at a sale in execution of decree in suit No. ..................... of
..19 ; Ybu are hereby ordered to put the said .........................................
..; the certified purchaser, as aforesaid, in possession of the same.
...... .19
Judge
No. 40
SUMMONS TO APPEAR AND ANSWER CHARGE OF OBSTRUCTING EXECUTION OF
DECREE (0.21, r.97)
(Title)
To
WHEREAS......................................................................................................the
decree- holder in the above suit, has complained to this Court that you have resisted
(or obstructed) the officer charged with the execution of the warrant for possession:
You are hereby summoned to appear in this Court on the .....................day of
..19 , at .....................A.M., to answer the said complaint.
of.....................19
Judge
THE FIRSTSCHEDULE. APPENDIX-E —EXECUTION
No. 41
WARRANT OF COMMITAL (0.2 1, r. 98)

(Title)
To
The Officer in Charge of the Jail at ......................................................................
WHEREAS the under-mentioned property has been decreed to .....................the

plaintiff in this suit, and whereas the Court is satisfied that .....................without any
just cause resisted [or obstructed] and is still resisting [or obstructing] the said
in obtaining possession of the property, and whereas the said ...............
has made application to this Court that the said .....................he committed to the
civil prison,
Yoll are hereby commanded and required to take and received the said
........................into the civil prison and to keep him imprisoned therein
for the period of ..........................................days.
...19.
Judge
No. 42
AUTHORITY OF THE COLLECTOR TO STAY PUBLIC SALE OF LAND (Section 72)

(Title)
To
.................................Collector of
Sir,
In answer to your yourcommunication No. .......................................... .dated

that the sale in execution of the decree in
this suit of ..........................................land situate within your district is
objectionable, I have the honour to inform you that you are authorised to make
provision for the satisfaction of the said decree in the manner recommended by you.
I have the honour to he,

Sir,
Your obedient Servant,
Judge
472 CIVIL PROCEDURE CODE. [1908: Act V
THE FIRSTSCHEDULE. APPENDIX-F —Supplemental Proceedings
APPENDIX F
SUPPLEMENTAL PROCEEDINGS
No.1
WARRANT OF ARREST BEFORE JUDGMENT (0. 38, r. 1)

(Title)
To
The Bailiff of the Court........................................................................................
Decree
Principal ..
Interest ..
Cost ..
Total
WHEREAS ...........................................the plaintiff in the above suit, claims the
sum of [Taka] ..................as noted in the margin, and has proved to the satisfaction
of the Court that there is probable cause for believing that the defendant
.........................is about to ......................These are to command you to
demand receive from the said ..........................................the sum of [Taka]
....as sufficient to satisfy the plaintiff's claim, and unless the said sum of
[Taka ] .....................is forthwith delivered to you by or on behalf of the said
.....to take the said ..........................................into custody, and to bring
him before this Court, in order that he may show cause why he should not furnish
security to the amount of [Takal .....................for his personal appearance before the
Court, until such time as the said suit shall be fully and finally disposed of, and until
satisfaction of any decree that may be passed against him in the suit.
of .....................19
Judge
No.2
SECURITY FOR APPEARANCE OF A DEFENDANT ARRESTED BEFORE JUDGMENT
(0. 38, r. 2)
(Title)
WHEREAS at the instance of ...........................................the plaintiff in the
above suit . .......................................... the defendant has been arrested and brought
beforethe Court................................................................
And whereas on the failure of the said defendant to show cause why he should
not furnish security for his appearance, the Court has ordered him to furnish such
security:
THE FIRST SCHEDULE. APPENDIX-F —Supplemental Proceedings
Therefore I ...............................................................have voluntarily become

surety and myself, my heirs and executors, to the said Court, that the said defendant
shall appear at any time when called upon while the suit is pending and until
satisfaction of any decree that may he passed against him in the said suit; and in
default of such appearance I bind myself, my heirs and executors, to pay to the said
Court, at its order, any sum of money that may be adjudged against the said
defendant in the said suit.
Witnessmy hand at ..........................................this ......................................day
of.....................19
Witness
2.
No.3
SUMMONS TO DEFENDANT TO APPEAR ON SURETY'S APPLICATION FOR DISCHARGE

(0. 38, r. 3)
(Title)
To
WHEREAS ......................who became surety on the ...................................day
of .....................19 , for your appearance in the above suit, has applied to this Court
to he discharged from his obligation:
You are hereby summoned to appear in this Court in person on the

day of .....................19 , at .....................A.M. when the said application will he
heard and determined.
of .....................19
Judge
No.4
ORDER FOR COMMITTAL (0. 38, r. 4)
(Title)
To
WHEREAS ...........................................................................plaintiff in this suit,
has made application to the Court that security he taken for the appearance of
..........................the defendant, to answer any judgment that may he
passed against him in the suit; and whereas the Court has called upon the defendant
to furnish such security, or to offer a sufficient deposit in lieu of security, which he
has failed to do; it is ordered that the said defendant .....................he committed to
the civil prison until the decision of the suit; or, if judgment he pronounced against
him, until satisfaction of the decree.
of. ...........................................19
Judge


THE FIRsTSCI-IEDULE. APPENDIX-F —Supplemental Proceedings
No.5
ATTACHMENT BEFORE JUDGMENT, WITH ORDER TO CALL FOR SECURITY FOR
FULFILMENT OF DECREE (C. 38, r. 5)
(Title)
To
The Bailiff of the Court.
WHEREAS ..........................................has proved the satisfaction of the Court

that the defendant in the above suit ..........................................
These are to command you to call upon the said defendant .....................
on or before the .....................day of ...................19 , either to furnish
security for the sum of [Taka] .....................to produce and place at the disposal of
this Court when required ..........................................or the value thereof, or such
portion of the value as may be sufficient to satisfy any decree that may be passed
against him; or to appear and show cause why he should not furnish security; and
you are further ordered to attach the said .....................and keep the same under safe
and secure custody until the further order of the Court; and you are further
commanded to return this warrant on or before the .....................day of
...19 , with an endorsement certifying the date on which and the manner
in which it has been executed, or the reason why it has not been executed.
GIVEN under my hand and the seal of the Court, this ..................................day
of .....................19
Judge
No.6
SECURITY FOR THE PRODUCTION OF PROPERTY (0.38, r. 5)
(Title)
WHEREAS at the instance of .................................the plaintiff in the above
suit . ..................... the defendant has been directed by the Court to furnish security in
the sum [Taka] .....................to produce and place at the disposal of the Court the
property specified in the schedule hereunto annexed;
Therefore I .....................have voluntarily become surety and do hereby bind
myself, my heirs and executors, to the said Court, that the said defendant shall
produce and place at the disposal of the Court, when required, the property specified
in the said schedule, or the value of the same, or such portion thereof as may he
sufficient to satisfy the decree; and in default of his so doing, I bend myself, my
heirs and executors, to pay to the said Court, at its order, the said sum of [Taka]
...or such sum not exceeding the said sum as the Court may adjudge.
Schedule
Witness my hand at .....................this ......................day of .....................19
Witnesses.
2.
Ti-fE FIRST SCHEDULE. APPENDIX-F —Supplemental Proceedings
No.7
ATTACHMENT BEFORE JUDGMENT, ON PROOF OF FAILURE TO FURNISH SECURITY

(0. 38, i. 6)
(Title)
To
WHEREAS ...........................................the plaintiff in this suit, has applied to

the Court to call upon ..........................................the defendant, to furnish security
to fulfil any decree that may be passed against him in the suit, and whereas the Court
has called upon the said -----------------to furnish such security, which he has failed
to do; These are to command you to attach ......................the property of the
said......................and keep the same under safe and secure custody until the further
order of the Court; and you are further commanded to return this warrant on or
before the .....................day of .....................19 , with an endorsement certifying
the date on which and the manner in which it has been executed, or the reason why it
has not been executed.
..19.
Judge
No.8
TEMPORARY INJUNCTIONS (0. 39, r.1)
(Title)
Upon motion made unto this Court by ....................................................pleader

of [ or Counsel for] the plaintiff A. B., and upon reading the petition of the said
plaintiff in this matter filed [this day] [or the plaint filed in this suit on the
........................day of ......................or the written statement of the said
plaintiff filed on the ..........................................day of ..........................................I
and upon hearing the evidence of ..............and ..........................................in support
thereof [ if qftcr notice and deftn.dant not appearing: add, and also the evidence of
........................as to service of notice of this motion upon the defendant
C.D.] This Court do order that an injunction be awarded to restrain the defendant
CD., his servants, agents and workmen, from pulling down, or suffering to he pulled
down, the house in the plaint in the said suit of the plaintiff mentioned [or in the
written statement, or petition, of the plaintiff and evidence at the hearing of this
motion mentioned], being No.9, Oilmongers Street, Hindupur, in the Taluk of
.........................and from selling the materials whereof the said house is
composed, until the hearing of this suit or until the further order of this Court.
Dated this .....................day of .....................19
Judge
THE FIRsTSCHEDULE. APPENDIX-F —Supplemental Proceedings
[Where the injunction is sought to restrain the negotiation of a note or bill, the
ordering part qf the order may run thus:–]
to restrain the defendants .............and .................

from parting without of the custody of them or any of them or endorsing ,assigning
or negotiating the promissory mote [or bill of exchange] in question, dated on or
about the ...........................................etc., mentioned in the plaintiff's plaint for
petition] and the evidence heard at this motion until the hearing of this suit, or until
the further order of this Court.
[In Copyright cases ] ............................................................... to restraint the

defendant C.D., his servants, agents or workmen, from printing, publishing or
vending a book, called ................................................................or any part thereof,
until the, etc.
[Where part only of a book is to be restrained]
.............to restrain the defendant CD., his servants, agents or workmen,

from printing, publishing, selling or otherwise disposing of such parts of the book in
the plaint [ or petition and evidence, etc,] mentioned to have been published by the
defendant as hereinafter specified, namely, that part of the said book which is
entitled .....................and also that part which is entitled ..............[or which is
contained in page ....................to page ..........both inclusive] until ..................etc.
[In Patent cases] ..................... to restrain the defendant C.D., his agents,
servants and workmen, from making or vending any perforated bricks [or as the
case may be] upon the principle of the inventions in the plaintiff's, plaint [or
petition, etc. or written statement, etc.,] mentioned, belonging to the plaintiff's, or
either of them, during the remainder to the respective terms of the patents in the
plaintiff's plaint [or as the case may he] mentioned, and from counterfeiting,
imitating or resembling the same inventions, or either of them, or making any
addition thereto, or subtraction therefrom, until the hearing, etc.,
[In cases qf Trade marks] ............................... to restrain the defendant C.D., his
servants, agents or workmen, from selling, or exposing for the sale, or procuring to
he sold, any composition or blacking [or as the case may be] described as or
purporting to he blacking manufactured by the plaintiff A. B., in bottles having
affixed thereto such labels as in the plaintiff's plaint [or petition, etc] mentioned, or
any other labels so contrived or expressed as, by colourable imitation or otherwise,
to represent the composition or blacking sold by the defendant to be the same as the
composition or blacking manufactured and sold by the plaintiff A. B., and from
using trade-cards so contrived or expressed as to represent that any composition or
blacking sold or proposed to he sold by the defendant is the same as tile composition
or blacking manufactured or sold by the plaintiff A. B., until the, etc.,
[To restrain. a Partner from in anyway Interferring in the business]
THE FIRSTSCHEDULE. A PPENDIX-F —Supplemental Proceedings
.................to restrain the defendant C.D., his agents and servants, from
entering into any contract, and from accepting, drawing, endorsing or negotiating
any bill of exchange, note or written security in the name of the partnership-firm of
B. and D., and from contracting any debt, buying and selling any goods, and from
making or entering into any verbal or written promise, agreement or undertaking,
and from doing, or causing to he done, any act, in the name or on the credit of the
said partnership-firm can or may in any manner become or he made liable to or for
the payment of any sum of money, or for the performance of any contract, promise
or undertaking until the, etc.
No.9
APPOINTMENT OF A RECEIVER (0. 40, r. I)

(Title)
To
WHEREAS ..........................................................has been attached in execution

of a decree passed in the above suit on the ....................day of .........................19
in favour of .................................; You are hereby (subject to your giving security to
the satisfaction of the Court) appointed receiver of the said property under Order XL
of the Code of Civil Procedure, 1908, with full powers-under the provisions of that
Order.
You are required to render a due and proper account of your receipts and
disbursements in respect of the said property on ........................................You will
be entitled to remuneration at the rate of ...............percent, upon your receipts under
the authority of this appointment.
of ..............19
Judge
No. 10
BOND TO BE GIVEN BY RECEIVER (0. 40, r. 3)

(Title).
Know all men by these presents, that we, .... ................................. and
..and ....................are jointly and severally hound to ..............................
of the Court of .................................in [Takal .......to he paid to the said
..........or his successor in office for the time being. For which payment to
be made we bind ourselves, and each of us, in the whole, our and each of our heirs,
executors and administrators, jointly and severally, by these presents.


THE FIRSTSCHEDULE. APPENDIX-F —Supplemental Proceedings
Dated this ..........................................day of ........................... 19 , Whereas a

plaint has been filed in this Court by ...........................................against
.......for the purpose of [here insert the abject of suit]:
And whereas the said ..............................has been appointed, by order of the

above-mentioned Court, to receive the rents and profits of the immoveable property
and to get in the outstanding moveable property of ...........................................in the
said plaint named:
Now the condition of this obligation is such, that if the above-bounden

............shall duly account for all and every the sum and sums of money
which he shall so receive on account of the rents and profits of the immoveable
property, and in respect of the moveable property, of the said .................................at
such periods as the said Court shall appoint, and shall duly pay the balances which
shall from time to time he certified to be due from him as the said Court bath
directed or shall hereafter direct, then this obligation shall he void, otherwise it shall
remain in full force.
Signed and delivered by the above-bounden in the presence of ........................
Note:— If deposit of money is made, the memorandum thereof should follow

the terms of the condition of the bond.
THE FIRST SCHEDULE. APPEND!X-G —Appeal, Reference and Review
APPENDIX G
APPEAL, REFERENCE AND REVIEW
No.1
MEMORANDUM OF APPEAL (0. 41, r. 1)

(Title)
The..................................................................................................above-named
appealsto the ..........................................Court at ......................................................
from the decree of .........................................in suit No . ................... of 19 , dated
the ....................day of .........................19 .........................and sets forth the
following grounds of objection to the decree appealed from, namely
No.2
SECURITY BOND TO BE GIVEN ON ORDER BEING MADE TO STAY EXECUTION OF

DECREE (0. 41, r. 5)
(Title)
To
THIS security bond on stay of execution of decree executed by ........................
............................................ witnesseth:-
That .....................................the plaintiff, in suit No . ............... of 19.................
having Sued ..................... the defendant, in this Court and decree having been passed
on the .................day of ...................19................in favour of the plaintiff, and the
defendant having preferred an appeal from the said decree in the .................Court,
the said appeal is still pending.
Now the plaintiff decree-holder having applied to execute the decree, the
defendant has made an application praying for stay of execution and has been called
upon to furnish security. Accordingly I, of my own free will, stand security to the
extent of [Taka] ...............mortgaging the properties specified in the schedule
hereunto annexed, and covenant that if the decree of the first Court be confirmed or
varied by the Appellate Court the said defendant shall duly act in accordance with
the decree of the Appellate Court and shall pay whatever may be payable by him
thereunder, and if he should fail therein then any amount so payable shall be realised
from the properties hereby mortgaged, and if the proceeds of the sale of the said
properties are insufficient to pay the amount due, I and my legal representatives will
he personally liable to pay the balance. To this effect I execute this security bond
this........................ day of ............................................19
Schedule
Witnessed by (Signed)
2.
THE FIRSTSCHEDULE. APPENDJx-G —Appeal, Reference and Review
No.3
SECURITY BOND TO BE GIVEN DURING THE PENDENCY OF APPEAL (0. 41, r. 6)

(Title)
To
This security bond on stay of execution of decree executed by witnesseth
That ........................................the plaintiff in Suit No................of 19 ................

having sued ..............................the defendant, in this Court and a decree having been
passed on the ...................day of ................................19 ...........in favour of the
plaintiff, and the defendant having preferred an appeal from the said decree in the
..................................Court, the said appeal is still pending.
Now the plaintiff decree-holder has applied for execution of the said decree and
has been called upon to furnish security. Accordingly I, of my own free will, stand
security to the extent of, [Taka] ..............................mortgaging the properties
specified in the schedule hereunto annexed, and covenant that if the decree of the
first Court be reversed or varied by the Appellate Court, the plaintiff shall restore
any property which may he or has been taken in execution of the said decree and
shall duly act in accordance with the decree of the Appellate Court and shall pay
whatever may be payable by him thereunder, and if he should fail therein then any
amount so payable shall he realised from the properties hereby mortgaged, and if the
proceeds of the sale of the said properties are insufficient to pay the amount due, I
and my legal representatives will he personally liable to pay the balance. To this
effect I execute this security bond this ...........................day of
............19.............
Schedule
(Signed)
Witnessed by
No.4
SECURITY FOR COSTS OF APPEAL (0.4 1, r. 10)

(Title)
To
This security bond for costs of appeal executed by .........................................

witnesseth :-
This appellant has preferred an appeal from the decree in Suit No . .......... of
19...............against the respondent, and has been called upon to furnish security.
Accordingly I, of my own free will, stand security for the costs of the appeal,
mortgaging the properties specified in the schedule hereunto annexed. I shall not
THE FIRST S'I/EDULE. APPEAI DIX-G —Appeal, Reference and Review
transfer the said properties or any part thereof, and in the event of any de fault on the
part of the appellant, in shall duly carry Out any order that may he made against me
with regard to payment of ' the costs of appeal. Any amount So payable shall he
realized from the properties hereby mortgaged, and if the proceeds of the sale of the
said properties are insullicient to pay the amount due, I and my legal representatives
will he personally liable to pay the balance. To this effect I execute this security
bondthis ..........................................day of ..........................19
Schedule
Witnessed by
2.
No.5
INTIMATION TO LOWER COURT OF ADMISSION OF APPEAL (0.4 1, r. 13)

(Title)
To
You are hereby directed to take notice that .....................................................the

......................in the above suit, has preferred an appeal to this Court from
the decree passed by you therein on the .......................day of ....................19
You are requested to send with all practicable despatch all material papers in
the suit.
Dated the .............................day of .................19
Judge
No.6
NOTICE TO RESPONDENT OF THE DAY FIXED FOR THE HEARING OFTHE APPEAL
(0.41. r.14)
(Title)
Appeal Iron] the ..........................................of the Court of ...................dated
the ..............day of .........19
To
.....respondent.
Take notice that an appeal from the decree of .............in this case has been
presented by ................................and registered in this Court. and that the
.....day of ........ ....... 19 ....... has been fixed by this Court For the hearing of
this appeal.
Till FIRSTSCl/ED(/I.E. APPENDIX-G---Appea/, Reference and Review
If no appearance is made on your behalf by yourself, your pleader, or by some

one by law authoriscd to act for you in this appeal, it will he heard and decided in
your absence.
GIVEN under my hand and the seal of the Court, this ......................d of
...........19
[Note:— 11'a stay of execution has been ordered, intimation should be given of
the fact oil noticc.I
No. 7
NOTICE TO PARTY TO A SUIT NOT MADE APARTY TO THE APPEAL BUT JOINED BY THE
COURT AS A RESPONDENT (0. 41, r.20)
(Title)
To
WHEREAS you were a party in suit No. ................................... of 19...............

in the Court of ......................and whereas the ......................................................has
preferred an appeal to this Court from the decree passed against him in the said suit
and it appears to the Court that you are interested in the result of the said appeal:
This is to give you notice that this Court has directed you to he made a
respondent in the said appeal and has adjourned the hearing thereof till the
..day of ......................19.........at ....................A.M
If no appearance is made on your behalf on the said day and at the said hour the
appeal will he heard and decided in your absence.
GIVEN under my hand and the seal of the Court, this ......................day of
19
Judge
No.8
MEMORANDUM OFCROSS OBJECTION (0. 41, r.22)
(Title)
WHEREAS the ...................................................has preferred an appeal to the
..........................Court at ...........................................from the decree of
.............in Suit No ...................... of' 19 , dated the ........................ day of
....19 . and whereas notice of the day fixed for hearing the appeal was
served on the .........................day of .......................19 . the .........................files this
memorandum of cross objection under rule 22 01 order XLI of the Code of Civil
Procedure, 1908, and sets forth the following grounds of objection to the decree
appealed Irom, namely
TIlE FIRS. .SChEDULE. APPENDIX-G —Appeal, Re/rence and Review
No.9
DECREE IN APPEAL (0.41, r.35)

(Title)
Appeal NC) ................... of' 19.....................from the decree of the Court of

dated the ..............day of ...............19 ............Memorandum of Appeal
..........................................................................................................Plaintiff
.......................................................................................................defendant
The ...........................thove-named appeals to the ........... . ............ Court at

....................mm the decree of ...........................in the above suit, dated
the .........................day of ......................................19 , for the following reasons,
namely :-
This appeal coming on for hearing on the .....................................day of
.....................19 , before ...............................in the presence of
.........................or the appellant and of .........................for the respondent,
it is ordered-
The costs of this appeal, as detailed below, amounting to [Takal ..............are to
he paid by .....................The costs of the original suit are to he paid by
GIVEN under my hand this .............................................................................day

of. ....................................... 19
lodge
Cods of Appeal
Appellant . Amount Respondent Amount
Taka Ps. Taka Ps.
I. Stamp 1 I. Stamp for memorandum of

memorandum of appeal appeal
2. Do for power 2. Do for power
3. Service of processes 3. Service of processes
4. Pleader's le on Tk - 4. Pleader's fee on Tk.
TOTAL - TOTAL _____
TIlE FlRsrScI,ED'iLE. APPENDIX-G —Appeal, Refrence and Review
No. 10
APPLICATION TO APPEAL IN FORMA PAUPERIS (0. 44, r. I)

(771/c)
I ..................................................the .........................above-named, present the

accompanying memorandum of appeal l 'roni the decree in the above suit and apply
to he allowed to appeal as pauper.
Annexed is a full and true schedule of all the moveable and immoveahic
property belonging to me with the estimated value thereof.
Datedthe ......................... y 01 ......................... 19

(Signed)
Note:— Where the application is by the plaintiff he should state whether he

applied and was allowed to sue in the Court of first instance as a pauper.
No. 11
NOTICE OF APPEAL in ftn-ma pauperis (0. 44, r.

(Title)
WHEREAS the above-named .........................has applied to he allowed to appeal

as a pauper frOm the decree in the above suit dated the .........................day of
.......19 , has been fixed ftr hearing the application, notice is hereby
given to you that if you desire to show cause why the applicant should not he
allowed to appeal as a pauper all will be given to you of doing so oil
afore-mentioned date.
GIVEN under my hand and the seal of the Court, this .........................day of
.......19
Judge
No. 12
NOTICE TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO THE IAPPEALLATE

DIVISION SHOULD NOT BE GRANTED (0. 45, r. 3)
(Title)
To
TAKE notice that ..................................................has applied to this Court br a

certificate that as regards amount or value and nature the above case fulfils the
requirements of section I 10 of the Code of Civil Procedure, 1909, or that it is
otherwise a fit one for appeal to the JAppellate Division
Tiu•: EInsrScuuuLL. 4 I'PENDIX-G —.4ppea/. I?e/ren'e and Review
The ..................................................day of ......................... I 9 is fixed For you

to show cause wh y the Court should not grant the certificate asked For.
GIVEN under my hand and the seal of the Court. this .........................day of
.........19
I?e,,',strar
No. 13
NOTICE TO RESPONDENT OF ADMISSION OF APPEAL TO THE IAppellatc Division]

tA O. 45, r. 8)
(Title)
To
WHEREAS ...................................................the .........................in the above

case, has Furnished the security and made the deposit required by Order XLV, rule 7,
of the Code of Civil Proced ti C: 1909:
Take notice that the appeal of the said ..................................................to the I

Appellate Division I has been admitted on the .....................day of ................... I 9
GIVEN under m y hand and the seal of the Court. this .........................day of
..........19
Registrar
No. 14
NOTICE TO SI-lOW CAUSE WHY A REVIEW SHOULD NOT BE GRANTED (0. 47. r. 4)
(Title)
To
TA KA notice that ..................................................has applied to this Court lor a

review of its decree passed on the .........................day of .........................19 . in the
above case. The .........................day of ......................... I 9 . is fixed For YOU to
show cause why the Court should not grantareview ol' its decree in this case.
GIVEN Under my hand and the seal of the Cotirt. this .........................day ui
..........19
lodge
TUE F/RSTSCI-IEDI/LE. APPENDIX-H —Miscel/anceous
APPENDIX H
MISCELLANEOUS
No. I
AGREEMENT OF PARTIES AS TO ISSUES TO BE TRIED (0. 14, r. 6)
(Title)
WHEREAS we. the parties in the above suit, are agreed as to the question of fact
br ol law] to he decided between us and the point at issue between us is whether a
claim tounded on a bond, dated the .........................day of ..........................19 and
filed as Exhibit .........................in the said suit, is or is not beyond the statute ol
Imitation (or State the point at issue whatever it liar be):
We therelorc severally hind ourselves that, upon the finding of the Court in the
negative 10 r affirmative] of such issue . ......................... will pay to the said
......tile 5dffll of [Takab .........................(or such sum as the Court shall
hold to he due thereon), and 1, the said ..........................will accept the said sum of
ITakab .........................(or sucll sum, as the Court shall hold to he due) in full
satisfactioll of my claim oil bond aforesaid br that upon such finding I, tile said
......will do or abstain from doing, etc., etc.]
Plaintiff
Definc/nn.t
\Vitnesscs:
Dated.........................day of .........................19
No.2
NOTICE OF APPLICATION FOR THE TRANSFER OF A SUIT TO ANOTHER COURT FOR
TRIAL (Section 24)
In the Court of tile District Judge of ..................................................No.
.....0119
To
all
WHEREAS dated the ..............day of ..........19 has been made to
this Court by ...................tile ................ill Suit No . ............. of 19 , now pending in
the Court of tile .............at ............in which ..........is plaintiff and .......is defendant,
for the transfer of tile suit for trial to the Court of tile ..........at ...............
You are hereby informed that the ........................day of ........................19 has

been fixed for, the hearing of the application, when you will he heard it' you desire to
oiler any objection to it.
GIVEN under my hand and the seal of the Court, this ........................day of
.....19
Judge


TilE FIRsTS 'IJEDULE. A PPEIVD!X-H —Miscellaneous
No.3
NOTICE OF PAYMENT INTO COURT (0. 24. i'. 2)

(Title)
TAKE notice that the defendant has paid into Court [Takal ........................and
says that sum is sufficient to satisfy the plaintiff ' s claim in ful.
X.Y, Pleader for the defendai,t.
To. Z Pleader for the plaintiff.
No.4
NOTICE TO SHOW CAUSE (GENERAL FORM)

(Title)
To
WHEREAS the above-named ................................................has made

application 10 this Court that .................................................
You are hereby warned to appear in this Court in person or by it pleader duly
instructed on the ........................day of.., 9 , at
o'clock in the lorcnoon, to show cause against the application, failing wherein, the
said application will he heard and determined ex-parte.
19
Judge
No.5
LIST OF DOCUMENTS PRODUCED BY PLAINTIFF/DEFENDANT (0. 13, r. I)

(Title)
No. Description of document Date, if any, which the Signature of party

document bears or pleader
2 3 4
488 CIVIL PROCEDURE CODE II 908: Act V
THE FIlsTSrrIE/E!LL. APPENDIX-11 —A'fj.vce/Iar,ceoi,s
No.6
NQTICETO PARTIES OF THE DAY FIXED FOR EXAMINATION OF A WITNESS ABOUT TO

LEAVE THE JURISDICTION (0. 18,r. 16)
(Ti tle)
To
...............................................................Plainti II (or dcicndant
WHEREAS in the above suit application has been made to the Court by
.............................. Iii at the cx anhi fl au oti ol ........................ .a wit I1CSS
required by the said .........................in the said slut may he taken immediately: and
it has been shown to the Court's satisi action that the said witness is about to leave
the Court's Jurisdiction (ora,,v other good ciiid soft/C/eat cause to he Stared):
TAKE notice that the examination 01 the said witness ........................will he

taken hy the Courl on the ........................day of ........................19
Dated the ........................day of ........................19
No. 7
COMMISSION TO EXAMINE ABSENT WITESS (0. 26, rr. 4. I

(Title)
To
WHEREAS the evidence of the .......................................is required by the
......in the above suit: and whereas .........................you arc requested to
take the evidence oil ntcrrocatorics [or t'ñ'a race j ol such witness .........................
and YOU are hereby appointed commissioner For that purpose. The cv idencc will be
Iaken in the presence of the parties or their agents if in attendance, who will he at
Ii herly to question the witness on the points specified, and YOU arc further requested
to make return of such evidence as soon as it may he taken.
Process to compel the attendance of the witness will he issued by any Court
having jun sd ict ion on your application.
A sum of ITakal ........................ ...ing yotir ice in the above, is herewith

forwarded.
GIVEN tuider my hand and the seal of the Court. this ........................day of
......19
y

Till.,- FIR.c1Sc/1EDU1,E. APPENDIX-H —Miscellaneous
No.8
LETTER OF REQUEST (0. 26. r. 5)

(Title)
(Hcading:—To the President and Judges oF, etc., etc., or as the case ma y be)
WHEREAS a suit is now pending in the ................................................in which

A. B. is plaintiFF and C.D. is delendant: and in the said suit the plaintiff claims.
(Abstract at claim)
And whereas it has been represented to the said Court that it is necessary For the
purposes of justice and for the due determination of the matters in dispute between
the parties, that the Following persons should he examined as witnesses upon oath
touching such matters, that is to say:
E. F., of
G. H., of
1.1., ol
And it appearing that such WitllCsses are resident within the Jurisdiction of your
honourahie Court;
Now I .........................as the ........................of tile said Court, Il ave the honour
to request, and do hereby request, tilat for tile relsolls aforesaid and for the
assistance of tile said Court, you, as tile President and Judges of tile said
.....................or some one or more of you, will he pleased to SllllliT1011 tile
said witness (and such other witnesses as tile agents of the said plainti If and
deiendant shall humbly request YOU ill writing SC) to summon) to attend at SLICh time
and place as you shall appoint he lore some one or more of you 01' slICil other person
as according to the procedure of your Coltri is competent to take tile examination ot
Witnesses, and that you Will cause such witnesses to he examined upon tile
interrogatories which accompany this idler oi request (01' !V0 race) touching tile
said matters ill cjuestion ill tile presence of the agents of the plainti ilaild de iCildailt,
or such of them as shall, on due notice gi vei', attend such examination,
And I further have tile honour to request that you will he pleased to cause the
answers of the said witnesses to he reduced into writing, and all hooks, letters,
papers and docunlents produced upon such examination to he duly marked for
identi hcation. and that you Will he lurther pleased to authenticate SUcil examination
by the seal of your trihunaf, or ill sucil other way as is in accordance with your
procedure, and to return tile same, together with such request in writi 11g. if ' ally. for
the examination of other witnesses to the said Court.
(Note:—If the request is directed to a Forei g n Court, the words "through tile
lGovernmentl for transmission" should he inserted after the words "other witnesses"
ill the last line o I Ill is form,
TIlE F/RSTSCIIEDIJLE. APPENDIX-F! —Misceilanceous
No.9
COMMISSION FOR A LOCAL INVESTIGATION, OR TO EXAMINE ACCOUNTS

(Cr. 26, rr. 9, Il)
To
WHEREAS it is deemed requisite, br the purposes of this suit, that a
commission lor ................................................should he issued; You arc hereby
appointed Commissioner For the purpose of .................................................
Process to compel the attendance before you of any witnesses, or br the
production of any documents whom or which you may desire to examine or inspect,
will he issued by any Court having .jurisdiction oil application.
A sum of ITakal .........................being your lee in the above, is herewith

lorwardc.d.
GIVEN under my hand and the seal of the Court, this ........................tlay of
......19
.Judge
No. 10
COMMISSION TO MAKE A PARTITION (0. 26. r. 13)

(Title)
To
WHEREAS it is deemed requisite for the purposes of this suit that a commission
should he issued to make the partition or separation 4 the property spccil'icd in, and
according to the rights as declared in, the decree of this Court, dated ........................
day of ........................19 ; You are hereby appointed Commissioner br the said
purpose and are directed to make such inquiry as may he necessary, to divide the
said property according to the best of your skill and Judgment in the shares set out in
the said decree, and to allot such shares to the several parties. Yoll are hereby
authorised to award sums to he paid to any party by any other party for the purpose
of equalising the value of tile shares.
Process to compel the attendance before you of any witness, or for the
production of any documents, whom or which you may desire to examine or inspect,
will be issued by any Court having Jurisdiction on your application.
A sum of ITakal .........................being your fee in the above, is herewith

forwarded.
.......19
./udge
THE F/RsTS HEDU/.E. APPENDIX-H —Miscellaneous
No. 11
NOTICE TO MINOR DEFENDANT AND GURDIAN (0. 32, i. 3')

(Title)
To
Minor Defendant
Natural Guardian.
WHEREAS an application has been presented on the part of the plaintiff in the
above suit for the appointment 01 a guardian for the suit to the minor defendant, you,
the said minor, and YOU ........................ .are hereby required to take notice that
Unless within ........................days from the service upon you of' this notice, an
application is made to this Court for the appointment of you ........................or of
some friend of you, the minor, to act as guardian for the suit, the Court will proceed
to appoint some other person to act as a guardian to the minor for the purposes of the
said suit.
GIVEN Under my hand and the seal of the Court, this ........................day of
.....19
./tu.lge
No. 12
NOTICE TO OPPOSITE PARTY OF DAY FIXED FOR HEARING EVIDENCE OF PAUPERISM

(0.33,1-. 6)
(Title)
To
WHEREAS ........................ ........................ ........................ has applied to this

Court for permission to institute a silit against ........................in ftrinci pauperise
under Order XXXIII of the Code of Civil Procedure, 1908; and whereas the Court
sees no reason to reject the application; and whereas the ........................day of
.....19 , has been fixed for receiving such evidence as the applicant
may adduce in proof of his pauperism and for hearing any evidence which may he
adduced ill disproof thereof;
Notice is hereby given to you Under rule 6 of Order XXXIII that in case you
may wish to offer any evidence to disprove the paupersirn of the applicant, you may
do so oil in this court oil said ...................day of ....................19
GIVEN Under my hand and the seal of' the Court, this ........................day of
....19
Judge
TIlL F//?.s'rSc/I/J/tiL/ APPENDIX-H -IVIiseeI/anceous
No. 13
NOTICE TO SURETY OF HIS LIABILITY UNDER A DECREE

(Section 145)
(Title)
To
WHEREASyou ........................did on ........................................... ..... hccom

liable as surety br the perlormance ol any decree which might he passed against the
said ................................................defendant in the above SlIit; and whereas a
decree was passed on the ........................day of ........................19 against the
said defendant for the payment of .........................and whereas application has been
made br execution of the said decree against YOU
Take notice that you are hereby required on or before the ........................day of
........19 to show cause why the said decree should not he executed
aai list you, and if no SLI flicient cause shall he, within the time specified, shown to
the sat islaclion of the Court, all br its execution will he Forthwith issued in the
terms of the said application.
GIVEN under my hand and the seal of the Coil rt, this ........................day ol
........19

CIVIL PROCEDURE CODE

THE FIRST SCHEDULE. APPENDIX — H -(MISCELLANEOUS)
00
C)
No. 14
REGISTER OF CIVIL SUITS (0. 4, r. 2)
Courtof the ................................................of ........................at
REGISTER OF CIVIL SUITS IN THE YEAR 19
— Plaintiff Defendant Claim Appearance Judgment Appeal Execution Return of Execution
Minute of
other return
than
Payment or
E Arrest, and
C.
°. date of
0 u - o every
! i II- J I! I
0 Return
I
Q
z
'
z
.) Q
E
<
C
> C
- C
LL. •l.I ,
0
0
4) )
C
0
<
CL
< .'4
NOTE:— Where there are numerous plaintiffs, or numerous defendants, the name of the first plaintiff only, or the first defendant only, as the case cdJ
maybe, need be entered in the register.

CIVIL PROCEDURE CODE

THE FIRST SCHEDULE. APPENDIX — H — (MISCELLANEOUS)
No. 15
REGISTER OF APPEALS (0. 41. r. 9)
COURT (OR HIGH COURT DIVISION) AT
REGISTER OF APPEALS FROM DECREE IN THE YEAR 19.
Plaintiff Respondent Decree appealed from Appearance Judgment
Cn C-
C. -
C C
o .
C. C.
E E E >' C..
- -
Z Z 0 Z < 0 U LL
000
THE THIRD SCHEDULE - Execution (?/ Decrees by Collectors
THE THIRD SCHEDULE
(SEE S. 69)
ExICIYrIoN OF DEC:REES BY CoLL[c1'oRs
(1) Power of Collector.—Where the execution of a decree has been

transferred to the Collector under section 68, he may—
(a) Proceed as the Court would proceed when the sale of immoveable
property is postponed in order to enable the judgment-debtor to raise the
amount of the decree: or
(h) raise the amount of the decree by letting in perpetuity, or for a term, on
payment of a premium, or by mortgaging, the whole or any part of the
property ordered lobe sold; or
(c) sell the property ordered to be sold or so much thereof as may he
necessary.
(2) Procedure , of Collector in special cases.—Where the execution of a

decree, not being a decree ordering the sale of immoveable property in pursuance of
a contract specifically affecting the same, but being a decree for the paymert of
money ill satisfaction of which the Court has ordered the, sale of immoveable
property, has been so transferred, the Collector, if, after such inquiry as the thinks
necessary, he has reason to believe that all the liabilities of the judgment-debtor can
he discharged without a sale of the whole of his available immoveable property, may
proceed as hereinafter provided.
(3) Notice to he given to decree-holders and to persons having claims on

property.-1.n any such case as is referred to in paragraph 2, the Collector shall
publish a notice, allowing a period of sixty days from the date of its publication for
complianceand calling upon—
(a) every person holding a decree for the payment 01 money against the
udgment-dehtor capahle of cxcution by sale of his immoveable property
and which such decree-holder desires to have so executed, and every
holder of a decree for the payment of money in execution of which
proceedings for the sale of such property are pending, to produce before
the Collector a copy of the decree, and a certificate from the Court which
passed or is executing the same, declaring the amount recoverable
thereunder:
(h) every person havin g any claim oil said property to submit to the
Collector a statement Of stich claim, and to produce the documents (if any)
by which it is evidenced.
(2) Such notice shall he published by being affixed on a conspicuotls part of

the Court-house of the Court which made the original order for sale, and in such
other places (ii any) as the Collector thinks fit; and where the address of any such
TilL Ti//RD Si/LDbLE - Execution of Decrees bj.' C'o//ec/ors
decree-holder or claimant is known, it COPY of the notice shall he sent to him by post
or otherwise.
(4) Amount of decrees for payment of money to be ascertained, and

immoveable property available for their satisfaction.—Upon the expiration of the
said period, the Collector shall appoint it day for hearing any representations which
the judgment-debtor and the decree-holders or claimants (if nay) may desire to
make, and for holding such inquiry as he may deem necessary for informing hiniscil
as to the nature and extent of' such decrees and claims and of the jtidgment-dchtor's
immoveable property, and may, front to time, adjourn such hearing and inquiry.
(2) Where there is no dispute as to the fact or extent of the liability of ' the
judgment-debtor to any of the decrees or claims of which the Collector is informed,
or as to the relative priorities of such decrees or claims, or as to the liability of any
such property for the satisfaction of such decrees or claims, the Collector shall draw
Up a statement, specifying the amount to he recovered for the discharge of such
decrees, the order in which such decrees and claims are to he satisfied, and the
immovcahle property available for that purpose.
it
(3) Where any such dispute arises, the Collector shall refer the same, with
statement thereof and his own opinion thereon, to the Court which made the original
order for sale, and shall, pending thc reference, stay proceedings relating to the
subject thereof. The Court shall dispose of the dispute if the matter thereof is within
its jurisdiction, or transmit the case to it competent Court for disposal, and the final
decision shall he communicated to the Collector, who shall then draw up a statement
as above provided in accordance with such decision.
(5) Where District Court may issue notices and hold-inquiry.—The

Collector may, instead of himself issuing the notices and holding the inquiry
required by paragraphs 3 and 4, draw up a statement specifying the circumstances of
the judgment-debtor and of his inirnoveablc property so far as they are known to the
Collector or appear in the records of his office, and forward such Statement to the
District Court: and such Court shall thereupon issue the notices, hold thc inquiry and
draw up the statement reqtiired by paragraphs 3 and 4 and transmit such statement to
the Collector.
(6) Effect of decision of Court as to dispute.—The decision by the Court 01

any dispute arising under paragraph 4 or paragraph 5 shall, as between the parties
thereto, have the force of and he appealable as
it
(7) Scheme for liquidation of decrees for payment of money.—Where the

amount to he recovered and the property available have been determined as provided
in paragraph 4 or paragraph 5, the Collector may,—
(a) if it appears that the amount cannot he recovered without the sale of the
whole of the property available, proceed to sell such property; or
THE THIRD SCHEDULE - Execution of Decrees by Collectors
(h) if it appears that the amount with interest (if any) in accordance with the
decree, and when not decreed, with interest (if any) at such . rate as he
thinks reasonable, may he recovered without such sale, raise such amount
and interest (notwithstanding the original order for ale)-
(i) by letting in . perpetuity or for a term, on payment of a premium, the

whole or 'any part of the said property; or
(ii) by mortgaging the whole or any part of such property; or
(iii) by selling part of such property; or
(iv) by letting on farm, or managing by himself or another, the whole or
any part of such property for any term not exceeding twenty years
from the date of the order of sale; or
(v) partly by one of such modes, and partly by another or others of SLih
modes.
(2) For the purpose of managing the whole or any part of such property, the
Collector may exercise all the powers of its owner.
(3) For the purpose of' improving the saleable value of the property available.
or any part thereof, or rendering it more suitable for letting or managing, or for'
preserving the property 1mm sale in satisfaction of an incumbrance, the Collector
may discharge the claim of any incumbrancer which has become payable or
compound the claim of any incumbrancer whether it has become payable or not, and,
for the purpose of providing funds to effect such discharge or composition, may
mortgage, let or sell any portion of the property which he deems sufficient, If any
dispute arises as to the amount due oil incumbrance with which the Collector
purposes to deal under this clause, he may institute a suit in the proper Court, either
in his OWfl name or the name of the judgment-debtor, to have an account taken, or he
may agree to refer such dispute to the decision of two arbitrator, one to he chosen by
each party, or of an umpire to he named by such arbitrators.
(4) In proceeding under this paragraph the Collector shall be subject to such
rules consistrtt with this Act as may, from time to time, he made in this behalf by
the [Government].
(8) Recovery of balance (if any) after letting or management.—Where, on

the expiration of the letting or management under paragraph 7, the amount to he
recovered has not been realized, the Collector shall notify the fact in writing to the
judgment-debtor or his representative in interest, stating at the same time that, if the
balance necessary to make up the said amount is , not paid to the Collector within six
weeks from the date of such notice, he will proceed to sell the whole or a sufficient
part of the said property; and, if on the expiration of the said six weeks the said
balance is not so paid, the Collector shall sell such property or part accordingly.
(9) Collector to render accounts to Court.—(I) The Collector shall, from

time to tifile, render to the Court which made the original order for sale an account of
all monies which come to his hands and of all 'charges incurred by him in the


THE THIRD SCHEDULE. - Execution of Decrees by Collectors
exercise and performance of the powers and duties conferred and imposed on him
under the provisions of this schedule, and shall hold the balance at the disposal of
the Court.
(2) Such charges shall include all debts and liabilities from time to time due to
[the Government] in respect of the property or any part thereof, the rent (if any) from
time to time due to a superior holder in respect of such property or part, and, if the
Collector so directs, the expenses of any witnesses summoned by him.
(3) The balance shall be applied by the Court—

(a) in providing for the maintenance of such members of the judgement-
debtor's family (if any) as are entitled to he maintained out of the income
of the property, to such amount in the case of each member as the Court
thinks fit; and
(h) where the Collector has proceeded under paragraph I, in satisfaction of
the original decree in execution of which the Court ordered the sale of
immoveable property, or otherwise as the Court may under section 73
direct; or
(c) where the Collector has proceeded under paragraph 2,-
(i) in keeping down the interest on incumbrances on the property;
(ii) where the judgement-debtor has no other sufficient means of
subsistence, in providing for his subsistence to such amount as the
Court thinks fit; and
(iii) in discharging rateably the claims of the original decree-holder and
nay other decree-holders who have complied with the said notice,
and whose claims were included in the amount ordered to be
recovered.
(4) No other holder of a decree for the payment of money shall be entitled to
he paid out of such property or balance until the decree-holders who have obtained
such order have been satisfied, and the residue (if any) shall be paid to the judgment-
debtor or such other person as the Court directs.
(10) Sales how to be conducted.—Where the Collector sells any property
under this schedule, he shall put it up to public auction in one or more lots, as he
thinks fit, and may—
(a) fix a reasonable reserved price for each lot;
(h) adjourn the sale for a reasonable time whenever, for reasons to be
recorded, he deems the adjburnment necessary for the, purpose of
obtaining a fare price for the property; .
(c) by in the property offered for sale, and re-sell the same, by the public
auction or private contract, as he thinks fit.
(11) Restrictions as to alienation by judgement-debtor or his representative
and prosecution of remedies by decree-holders.----(l) So long as the Collector can
exercise or perform in respect of the judgement-debtor's immoveable property or
any part thereof, any of the powers or duties conferred or imposed on him by
THE THIRD SCHEDULE. - Execution of Decrees by Collectors
paragraphs I to 10, the judgement-debtor or his representative in interest shall be

incompetent to mortgage, charge, lease or alienate such property or part except with
the written permission of the Collector, nor shall any Civil Court issue any process
against such property or part in execution of a decree for the payment of money.
(2) During the same period no Civil Court shall issue any process of
execution either against the judgement-debtor or his property in respect of any
decree for the satisfaction whereof provision has been made by the Collector under
paragraph 7.
(3) The same period shall be excluded in calculating the period of limitation
applicable to the execution of any decree affected by the pro'isions of this paragraph
in respect of any remedy of which the decree-holder has been temporarily deprived..
(12) Provision where property is in several districts.—Where the property

of which the sale has been ordered is situated in more districts than one, the powers
and duties conferred and imposed on the Collector by paragraphs I to 10 shall be
exercised and performed by such one of the Collectors of the said districts as the
[Government] may by general rule or special order direct.
(13) Powers of Collector to compel attendance and production.-In

exercising the powers conferred on him by paragraphs I to 10 the Collector shall
have the powers of a Civil Court to compel the attendance of parties and witnesses
and the production of documents.
THE FOURTH SCHEDULE

(See Section 155)
ENACTMENTS AMENDED
The Court-fees In article I of Schedule I. after the word "plaint" the words
Act. 1870 "Written statement pleading a set-off or counter-claim" and
after the word "Act" the words "or of cross-objection" shall
he inserted.
From article II of Schedule II the words "from and order
rejecting a plaint or" shall be omitted.
For the entry in the first column of Schedule II relating to
article 19 the following entry shall he substituted, namely:—
"Agreement in writing stating a question for the opinion of
the Court under the Code of Civil Procedure, 1908".
THE FIFTH SCHEDULE.— [Enactment's repealed] Rep.. By the Second Repealing and
Amending Act, 1914 (XVII of 1914, S. 3 and Second Schedule.
500 INDEX [1908: Act
THE CIVIL PROCEDURE CODE, 1908

(Act No. V of 1908)
INDEX
Abandonment - See, Withdrawal
of claim before suit, Il 0 [Or. 2, r. 21.
ot part of claim, 257 [Or. 23, r. I (I)].
Abatement-
-of suit by death, 252 [Or. 22, r. I].
no by death after hearing, 254 [Or. 22, r. 6].
—when representative not brought on record, 252 [Or. 22, r. 3 (2)].
in case of marriage or insolvency, 254 [Or. 22, rr.7-8].
affect of-255 [Or. 22, r. 9(1)].
setting aside order of— 255 tOr. 22, r. 9 (2)1.
—on death of party pending appeal, 256 [Or. 22, r. II].
Account(s)-
- hooks not attachable, 50 [s. 60 ( I ) (d)].
production of— hooks with plaint, 140 [Or. 7, r. 17 (1)].
Receiving in evidence of—in current use, 163[Or. 13, r. 5].
- in suits between principal and agent, 192 [Or. 20 r. 161.
- in suits for dissolution for partnership. 192 [Or. 20, r. IS].
commission to examine - 60, 266 [s. 75, Or. 26, r. 11].
legal representative may he compelled to produce —42 [s. 50(2)].
attachment of partner's share and —222 [Or. 21, r. 49(2)].
liability of receiver to —326 [Or. 40, r. 3 (b)].
- in trust suits, 69 [s. 92(1) (d)].
commission for adjustment of— 266 lOr. 26, r. II].
Adjournment-40r. 17]
- of hearing, 179 [Or. 17, i. I (I)[.
—and costs, 179 [Or. 17, r. 1(2)].
- in appeal, 336 [Or. 41., r. 20].
- of execution sale, 232, 238 [Or. 21, Fr. 69, 831
- of sale of agricultural produce, 236 [Or.2 1, r. 74 (2)]
Adjustment-
-of suits, 258 [Or. 23, r. 3].
—of decrees, 194 [Or. 21, r. 21.
Administration Suit—
Decree in—. 190 [Or. 20, r. 131.
Form of plaint in—. [Sch. I, App. Nos. 41-431.
Administrator—
joinder of claims in suits by or against—, 113 [Or. 2. r. 51.
Suits by or against—, 280 [Or. 31].
Admiralty—
Saving of matter of—, 81 [s. 1121.
Assessors in—, cases, 92 [s. 1401.
Admission(s) [Or. 121.
Notice of— of cases, 161 [Or. 12, F. Ii.
Notice to admit documents. 161 [Or. 12, rr. 2, 31
Notice to admit
it facts, 161 [Or. 12, r. 41.
judgment on—, 162 lOr. 12. r. 61.
costs of notice to admit unnecessary documents. 162 [Or. 12, r. 91.
Advertisement—
notice by—, when numerous parties, 106 [Or. I, r. 81.
—of sale proclamation. 232 [Or. 21, r. 671.
Advocate— See, Pleader.
Processes of High Court Division may he served by—, 362 1bOr. 49.r. I].
Affidavit (s)-186 [Or. 191
who can administer oath on—, 92 [5. 1391.
- not on declarant's knowledge must state source or ground of information or
belief. 186
court's power to prove fact by—, 186 [Or. 19, r. I].
cross-examination upon—, 186 [Or. 19, r. 2].
matters to which—shall he confined, 186 [Or. 19, r. 3].
costs of unnecessary—. 186 [Or. 19. r. 3 (2)].
interrogatories as to -, 156 [Or. I I , rr. 6. 8- I I 1.
- of documents, 157 [Or. II. r. 13].
—as to competency of minor's guardian, 281 [Or. 32. r. 31.
Agent-
- for accepting service, 114. 116 br. 3. rr. 2, 61.
recognized—, 114 ]Or. 3, rr.1-3].
service on —of defendant, 121, 122 [Or. 5, rr. 12-141.
- to act for Government, 271 [Or. 27, r. 21.
- to receive process for Government, 271 [Or. 27, r. 4].
suits for accounts between principal and—, 192 [Or. 20, r. 16].
502 INDEX 11908: Act
Agreement—
adjustment of suit by—, 258 [Or. 23, r. 3].
—by person under disability, 95 [s. 1471.
- by next friend or guardian, 284 [Or. 32, r. 71.
—to state case for court's opinion, 309 [Or. 36, r. 1].
- to state questions of law or fact in the form of issues, 169 [Or. 14, r. 61.
Agricultural produce
attachment of—, 217 [Or. 21, rr. 44, 451.
exemption of—from attachment, 49,51 [ss. 60(1) (b), 61!.
place of sale of—, 235, 235 [Or. 21, ru. 74(1), 75].
- not attachable before judgment, 319 [Or. 38, r. 12].
Agriculturist—
house &c. of— not attachable, 49 [s. 60 (1) (c)].
implements &c. of—not attachable, 49 [s. 60(1) (h)].
Alienation-
-of attached property void, 52 [s. 64].
—of attached property with Court's leave, 238 [Or. 21, r. 83].
Alien (s) -
suit by - friends or enemies, 63 [s. 83].
Allowance
attachment of— of public officer &c. 221 [Or. 21. r. 48].
exemption from attachment of—of public officer &c., 50 [s. 60(1) (h) (i)].
Amendment-
-of defect in any proceeding, 102 [s. 1531.
- of judgment, decree or order, 102 [s. 153].
—of pleadings, 133 [Or. 6, r. 17].
—of opponent's pleading, 133 [Or. 6, r. 161.
—of execution application, 201 [Or. 21, r. 171.
—of issues, 168 [Or. 14, r. 5(1)]
of memo. of appeal, 329 [Or. 41, r. 31.
when defendant is added, 107 [Or. 1, r. 10].
Ancestral property—
liability of—for deceased's debt, 45 [s. 53].
Appeal—[Ss. 96-108; Or. 41].

—when heard by two or more judge s, 75 [S. 98].
no— from consent decree, 74 Es. 961.
—from final decree where no—from preliminary decree, 75 [s. 97].
Appeal from original decree-.--[Ss. 96-99; Or. 4.1].
Form of appeal,
what to accompany memo., 328 [Or. 41 r. I (1)].
contents of memo., 328 [Or. 41, r. I (2)].
rejection of memo., 329 [Or. 41, r. 3].
registry of memo., 332[Or. 41,r. 91.
grounds which may he taken, 77, 328 [s. lOS (1); Or. 41, r. 2].
Stay of execution
appeal shall not operate as, 329 [Or. 41, r. 5 (1)1.
by appellate court, 329 [Or. 41, r. 5 (1)].
by original court, 330 [Or. 41, r. 5 (2)].
grounds of, 330 [Or. 41, r. 5(3)].
ex parte order of, 330 [Or. 41, r. 5 (4)].
security from appellant in case of, 330 [Or. 41, r. 5 (3) (c)].
security from respondent, 331 [Or. 41, r. 6].
where appeal is against order made in execution, 332 [Or. 41. r. 8].
Procedure on admission
security for costs, 332 [Or. 41, r. 10].
dismissal without notice. 333 [Or. 41, r. II].
dismissal for non-appearance, 333 [Or. 41. r. 11(2)].
re-admission after dismissal, 336 [Or. 41, r. 191.
fixing hearing date, 333 [Or. 41, r. 121.
giving of notice, 333-335, [Or. 41, rr. 13-15].
Procedure on hearing
right to begin, 335 [Or. 41, r. 16].
dismissal for default of appellant, 335 [Or. 4!, r. 17].
readmission after dismissal, 336 [Or. 41, r. 19].
hearing export, 335 [Or. 41, r. 17(2)].
re-hearing of such ex parte hearing, 337 [Or. 4!, r. 21].
dismissal for failure to deposit costs., 336 [Or. 41, r. 18].
re-admission of such appeals, 336 [Or. 4!, r. 19].
cross-objection by respondent, 337 [Or. 41, r. 221.
rules as to cross-objection, 337 [Or. 4!, r. 22, (2) (5)].
Powers of appellate Court, 79, 344 [s. 107; Or. 41, r. 33].
may frame issues and remand, 338 [Or. 41, r. 23].
504 INDEX [1908: Act V
Appeal from original decree— Contd.

may determine case if evidence sufficient, 339 [Or. 41, r. 24],
procedure in such cases, 340 [Or. 41, r. 261.
may allow additional evidence, 341, 342 [Or. 41, rr. 27, 29].
Judgment in appeal, 342-344 [Or. 41, rr. 30-34].
when heard by two or more judges, 75 [s. 98].
dissentient, where more than one judge, 344 [Or. 41, r. 34].
Decree in appeal, 344-345 [Or. 41, rr. 35-37].
Appeals from appellate decree-346 [Or. 42, see above].
procedure in-79, 346 [s. 108, Or. 42].
Appeals from order— 77, 78, 347 [Ss. 104, 105, Or. 43].
when— lies, 77 [s. 1041.
—made under the rules, 347 [Or. 43, r. 11.
what courts to hear—, 78 [s. 106].
procedure in—, 79, 348 [s. 108, Or. 43, r. 21.
Appeal to the Appellate Divisions—, 80, 350 [s. 109, Or. 45].
value of subject-matter in—, 80 [s. 110].
certificate of value and fitness in—, 350 [Or. 45, rr. 3-5].
special leave to—, 81 [S. 112].
bar of certain, 81 [s. Ill].
security and deposit before admission of—, 351 [Or. 45, r. 71.
admission of—and procedure, 351 [Or. 45, r. 8].
execution of Appellate Division decrees, 354 [Or. 45, r. 151.
Appeal by pauper—, 349 [Or. 4411.
Appearance—
court may order—in person, 118, 154 [Or. 5. r. 3; Or. 10, r. 4 (I)].
consequence of non— in person, 15 I FOr. 9. r. 121.
meaning of ' within Or.9, 151.
—of party by pleader, 114 [Or. 3.i. I].
- of partners, 278 [Or. 30, r. 6].
- on behalf of Government, 271 [Or. 27, r. 2].
power to require personal - of officers of corporation, 275 [Or. 29, r. 3].
exemption of women from—, 89 Is. 132].
Arrest (and detention)-45-49 [ss. 55-59].
—other than in execution, 90 [s. 1341.
—otjudgrnent-dehtor. 45, 213-214 [S. 55; Or. 21, rr. 37-40].
re-arrest after release when not allowed, 48
Arrest (and detention) —Contd.

notice before issue of warrant of—, 213 [Or. 21, r. 37].
procedure after appearance or—. 214 [Or. 21, r. 40].
detention in jail not to he ordered unless judgment-debtor is both able and
unwilling to pay, 43, 214 [s. 51; Or. 2!, r. 40].
—before judgment, 72, 3 13-3 14 [s. 94; Or. 38, rr. 1-4].
compensation for—before judgment, 72 [s. 95].
no— of women in execution, 56 s. 561.
—ofpeson outside jurisdiction, 90 [s. 136].
execution by immediate—, 197 [Or. 21,r. 11(1)].
appeal lies from order of—, 77 Es. 104, (h)I.
exemption from—, 90 Is. 135 (3)1.
exemption of women from -, 89 Is. 132 (2)1.
Assets— See, Rateable distribution.
- for rateable distribution, 57 [s. 731.
distribution of— when property attached by several courts is sold by the superior
court. 58.
Assignment-
- of interest during suit, 256 [Or. 22, r. 101.
of decree and execution, 200 [Or. 21, r. 161.
- of cross-decree and execution. 201 [Or. 21, r. 18 (2)1.
—alter attachment void, 53 [s. 641.
Attachment—
property liable to— 49 Is. 601.
property not liable to-49 [s. 60. proviso].
- by several courts in execution. 52 [s. 631.
private transfer alter— void, 53 [s. 641.
- of property in custody of court or public officer, 224 [Or. 21,r. 521.
- a! movable property, 216 [Or. 2!. r. 431.
— 0! growing crop, 217 lOr. 21, r. 441.
—olsharc in movables, 220 [Or. 21, r. 471.
- of movable property not in possession of judgment-debtor. 198. 218 [Or. 2l.
12; Or. 21, r. 46].
- of coin or currency notes, 227 [Or. 2!, r. 561.
- of debt, share &c., 218 [Or. 2 I, r. 46].
- ot garnishee debt, 219-220 [Or. 21, rr. 46A-46H].
- of agricultural produce, 217, 51 [Or. 21, r. 44; s. 611.
Attachment—Contd.
—of salary, 221 [Or. 21, r. 48].
—of partnership property, 222 [Or. 21,r. 491.
- of negotiable instruments, 223 [Or. 2!, r. 511.
—of decrees, 224 [Or. 21, r. 531.
—of immovable property, 226 [Or. 21, r. 54].
removal of— after satisfaction 227 [Or. 21, r. 55].
determination of—, 227 [Or. 21, r. 571.
claims enforceable under—, 53 [s. 64, Expin].
—of property outside .jurisdiction, 90[s. 1361.
—of land paying revenue to Government, 226 [Or. 21, r. 541.
claim after—, 228 [Or. 21, r. 58].
investigation of claim after—, 228-229 [Or. 21, rr. 58-59].
release from—after investigation—, 229 [Or. 21, r. 60].
- in case of disobedience to injunction, 321 [Or. 39, r. 2].
Attachment before judgment—,313,72 [Or. 38; s. 94(h)].
- of property outside jurisdiction, 90 [s. 136].
procedure in—, 315 [Or. 38, r. 5].
mode of—, 317 [Or. 38, r. 71.
conditional—, 315 [Or. 38, r. 5].
—on failure to show cause, 317 [Or. 38, r. 6].
removal of—, 318 [Or. 38, r. 9].
in - re-attachment not necessary before execution, 318 [Or. 38, r.. II].
agricultural produce exempted from—, 319 [Or. 38, r. 12].
property not liable to—, 49 [S. 60, proviso].
Attorney-General-
Consent of— in suits regarding public nuisances, 68 [s. 91].
Consent of— in suits regarding public charities, 69 [s. 92].
Auction sale— See, Sale
—to he public, 231 [Or. 21, r. 651.
time of —232 [Or. 21, r. 68].
Auction-purchaser—See, Sale
benámi purchase by—, 54 [s. 66].
compensation to—on setting aside sale, 240 [Or. 21, r. 89].
deposit by - at sale, 239 [Or. 21, rr. 84, 85].
forfeiture of deposit by —,240 [Or. 21, r. 86].
Auction-purchaser—Contd.
dispossession by—, 246 [Or. 21,r. 100].
delivery of possession to—, 244-245 [Or, 21, rr. 95-96].
title of—, 54 [s. 651.
Banker's Books Evidence Act, 163 [Or. 13, r. 5].
Benami-
- purchase at auction sale and suit, 54 [s. 651.
Bill of Exchange— See, Negotiable Instruments.
Book of account— See, Account.
Business—
"carrying on—", 20, 21 [ss. 19, 20].
service of summons on agent carrying on—, 121 [Or. 5, r. 131.
verified copies of—hooks, 163, 159 [Or. 13, r. 5, Or. II, r. 19].
corporation where deemed to carry on—, 21 [s. 20, Expin. II].
transfer of—from one court to another, 97 [s. 150].
Caste
suits relating to--questions,13.
Cause of action—
meaning of—, 22,111.
suits to he instituted where—arises wholly or in part, 2! [s. 201.
suit to he instituted where it arose, 135 [Or. 7, r. I].
Joinder of—, 112 [Or. 2, r. 31.
separate trials of different—, 113 [Or. 2, r. 61.
misjoinder of — objection to, 1]3 [Or. 2, r. 7].
certain — not to he joined, 112-113 [Or. 2, rr. 4,5].
relief in respect of several distinct—, 137 [Or. 7, r. 8].
splitting up of—, 110 [Or. 2, r. 2].
Certificate-
- of leave to appeal to Appellate Division. 350 [Or. 45, r. 31.
- by pleader to memo, of appeal, 328
sale—to auction purchaser, 244 [Or. 2!, r. 94].
—of payment of decretal amount Out of court, 194 [Or. 2l r. 21.
—for execution when decree transferred, 196 [Or. 21, r. 6(h)].
Certifying payment—
of decree-debt Out of Court, 194 [Or. 21, r. 2].

Charge
suits to realize— on i minovable property, 306 [Or. 34, r. 151.
- on subject matter of suit for Govt. Costs in pauper suits, 290 [Or. 33, r. 10]
Charities—
suits relating to public—, 69 Is. 921.
Claim (s) See, Attaclunent.
suit to include the whole—, 110 lOr. 2, r. 21.
abandonment of— after suit, 257 (Or. 23, r.
investigation 01 - to attached property, 228-230 [Or. 21, rr. 58-631.
Code—
application of'—to High Court Division, 84, 84, 362 [ss. 117, 120, Or. 491.
application of— to S. C. Courts, 12, 363 [s. 7, Or. 50].
application of— to revenue courts, II (s. 51.
Collector—
partition of estate by—, 45 [s. 541.
execution of decrees by—, [Sch. III].
decree in pauper suit to he sent to—. 293 [Or. 33, r. 14].
- when may he appointed receiver, 327 [Or. 40, r. 51.
Commission—
power of court to issue—, 60 Is. 751
letter of request ill lieu of—, 60 [s. 77].
- issued by foreign courts. 60 (s. 78].
I
power of commissioner, 268 Or. 26, r. 161.
expenses of—to he paid into court, 267 [Or. 26, r. 15].
To examine witness, 263-264 [Or. 26, rr. 1-8].
cases in which - may issue, 263 [Or. 26, r. I].
order for issue of—, 263 [Or. 26, r. 21.
- when witness not in Br. India, 264 Il Or. 26, r. 5].
evidence on - when to be read, 264 II Or. 26, r. 8].
For local investigation., 265 [Or. 26, rr. 9, ID]
procedure of commissioner—, 265 (Or. 26, r. 10(I)].
Further inquiry when report unsatisfactory, 266 [Or. 26. r. 10(3)].
To examine accounts, 266 [Or. 26, rr. 11-12].
when court may direct further inquiry—. 266 [Or. 26,r. 12(2)].
To make partition.. 266-267 (Or. 26, rr. 13, 141.
procedure of commissioner—, 267 [Or. 26, r. 14].
new commission - when report set aside, 207 [Or. 26, r. 14 (3)j.
Commissioner— See, Commission

- when may proceed ex parte 268 [Or. 26, r. 18 (2)].
power of—, 268 [Or. 26, r. 161.
examination of witnesses before—, 268 lOr. 26, r. 17 (l)].
Company—See, Corporation..
Compensation-
- For wrongful arrest, attachment or injunction, 72 [s. 95].
- in respect of vexations or false claim or defense, 30 [s. 35-A].
- in case of injunction, 322 [Or. 39 ., r. 2 (4)].
appeal from order of—, 77 [s. 104 (I) (g)].
Compromise-
-of suit, 258 (Or. 23, r. 31.
- by next friend or guardian, 284 [Or. 32, r. 71.
appeal from order refusing to record—, 348 [Or. 43, r. I (m)].
no appeal from decree on—, 74 Is. 96 (3)].
Consent-
- by persons under disability, 95 is. 1471.
no appointment of guardian ad litein without his—, 283 [Or. 32, r. 4 (3)].
- of Attorney-General to suits relating to nuisance, 68 [s. 91.1
—of Attorney-General to Suits relating to public charities, 69 [s. 921.
no plaintiff to he added without his—, 107 [Or. I, r. 10].
no appeal from —decree, 74 [s. 96(3)].
Contempt of Court—
no exemption from arrest for—, 90 [s. 135 (2)].
Contract—
denial of— in pleadings, 130 [Or. 6, r. 8].
implied averment of—, 131 lIOr. 6, r. 121.
Joinder of parties liable on same—. 105 [Or. I, r. 61.
place of suing in case of—, 21 [s. 20(c)].
injunction to restrain breach of—, 321 [Or. 39, r. 2(l)].
execution of decree for specific performance of— 209 [Or. 21, r. 32].
Corporation—
suits by or against—, 275 [Or. 29].
place of suing a—, 21 [s. 20, Expin. III.
service on—, 275 [Or. 29, r. 2].
enforcement of personal attendance of officer of—, 275 [Or. 29, r. 31.

Corporation—Contd.
delivery of interrogatories to—, 156 [Or. 11, r. 5].
injunction to -binding on officers, 322 [Or; 39, r. 5].
definition of 'share in—, 4 [s. 2(19)].
examination of officer of—to ascertain property for attachment, 216 [Or. 21, r. 41].
attachment of share in—, 219 [Or. 21, r. 46(b)].
mode of executing decree against—, 209 [Or. 21, r. 32(2)].
sale of shares in - in execution, 236 [Or. 21, r. 76].
Co-owner—
preference to hid of— in sale, 236, 240 [Or 21, rr. 77 (3), 88].
Costs-
-of adjournment, 179 [Or. 17, r. 1(2)].
- of affidavit containing hearsay &c: 186 [Or. 19, r. 3 (2)].
- in the discretion of court, 29 [s. 351.
- when to be disallowed, 30.
proportionate—, 30
appeal on question of—, 30
- may he given even when court has no .jurisdiction, 29 [s. 35].
directions in decree as to—, 188 [Or. 20, r. 6 (2)].
directions in appeals as to—, 345 [Or. 41, r. 35 (3)].
compensatory— when claim or defence is false or vexations, 30 [s. 35-A].
- of proving documents when notice to admit not given, 161 [Or. 12, r. 21.
execution of decree before — ascertained, 84 [s. 118].
—of proving facts when notice to admit not given, 161 [Or. 12, r. 4].
- of guardian ad litem, 283 [Or. 32, r. 4 (4)].
—of interrogatories, 155 [Or. 11, r. 31.
- in interpleader suits, 307, 308 [Or. 35, rr. 3, 6].
set-off of—, 188 [Or. 20, r. 6(3)].
- of suit where defendant pays admitted amount into court, 259 [Or. 24,.r. 4].
- of Govt. when pauper succeeds, 291 [Or. 33, r. 101.
- in a pauper suit, 293 [Or. 33, r. 161.
- in mortgage suits, 294, 297, 301 [Or. 34, rr. 2 (a), 4, 7].
- of mortgagee subsequent to decree, 304 [Or. 34, r. 10].
pleader's liability for—in suit by minor, 281 [Or. 32, r. 2(1)].
set-off and pleader's lien for—, 144 [Or. 8, r. 6(2)].
refund of—on restitution, 94 [s. 144 (1)].
Costs—Contd.
of noting non-acceptance of hills, &c. 312 [Or. 37, r. 6].
-of reference to High Court Division, 355 [Or. 46, r. 41.
in appeal to Appellate Division, 351 [Or. 45, r. 7 (a)].
- in suit dismissed on plaintiff's insolvency, 254 [Or. 22, r. 8 (2)].
Security f6r-261 [Or. 25].
-to he given on plaintiff's insolvency, 254 [Or. 22, r. 81.
- by retiring next friend, 284 [Or. 32, r. 8 (1)].
- from plaintiff, 261 [Or. 25, r. 1].
—where plaintiff is woman, 261 [Or. 25, r. 1(3)].
—from appellant, 332 [Or. 41, r. ID].
- of appeal to Appellate Division, 351, 352 [Or. 45, rr. 7, 9].
• further - of appeal to Appellate Division, 352 [Or. 45, r. 10].
Court(s) -
district—, defined, 2 [s. 2(4)].
pecuniary jurisdiction of—, II [s. 61.
small cause—, 12, 363 [s. 7, Or. 50].
inherent power of—, 98 [s. 1.51].
power of—to enlarge time, 96 [s. 148].
general power of— to amend, 102 [s. 153].
- to inform judgment-debtor under arrest that he may apply for insolvency, 46
[s. 55 (3)].
- power to order separate trials, 104, 113 [Or.. I, r. 2; Or. 2, r. 61.
- power to strike out or add parties, 107 [Or. 1, r. ID (2)].
- power to give conduct of suit, 109 [Or. I, r. II].
- may order personal appearance of a .party, 118 [Or. 5, r. 3].
- may order personal appearance of officer of corporation, 275 [Or. 29, r. 3].
- may order any person present to give evidence, 174 [Or. 16, r. 7].
- may pass interlocutory orders, 323 [Or. 39, r. 6].
- power to arrest or attach when injunction disobeyed, 322 [Or. 39, r. 2 (3)].
- power to inspect property, 185 [Or. 18, r. 18].
—which passed a decree" 33 [s 371.
transfer of business from one - to another, 97 [s. 150].
Court-fees---
value of suit for—, 135 [Or. 7, r. I (i)].
deficiency in—and court's power to allow to make up, 97 [s. 149].

Cross-claims -
execution in cases of —, 203 [Or. 21, r. 191.
- in mortgage suits, 203 [Or. 21, r. 201.
Cross-decrees--
assignment incase of—, 201 [Or. 21, r. 18].
execution in case of—, 201 [Or. 2!, r. 18].
Cross-objections--
who may file—, 337 [Or. 41, r. 22].
— to he filed within a month, 337 [Or. 41, r. 22(1)].
Damages—
commission to ascertain—, 265 [Or. 26, r. 9].
defendant need not plead to -, 143 [Or. 8, r. 3].
- for arrest or attachment or injunction on insufficient grounds, 72 [s. 95].
special—not necessary in suit relating to public nuisance, 68 [s. 911.
Death— See, Ahatenen.t.
- of guardian ad litem, 285 [Or. 32, r. II].
—of next friend, 285 [Or. 32,r. 10(l)].
- of party after hearing before judgment, 254 [Or. 22, r. 6].
- of Judge before completion of trial, 184 [Or. 18, r. IS].
—suit against dead man a nullity, 108.
Debt—
liability of— to attachment, 49 [s. 60 (1)1].
attachment of—, 218 [Or. 2!,i. 46].
delivery of—, 237 [Or. 21, r. 79(3)].
attachment of garnishee—, 219 [Or. 2!, r. 46-A].
Declaration-
- by serving officer in proof of service, 124 [Or. 5, r. 191.
—of serving officer is evidence, 124 [Or. 5, r. 19-A].
Decree—
definition of—, 2 [s. 2 (2)].
definition of— in relation to Appellate Division appeals, 350 [Or. 45, r. I].
contents of—, 188 [Or. 20, r. 6].
court executing—, 34 [s. 38].
definition of court which passed—, 33 [s. 371.
transfer of—, 36 [s. 39].
adjustment of—, 194 [Or. 2l,r. 2].
Decree—Con.tcl.
amendment of—. 101 [s. 1521.
assignment of—, 200 [Or. 21, r. 161.
compromise—, 258 [Or. 23, r. 3].
construction of—by executing court, 35
execution in cross—, 201 [Or. 21, r. 18].
—against dead person a nullity, 108.
execution of— See, Execution.
- against legal representative, 44 [s. 52].
setting aside ex pane—, 152 [Or. 9, r. 13].
can executing court go behind—, 35
transferee or— to hold it subject to equities, 41 [s. 491.
Decree-holder-
assignment of decree by—, 200 [Or. 21, r. 16].
- not to bid without court's leave, 234 [Or. 21, r. 721.
dispossession by—, 246 [Or. 21, r. 1001.
execution by joint—, 199 [Or. 21 r. 15].
Defense
distinct grounds of—to he stated separately, 145 [Or. 8, r. 7].
facts to be specially pleaded in —,l43 [Or. 8, r. 2].
new ground of—how raised, 145 [Or. 8, i. 8].
Defendant(s) -
who may he joined as—, 104 [Or. I, r. 3].
- need not he interested in all the reliefs, 105 [Or. 1, r. 5].
when p 1 ntftf doubtful as to who should be—, 106 [Or. I, r. 7].
addition of party as—. 107 [Or. 1, r. 10].
Joinder of— in suit on same contract, 105 [O p. I, r. 6].
deposit by - in suit for money or damages, 259 [Or. 24, r. 1].
Joinder of causes of action and—, 112 [Or. 2, r. 3].
Joinder of— liable on same negotiable instrument, 105 [Or. I, r. 6].
objection to non-joinder of—. 109 [Or. I. i. 13].
order for personal appearance of—, 118, 119 [Or. 5, rr. 3, 4].
written statement when to be filed by—, 142 [Or. 8, r. I.
- may apply for security of costs, 261 [Or. 25, r. I].
Demeanour—
remarks on—of witness, 183 [Or. 18, r. 12].
514 INDEX 11908: Act V
Deposit—
by defendant of admitted ci ai In. 259 IOr. 24, r. II.
0 mu ic y or movables, 324 101.39. r 101.
by plaintiff in interplcadcr suit. 307 br. 35. r. 21.
to s et aside sale, 240 (Or. 21, r. 891.
—by purchaser. 239 lOr. 21. r. 84.1.
order for— in summary suit on bill &c. 312 lOr. 37, r. 51.
Detention—See, Arrest
- of subject-matter of suit, 323 [Or. 39. r. 71.
Diplomatic Agents
suits against—. 66 (s. 86A I.
Disclosure-
- oC partner. 276 10r. 30. r. 21.
• - of judgment-debtor's property before judgment, 216 [Or. 21, r. 411.
Discovery-
-01 documents, 157-159 (Or. II, rr. 12-191.
- by interrogatories. 155-156 (Or. II, Fr. I - II].
I
• non-compliance with order for --. 160 Or I I , r. 21
power of court to order - suo rnotu, 26 [s. 30].
Document(s) -
affidavit of—. 157 [Or. II, r. 131.
endorsement on - admitted in evidence, 163 [Or. 13, r. 4.1.
examination of— before framing issues, 168 [Or. 14,r. 4].
execution of decree for execution of—, 211 [Or. 21, r. 341.
consequence of failure to produce - under Or. 7, r. 14, 141 br. 7, r. 191.
list of— relied on, 140 [Or. 7, r. 14(2)1.
inspection of. 158 [Or. II, r. 18 (2)],
non-production of— and consequence, 163 10r. 13. r. 21.
notice to produce—, 162 (Or. 12, r. 81.
notice to admit—. 161 [Or. 12, Fr. 2,3].
production of—on which plaintiff sues, 139 [Or. 7, r. 141.
inadmissibility of—not produced with plaint, 141 [Or. 7, r. 181.
production of—referred to in pleadings, 157 [Or. 11, r. 15].
rejection of irrelevant on inadmissible - at any stage, 163 [Or. 13, r. 3].
return of— admitted, 165 [Or. 13, r. 91.
return of—rejected. 164 [Or. 13, r. 7(2)].
summons to produce—, 174 [Or. 16, r. 6].
impounding of—, 165 [Or. 13, t. 8].
1908: Act V CIVIL PROCEDURE CODE 515
Evidence-
- how taken in appealable cases. 182 l . Or. 18. r. 51.
- how taken in non-appealable cases. 183 I Or. 18. r. 13
failure to produce at adjourned hearin g . 180 [Or. 17, r. 31.
I ailure to produce—al first hearing. 171 j0r. 1 5. r. 41.
(IC bene esse. 184 1 Or. 18, r. 16 1.
additional in appeal. 341-342 I Or. 4 1. rr. 27-291.

production of documentary -. 163 10r. I 3...... 1-21.
questions objected to in and allowed by court. 183 br. 18. r. III.
refusal to give - when required by court. 178 [Or. 16, r. 201.
Examination - See. Commission.
- of serving officer. regarding, service. 124 1 Or. 5. r. 19J.
oral of parties, 154 [Or, 10, r. 21.
- of judgment-debtor as to his property. 216 [Or. 21, r. 411.
- of serving officer when witness fails to attend, 175 [Or. 16, r. 10 (I)]
Execution— See i A lies!, A Itac/nn.enr, Sale.
- of decree to he by court of first instance, 33.
application for—. 197 [Or. 21, r. 11 (2)].
oral application for immediate-, 197 [Or. 21, r. I I , (I)].
application for—joint-decree-holder, 199 [Or. 2 1, r. 15].
application for - by transferee. 200 [Or. 21, i'. 161.
application for - against legal representative, 44, 203 [s. 52; Or. 21. r. 22 (I) (b)].
against movable property not in jud g ment-debtor's possession, 198 [Or. 21, r. 121.
precept in—. 39 Is. 46].
issue of process for - , 205 [Or. 21, r. 241.
rejection c . application for -, 201 [Or. 21, r. 17 (I)j.
simultaneous - against person and property, 203 [Or. 21, r. 21.1.
- of foreign decree and courts, notified under s. 44A P. 38.
—of cross-claims under same decree, 203 [Or. 21, r. 191.
-of cross-decrees, 201 [Or. 21, r. 18].
transfer of decree and—, 195 [Or. 21, r. 5.
power of transferee court in—, 37 [s. 421.
—court cannot go behind decree, 35.
- by High Court Division of transferred decrees, 197 [Or. 21, r. 91.
receiver in —,43 Ils. 51].
compromise in—, 258 [Or. 23, r. 41.
Execution— Contd.
limit of time for—, 40 [s. 48].
- against corporation, 209 [Or. 21, r. 32 (2)].
—of documents in—, 211 [Or. 21, r. 341.
delivery of immovable property in —.212 [Or. 21, r. 35].
—for payment of money, 209 [Or. 21, r. 30].
—against partner, 222 [Or. 21, r. 49].
—against firm, 222 [Or. 21, r. 491.
- for restitution of conjugal rights, 209, 210 [Or. 21, rr. 32,33]
- for injunction, 209 [Or. 21, r. 32].
—for specific movable property, 208 [Or. 21, r. 31].
—for specific performance, 209 [Or. 21, r. 32].
- against legal representative, 44 Is. 52].
powers of court in —,43 Is. 51].
abatement of — proceedings, 256 [Or. 22, r. 12].
dismissal of— and effect on attachment, 227 [Or. 21, r. 571.
claims in—, 228 [Or. 21,r. 58].
transfer of—, 23 [s. 24].
stay of—, 206 [Or. 21, r. 26].
security in—, 206 [Or. 21, r. 26 (3)].
—pending another suit, 207 [Or. 21, r. 291.
—in. summary suits on negotiable instruments, 312 [Or. 37. r. 41.
resistance to—, 245 [Or. 21, r. 98].
powers of court to which decree in transferred for—, 37 [s. 42].
Executor & Administrator—See, Athnin.istrator.
suit by—, 136 [Or. 7, r. 4].
jdinder of— in suits concerning property vested in them, 280 [Or. 31, r. 21.
Exhibits—
endorsements on , 163 [Or. 13, r. 4].
return of—, 165 [Or. 13,.r. 9].
copies of—in appeal, 334 [Or. 41, r. 13(3)].
Ex-parte-
setting aside — decrees, 152 [Or. 9, r. 131.
hearing a suit—, 148 [Or. 9, i. 6].
hearing of appeal—, 335 [Or. 41, r. 17(2)].
re-hearing of appeal disposed of—, 337 [Or. 41, r. 21].
c"nmissioner when may proceed—, 268 [Or. 26, r. 18(2)].
appeal lies from—decree, 74 [s. 96].
Expenses-
- of witnesses, 172 [Or. 16, r. 21.
Expert—
fee payable to—, 172 [Or. 16, r. 2(2)].
Fact (s) -
plaint to contain - constituting cause of action, 135 [Or. 7, r. I (e)].
new—to he specially pleaded, 143 [Or. 8,r. 2].
notice to admit—, 161 [Or. 12, r. 41.
—showing transaction void or voidable to he specially pleaded, 143 [Or. 8, r. 21.
- not denied taken as admitted, 143 [Or. 8, r. 5].
pleadings to state only material -, 129 [Or. 6, r. 2].
pleadings not to contain—presumed by law, 131 [Or. 6, r. 13].
what are issues of—, 167 [Or. 14, r. 1(4)].
appellate court may frame issue of—, 340 [Or. 41, r. 25].
- may he proved by affidavit, 186, 26 [Or. 19, r. I; s. 30].
Final decree
definitionof—, 2. [s. 2 (2) Expin.].
appeal from - where no appeal from preliminary decree, 75 [s. 97].
- in suit for sale, 298 [Or. 34, r. 5.
- in foreclosure suit, 296 [Or. 34, r. 31.
- in redemption suit. 302 [Or. 34, r. 81.
- in respect of mesne profits, 190 [Or. 20, r. 12 (2)].
Fine
on defaulting witness, 176 [Or. 16, r 12].
Firm—
See, Corporation, Partners.
Suit by or against—, 276 [Or. 30, r. I].
suit between co-partners of—, 279 [Or. 30, r. 9.1.
service of summons on—, 277 [Or. 30, r. 3].
disclosure of partners in—, 276 [Or. 30, r. 2].
right of suit on death of partner in—, 278 [Or. 30, r. 4].
execution against—, 223 [Or. 21, r. 501.
First hearing—
ascertaining facts admitted at—, 154, 167 [Or. 10, r. I; Or. 14, r. I].
documents to he produced at—, 163 [Or. 13, r. 1].
disposal of suit at—, 171 [Or. IS].
Foreclosure-
place of suing in suit, ISIS. 161.
possession may he asked ill suit or -. I I 2 I Or. 2. r. 41.
parties in suit for-, 294 10". 34, r.
preliminary decree in -suit, 294 ]Or. 34, r. 21.
final decree in suit. 296 br. 34. r. 31.
discharge of debt oil , 297 [Or. 34. r. 3 (3)1.
power to decree sale in -suit, 297 1 Or. 34. r. 4 (4)1.
extension of ti mc for payment in -suit. 294 I Or. 34, r. 2 (2)1.
Foreign ,judgment -
- is not conclusive, 17 Is. 13 1.
enforcement of- in execution, 38 Is. 44A].
priiiiption as to-. 18 Is. 14].
Foreign State -
suit by-, 64 Is. 841.
suit against ruler oi. 64.65 Iss. 85. 861.
service of' summons in-, 127 IOr. 5. r. 261.
Forms -
-in the appendices to he used, 361 lOr. 48. r. 31.
Frame of suit-. 110 I Or. 2].
suit to include the whole claini, 110 IOr. 2, r. 21.
Fraud-
- must he specifically pleaded in defence. 143 1 Or. 8, r. 21.
particulars of - to he stated in pleading. 129 I Or. 6 1 r. 41.
- in execution and extension of limitation. 40 ]s. 48 (2) (a)]
- in publishing or conducting sale. 241 1 Or. 21, r. 901.
(;ariishee -
attachment of debt by -order, 219 Or. 21, r. 46-Al.
procedure where -disputes liability, 220 [Or. 21, r. 46-CI.
payment under - order is a valid discharge, 220 ]Or. 21 , r. 46FJ.
-oi'der is appealable. 220 br. 21. r. 46-H].
Go'eriment -
suit by or against -.61,271 Is. 79: Or. 271.
notice of suit against -61 Is. 801.
execution against -. 62 Is. 821.
recognized agents of -. 271 [Or. 27, r. 21.
agent for - for receiving process. 271 I Or. 27. r. 41.
Government -Contd.
rights of- in rateable distribution. 58 js. 73 (3)].
court fees leviable for - where pauper succeeds, 29! jOr. 33. r. ID].
Government Pleader
definition of -, 3 Is. 2 (7)].
- is agent for receiving process, 271 [Or. 27, r. 41.
notice to - in leave to sue as a pauper, 290 [Or. 33. r. 61.
Gratuity-
- not liable to attachment. 50 Is. 60(l) (g)j.
Growing crop -
- is movable property. 3 [s. 2 (13)].
attachment of -. 217 [Or. 2!, rr. 44. 45].
sale of' - in execution, 235 lOr. 21. rr. 74-751.
Guardian ad !item - See, Minor, Next friend.
consent or agreement by - when binding, 95 [s. 1471.
compromise by-, 284 br. 32, r. 7.1.
appointment of-. 281 br. 32, r. 31.
death or removal of -, 285 I Or. 32. r. III.
who may he appointed-, 282 [Or. 32. r. 41.
- cannot receive money or property without Court's leave, 284 [Or. 32. r. 61.
security by -. 284 [Or. 32, r. 6(2)J.
- of persons of unsound mind. 287 [Or. 32, r. 151.
Hearing-
- of suit. 181 br. 181.
- to continue From day to clay. 179 [Or. 17, r. I].
Heir -
Joinder of clai ins in suits by or against -, I I 3 [Or. 2, r. 51.
High Court Division-
special provision relating to 84 [ss. 116-1201.
app! ication of rules to -. 36210r.491.
application ol Code to -, 84 Iss. 117. 1201.
saving of rules ol-, 362 10r. 49. r. 21.
execution of decree by - before ascertainment of costs, 84 Es. I 181.
execution of decrees transferred to -. 197 [Or. 21, r. 9].
relcrence of question to-. 355 [Or. 461.
powers of revision by -.82 [s. 1151.

520 INDEX [1908: Act. V
High Court Division—Contd.

service of certain processes of -, 362 [Or. 49, r. I].
Small Cause Courts are subordinate to •, 10 [s. 3].
transfer of suits by -, 23 [s. 24].
review by -, 357 [Or. 47, r. 1].
power of—to make or alter rules, 85, [s. 122].
decision where . judges of— are divided in opinion in appeal, 75[s. 98].
Immovable property -
place of suing in suits for—, 18 [s. 16].
what claims can be joined with Suits for—, 112 [Or. 2, r. 4].
plaint in suit for—, 136 [Or. 7, r. 3].
decree in suit for -, 189, 190 [Or. 20, rr. 9, 12].
decree in suit for partition of—, 192 [Or. 20, r. 18].
application for attachment of -, 199 [Or. 21, r. 13].
how decree for - to be executed, 212 [Or. 21, rr. 35, 36].
execution of decree where—situate in different jurisdictions, 195 [Or. 21, r. 31.
mode of attachment of—, 226 [Or. 21, r. 54].
sale of—, 238-245 [Or. 21, rr. 82-96] - See, Sale.
Impounding-
-of documents, 165 [Or. 13, r. 8].
—of movable property pending appeal to Appellate Division, 353 [Or. 45. r. 13 (2) (a)].
Imprisonment— See, Arrest.
Infant—, See, Minor
Inherent power-
-of Courts, .98 [s. 151].
no — to set aside ex-parte decree, 153
Injunction—
power to grant temporary - 72 , 320 [s. 94 (c), Or. 391.
cases in which temporary — may be granted, 320 [Or. 39,r. 1].
where - wrongfully obtained, 72 [s. 95].
consequence of disobedience to—, 320, 322 [Or. 39, r. 1(2); r. 2(3)].
notice before—, 322 [Or. 39,r. 3].
—against corporation, 209, 322 [Or. 21. r. 32(2); Or. 39, r. 51.
limitation in execution of decree for—, 40 [s. 48 (I )].
- in public nuisance, 68 [s. 91].
—order may be varied or discharged, 322 [Or. 39, r. 4].
execution of decree for—, 209 [Or. 21, r. 32].
Insolvency—
of plaintiff and abatement. 254 [Or. 22, r. 8(I)].
—of plaintiff and security for costs, 254 [Or. 22, r. 8 (2)].
charging order in favour of partner under—, 222 [Or. 21, r. 491.
Inspection-
-of documents, 157-159 [Or. 11, rr. 15-191.
power to order—, 26 [s. 301.
- of documents not referred to in pleading and affidavits, 158 [Or. 11, r. 18 (2)].
—of documents referred to in pleadings and affidavits, 157 [Or. 11. r. 151.
notice to produce documents for—, 157, 158 [Or. II, rr. 15, 161.
non-compliance with order for—, 160 [Or. Ii, r. 21].
- of property by court, 185 [Or. 18, r. 181.
-of subject-matter of suit, 323 [Or. 39, r. 71.
Instalment(s) -
decree may direct payment by --, 189 [Or. 20. r. II].
Interest—
assignment of— pending suit, 256 [Or. 22, r. 10].
award of—discretionary, 28 [s. 341.
costs on—, 30 [s. 35 (3)].
- not allowed after notice of deposit in court, 259 [Or. 24, r. 3].
- in mortgage suits, 304 [Or. 34, r. II].
subsequent— in mortgage suit, 304 [Or. 34. v. II].
liability for— not covered by sale-proclamation, 241 [Or. 21, r. 89 (3)].
when—deemed to have been refused, 28 [s. 34(2)].
Interlocutory orders—
power to make—, 72 [s. 94 (e)],
- ordering interim sale of property, 323 [Or. 39, r. 6].
- relating to detention, inspection and preservation of subject-matter of suit. 323
[Or. 39, r. 7(3)].
—of delivery of possession, 324 [Or. 39, r. 91.
of payment of money or delivery of movables, 324 [Or. 39, r. 101.
stay of suit and—, 13 [s. 10].
- affecting decision in case may be impeached in appeal from decree, 77 Es. 105 (1)].
Interpleader suits—, 67, 307 [s. 88; Or. 35].
plaint in—, 307 [Or. 35. r, I].
- when may he instituted, 67 [s. 88].
deposit of thing or money into court in—, 307 [Or. 35, r. 21.

Interrogatories—
power to order—. 26 Is. 30 (a)]
affidavits in reeard to—. 156 1 Or. II. rr. 8-I1l.
discovery by. 155 lOr. II. r. 11.
order to answer Further—, 156 lOr. II, r. II].
scandalous or irrelevant—, 156 jOr. I 1, r. 61.
- to corporations, IS 6 [Or. I 1, r. 51.
costs oi---. 1 55 lOr. II, r. 31.
objections to answer -, IS 6 jOr. I I , r. 61.
- how answered. 156 101. I I, r. 8].
commission to CXailiifle oil 263 I Or. 26, r. I 1.
Investigation (local) -
commission br -. 265 I Or. 26. r. 91.
- of claims, See, Attachii ent. Claims.
Irregularity—
no decree to he set aside for - not affecting merits or jurisdiction. 76 [s. 99].
—in orders may he a ground in appeal from decree, 77 Is. 105 (I)]
- in puhl ish i ng or conducting sale of immovable property, 24 I 101% 21. r. 901.
- in sale of movable property not to vitiate sale, 236 [Or. 21, r. 781.
Issues-
- to he framed by court, 167 [Or. 14, r. I(S)].
- of fact or law, 168 [Or. 14, r. 21.
materials from which - may he framed, 108 [Or. 14. r. 31.
examination of documents before framing -, 168 [Or. 14,1% 4].
power to amend - . 168 1 Or. 14, r. 5 (I)].
agreement to state question of law or fact in forms of—, 169 I Or. 14, r. 61.
decision oil - to he stated. 188 I. Or. 20. r. 5.
trial ol preliminary—, 168. 171 [Or. 14, r. 2 Or. IS. r. 3(l)].
objection to place of suing to he taken before settlement of—, 22 Is. 211.
resetting of— by appellate court, 339 jOr. 41, r. 241.
Iram i ng 0 lby appellate court. 340 I Or. 4 1, r. 25]
summons may he for settlement of—, I 19 10r. 5. r. 51
when court may pronounce judgment at once on—. 171 I Or. 15, r. 1,21
burden o F proo I of—, 18 I I Or. 18. r.31.
appellate court may frame—and refer for trial, 79 Is. 107 (c) I.
Jail—See, A nest (ud Detention.

service on defendant in—. 126 [Or. 5. r.24I.
Joinder—See, Cause of action, Defi'ndan.t, Plaintiff
Joint—
execution by-- decree-holder. 199 IOr.2 I. r. IS.
attachment of share in—immovable property, 199 [Or.2 I . r.] 3 (b)1.
attachment of share in—movable property. 220 lOr. 21. r.471.
- promisors. 105 I Or. I, r.61
liability in execution of'- ancestral property, 45 Is. 53].
hid ol co-sharers at sale of - property, 240 [Or. 21, r. 881.
Judge
of—. 3 [s. 2 (8)]
- is a public officer, 3 Is. 2 (17)].
exemption of— Irom arrest. 62. 90 Iss. 81.135].
difference in opinion when appeal heard by two or more—. 75 Is. 981.
Judgment—
definition of—. 3 Is. 2 (9)1.
- On admission. 162 10r. 12. r.61.
amendment of—. 101 [s. 1521.
decree to conform with -. 188 [Or. 20 r. 61.
- when there are several plaintiffs or defendants, 105 [Or. I, r. 41.
—oI appellate court, 342 I Or. 41, r. 311.
Judgment-debtor-
definition ol— .3 Is. 2 (10)].
death of—before satisfaction of decree. 42 Is. 501.
Jurisdiction—
limits of pecuniary—, II Is. 6.1.
joinder of causes of action and -. I I 2 [Or. 2. r.3 I.
causes 01 action and—, 21 Is. 20 (c)].
objection to - when to he taken. 22 Is. 211.
no decree to he reversed for irregularity or error not affecting—. 76 Is. 991.
want of - no bar to award of costs, 29 Is. 35 (1)1.
plaint to state facts showing court has -, I 35,10r. 7. r. I (f)].
relinquishment of part of claim to bring suit within—. 110 lOr. 2, r.2 (1)1.
territorial - is condition precedent to a court executing a decree. 34
Land—See, Immovable proper! v.

Leave of Court-
- when joining other claims in suit for immovable property, 112 [Or. 2, r. 4].
—when all the defendants do not reside within jurisdiction, 21 [s. 20(b)].
—when one person sues on behalf of others, 106 [Or. 1, r. 8].
—when a person sues for one of several reliefs, 110 [Or. 2, r. 2(3)].
- for compromise by guardian, 284 [Or. 32, r. 7].
- for receiving money by guardian, 284 [Or. 32, r. 61.
for decree-holder's bidding at sale, 234 [Or. 21, r. 721.
- for discharge of pleader, 1.15 [Or. 3, i. 4 (2)].
—to amend pleadings, 133 [Or. 6, r. 171.
- to sue as a pauper, 288 [Or. 33, r. 2].
—to present subsequent written statement, 145 [Or. 8,r. 91.
- to bring suit against receiver, 326.
—to appear and defend in summary suit, 311,312 [Or. 37, rr. 2(2), 3].
- to execute against partner when decree is against firm, 223 [Or. 21, r. 50].
- to withdraw suit with liberty to bring fresh suit, 257 [Or. 23, r. I (2)].
—to appeal to the Appellate Division, 80, 350 [s. 109; Or. 45, r. 3].
Legal representative (s) -
definition of, 3 is. 2 (II)].
execution against - of judgment-debtor, 42 1 s. 50].
execution of decree obtained against—, 44 [s. 521.
decree against wrong person as—, 45
determination of question as to who is—, 254 [Or. 22, r. 51.
- of joint decree-holder and execution, 199 [Or. 21, r. IS].
notice in execution against—, 203 [Or. 21, r. 22].
of deceased partner need not he joined in suit by or against firm, 278 [Or. 30, r.4].
plaint in suit by—, 136 [Or. 7, r. 4].
application for execution against—to he made to the court which passed the decree, 42.
Letter—
substitution of—for summons, 128 [Or. 5, r. 301.
Letters of Request-
-for examining witness outside Bangladesh, 60, 264 [s. 77; Or. -26, i'. 5].
Lien-.—
of plaintiff in interpleader suit for costs, 308 [Or. 35, r. 6].
- of pleader in respect of costs payable to him, 144 [Or. 8, r.6 (2)].
Limitation—
effect of- on addition of party, 107 [Or. I, r. 10 (5)].
- and execution of decree for injunction, 40 [s. 48 (1)].
plaint must show grounds of exemption from—, 136 [Or. 7, r. 6].
must he specially pleaded in defence. 143 [Or. 8. r.2].
Lis pendens-
assignment of interest pending suit, 256 [Or. 22, rIO].
Lunatic—See, Minor.
Maintenance
right of future - not attachable, 50 [s. 60 (I) (n)1.
Malice-
- need not he proved when claiming compensation under s. 95, p. 73.
Marriage-
- of female party and abatement. 254 [Or. 22. r. 71.
Material irregularity-
- in publishing or conducting sale, 241 [Or. 2l, r. 901.
- in sale of movable property does not vitiate sale, 236 [Or. 21, r. 781.
Mesne profits—
definition oI. 3 [s. 2 (12)].
statement ol approximate - in plaint, 135 [Or. 7, r. 2].
commission to ascertain —, 265 [Or. 26. r. 9]
claim for—may he joined with suit for land, 112 [Or. 2, r. 4]
decree for possession and—, 190 [Or. 20, r. 121.
reversal of decree and order for-. 94 Is. 1441.
Military men—
suits by or against-, 274 [Or. 281.
service on—, 274 [Or. 28, r. 31.
attachment of stipends & c. to—, 50 [s. 60 (g).
minor— See, Guardian ad. Liteni.
suits by or against—, 281 I .Or. 321.
appointment of guardian of—defendant, 281 [Or. 32, r. 3],
notice of application for appointment of guardian of—, 282 [Or. 32, r. 3 (4)].
mode of service of summons on—, 282
compromise by guardian of-, 284 [Or. 32, r. 71.
saving of local law relating to suits by or against—, 287 [Or. 32, r. 161.

Miscellaneous proceedings—
application of the code to -, 93] s. 14 I I.
Misjoinder-
- of plaintiffs. 104 10r. I, r. II.
- of defendants. 104 I Or. I, r. 31.
- of parties and judgment br or against persons on record, 105 [Or. 1, r. 41.
- of cause ol action, [Or. 2, r. 31.
of causes of action in Suits for immovable property. I I 2 [Or. 2,r. 41.
objection to - of parties. 109 1 Or. I, r. 131.
objection to - of causes of action, 113 lOr. 2, r. 71.
of parties or causes of action no ground for reversing decree, 76 Is. 99].
no suit to he defeated for - or non-joinder of parties, 107 (Or. I, r. 9].
Misrepresentation—
particulars of— to he stated in pleadings, 129 lOr. 6, r. 41.
Mistake—
amendment of - in judgment or decree. 101 Is. 1521.
- in instituting suit in name of wrong plaintiff, 1071. 0r. I,r. 10(1)].
review ui— apparent on lace of record, 357 (Or. 47, r. II.
Mortgage-
- suit relating to - of immovable property, 294 [Or. 341.
parties to - suits, 296 lOr. 34, r. 31.
preliminary decree in suit for sale, 297 [Or. 34, r. 4].
final decree in suit for sale, 298 (Or. 34, r. 5.
preliminary decree in redemption suit, 301 lOr. 34, r. 71.
final decree in redemption, suit, 302 lOr. 34, r. 81.
personal decree against mortgagor, 300 lOr. 34, r. 61.
decree where nothing clue on—, 303 [Or. 34, r. 9].
interest in -suit, 304 lOr. 34, r. I I I.
interest in —suit subsequent to date fixed for payment, 304 [Or. 34. r. 11(h).
costs of mortgagee subsequent to decree, 304 [Or. 34, r. 10].
sale free from prior—, 305 [Or. 34, r. 121.
application of sale proceeds of—, 305 [Or. 34, r. 13].
- suit for sale necessary to bring mortgaged property to sale. 305 [Or. 34, r. 141.
continuance of attachment subject to —, 230 [Or. 21, t. 62].
attachment of— decree. 224 [Or. 21, r. 53].
cross-decrees and cross claims in — suits, 203 [Or. 21, r. 20].
Movable property—
suits for wrong done to. 20 [s. 191.
place of suing when - is under attachment, 18 Is. 16 (1)1.
- I iahle to attach men I, 49 Is. 60 (1)1.
attachment ol— in possession of pudgmcnt-dehtor. 216 Or. 2 I . r. 431.
attachment of - not in possession oLjudgement-debtor, 198. 218 [Or. 21. cr 12, 461.
attachment of share of -. 220 jOr. 2 1, r. 471.
decree for delivery of—, 189 [Or. 20,r. 101.
order for delivery of—. 324 [Or. 39. r. I01.
decree for partition of—. 193 [Or. 20. r. 18(2).1.
• decree For specific - and execution. 208 10r. 2!, r. 311.
interim sale of— subject to decay, 323 [Or. 39. r. 6.
sale of— in execution, 235-238 lOr. 21, rr. 74-811.
seizure of— in dwelling house. 51 Is. 621.
Negotiable Instrument-
- to he produced when plaint presented, 139 [Or. 7 r 141.
suit on lost—, 140 [Or. 7, r. 161.
Joinder of parties liable on—, 105 [Or. 1, r. 61.
summary suit on—, 311 [Or. 37].
procedure in summary suit on—, 311, 312 [Or. 37, rr.2, 71
leave to defend in summary suit on - 312 [Or. 37, r. 31
Newspaper—
publication of sale proclamation in 232 [Or. 21, r. 67].
Next friend— See, Guardian. ad lite,n, Minor.
Nonjoinder— See, Misjoinder.
Suit not to he defeated for - of parties, 107 [Or. I, r. 9].
objections to — when to he taken, 109 [Or. I, r.131.
court may add parties, 107 [Or. I, r. tO].
Notice-
- to be in writing, 93 [. 1421.
—Of suit against Government or public officer, 61 [s. 80]
allegation of in pleading, 131 [Or. 6, r. I I].
- to admit facts, 161 [Or. 12, r. 41.
—to admit documents, 161 [Or. 12, r. 2].
—to produce documents, 162 [Or. 12, r. 8].
- to produce documents for inspection, 157, 158 [Or. II, rr. 15, 161.
Notice-Contd.
—to attach decrees, 224 [Or. 21, r. 53(l) (h)].
—to certify payment out of court, 194 [Or. 21, r. 2(2)].
—of execution against legal representatives, 203 [Or. 21, r. 221.
—of execution by transferee of decree, 200 [Or. 21, r. 161.
- of application for appointment of guardian ad litem, 282 [Or. 32j. 3 (4)].
- before granting injunction, 322 [Or. 39, r. 3].
- of payment of admitted amount into court, 259 [Or. 24, r. 21.
- to surety for enforcement of liability, 95 [s. 1451.
service of—, 361 [Or. 48, r. 2].
service of—on pleader, 116 [Or. 3, r. 5].
Nuisance
suits relating to public, 68 [s. 91].
Official Assignee
continuance of suit by —when plaintiff insolvent, 254 [Or. 22, r. 8 (1)].
security of costs by —on plaintiff's insolvency, 254 [Or. 22, r. 8].
Onus—
production of evidence where burden of proving some issues lies on the other party,
181 [Or. 18, r. 3].
party need not plead facts as to which - lies on the other side, 131 [Or. 6, r. 131
Order (s) —See, Interlocutory order.
distinction between decree and —, 7.
- are executable as decrees, 33 [s. 361.
appeals from -, 77 [s. 1041.
what—are appealable, 347 [Or. 43, r. 1].
no second appeal from—, 77 [s. 104 (2)].
error or irregularity of-.— maybe made a ground when appealing from decree, 77
[s. 105]
—shall be in writing, 93 [s. 1421.
service of—, 361 [Or. 48, r. 21.
Pardanashin women - See, women
—exempted from appearance but not attendance, 89 [s. 132).
—exempted from arrest, 89 [s. 132 (2)].
examination of—on commission, 263 [Or. 26, r. 1].
arrest of person in room occupied by 45 [s.55 (0].
attachment where room occupied by 52 [s.62 (3)].
Parties—See, Plainti#1 Deft'ndcin.t.

Joinder ol liable oil contract, 105 1 Or. 1, r. 6].
joinder of plaintiffs, 105 [Or. I, r. 1.1.
joinder of defendants, 104 [Or. 1, r. 3
joinder of administrators, 280 [Or. 3I, r. 2].
adding of' . 107 [Or. 1, r. 101.
when - are exempt from arrest, 90 [s. 135 1.
examination of - by Court, 154 [Or. 10, r. 21.

numerous—having same interest, 106 [Or. I r. 81.
objection to non-joinder or mi-joinder of—, 109 [Or. 1, r. I 3 I
rules as to witness apply to—, 178 [01. 16, r. 211.
misjoinder of—not to defeat suit. 107 lOr. I. r. 91.
appearance of—. 114, 147 [Or. 3, r. l; Or. 9, r. I].
appearance of—. in person. 119 [Or. 5, r. 4].
refusal of - to give evidence, 178 [Or. 16. r. 201.
Govt. deemed — in pauper suit, 293 [Or. 33, r. I 3j.
surety as—. 95 Is. 1451.
pleading to he signed by—, 131 [Or. 6. r. 141.
- cannot he heard in person unless ,.taka/atnama is cancel/cc!. 116
Partition—
place ol suing in —suit, 18 Is. 16(h)].
- of revenue paying estate, 45 [s. 541
decree in suit, 192 [Or. 20, r. 18].
commissions to make—, 60, 266 [s. 75; Or. 26, r. 13]
Partner (s) - See, Firm
- may s or he sued in firm name, 276 [Or. 30, r. I].
suits between co-partners, 279 [Or. 30, r. 9]
Partnership property—
attachment of—, 222 [Or. 21, r. 49].
decree for dissolution of—. 192 [Or. 20, r. 15].
Pauper—, 288, 349 [Or. 33; Or. 44].
definition of—, 288 [Or. 33, r. Ii.
application for leave to sue as a—, 288 [Or. 33, r. 2].
application for leave to appeal as a—, 349 [Or. 44, r. I].
ejection of application to sue as a—. 289 [Or. 33 r. 5].
investigation of pauperism, 290 1 Or. 33, rr. 6-7].

Pauper—Contd.
procedure if application admitted. 291 [Ot. 33, r. 81.
dispaupering, 291 [Or. 33. r. 91.
costs if—succeeds. 291 [Or. 33, r. 10].
government charge for court-fee on subiect-matter of— suit, 291 [Or. 33, r. 101.
copy of decree in - suit to he sent to Collector, 293 [Or. 33, r. 141.
Payment-
- in court of amount claimed. 259 [Or. 24, r. 1.1.
- of money under decree. 194 FOr. 21, r. I].
—oF purchase-money in sale. 239 FOr. 21. r. 851.
re—el money when sale set aside, 243 1 0r. 21, r. 931.
- of money held as trustee, 324 [Or. 39, r. 10].
- out of court to he certified, 194 [Or. 2 I, r. 2(2)]
- of thing claimed in interpleader suit. 307 (Or. 35. r. 21.
Pension-
- not liable to attachment. 50 Is. 60(g)]
Place of Suing-
- in suits for immovable property, 18 [s. 16 1.
- in suits for compensation, for wrongs to person or movables, 20 Es. 19]

- in suits on contracts, 21 Is. 201
—and residence of defendant, 21 Is. 201
Plaint—
contents of—. 135 lOr. 7, r. I].
signing of—. 131 [Or. 6. r. 141.
verilication of—, 1.32 jOr. 6, r. 151.
- in interpleader suits, 307 [Or. 35, r. 1].
—shall show exemption from limitation, 136 [Or. 7, r. 61.
rejection of—, 138, 139 [Or. 7, rr. II, 12].
return of—, 138 lOr. 7, r. 10].
- in suits by representatives, 136 br. 7, r. 4].
amendment of—, 133 [Or.. 6, r. 171.
Plaintiff—See, Pc,,ije.s.
who may he joined as—, 104 [Or. I, r. I.
when one - may sue for several, 106 [Or. 1, r. 8].
one - may appear for others, 109 [Or. I. r. 121.
suit in the name of wrong—, 107 [Or. I, r. 10].
Plaintiff—Contd.
—may he ordered to appear in person. 118 (Or. 5. r. 3).
death of—and substitution of legal representatives. 252 [Or. 21 r. 31.
"right to beg i n' ol -. 191 1 Or. 18, r.
Pleader—
definition of—. 3 [S. 2(15)].
appointment O . 115 [Or. 3, r. 41.
leave of court for discharge of—, 115 (Or. 3. r. 4(2)].
appearance by—, 114 [Or. 3, r.
service of PIOCCSS on 116 [Or. 3, r. 5(.
pleadings to he signed by 131 1 Or. 6, r 141.
—when exempt from arrest, 90[s. 135(2)1.
- when may he ordered to pay costs. 281, 283 [Or. 32, rr. 2,51.
inability or refusal of-4o answer. 154 [Or. 10, r. 41.
—engaged for pleading only, 115 (Or. 3, r. 41.
Pleading (s) - See, Plaint.
- to state material facts, 129 [Or. 6, r.2(.
- to state particulars of fraud, 129 [Or. 6, r. 41.
condition precedent to he distinctly stated in-, 130 [Or. 6, r. 61.
inconsistent allegation in —must he by amendment, 130 [Or. 6, r. 7].
notice, how to he pleaded in .., 131 [Or. 6, r. II].
new ground of defence in. 145 [Or. 8, r. 81.
subsequent—, 145 [Or. 8, r. 9].
signing of—, 131 [Or. 6. r. 141.
verification of—, 132 [Or. 6 r. 15].
Form or— and their use, 129 [Or. 6, r3].
pleader engaged for—only, 115 [Or. 3, r.41.
Political Agent—
service of: summons through—, 127 [Or. 5, r. 26].
Possession—
decree for—, 190 [Or. 20, r. 121.
immediate delivery of 324 [Or. 39, r. 9].
delivery of symbolical—. 245 [Or. 2!, r. 961.
delivery of actual—. 212, 244 [Or. 21,r. 35(l); Or. 21,r. 951.
symbolical — where decree is for joint—, 212 [Or. 21, r. 35(2).].
resistance to delivery of—by judgment-debtor, 245 [Or. 21, r. 981.
Possession—Contd.
resistance to delivery of— by bone fule claimant, 246 [Or. 21,r. 991.
resistance to - by transferee pen.clente lite, 247 br. 21. r. 102].
complaint on resistance to—, 245 lOr. 21, r.97].
Post—
service of summons by—, 120 jOr. 5, i. 9 (2)].
service by - when defendant is outside Bangladesh, 126 lOr. 5,1% 251.
service by - in suits against corporation, 275 [Or. 29, r. 2(h)].
Precept—
attachment by—, 39 {s. 461.
Preliminary decree-
- in suit for possession and mesne profits, 191 lOr. 20, r. 121
- in account suit, 192 I Or. 20, r. 161.
- in administration suit, 191 [Or. 20, r. 131.
- in partnership suit. 192 [Or. 20, r. 151.
- in partition suit, 193 10r. 20, r. 18(2)].
- in l'orccfosure suit, 294 [Or. 34, r. 21.
- in suit for sale, 297 [Or. 34, r. 41.
- in redemption suit. 301 1 Or. 34, i. 71.
Prescribed—
definition of, 3 Is. 2(16)1.
Presumption-
I
- of law and pleadings, 131 Or. 6, r. 13].
- as to foreign judgment, 18 [S. 141,
- when summons sent by post, 120
Privilege-
- from arrest, 47, 90 lIss. 56, 1351.
inspection by court when - claimed, 159 [Or. II, r. 19(2)].
Probate—
executor not joining in - not to he made a party, 280 [Or. 31, r. 21.
Process—Ses, Service, Surnnwns.
Service of—at expense of party, 361 [Or. 48, r. I].
when court-fee for—to he paid, 361 [Or. 48, r. ](2)].
—of High Courts Division, 362 [Or. 49, r. I].
issue of— for execution, 205 [Or. 21, r. 24].
1908: Act VI CIVIL PROCEDiJIE CODE 533
Proclamation-
- requiring witness to attend or produce document, 175 [Or. 16, r. 10(2)1.
contents of sale—, 231 [Or. 2!, r.661.
mode of making— of sale, 232 [Or. 2!, r. 671.
fresh - after adjournment of sale, 233 IlOr. 2!, r. 69 (2)].
examination for ascertaining matters of sale—, 231 [Or. 21,r. 66 (4)].
- of order of attachment, 226 [Or. 21. r. 54 (2)1.
Public charities—
suits relating to—, 69.71 Iss. 92, 931.
Public Nuisance—See, Nuisance.
Public officer—
definition of—, 3 ]s. 2(17)].
suits by or against—, 271 [Or. 27].
notice of suit against—, 61 [s. 801.
exemption of arrest of—. 62, 272 [s. 8 I; Or. 27, r. 81.
procedure in suit against—, 272 [Or. 27, r.81.
execution of decree against—, 62 [s. 821.
portion of salary of— not attachable, 49 Is. 60(i).].
mode of attachment of salary of—, 221 [Or. 21, r. 481.
Railway servant—
service of summons on —, 128 [Or. 5, r. 27].
procedure as to arrest of—, 46 [s. 55(2)1.
portion of salary of— not attachable, 49 [s. 60 (i)].
mode of attachment of salary of—. 221 [Or. 21, r. 481.
Rateable Distribution-
decree-holders when entitled to—. 57 [s. 73].
- where property is affected by mortgage, 57 [s. 73 (1)].
government rights in—. 58 [S. 73(3)].
conditions for—. 58
refund of assets from person not entitled to—, 58 [s. 73(2)].
Receiver—. 43, 72. 325 1ss.5 I (d) 94 (ci): Or. 401
power to appoint—. 72 [s. 94(d) I.
appointment of, 325 [Or. 40. r. I]
POWC of—. 325 [Or. 40, r. I (d)].
remuneration of—, 326 [Or. 40, r. 21.
duties of—, 326 1 Or. 40, r. 3].
appointment at Collector as—, 327 [Or. 40. r. 51.
- in execution. 43 [s.5 II.
J
534 INDEX 11 908: Act V
Recognized agent— See. Agent.

who is —, 114 10r. 3, r. 21.
service on—. 114 [Or. 3. r. 31.
—of Government, 271 br. 27,r. 21.
- of foreign rulers, 64 Is. 851.
appearance by—, 114 [Or. 3. r. I].
Redemption— See, Mortgage.
Reference—. 82, 355 [s. 113; Or. 461;
- to High Court Division, 355 [Or. 46. r. I].
—in case of doubt as to jurisdiction in small causes, 356 [Or. 46.r. 61.
powers of High Court Division on -. 356. tOr. 46, r. 51.
-by District Court in certain cases. 356 bOr, 46, r. 71.
Registered address—
pleadings shall he accompanied by - of party, 132 [Or. 6, r. 14-Al.
Registrar—
delegation of judicial and non-judicial work to - of High Court Division, 86 Is.
128 (2) (i)I.
Registration-
-01 document executed by Judge. 211 [Or. 21, r. 34(6)1.
- ui suit, 117 [Or. 4, r. 21.
—olappeal, 332 [Or. 41, r. 9].
suit not duly instituted until—. 25
Rejection-
- ol plaint, 138. 139 [Or. 7, rr. 11,12].
summary —ui application for review, 359 [Or. 47, r. 4(1)].
- of application for review. 359 [Or. 47, r. 6 (1)1.
- of memo, of appeal, 329 [Or. 41, r.3].
- of appeal on failure to furnish security for costs. 332 [Or. 41, r. 10(2)].
- 01 application for execution, 201 [Or. 21, r. 17(1)].
Release-
-to he specially pleaded, 143 [Or. 8, i. 2].
o property from attachment. 229 [Or. 21, r. 60.1.
—of judgment-debtor from jail, 47,48 [ss. 58. 591.
Relief—
omission to sue for one of several -, 110 [Or. 2, r. 2(3)].
- claimed but not granted and resjudicata, 15 [s. II, Expin. V].
Relief—Contd.
plaint must state specifically — claimed, 135,137 [Or. 7, r. l(g); r. 71.
general or other— need not he claimed, 137 jOr. 7,r. 7.
- when founded UpOfl separate grounds. 137 [Or. 7, r.81.
Relinquishment— See, Abandonment.
amount of—to he stated in plaint. 135 [Or. 7, r. I (h)].
Remand—
power to—, 79 Is. 1 07(b).
conditions which must exist before grant of—. 338
inherent power of-, 340
- by Appellate Court, 338 [Or. 41, r. 231.
improper order of—. 338, 339
for trial of issues, 340 [Or, 41, r. 251.
appeal from order of—, 78 [s. 105(2)].
Rent—
omission to sue for— accrued due. 110 [Or. 2. r. 2. HI. 1.
dcrce for possession and—. 190 [Or. 20, r. 121.
special provision enabling recovery ol — not affected by Code, 10 [s. 4(2)].
- may he claimed with Suit for recovery of land, 112 [Or. 2, r. 4(a)j.
attachment before amount of—ascertained. 216 jOr. 21.1,421.
Representative— See, Legal representative
suit in—capacity, 136 [Or. 7, r. 41.
suit where numerous persons have the same interest, 106 [Or. 1, r. 81.
proceedings by or against—. 95 Es. 1461,
Re-sale
- in default of deposit of 25% by purchas er . 239 [Or. 21, r. 841.
—in default oI'payment of purchase-money by purchaser. 240 [Or. 21, r. 861.
defaulting purchaser liable for loss on—. 233 [Or. 21. r. 711.
il'decrcc-holder buys without leave. 234 [Or. 21, r. 72(3)1.
Resjudicata—. 15 Is. Ill.
conditions of—. IS.
- in ex porte decisions , 16.
—and foreign judgment, 17 [s. 131.
Resistan ce— See, Possession.
- to execution by judgment-debtor, 59. 245 [S. 74; Or. 21. r. 981.

Respondent—See, Appeal, Cross-objections.

Restitution—
application for- 94 Is. 44].
inherent power to grant -, 94.
- at property pending application for stay, 206 [Or. 2!, r. 26(2)].
Restitution of conjugal rights—
execution of decree for—, 209 [Or. 21, r. 32].
discretion of court in execution of decree for - , 210 [Or. 21, r.331.
Return—
to plaint, 138 [Or. 7, r, 10].
Revenue—
application of Code to - Courts, 11 [s. 51.
partition of—, paying estate by Collector, 45 [s. 54].
immediate delivery of possession of— paying land, 324 [Or. 39, r. 91
Review—, 82, 357 [s. 114; Or. 47].
grounds of application for—. 357 [Or. 47, r. I].
form of applications for -, 357 [Or. 47. r. I
to whom application for - to he made, 358 [Or. 47, r. 21.
procedure in—, 359, 360 [Or. 47, rr.5, 81.
- application when granted, 359 [Or. 47, r. 4(2)].
—application when rejected, 359, 360 [Or. 47, rr. 4(l), 61.
bar of certain application for—, 360 [Or. 47. r. 91.
"others sufficient reason" for—, 357.
Revision—
grounds on which - may he granted. 82 [s. 1151.
Right to begin-
-at hearing of suit, 181 [Or. 18, r.
when burden of proving some issues lies on the other side, 181 [Or. IS, r. 3].
- at hearing of appeal, 336 [Or. 41, r, 161.
Rulers
suitsagainst—, 65 [s. 861.
Rules—
definition of--, 4 [s. 2 (18)].
P°Cr to make—, 85 Is. 1221.
matters for which - may provide. 96 [s. 1281.
1908: Act. VI CIVIL PROCEDURE CODE 537
Salary—
attachment of, 49 Is. 601.
Sale— See. Attachment, Execution.
property liahlc to—. 49 Is. 60 I.
exemption of property from -, 49 Is. 60 proviso].
immediate — ui property subject to decay, 216. 323 [Or. 21, r. 43; Or. 39, i. 6].
—of partner's interest in execution, 222 [Or. 21, r. 49(2)].
—i property of defaulting witness, 176 [Or. 16, r. 12].
stay of public - of land where execution transferred to Collector, 56 [s. 721.
stay of—pending appeal, 331 [Or. 41, r. 6(2)].
Generai1-
- of attached propery, 230 [Or. 21. r. 641.
by whom -to he conducted, 231 [Or. 21. r. 651.
proclamation of—, 231 [01-. 21, i. 66].
time of—, 232 lOr. 21, r. 68].
adjournment of—, 232 I. Or. 21, r. 69!.
—by Collector, 233 [Or. 21, r. 70; Sch. III, paia 101.
decree-holder cannot hid in--without leave, 234 [Or. 21, r. 72].
officers cannot hid in— without leave, 234 [Or. 21, r. 73].
Qf movable propeit
agricultural produce, 235 I Or. 21, r. 741.
growing crops, 235 [Or. 21, r. 751.
negotiable instruments, shares & c., 236 [Or. 21, r. 76].
immediate payment oil 236 [Or. 21, r. 771.
irregularity not to vitiate sale of—, 236 [Ui-. 21, r. 781.
delivery after sale—. 237 [Or. 21, l. 79].
Of on ,novable property—
postponement of—to enable payment, 238 [Or. 21, r. 831.
deposit of 25% by pm-chaser, 239 [Or. 21, r. 84].
time for payment of purchase-money. 239 [Or. 21, r. 85].
re-sale on default to pay balance, 239, 240. 240 [Or. 21, rr. 84,86,871.
setting aside sale - oil 240 lOr. 21, r. 891.
setting aside sale - oil ground of material irregularity or fraud. 241 [Or. 21. r, 901.
setting aside sale - on the ground that judgment-debtor had no interest. 242 (Or. 21. r. 911.
—when becomes absolute, 54, 243 [s. 65; Or. 21,r. 921.
—cei-tificatc to purchaser, 244.[Or. 21, r. 941.
of mortgaged property, 297. 298 [ Or. 34, rr.4, 51.
ofmortgaged property subject to prior mortgage. 305 [Or. 34. r. 121.
ri

538 INDEX 11908: Act
Sale certificate—See, Certificate.

Sale proceeds—See, Rateable distribution.
Satisfaction-
-of decree and removal of' . attachment, 227 [Or. 21. r. 55].
costs where deposit accepted in full or part—, 259 [Or. 24. r. 4].
- in case of cross-claims under the same decree, 203 [Or. 21, r. 19).
- in case ol cross-decrees, 201 [Or. 21, r. 181.
deposit by defendant in—of claims, 259 [Or. 24, r. lJ.
Security—
insolvency of plaintiff and - for costs of suit, 254 [Or. 22, r.81.
failure to furnish - for costs, 261 [Or. 25, i. 21.
- for costs in suit by women, 261 IOr. 25, r. I (3)].
- on stay of execution, 206 [Or. 21, r. 261.
—on stay of execution pending appeal. 330 [Or. 41,r. 5(3)].
1rom respondent where execution allowed pending appeal. 331 lOr. 41, r. 61.
- Irom person who disobeys SUOflS to produce &c., 27 [s. 32 (d))
- from witness for his appearance on future date, 177 [Or. 16 . 16(2)].
- in the case of Appellate Division appeals. 351 [Or. 45, r. 7].
- for arrested debtor who applies for insolvency, 47 [s. 55 (4)].
- from next friend or guardian, 284 [Or. 32. r. 6].
- from receiver, 326 [Or. 40, r. 3 (a)]
- [or removal of attachment before judgment. 318 [Or.. 38, r. 91.
—for defending summary suit, 312 [Or. 37, r. 3(2)].
Service-
- of summons, 120 [Or. 5, r. 91.
- mode of—, 120 [Or, 5, r. 101.
- in person were practicable, 121 fOr. 5, r. 12].
—on agent carrying on business. 121 [Or. 5, r. 13].
—on male member of family. 122 [Or. 5, r. 151.
- when defendant refuses to accept or cannot he found, 123 10r. 5, r. 171.
substituted.— when defendant avoid s^-- or residence unknown. 125 [Or. 5, r. 201.
—on defendant in prison. 126 [Or. 5, r. 24],
—outside Bangladesh. 126 [Or. 5. r. 251.
—of loreign summonses. 25 Is. 291.
—by post, 126 [Or. 5, r. 25].
—through political agent, 127 [Or. 5, r. 261.
Service—Contd.
—on public officers, railway servant &c. 129 [Or. 5. r. 271.
— On soldier. 128 [Or. 5, r. 281.
on military men. 128 [Or. 5, r. 281.
on corporations, 275 br. 29. r. 21.
-on Firms. 277 [Or. 30. i'. 3].
- of summons on witness, 175 [Or. 16. r. K].
- summons on witness by the parties. 174 [Or. 16. r. 7-A].
—of notice in appeals, 334 [Or. 41,r. 141.
- of orders and notices. 361 [Or. 48. r. 21.
costs of—. 361 [Or. 48, i. fl.
- of processes of High Court Division, 362 [Or. 49, r. I].
Set off—
particulars of— to he given in the written statement, 144 [Or. 8, r. 61.
equitable—. 145.
decree when - is allowed, 188 [Or. 20, r. 6 (3)].
new ground ol defence arising after claiming a—, 145 [Or. 8, r.81.
appeal troni decree relating to—, 193 [Or. 20. r. 19(2)1.
Share—
attachment of - in movables, 220 [Or. 21, r. 47].
delivery of— of immovable property in execution, 212, [Or. 21, r. 35(2)].
in sale of— co-sharer's hid to prevail. 236. 240 [Or. 21, rr. 77 (3), 881.
mode of attachment of - in corporation, 218 [Or. 21, r. 46 (I) (h)1.
sale of— in corporation, 236 [Or. 21, r. 76]..
delivery ot—ot corporation, 237 [Or. 21, r. 79(3)1.
Shop-book-
production of 140 [Or. 7, r. 17].
copies of entries in—, 163 [Or. 13, r. 5].
Small Cause Courts—
application of Code to-12 [s.71
application of Orders and Rules to - 363 [Or. 50, i'. I].
reference to High Court Division in case of doubt as to jurisdiction of— 356 [Or.
46, r. 6, 71
can not attach immoveable property— 12. 238, 319 [s. 7, Or. 21, r. 82, Or. 38,r. 131
Soldier—See Mthtcirv men.
service of summons on—, 128 [Or. 5, r. 281.
Special case—
agreement to slate - for court's opinion, 68 Is. 901.
procedure in , 309 [Or. 3.6, r. I].
Specific performance-
mode of enforcing decree for -, 209 [Or. 21. r. 32].
/
Stamp—
where - on plaint insufficient, 139 [Or. 7, r. 11(c)].
power to make up deficiency in court-fee--. 97 [s. 149].
Stay-
-of suit, 13 [s. 10 1.
of suit where partner's name not disclosed, 277 [Or. 30, r. 2 (2)].
- of proceedings on reference to High Court Division. 355 [Or. 46, r. 2].
—of execution of decree in summary suit, 312 [Or. 37, r. 4].
appeal does not operate as - of proceedings under decree, 329 [Or. 41, r. 5 (I )].
— of execution by appellate court or court which passed decree. 329 lOr. 41. r. 5].
- by court to which decree is sent for execution, 206 [Or. 21, r. 261.
— by court pending appeal to the appellate division, 353 [Or. 45, r. 13 (2) (c)].
— of execution pending suit between decree-holder and judgment-debtor, 207 [Or.
21, r. 291.
Striking out-
- issues. 169 lOr. 14, r. 5 (2)].
— parties, 107 [Or. 1, r, 10 (2)].
— scandalous or unnecessary pleadings, 133 [Or. 6, r. 16].
—execution cases, 228
Subsistence allowance—
to he paid before arrest, 213 I Or. 21, i. 39 (1)].
release of judgment-debtor on non-payment of—, 47 [s. 581.
scales of—, 47 ]s. 571.
Substituted service-
- when allowed and procedure, 125 [Or. 5, r. 201.
Suit (s) —See, Plaint.
- how instituted, 25, 117 Is. 26, Or. 4, r. 1].
- not of a civil nature barred, 13 [s. 9].
what are — ol a civil nature. 13
- for mesne profits or accounts to state approximate amount, 135 1 Or. 7, r. 21.
1908: Act VI CIVIL PROCEDURE CODE . 541
Suit (s) -Contd.

- to he instituted in court of lowest grade. 18 [s. 151.
- where to he instituted. 18-25 [55. 16-24].
translr of-, 23 Is. 241.
transfer of Small Cause Court-, 24.
parties to -, 104 I Or. I].
frame of-, lID [Or. 2].
disposal of- at first hearing, 171 lOr. 151.
hearing of'-. 181 lOr. 181.
withdrawal and adjustment of' -, 257 I Or. 231.
interpleader-. 67, 307 Is. 88, Or. 35].
- relating to public nuisance, 68 Is. 911.
- relating to public charities, 69 Is. 921.
- by or against Government. 61. 271 is. 79; Or. 271.
- by or against public officers, 61, 271 [s. 79; Or. 271.
- by or against military men, 274 [Or. 281.
- by or against aliens and rulers, 63-67 1 ss. 83-871.
- by or against Corporation, 275 jOr. 291.
- by or against Firms, 276 ]Or. 301.
- by or against trustees, executors, & c. 280 [Or. 3 I].
- by or against minors and lunatics, 281 jOr. 321.
- by paupers. 288 [Or. 331.
- relating to mortgages, 294 [Or. 341.
-on a special case states. 309 br. 361.
summary - on negotiable instruments. 311 1 Or. 37].
-on lost negotiable instruments. 140 [Or. 7, r. 161,
-for recovery of immovable property, 136 [Or. 7, r. 31.
- by one of several persons interested, 106 [Or. I, r. 81.
Summons-See, Service
issue of-, 25, 118[s. 27; Or. 5, r. I].
- to issue For final hearing or for ascertaining whether suit will he contested, 119
[Or. 5,r.5].
substitution of letter for-, 128 ]Or. 5. r. 30].
- to witnesses, 27 [s. 31].
-to give evidence, 172 [Or. 161.
to produce documents, 174 [Or. 16, r. 61.
- 542 INDEX 11908: Act
Surety—See. Security
- for performance of decree, 95 [s. 1451.
- for appearance of judgment-debtor, 47 Is. 55 (4)].
- for appearance of defendant, 314, 314 br. 38, rr. 2,31.
-Tenant—
delivery of immovable property in execution of decree when in occupancy of-.
212 Or. 21, r. 361.
delivery of property purchased in sale when it is in occupancy of-. 245 br 21. r.
- of judgment-debtor is hound by decree for ejectment against the latter, 246
Time
Court may enlarge - for doing act prescribed by the Code. 96 [s. 1481.
limit of— for amendment of pleading, 134 I . Or. 6, r. 181.
limit of— for executing decree, 40 Is. 481.
extension of— fixed for payment in a decree for sale, 297 [Or. 34, r. 4(2)].
extension of—fixed for payment in a decree for foreclosure. 295 [Or. 34, i . . 2(2)1.
extension of—fixed for payment in a decree for redemption. 302 [Or. 34, r. 7(2.
- for filing cross-objection, 337 [Or. 41, r. 22 (1)].
— for security and deposit on appeal to the Appellate Division, 3511 Or. 45. r. 71.
enlargement of— in various cases under 96 Is. 148].
Transfer-
- of business of one court to another, 97 Is. 1501.
-of decree : See, Decree
- of suit: See, Suit.
Transfer of Property Act—
saving of powers conferred by s. 57 of—, 305 [Or. 34, r. 13(2)].
Trust—
suit relating to - for public purposes, 69 [s. 921.
attachment of property held in - for judgment-debtor, 49 Is. 60(1)1.
suits by or against trustees, 280 [Or. 311.
Undue influence
particulars of-to he stated in pleadings, 129 [Or. 6, r. 41.
Unsound mind—
statement in plaint when party is of—, 135 [Or. 7, r. 1(d)].
rules regarding minor apply to persons of—. 287 [Or. 32, r. 151.
Vakalatnama-
rules regarding execution and acceptance of—, 115, 116.
no - need he filed by pleader when engaged to plead only by a pleader duly
appointed, 115 [Or. 3, r. 41.

1908: Act Vi CIVIL PROCEDURE CODE

I 543
Valuation—
to he stated in plaint, 135, 140 [Or. 7. rr. I (i)].
—isuut, 18
rejection of plaint when suit undervalued, 138 [Or. 7, r. II (h)l.
consolidation for purpose of— in appellate division appeal, 350 lOr. 45, r. 41.
remission of dispute regarding - to lower court for determination, 350 [Or. 45, r. 5.
in suits requiring ad valorem court-fee plaintiff to file with plaint a statement of—, 15
Verification-
-of pleadings, 132 [Or. 6, r. 151.
- of pleadings in suits by or against Government, 211 [Or. 27. r. I].
• - of pleadings in suit against corporations, 275 [Or. 29, r. Ij.
- of pleadings in suits against fitms, 276 [Or. 30, r. I (2)11.
—of application by pauper, 288 lOr. 33, r. 21.
—t application for execution, 197 [Or. 21. r, 11(2)].
Waiver-
_ Of objection as to misjoinder and non-joinder, 109 [Or. 1, r, 131.
Warrant—See Arrest.
notice shall issue before issue of— for arrest. 213 [Or. 21, r.371.
procedure after issue of notice of—, 214, 43 [Or. 21, r. 40; s. 51 1.
contents of-. 213 [Or. 21, r. 381.
Withdrawal—See, Compromise.
of suit for formal defect with liberty to bring a fresh suit, 257 [Or. 23 r. Ii.
- from suit, 257 Oi. 23. r. I (3)1.
effect of— of appeal on cross-objection, 337 [Or. 41, r. 22(4)].
• of suit by pauper and payment of court-fee, 292 [Or. 33, r. II].
Witness—
summons to - to give evidence or produce document, 172 [Or. 16. r. II.
expenses of- to he fixed by court, 172 [Or. 16, r. 21.
service of summons on—by parties, 174 [Or. 1•6 r. 7-A].
summons on—how served, 175 [Or. 16, r. 81. I
issue of warrant ofarrest against -, 176 [Or: 16, r. 10(3)].

when — cannothe ordered to attend in person, 178 [Or. 16,1 . . 191.
penalty when — fails to appear, 27, 176 [s. 32; Or. 16, r. 1211.
to
power order person present in court to give evidence, 174 [Or. 16. r. 71.
consequence of refusal of—to give evidence, 178 [Or. 16. r. 2011.
54/ INDEX 11908: Act V
/
Witness—
security for attendance from -, 177 [Or. 16, r. 16 (2)].
rules as to apply to party summoned, 178 IOr. 16, r. 211.
J examinatior, of—on commission, 263 tOr. 26, r. I].

power to examine - immediately. 184 I Or. 18, r. 161.
power to recall and examine , 185 (Or. 18, r. 17].
remarks on demeanour of—, 183 [Or. 18, r. 12].
—about to leave jurisdiction, 184 [Or. 18, r. 16(1)].
—to he examined in open court, 12 (Or. 18,1. . 41.
exemption of— from arrest. 90 (. 1351.
Woman—See, Pardana.thin W'nnen
no abatement of suit by marriage of 254 101. 22, r. 71.
when decree against wile may he executed against husband, 254 (Or. 22. r. 7
exemption of— Ironi alTcst in execution of money-decree, 47 Is. 561.
exemption of— from arrest in execution of decree for restitution of conjugal rights
209 (Or. 21, r. 32].
exemption of parcianashin — from appearance, 89 [s. 1321.
when ornaments of—, not attachable, 49 Is. 60 (I) (a)I.
order of security for costs when plaintiff is a—. 261 lOr. 25 r. I (3)1.
Written statement—See, Pleadings.
Filing of—, 142 [Or. 8, r. I].
additional—cannot he filed without leave, 145 [Or. 8, r. 91.
consequence of failure to file— within the specified lime, 146 jOr. 8, r. lot.
defence in - Founded on separate grounds, 145 [Or. 8, r. 7].
denial in — must he specific. 143 [Or. .8, r. 51.
lads not denied in —taken to he admitted, 143 [Or. 8, r. 5].
fraud or illegality to be set forth in—, 143 [Or. 8, r. 21.
limitation to he pleaded in—, 143 [Or. 8, r. 21.
evasive denial in—. 143 [Or. 8, r. 4].
new defence arising after filing—, 145 [Or. 8, r. 8].
relief claimed in — must he specifically stated, 137 [Or. 7, r. 7].
particulars of set off in—, 144 [Or. , 8, r. 61.
set off in — Founded on separate grounds, 145 [Or. 8, i'. 7]. (
signing of'—, 131 [Or. 6, r. 14].
verification of—, 132 [Or. 6. r. IS].

Civil Procedure Code - by Justice Naimuddin

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Civil Procedure Code - by Justice Naimuddin

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Civil Procedure Cone

Justice Naimuddin Ahmed

First Edition: August, 2000

Copyright reserved by the author

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Laser tracin g hy Bangladesh Institute or Law and International Afrairs (B IUA)

Justice Latifur Rahrnan

In this regard I would like to record my sincerest appreciation to Mr. Justice

Syed Ishtiaq Ahmed

Before I conclude, I must record my thanks to Syed Ishtiaq Ahmed, Bar-at-Law,

I also express my profound gratitude to His Lordship Hon'ble Mr. Latifur

Lastly, it will he an act of highest ingratitude if I do not mention Sultana, my

HONORARY SECRETARY'S NOTE

My deep appreciation goes to all the members of the Executive Council

As a member of the law commission, he is busy. But as an author, he was untiring

The Government has declared Fiji to be a reciprocating territory and

Certain Courts of Pakistan have been declared to be superior Courts

The Government has declared the Colony of Singapore to be a

Certain Courts in Pakistan have been declared to be Superior Courts

The Government has declared the Australian Capital .Territory to be a

The Government has declared New Zealand including the Cook

The Government has declared the Northern Territory of Australia to

In Section 112: Add the following note:-

"This section does not confer a right of appeal to the Appellate

In Rule 2 of Order IV: After the words, "particulars of every ,

In Rule 43 of Order XXI: After the words, "shall be made by actual

In Rule 44 of Order XXI: After the words, "attachment shall be made",

In Rule 1 of Order XLII: For Rule 1, substitute the following:-

TUE CODE OF CIVIL PROCEDURE, 1908

.27. Summons to defendants.

33. Judgment and decree. .

36. Application to orders.

38. Court by which decree may be executed.

67. Power br Local Government to make rules as to sales 01 land in

76. Corn mission to another Court.

SUITS BY OR AGAINSTTI It GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

190$: Act V I CIVIL PROCEDURE CODE xiii

Document relied on in plaint

EXAMINATION OF PARTIES BY THE COURT

THE FIRST SCHEDULE

I (I. . Suit jn name qi wronc plaintiff.

908: Act VI CIVIL PROCEDURE CODE XV

. Form of affidavit in answer.

ORDER X11 161

SUMMONING AND ATTENDANCE OF WITNESSES

XVIII CONTENTS 11908: Act V

ORDER XVII 179

ORDER XVIII 18!

Process for Execution

1908 Act VI CIVIL PROCEDURE CODE xxv

ORDER XXV 261

• ORDER XXVI 26:

ORDER XXVI1A 1 273

ORDER XXX 276

2. Disclosure of partners' names.

XXVIII CONTENTS 11908: Act

ORDER XXXI 280

1908: Act VI CIVIL PROCEDURE CODE XXIX

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

APPOINTMNT 'OF .RECEIVERS

APPEALS FROM ORIGINAL DECREES

\APPEALS FROM APPELLATE DECREES

APPEALS FROM ORDERS