The Code Of Civil Procedure, 1908

Assam by the Civil Procedure (Assam Amendment) Act, 1941 (Assam 2 of 1941); Madras by Madras Act 34 of 1950 and Madras A.O.1954 Punjab by the Punjab Relief of Indebtedness Act, 1934 (Pun.7 of 1934); and U.P.by the Oudh Courts Act, 192D (U.P.4 of 1925), U.P.Acts 35 of t948 and 24 of 1954.

It has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and, by notification under ss.5 and 5A of the Scheduled Districts Act, 1874 (14 of 1874), also to the following Scheduled Districts:-

(1) The Districts of Jalpaiguri, Cachar (excluding the North Cachar Hills), Goalpara (including the Eastern Duars), Kamrup, Darrang, Nowgong (excluding the Mikir Hill Tracts), Sibsagar (excluding the MiKir Hill Tracts) and Lakhimpur (excluding the Dibrugarh Frontier Tracts): Gazette of India, 1909, Pt.I, p.5 and ibid., 1914, Pt.I, p.1690.

(2) The District of Darjeeling and the District of Hazaribagh, Ranchi, Palamau and Manbhum in Chota Nagpur: Calcutta Gazette, 1909, Pt.I, p.25 and Gazette of India, 1909, Pt.I, p.33.

(3) The Province of Kumaon and Garhwal and the Tarai Parganas (with modifications): U.P.Gazette 1909.Pt.I, p.3 and Gazette of India, 1909, Pt.I, p.31.

(4) The Pargana of Jaunsar-Bawar in Dehra Dun and the Scheduled portion of the Mirzapur District: U.P.Gazette, 1909, Pt.I, p.4 and Gazette of India, 1909, Pt.I.p.32.

(5) Coorg: Gazette of India, 1909, Pt.I, p.32.

(6) Scheduled Districts in the Punjab: Gazette of India, 1909, Pt.I, p.33.

(7) Sections 36 to 43 to all the Scheduled Districts in Madras: Gazette Of India, 1909, Pt.I, p.152.

(8) Scheduled Districts in the C.P., except so much as is already in force and so much as authorises the attachment and sale of immovable property in execution of a decree, not being a decree directing the sale of such property: Gazette of India, 1909, Pt.I, p.239.

(9) Ajmer-Merwara, except sections 1 and 155 to 158: Gazette of India, 1909, Pt.II, p.480.

(10) Pargana Dhalbhum, the Municipality of Chaibassa in the Kolhan and the Porahat Estate in the District of Singbhum: Calcutta Gazette, 1909, Pt.I, p.453 and Gazette of India, 1909, Pt.I, p.443.

Under section 3 (3) (a) of the Sonthal Parganas Settlement Regulation (3 of 1872).ss.38 to 42 and 156 and rules 4 to 9 in Order XXI in the First Schedule have been declared to be in force in the Sonthal Parganas and the rest of the Code for the trial of suits referred to in section 10 of the Sonthal Parganas Justice Regulation, 1893 (5 of 1893): see Calcutta Gazette, 1909, Pt.I, n.45.

It has been declared to be in force in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (1 of 1929), s.2; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), s.3 and Sch., and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), s.3 and Sch.

It has been extended to the Districts of Koraput and Ganjam Agency by Orissa Regulation, 5 of 1951, s.2.}

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

[21st March, 1908.]

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

PRELIMINARY

1.Short title.- (1) This Act may be cited as he Code of Civil Procedure, 1908.

(2) Commencement and extent.It shall come into force on the first day of January, 1909.

{ Subs.by Act 2 of 1951, s.2, for the former clause (3) which had been subs.by the A.O.1950.} [(3) It extends to the whole of India except-

(a) the Tribal Areas in the State of Assam;

(b) save as hereinafter provided, the Scheduled Areas in the State of Madras;

(c) the State of Jammu and Kashmir; and

(d) the State of Manipur:

Provided that sections 36 to 43 and Order XXXIV in the First Schedule shall extend also to the Amindivi Islands {Ins.by the Madras A.O.1954.Amended in the U.P.by U.P.Act 24 of 1954.Amended in Assam by Assam Act 8 of 1953.} [in the State of Madras] and the East Godavari, West Godavari and Visakhapatnam Agencies in the {Subs, by the Madras A.O.1954 for ” State of Madras “.} [State of Andhra], and section 48 shall extend also to the said Agencies.]

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

(1) ” Code ” includes rules:

(2) ” decree ” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or 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 dismissal for default.

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

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

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

{Subs.by Act 2 of 1951, s.4.} [(5) “foreign Court” means a Court situate outside India and rot established or continued by the authority of the Central Government: ]

(6) ” foreign judgment ” means the judgment of a foreign Court:

(7) “Government Pleader” includes any officer appointed by the State 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:

{Ins.by s.4, ibid.} [(7A) ” High Court “, in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta:

(7B) “India”, except in sections 1, 29, 43, 44, {Ins.by Act 42 of 1953, s.4 and Sch.III.} [44A,] 78, 79, 32, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir: ]

(8) “Judge” means the presiding officer of a Civil Court:

(9) ” judgment ” means the statement given by the Judge of the grounds of a decree or order:

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

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

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

(13) “movable property” includes growing crops:

(14) ” order ” means the formal expression of any decision of a Civil Court which is not a decree:

(15) “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court:

(16) ” prescribed ” means prescribed by rules:

(17) ” public officer ” means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of the Indian Civil Service;

(c) every commissioned or gazetted officer in the military {Subs.by Act 35 of 1934, s.2 and Sch., for ” or naval “.} [naval or air] forces of {Subs.by the A.O.1950 for “His Majesty”.} [the Union] {The words ” including His Majesty’s Indian Marine Service ” rep.by Act 35 of 1934, s.2.} while serving under the Government;

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

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

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

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

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

(18) ” rules ” means rules and forms contained in the First Schedule or made under section 122 or section 125:

(19) ” share in a corporation ” shall be deemed to include stock, debenture stock, debentures or bonds: and

(20) ” signed “, save in the case of a judgment or decree, includes stamped.

{Cl.(21) which was ins.by the A.O.1950, rep.by Act 2 of 1951, s.4.}

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

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

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a 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.

5.Application of the Code to Revenue Courts.- (1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government {The words ” with the previous sanction of the G.G.in C.” rep.by Act.38 of 1920, s.2 and Sch.I, Pt.I.} 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 State Government {The words “with the sanction aforesaid” rep.by s.2 ancl Sch.I, Pt.I, ibid.} may prescribe.

(2) “Revenue Court” in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

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

7.Provincial Small Cause Courts.- The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887, {Ins.by Act 4 of 1941, s.2 and Sch.III.} [or under the Berar Small Cause Courts Law, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes {Subs., ibid., for ” under that Act “.} [under the said Act or Law], {Ins.by Act 2 of 1951, s.5.} [or to Courts in Part B States exercising a corresponding jurisdiction] that is to say,-

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

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

(ii) the execution of decrees in such suits;

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

(b) the following sections, that is to say-

section 9,

sections 91 and 92,

sections 94 and 95 {Subs.by Act 1 of 1926, s.3, for “so far as they relate to injunctions and interlocutory orders”.} [so far as they authorise or relate to-

(i) orders for the attachment of immovable property,

(ii) injunctions,

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

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

8.Presidency Small Cause Courts.- Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76, 77 and 155 to 158, and by the Presidency Small Cause Courts Act, 1882, 15 of 1882 the provisions in the body of this Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay:

{Ins.by Act 1 of 1914, s.2.} [Provided that—

(1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may be, may from time to time, by notification in the Official Gazette, direct{For instance of such direction, see Calcutta Gazette, 1910, Pt.I, p 814.} that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882,15 of 1882 and with such modifications and adaptations as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court;

(2) all rules heretofore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882,15 of 1882 shall be deemed to have been validly made.]

PART I

SUITS IN GENERAL

JURISDICTION OF THE COURTS AND Res Judicata

9.Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

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

10.Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in {Subs.by Act 2 of 1951, s.3, for “the States”.} [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of {Subs.by Act 2 of 1951, s.3, for “the States”.} [India] established or continued by {Subs.by the A.O.1937 for “the G.G.in C “.} [the Central Government {The words “or the Crown Representative” rep.by the A.O.1948.}] and having like jurisdiction, or before {Subs.by the A.O.1950 for “His Majesty Council”.} [the Supreme Court].

Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in {Subs.by Act 2 of 1951, s.3, for “the States”.} [India] from trying a suit founded on the same cause of action.

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

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

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

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

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

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

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

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.

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

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

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

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of {Subs.by Act 2 of 1951, s.3, for “the States”.} [India] in cases in which such law is applicable;

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

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in {Subs.by Act 2 of 1951, s.3, for “the States”.} [India].

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

PLACE OF SUING

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

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

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

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

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

(e) for compensation for wrong to immovable property,

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

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation.—In this section ” property ” means property situate in {Subs.by Act 2 of 1951, s.3, for “the States”.} [India].

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

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

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

Provided that the suit is one with respect to which the Court competent as regards the nature and value of the suit to exercise jurisdiction.

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

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

Illustrations

(a) A, residing in Delhi, beats B in Calcutta.B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B.B may sue A either in Calcutta or in Delhi.

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

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

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

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

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

Explanation II.—A corporation shall be deemed to carry on business at its sole or principal office in {Subs.by Act 2 of 1951, s.3, for “the States”.} [India] 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 Calcutta.B carries on business in Delhi.B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company.A delivers the goods accordingly in Calcutta.A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business.

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

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

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

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

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

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

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

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

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

(i) try or dispose of the same; or

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

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

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

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

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

25.Power of State Government to transfer suits.- (1) Where any party to a suit, appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the { Subs.by the A.O.1937 for “G.G.in C.” } [State Government], {Subs.ibid., for “who”.} [which] may, by notification in the Official Gazette transfer such suit, appeal or proceeding to any other High Court:

{Ins., ibid.} [Provided that no suit, appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State in which that High Court has its principal seat.]

(2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case.

INSTITUTION OF SUITS

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

SUMMONS AND DISCOVERY

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

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

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

{ Subs.by Act 2 of 1951, s.6.} [29.Service of foreign summonses.Summonses and other processes issued by-

(a) any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extend, or

(b) any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or

(c) any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply,

may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.]

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

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

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

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

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

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

(a) issue a warrant for his arrest;

(b) attach and sell his property;

(c) impose a fine upon him not exceeding five hundred rupees;

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

JUDGMENT AND DECREE

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

INTEREST

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

(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of 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.

COSTS

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

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

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

{S.35A was ins.by s.2 of the Civil Procedure (Amendment) Act, 1922 (9 of 1922), which, under section 1 (2) thereof, may be brought into force in any Province by the Provincial Government on any specified date.It has been so brought into force in Bombay, Bengal, U.P., Punjab, Bihar.C.P., Assam, Orissa and Madras.} [35A.Compensatory costs in respect of false or vexatious claims or defences.- (1) If in any suit or other proceeding, not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding one thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 9 of 1887 { Ins.by Act 2 of 1951, s.7.} [or under a corresponding law in force in a Part B State] and not being a Court constituted { Subs., ibid., for ” under that Act “.} [under such Act or law], are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

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

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

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

PART II

EXECUTION

GENERAL

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

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

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

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

COURTS BY WHICH DECREE MAY BE EXECUTED

38.Court by which decree may be executed.- A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

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

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

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

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

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

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

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

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

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

{ Subs.by Act 2 of 1951, s.8, for the former section.} [43.Execution of decrees passed by Civil Courts in places to which this Code does not extend.- Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend or by any Court established or continued by the authority of the Central Government outside India, may if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends.]

{Subs.by s.9, ibid.} [44.Execution of decrees passed by Revenue Courts in places to which this Code does not extend.- The State Government may, by notification in the Official Gazette declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend, or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State.]

{Ins.by Act 8 of 1937, s.2.} [44A.Execution of decrees passed by Courts in reciprocating territory.- (1) Where a certified copy of a decree of any of the superior Courts of { The words “the United Kingdom or ” omitted by Act 71 of 1952, s.2.} any reciprocating territory has been filed in a District Court, the decree may be executed in {Subs.by Act 2 of 1951, s.for “the States”.} [India] 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 satisfied or adjusted and such certificate shall for the purposes of proceedings under this section be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court execution 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 an y of the exceptions specified in clauses (a) to (f) of section 13.

{Subs.by Act 71 of 1952.s.2, for Explanations 1 to 3.} [Explanation 1.- “Reciprocation territory ” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section ; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2.- “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, bur shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.]]

{Subs.by the Act A.O.1937 for the original s.45.} [45.Execution of decrees outside India.- So much of the foregoing section of this Part as empowers a Court to sent a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established {The words “or continued” rep.by the A.O.1948.} by the authority of the Central Government {Subs.by the A.O.1950 for “in any Indian State”.} [outside India] to which the State Government has by notification in the Official Gazette declared this section to apply.]

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

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

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

QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

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

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

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

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

LIMIT OF TIME FOR EXECUTION

48.Execution barred in certain cases.- (1) Where an application to execute a decree not being a decree shall be made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve{ For certain purposes in parts of U.P., read “six”-vide the U.P.Regulation of Agricultural Credit Act, 1940 (U.P 14 of 1940), s.9.} years from-

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

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

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

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

(b) to limit or otherwise affect the operation of article {Subs, by Act 34 of 1940, s.3, for “180 of the Second Schedule to the Indian Limitation Act, 1877”.} [183 of the First Schedule to the Indian Limitation Act, 1908].9 of 1908.

TRANSFEREES AND LEGAL REPRESENTATIVES

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

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

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

PROCEDURE IN EXECUTION

51.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 ;

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

(c) by arrest and detention in prison ;

(d) by appointing a receiver ; or

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

{194.Ins.by Act 21 of 1936, s.2.} [Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied-

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

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

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

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

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

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

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

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

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

54.Partition of estate or separation of share.- Where the decree is for the partition of 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.

ARREST AND DETENTION

55.Arrest and detention.- (1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be 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 State Government may appoint for the detention of persons ordered by the Courts of such district to be detained.

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

Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room is 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, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, any 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 State 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 State 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 {Subs.by Act 3 of 1921, s.2, for “will be discharged”.} [may be 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 a judgment-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 { Subs.by s.2, ibid., for “shall release”.} [may release] him from arrest, and, if he fails so 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.

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.

57.Subsistence allowance.- The State Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors.

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 rupees, for a period of six months, and,

(b) 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 under the decree in execution of which he was detained in the civil prison.

59.Release on ground of illness.- (1) At any time after a warrant for the arrest of a judgment-Release debtor has been issued the Court may cancel it on the ground of his of 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.

(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom-

(a) by the State Government, on the 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, on the ground of his suffering from any serious illness.

(4) A judgment-debtor released under this section may be rearrested, but the period of his detention in the civil prison shall not in the aggregate exceed that prescribed by section 58.

ATTACHMENT

{For amendments to s.60, in its application to East Punjab, see the Punjab Relief of Indebtedness Act 1934 (Pun.7 of 1934), s.35, as amended by Pun.Acts 12 of 1940 and 6 of 1942.}60.Property liable to attachment and sale in execution of decree.- (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, in money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in 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 be liable to such attachment or sale, namely:-

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

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

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

(d) books of account,

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government, or payable out of any service family pension fund {For such a notification, see Gazette of India, 1909, Pt.I, p.5.} notified in the Official Gazette by {Subs.by the A.O.1937 for ” the G.G.in C.” } [the Central Government or the State Government] in this behalf, and political pensions;

{Subs.by Act 9 of 1937, s.2, for the former clauses (h) and (i).The amendments made by that section have no effect in respect of any proceedings arising out of a suit instituted before 1st June, 1937: see ibid., s.3.} [(h) the wages of labourers and domestic servants, whether payable in money or kind; {The words ” and salary, to the extent of the first hundred rupees and one-half the remainder of such salary ” rep by Act 5 of 1943, s.2.}

{Subs.by s.2, ibid., for the former clause and proviso.} [(i) salary to the extent of the first hundred rupees and one-half the remainder:

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

(j) the pay and allowances of persons to whom the {Subs.by the A.O.1937 for “Indian Articles of War apply,’.} [{Subs.by Act 2 of 1951, s.10, for “Indian Army Act, 1911, or theBurma Army Act “.} [Army Act, 1950 ] 46 of 1950.applies], {Ins.by Act 35 of 1934, s.2 and Sch.} [or of persons other than commissioned officers to whom {The words “the Naval Discipline Act as modified try” omitted by the A.O.1950.} the Indian Navy (Discipline) Act, 1934, 34 of 1934.applies];

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, {” Subs.by Act 9 of 1937, s.2, for “1897” } [1925], 19 of 1925.For the time being applies in so far as they are declared by the said Act not to be liable to attachment;

{Subs.by Act 9 of 1937, s.2, for the original clause.See also footnote 3 on preceding page.} [(l) any allowance forming part of the emoluments of any {Subs.by Act 5 of 1943, s.2, for “public officer”.} [servant of the Government] or of any servant of a railway company or local authority which the {Subs.by the A.O.1933 for “G.G.in C.”} [appropriate Government] may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to {Subs.by Act 5 of 1943, s.2, for “any such officer or servant”.} [any such servant] while under suspension ;]

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

(n) a right to future maintenance;

(o) any allowance declared by {Subs.by the A.O.1937 for “any law passed under the Indian Councils Act 1861 and 1992′.} [any Indian law] to be exempt from liability to attachment-or sale in execution of decree; and

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

{The original Explanation was renumbered Explanation 1 by Act 9 of 1937.s.2.} [Explanation 1].-The particulars mentioned in clauses (g), (h), (i), (j), (1) and (o) are exempt from attachment or sale whether before or after they are actually payable, {Ins.by s.2, ibid.See also footnote 3 on preceding page.} [and in the case of salary other than salary of a {Subs.by Act 5 of 1943, s.2, for “public officer”.} [servant of the Government] or a servant of a railway company or local authority the attachable portion thereof is exempt from attachment until it is actually payable].

{Ins.by s.2, ibid.See also footnote 3 on preceding page.} [Explanation 2.-In clauses (h) and (i), “salary” means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.]

{Ins.by the A.O.1937.} [Explanation ,3.-In clause (l) appropriate Government” means-

(i) as respects any {Subs.by Act 5 of 1943, s.2, for “public officer”.} [person] in the service of the Central Government, or any servant of {Subs.by the A.O.1950 for “a Federal Railway”.} [a Railway Administration] or of a cantonment authority or of the port authority of a major port, the Central Government.

{C1.(ii) rep.by the A.O.1948.}

(iii) as respects any other {Subs.by Act 5 of 1943, s.2, for “public officer”.} [servant of the Government] or a servant of any other {The words “railway or” omitted by the A.O.1950.}local authority, the State Government.]

(2) Nothing in this section shall be deemed-

{The letter and brackets “(a)”, the word “or” and cl.(b) rep.by Act 10 of 1914, s.3, and Sch.II.} to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.{The letter and brackets “(a)”, the word “or” and cl.(b) rep.by Act 10 of 1914, s.3, and Sch.II.}

{The letter and brackets “(a)”, the word “or” and cl.(b) rep.by Act 10 of 1914, s.3, and Sch.II.}

61.Partial exemption of agricultural produce.- The State Government {The words “with the previous sanction of the G.G.in C.” rep.by Act ,8 of 1920.s.2 and Sch., Pt.I.} may, by general or special order published in the Official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in execution of a decree.

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

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

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

63.Property attached in execution of decrees of several Courts.- (1) Where property 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 Courts, the Court under whose decree the property was first attached.

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

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

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

SALE

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

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

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

67.Power for State Government to make rules as to sales of land in execution of decrees for payment of money.- {The original s.67 was renumbered as sub-section (1) of that section by Act 1 of 1914, s.3.} [(1)] The State Government {The words ” with the previous sanction of the G.G.in C.” rep.by Ac 38 of 1920, s.2 and Sch.I, Pt.I.} 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 State Government, to make it impossible to fix their value.

{Ins.by Act 1 of 1914, s.3.} [(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the State Government may, by notification in the Official Gazette, declare such rules to be in force, or may, {The words ” with the previous sanction of the G.G.in C.” rep.by Ac 38 of 1920, s.2 and Sch.I, Pt.I.} by a like notification, modify the same.

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

DELEGATION TO COLLECTOR OF POWER TO EXECUTE
DECREES AGAINST IMMOVABLE PROPERTY

68.Power to prescribe rules for transferring to Collector execution of certain decrees.- The State Government may {The words ” with the previous sanction of the G.G.in C.” rep.by Ac 38 of 1920, s.2 and Sch.I, Pt.I.} declare, by notification in the Official Gazette, that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of or interest in, immovable property, shall be transferred to the Collector.
Power to prescribe rules for transferring to Collector execution of certain decrees.

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

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

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

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

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

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

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

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

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

DISTRIBUTION OF ASSETS

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

Provided as follows: –

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

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

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

first, in defraying the expenses of the sale;

secondly, in discharging the amount due under the decree;

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

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

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

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

RESISTANCE TO EXECUTION

74.Resistance to execution.- Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable 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 obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, 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 be put into possession of the property.

PART III

INCIDENTAL PROCEEDINGS

COMMISSIONS

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

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition.

76.Commission to another Court9 (1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

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

77.Letter of request.- In lieu of issuing a commission the Court may issue a letter to examine a witness residing at any place not within {Subs.by Act 2 of 1951, s.3, for “the States”.} [India].

{Subs.by s.11, ibid., for the former section.} [78.Commissions issued by foreign Courts.- Subject to such conditions and limitations as may be prescribed, the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of-

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India; or

(c) Courts of any State or country outside India.]

PART IV

SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC
OFFICERS IN THEIR OFFICE CAPACITY

{Subs.by the A.O.1948 for the former section.} [79.Suits by or against Government.- In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Central Government, {Subs.by the A.O.1950 for “the Dominion of India”.} [the Union of India], and

(b) in the case of a suit by or against a State Government, the State.]

80.Notice.- No suit shall be {Subs.by the A.O.1946 for “instituted against the Crown”.} [instituted against the Government] or Notice.against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been {Subs.by the A.O.1937 for “in the case of the Secretary of State in Council, delivered to, or left at the office of, a Secretary to the L.G.or the Collector of the district “.} [delivered to, or left at the office of-

(a) in the case of a suit against the Central Government, {Ins.by Act 6 of 1948, s.2.} [except where it relates to a railway], a Secretary to that Government;

{Ins.as cl.(aa) by s.2, ibid.}[ {(aa) relettered (b) by the A.O.1948.} [(b)] in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway ;]

{The former cl.(b) rep., ibid.}

(c) in the case of a suit against a State Government, a Secretary to that Government or the Collector of the district; {The word “and” and cl.(d) rep., ibid.}

{The word “and” and cl.(d) rep., ibid.}

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and 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 deft.

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

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

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

82.Execution of decree.- (1) {Subs.by Act 32 of 1949, s.2, for certain former words.} [Where in a suit by or against the Government, or by or against a public officer in respect of any such act as aforesaid, a decree is passed against {Subs.by the A.O.1950 for “the Dominion of India”.} [the Union of India] or a State or, as the case may be, the public officer], a time shall be specified in the decree within which it shall be satisfied; and, if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the State 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.

{Ins.by Act 32 of 1949, s.2.} [(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award-

(a) is passed or made against 1[the Union of India] or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority, and

(b) is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree.]

{ The new ss.33 to 37B were subs.by Act 2 of 1951, s.12, for the former ss.33 to 37.}
[SUITS BY ALIENS AND BY OF AGAINST FOREIGN RULERS,

AMBASSADORS AND ENVOYS

83.When aliens may use.- Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such Court.

Explanation.–– Every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a license in that behalf granted by the Central Government, shall, for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.

84.When foreign States may use.- A foreign State may sue in any competent Court:

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

85.Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers.- (1) The Central Government may, at the request of the Ruler by of a foreign State or at the request of any person competent in the opinion of the Central Government to act on behalf of such Ruler, by ;e order, appoint any persons to prosecute or defend any suit on behalf of such Ruler, and any persons so appointed shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Ruler.

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

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

86.Suits against foreign Rulers, Ambassadors and Envoys.- (1) No Ruler of a foreign State may be sues in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a Ruler from whom he holds or claims to hold the property.

(2) Such consent may be 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 suit or class of suits, the Court in which the Ruler may be sued, but it shall not be given, unless it appears to the Central Government 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 jurisdiction of the Court, or

(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or

(d) has expressly or impliedly waived the privilege accorded to him by this section.

(3) No Ruler of a foreign State shall be arrested under this Code and, except with the consent of the Central Government certified in writing by a Secretary to that Government, no decree shall be executed against the property of any such Ruler.

(4) The preceding provisions of this section shall apply in relation to—

(a) any Ambassador or Envoy of a foreign State;

(b) any High Commissioner of a Commonwealth country; and

(c) any such member of tile state or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf, as they apply in relation to the Ruler of a foreign State.

87.Style of foreign Rulers as parties to suits.- The Ruler of a foreign State may sue, and shall be sued, the name of his State:

Provided that in giving the consent referred to in section 86, the Central Government may direct that the Ruler may be sued in the name of an agent or in any other name.

87A.Definitions of foreign State and Rulers.- (1) In this Part,-

(a) “foreign State” means any State outside India which has been recognized by the Central Government; and

(b) ” Ruler “, in relation to a foreign State, means the person who is for the time being recognized by the Central Government to be the head of that State.

(2) Every Court shall take judicial notice of the fact-

(a) that a State has or has not been recognized by the Central Government;

(b) that a person has or has not been recognized by the Central Government to be the head of a State.

SUITS AGAINST RULERS OF FORMER INDIAN STATES

87B.Application of sections 85 and 86 to Rulers of former Indian States.- (1) The provisions of section 85 and of sub-sections (1) end (3) of section 86 shall apply in relation to the RuIers of any former Indian State as they apply in relation to the Ruler of a foreign State.

(2) In this section-

(a) ” former Indian State ” means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this section; and

(b) ” Ruler “, in relation to a former Indian State, means the person who, for the time being, is recognized by the President as the Ruler of that State for the purposes of the Constitution.I

INTERPLEADER

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

Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

PART V

SPECIAL PROCEEDINGS]DINGS

ARBITRATION

89.[Arbitration.] Rep.by the Arbitration Act, 1940 (10 of 1940), s.49 and Sch.III.

SPECIAL CASE

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

SUITS RELATING TO PUBLIC MATTERS

{S.92 shall not apply to any religious trust in Bihar, see Bihar Act 1 of 1951.}91.Public nuisances.- (1) In the case of a public nuisance the Advocate General or two or more persons having obtained the consent in writing of the Advocate 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 right of suit which may exist independently of its provisions.

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

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(d) directing accounts and inquiries;

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

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

(g) settling a scheme; or

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

(2) Save as provided by the Religious Endowments Act, 1863, 20 of 1863.{Ins.by Act 2 of 1951, s.13.} [or by any corresponding law in force in a Part B State], no suit claiming any of the relief’s specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

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

PART VI

SUPPLEMENTAL PROCEEDINGS

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

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

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

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

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

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

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

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

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him:

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

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

PART VII

APPEALS

APPEALS FROM ORIGINAL DECREES

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

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

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

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

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

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

{Ins.by Act 18 of 1928, s.2 and Sch.I.} [(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.]

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

APPEAL FROM APPELLATE DECREES

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

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

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

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

(2) An appeal may lie under this section from an appellate decree passed ex parse.

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

102.No second appeal in certain suits.- No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees.

103.Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence P, on the record is sufficient, deter-mine any issue of fact necessary for the disposal of the appeal {Subs.by Act 6 of 1926, s.2, for “but not determined by the lower Appellate Court “.} [which has not been determined by the lower Appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of section 100].

APPEALS FROM ORDERS

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

{Cls.(a) to (f) rep.by Act 10 of 1940, s.49 and Sch.III.}

{Ins.by Act 9 of 1922, s, 3.See also fool, note to s.35A, supra.} [(ff) an order under section 35A ;]

(g) an order under section 95;

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

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

{Ins.by Act 9 of 1922, s, 3.See also fool, note to s.35A, supra.} [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.

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

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

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

GENERAL PROVISIONS RELATING TO APPEALS

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

(a) to determine a case finally;

(b) to remand a case;

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

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

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