C.P.C. - APPENDIX AND SCHEDULES

CPC

APPENDIX AND SCHEDULES

 

 

APPENDIX A

 PLEADINGS

 (1) TITLES OF SUITS

 In the Court of      

 A.B. (add description and residence)          Plaintiff

 against

 C.D. (add descritption and residence)          Defendant

 (2) DESCRIPTION OF PARTIES IN PARTICULAR CASES

          [The Union of Inida or the State of       , as the case may be.]

          The Advocate General of     

          The Collector of   

          The State of       

          The A.B. Company, Limited having its registered office at       

          A.B., a public officer of the C.D. Company.

          A.B. (add description and residence), on behalf of himself and all other creditors of C.D.,

late of (add description and residence).

          A.B. (add description and residence), on behalf of himself and all other holders of debentures issued by the Company Limited

          The Official Receiver

          A.B., a minor (add description and residence), by C.D. [or by the Court of Wards], his next friend.

          A.B. (add description and residence), a person of unsound mind [or of weak mind], by C.D. his next friend

          A.B., a firm carrying on business in partnership at

          A.B. (add description and residence), by his constituted attorney C.D (add description and residence)

          A.B.  (add description and residence), shebait of Thakur

          A.B. (add description and residence), executor of C.D., deceased.     

          A.B. (add description and residence), heir of C.D., deceased.

 

 (3) PLAINTS

 No. 1

Money Lent

 (Title)

 A.B., the above-named plaintiff, states as follows :

1. On the  . . . . . . . . . . . . . . . . day of 19 . . . . . . .,  . . . . . . . . . . . . . . . . he lent the defendant rupees repayable on the  . . . . . . . . . . . . . . . .day of  . . . . . . . . . . . . . . . .

2. The defendant has not paid the same, except . . . . . . . . . . . . . . . .rupees paid on the . . . . . . . day of  . . . . . . . . . . . . . . . .19 . . . . . . . .

 [If the plaintiff claims exemption from any law of limitation, say :]

3. The plaintiff was a minor [or insane] from the  . . . . . . . . . . . . . . . . day of till . . . .  . .  . . . the  . . . . . . . . . . . . . . . .day of . . . . . . . . . . . . . . . .

4. [Facts showing when the cause of action arose and that the Court has jurisdiction.]

5. The value of the subject-matter of the suit for the purpose of jurisdiction is  . . . . . . . . . . . . . . . .rupees and for the prupose of court-fees is  . . . . . . . . . . . . . . . .rupees.

6. The plaintiff claims  . . . . . . . . . . . . . . . .rupees, with interest at  . . . . . . . . . . . . . . . .per cent. from the  . . . . . . . . . . . . . . . .day of  . . . . . . . . . . . . . . . .19 . . . . . . . .

 No. 2

Money Overpaid

 (Title)

 A.B., the above named plaintiff, states as follows :—

1. On the . . . . . .  day of. . . .  19. . .  the plaintiff agreed to buy and the defendant agreed to sell . . . .  bars of silver at. . . .  annas per tola of fine silver.

2. The plaintiff procured the said bars to be assayed by E.F., who was paid by the defendant for such assay, and E.F. declared each of the bars to contain 1,500 tolas of fine silver, and the plaintiff accordingly paid the defendant. . .  rupees.

3. Each of the said bars contained only 1,200 tolas of fine silver, of which fact the plaintiff was ignorant when he made the payment.

4. The defendant has not repaid the sum so overpaid.

 [As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 

 No. 3

Goods Sold at a Fixed Price and Delivered

 (Title)

 A. B., the above-named plaintiff states as follows :—

1. On the . . . . . .  day of. . . . . . . . .19. . .  . . ., E.F. sold and delivered to the defendant [one hundred barrels of flour, or the goods mentioned in the schedule hereto annexed, or sundry goods.]

2. The defendant promised to pay . . . . . .  rupees for the said goods on delivery [or or the  . . . . . .  day of . . . . . .  , some day before the plaint was filed].

3. He has not paid the same.

4. E.F. died on the  . . . . . .  day of 19. . . . . By his last will he appointed his brother, the plaintiff his executor.

[As in paras 4 and 5 of Form No. 1.]

7. The plaintiff as executor of E.F. claims [Relief Claimed].

 No. 4

Goods Sold at a Reasonable Price and Delivered

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the . . . . . .  day of. . . . . . . 19. . .  , plaintiff sold and delivered to the defendant [sundry articles of house-furniture], but no express agreement was made as to the price.

2. The goods were reasonably worth . . .  . rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and relief claimed.]

 No. 5

Goods Made at Dependent's Request, and not Accepted

 (Title)

 A. B., the above-named plaintiff, states as follows:-

1. On the  . . . . . .  day of . . . . . .  19. . .  , E.F. agreed with the plaintiff that the plaintiff should make for him [six tables and fifty chairs] and that E.F. should pay for the goods on delivery . . . . . . . . . . . . . . . . rupees.

2. The plaintiff made the goods, and on the . . . . . .  day of  . . . . . .  19. . .  , offered to deliver them to E.F.,  and has ever since been ready and willing so to do.

3. E.F. has not accepted the goods or paid for them.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 6

Deficiency Upon a Re-sale [Goods Sold at Auction]

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19. . . ., the plaintiff put up at auction sundry [goods], subject to the condition that all goods not paid for and removed by the purchaser within [ten days] after the sale should be re-sold by auction on his account, of which condition the defendant had notice.

2. The defendant purchased [one crate of crockery] at the auction at the price of  . . . . . .  rupees.

3. The plaintiff was ready and willing to deliver the goods to the defendant on the date of the sale and for [ten days] after.

4. The defendant did not take away the goods purchased by him, nor pay for them within [ten days] after the sale, nor afterwards.

5. On the  . . . . . .  day of  . . . . . .  19. . .  ., the plaintiff re-sold the [crate of crockery], on account of the defendant, by public auction, for . . .  . rupees.

6. The expenses attendant upon such re-sale amounted to  . . . . . .  rupees.

7. The defendant has not paid the deficiency thus arising, amounting to rupees.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 7

Services at a Reasonable Rate

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. Between the  . . . . . .  day of . . . . . .  19. . .  , and the  . . . . . .  day of 19. . .   at  . . . . . .  , plaintiff [executed sundry drawings, designs and diagrams] for the defendant, at his request; but no express agreement was made as to the sum to be paid for such services.

2. The services were reasonably worth  . . . . . .  rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 8

Services and Materials at a Reasonable Cost

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19 . . .   , at . . .  ., the plaintiff built a house [known as No. . . .  ., in. . .  .], and furnished the materials therefor, for the defendant, at his request, but no express agreement was made as to the amount to be paid for such work and materials.

2. The work done and materials supplied were reasonably worth . . . . . .  rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.].

 No. 9

Use and Occupation

 (Title)

 A.B., the above-named plaintiff, executor of the will of X. Y., deceased, states as follows:-

1. That the defendant occupied the [house No. . .  .., street], by permission of the said X. Y., from the  . . . . . .  day of. . .   19 . . .   , until the day of  . . . . . . 19 . . .  , and no agreement was made as to payment for the use of the said premises.

2. That the use of the said premises for the said period was reasonably worth . . .   rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1.]

4. The plaintiff as executor of X. Y., claims (Relief claimed].

 No. 10

On an Award

 (Title)

 A. B., the above-named, plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19 . . .   , the plaintiff and defendant, having a difference between them concerning [a demand of the plaintiff for the price of ten barrels of oil which the defendant refused to pay]. agreed in writing to submit the difference to the arbitration of E.F. and G.H. and the original document is annexed hereto.

2. On the  . . . . . .  day of . . . . . .   19. . .  , the arbitrators awarded that the defendant should [pay the plaintiff . . .   rupees].

3. The defendant has not paid the money.

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

 No. 11

On a Foreign Judgment

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .   19. . .  , at . . .  , in the State [or Kingdom] of the  . . . . . .  Court of that State [or Kingdom,] in a suit therein pending between the plaintiff and the defendant, duly adjudged that the defendant should pay to the plaintiff . . . . . . . . .rupees, with interest from the said date.

2. The defendant has not paid the money.

[As in paras 4 and 5  of Form No. 1, and Relief claimed.]

 

 No. 12

Against Surety for Payment of Rent

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day  . . . . . .  19. . .  , E.F. hired from the plaintiff for the term of . . . . . . years, the [house No.  . . . . . .   . . . . . .   street], at the annual rent of . . . . . .  rupees, payable [monthly].

2. The defendant agreed, in consideration of the letting of the premises to E.F. to guarantee the punctual payment of the rent.

3. The rent for the month of . . . . . .  19. . .  , amounting to  . . . . . .  rupees, has not been paid.

[If, by the terms of the agreement, notice is required to be given to the surety, add:-]

4. On the  . . . . . .  day of . . . . . .  19. . .  , the plaintiff gave notice to the defendant of the non-payment of the rent, and demanded payment thereof.

5. The defendant has not paid the same.

[As in paras 4 and 5 of Form No. 1, and relief claimed.]

 

 No. 13

Breach of Agreement to Purchase Land

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .   19. . .  , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed.

[Or, on the  . . . . . .  day of . . . . . .  19. . .  , the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant and that the defendant should purchase from the plaintiff forty bighas of land in the village of. . .  .for. . .    rupees.]

2. On the  . . . . . . . . . . . . . . . .. . .  day of . . . . . . . . . .  19. . .  , the plaintiff, being then the absolute owner of the property [land the same being free from all incumbrances, as was made to appear to the defendant], tendered to the defendant a sufficient instrument of transfer of the same [or, was ready and willing, and is still ready and willing, and offered, to transfer the same to the defendant by a sufficient instrument] on the payment by the defendant of the sun agreed upon.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.].

 No. 14

Not Delivering Goods Sold

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19. . .  , the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff on the. . .  ..day of. . .   19. . .  , and that the plaintiff should pay therefor  . . . . . .  rupees on delivery.

2. On the [said] day the plaintiff was ready and willing, and offered, to pay the defendant the said sum upon delivery of the goods.

3. The defendant has not delivered the goods, and the plaintiff has been deprived of the profits which would have accrued to him from such delivery.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 15

Wrongful Dismissal

 (Title)

 A. B., the above-named plaintiff, states as follows:-

1. On the  . . . . . .  day of  . . . . . .  19. . .  , the plaintiff and defendant mutually agreed that the plaintiff should serve the defendant as [an accountant, or in the capacity of foreman, or as the case may be], and that the defendant should employ the plaintiff as such for the term of [one year] and pay him for his services  . . . . . .  rupees [monthly].

2. On the  . . . . . .  day of . . . . . .  19. . . . , the plaintiff entered upon the service of the defendant and has ever since been, and still is, ready and willing to continue in such service during the remainder of the said year whereof the defendant always has had notice.

3. On the  . . . . . .  day of . . . . . .  19. . .  , the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, or to pay him for his services.

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

 No. 16

Breach of Contract to Serve

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the   . . . . . .  day of  . . . . . .  19. . .  , the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at an [annual] salary of . . .   rupees, and that the defendant should serve the plaintiff as [an artist] for the term of [one year].

2. The plaintiff has always been ready and willing to perform his part of the agreement and on the day of . . . . . .  19. . .  , offered so to do.

3. The defendant (entered upon) the service of the plaintiff on the above-mentioned day, but afterwards, on the. . .  .day of. . .   19. . .  , he refused to serve the plaintiff as aforesaid.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.].

 No. 17

Against a Builder for Defective Workmanship

(Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19. . .  , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed. [or State the tenor of the contract.]

2. The plaintiff duly performed all the conditions of the agreement on his part.]

3. The defendant [built the house referred to in the agreement in a bad and unworkmanlike manner].

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 18

On a Bond for the Fidelity of a Clerk

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the . . . . . .  day of . . . . . .  19. . .  , the plaintiff took E.F. into his employment as a clerk.

2. In consideration thereof, on the  . . . . . .  day of . . . . . .  19. . .  , the defendant agreed with the plaintiff that if E.F., should not faithfully perform his duties as a clerk to the plaintiff, or should fail to account to the plaintiff for all monies, evidences of debt or other property received by him for the use of the plaintiff, the defendant would pay to the plaintiff whatever loss he might sustain by reason thereof, not exceeding . . . . . . . . . . . rupees.

[Or, 2. In consideration thereof, the defendant by his bond of the same date bound himself to pay the plaintiff the penal sum of . . . . . .  rupees, subject to the condition that if E.F. should faithfully perform his duties as clerk and cashier to the plaintiff and should justly account to the plaintiff for all monies, evidences of debt or other property which should be at any time held by him in trust for the plaintiff, the bond should be void.]

[Or, 2 In consideration thereof, on the same date the defendant executed a bond in favour of the plaintiff, and the original document is hereto annexed.]

3. Between the . . . . . .  day of . . . . . .  19. . .  , and the  . . . . . .  day of  19. . .  , E.F. received money and other property, amounting to the value of . . . . . .  rupees, for the use of the plaintiff, for which sum he has not accounted to him, and the same still remains due and unpaid.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 19

By Tenant against Landlord, with Special Damage

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19. . .  , the defendant, by a registered instrument, let to the plaintiff [the house No.  . . . . . . Street] for the term of  . . . . . .  years, contracting with the plaintiff that he, the plaintiff, and his legal representatives should quietly enjoy possession thereof for the said term.

2. All conditions were fulfilled and all things happened necessary to entitle the plaintiff to maintain this suit.

3. On the  . . . . . .  day of  . . . . . .  19. . .  , during the said term, E.F., who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom, and still withhold the possession thereof from him.

4. The plaintiff was thereby [prevented from continuing the business of a tailor at the said place, was compelled to expend  . . . . . . rupees in moving, and lost the custom of G.H. and I.J. by such removal].

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 

 No. 20

On an Agreement of Indemnity

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19. . .  , the plaintiff and defendant, being partners in trade under the style of A.B, and C.D., dissolved the partnership, and mutually agreed that the defendant should take and keep all the partnership property, pay all debts of the firm and indemnify the plaintiff against all claims that might be made upon him on account of any indebtedness of the firm.

2. The plaintiff duly performed all the conditions of the agreement on his part.

3. On the . . . . . .  day of . . . . . .  19. . .  , [a judgment was recovered against the plaintiff and defendant by E.F., in the High Court of Judicature at  . . . . . .  , upon a debt due from the firm to E.F. and on the day of 19. . .  ,] the plaintiff paid . . . . . .  rupees [in satisfaction of the same].

4. The defendant has not paid the same to the plaintiff.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 21

Procuring Property by Fraud

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day . . . . . .  19. . .  , the defendant, for the purpose of inducing the plaintiff to sell him certain goods, represented to the plaintiff that [he, the defendant, was solvent, and worth . . . . . . . . . . rupees over all his liabilities].

2. The plaintiff was thereby induced to sell [and deliver] to the defendant, [dry goods] of the value of  . . . . . . . . . . rupees.

3. The said representations were false [or state the particular falsehoods] and were then known by the defendant to be so.

4. The defendant has not paid for the goods. [Or, if the goods were not delivered.] The plaintiff, in preparing and shipping the goods and procuring their restoration, expended. . . . .  rupees.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 22

Fraudulently Procuring Credit to be given to another Person

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the . . . . . .  day of . . . . . .  19. . .  , the defendant represented to the plaintiff that E.F., was solvent and in good credit, and worth . . . . . .  rupees over all his liabilities [or that E.F. then held a responsible situation and was in good circumstances, and might safely be trusted with goods on credit].

2. The plaintiff was thereby induced to sell to E.F. (rice) of the value of  . . . . . .  rupees [on months credit].

3. The said representations were false and were then known by the defendant to be so, and were made by him with intent to deceive and defraud the plaintiff [or to deceive and injure the plaintiff].

4. E.F. [did not pay for the said goods at the expiration of the credit aforesaid, [or] has not paid for the said rice, and the plaintiff has wholly lost the same.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 23

Polluting the Water under the Plaintiff's Land

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and at all the time hereinafter mentioned was, possessed of certain land called  . . . . . . . . . . and situate in . . . . . .  and of a well therein, and of water in the well, and was entitled to the use and benefit of the well and of the water therein, and to have certain springs and streams of water which flowed and ran into the well to supply the same to flow or run without being fouled or polluted.

2. On the . . . . . .  day of . . . . . .  19. . .  , the defendant wrongfully fouled and polluted and well and the water therein and the springs and streams of water which flowed into the well.

3. In consequence the water in the well became impure and unfit for domestic and other necessary purposes, and the plaintiff and his family are deprived of the use and benefit of the well and water.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 

 No. 24

Carrying on a Noxious Manufacture

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain lands called . . .  ., situate in . . . . . . . . . . .

2. Ever since the  . . . . . .  day of . . . . . .  19. . .  , the defendant has wrongfully caused to issue from certain smelting works carried on by the defendant large quantities of offensive and unwholesome smoke and other vapours and noxious matter, which spread themselves over and upon the said lands, and corrupted the air, and settled on the surface of the lands.

3. Thereby the trees, hedges, herbage and crops of the plaintiff growing on the lands were damaged and deteriorated in value, and the cattle and live-stock of the plaintiff on the lands became unhealthy, and many of them were poisoned and died.

4. The plaintiff was unable to graze the lands with cattle and sheep as he otherwise might have done, and was obliged to remove his cattle, sheep and farming-stock therefrom, and has been prevented from having so beneficial and healthy a use and occupation of the lands as he otherwise would have had.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 

 No. 25

Obstructing a Right of Way

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and at the time hereinafter mentioned was, possessed of [a house in the village of . . . . . .  ].

2. He was entitled to a right of way from the [house] over a certain field to a public highway and back again from the highway over the field to the house, for himself and his servants [with vehicles, or or foot] at all times of the year.

3. On the  . . . . . .  day of . . . . . .  19. . .  , defendant wrongfully obstructed the said way, so that the plaintiff could not pass [with vehicles, or or food, or in any manner] along the way [and has ever since wrongfully obstructed the same].

4. (State special damage, if any.)

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 

 No. 26

Obstructing a Highway

 (Title)

1. The defendant wrongfully dug a trench and heaped up earth and stones in the public highway leading from . . . . . .  to . . . . . .   so as to obstruct it.

2. Thereby the plaintiff, while lawfully passing along the said highway, fell over the said earth and stones, [or into the said trench] and broke his arm, and suffered great pain, and was prevented from attending to his business for a long time, and incurred expense for medical attendance.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 

 No. 27

Diverting a Water-course

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is, and at the time hereinafter mentioned was, possessed of a mill situated on a [stream] known as the . . . . . .  , in the village of . . . . . .  , district of . . . . . .  .

2. By reason of such possession the plaintiff was entitled to the flow of the stream for working the mill.

3. On the . . . . . .  day of . . . . . .  19. . .  , the defendant, by cutting the bank of the stream, wrongfully divered the water thereof, so that less water ran into the plaintiff's mill.

4. By reason thereof the plaintiff has been unable to grind more than sacks per day, whereas, before the said diversion of water, he was able to grind  . . . . . .  sacks per day.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 

 No. 28

Obstructing a Right to Use Water for Irrigation

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. Plaintiff is, and was at the time hereinafter mentioned, possessed of certain lands situate, etc., and entitled to take and use a portion of the water of a certain stream for irrigating the said lands.

2. On the . . . . . .  day of . . . . . .  19. . .  , the defendant prevented the plaintiff from taking and using the said portion of the said water as aforesaid, by wrongfully obstructing and diverting the said stream.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 

 

 No. 29

Injuries Caused by Negligence on a Railroad

 (Title)

 A. B., the above-named plaintiff, states as follows :—

1. On the  . . . . . .  day . . . . . .  19. . .  , the defendants were common carriers of passengers by railway between . . . . . .  and . . . . . . 

2. On that day the plaintiff was a passenger in one of the carriages of the defendants on the said railway.

3. While he was such passenger, at . . . . . .  [or near the station of. . . . . .  or . . .  .. between the stations of. . .  ..and. . .  .], a collision occurred on the said railway caused by the negligence and unskilfulness of the defendants' servants, whereby the plaintiff was much injured [having his leg broken, his head cut, etc., and state the special damage, if any, as], and incurred expense for medical attendance and is permanently disabled from carrying on his former business as [a salesman].

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

[Or thus:- 2. On that day the defendants by their servants so negligently and unskillfully drove and managed an engine and a train of carriages attached thereto upon and along the defendant's railway which the plaintiff was then lawfully crossing, that the said engine and train were driven and struck against the plaintiff, whereby, etc., as in para 3.]

 No. 30

Injuries Caused by Negligent Driving

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. The plaintiff is a shoemaker, carrying on business at . . . . . .  . The defendant is a merchant of. . . . . . . . . . . . . .. . .

2. On the . . . . . .  day of . . . . . .  19. . .  , the plaintiff was walking southward along Chowringhee, in the City of Calcutta, at about 3 o'clock in the afternoon. He was obliged to cross Middleton Street, which is a street running into Chowringhee at right angles. While he was crossing this street, and just before he could reach the foot pavement on the further side thereof, a carriage of the defendant's, drawn by two horses under the charge and control of the defendant's servants, was negligently, suddenly and without any warning turned at a rapid and dangerous pace out of Middleton Street into Chowringhee. The pole of the carriage struck the plaintiff and knocked him down, and he was much trampled by the horses.

3. By the blow and fall and trampling the plaintiff's left arm was broken and he was bruised and injured on the side and back, as well as internally, and in consequence thereof the plaintiff was for four months ill and in suffering and unable to attend to his business, and incurred heavy medical and other expenses, and sustained great loss of business and profits.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 31

For Malicious Prosecution

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . . . .day of . . . . . . . .19. . .  , the defendant obtained a warrant of arrest from . . . . . . . . . .  [a magistrate of the said city, or as the case may be] on a charge of . . . . . .  , and the plaintiff was arrested thereon, and imprisoned for . . . . . .  [days,or hours, and gave bail in the sum of . . . . . .  rupees to obtain his release].

2. In so doing the defendant acted maliciously and without reasonable or probable cause.

3. On the  . . . . . .  day of . . . . . .  19. . .  ., the Magistrate dismissed the complaint of the defendant and acquitted the plaintiff.

4. Many persons, whose names are unknown to the plaintiff, hearing of the arrest, and supposing the plaintiff to be a criminal, have ceased to do business with him; or in consequence of the said arrest, the plaintiff lost his situation as clerk to one E.F., or in consequence the plaintiff suffered plain of body and mind, and was prevented from transacting his business, and was injured in his credit, and incurred expense in obtaining his release from the said imprisonment and in defending himself against the said complaint.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

 No. 32

Movables Wrongfully Detained

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19 . . . , plaintiff owned [or state facts showing a right to the possession] the goods mentioned in the schedule hereto annexed [or describe the goods.] the estimated value of which is  . . . . . .  rupees.

2. From that day until the commencement of this suit the defendant has detained the same from the plaintiff.

3. Before the commencement of the suit, to wit, on the  . . . . . .  day of . . . . . .  19. . .  , the plaintiff demanded the same from the defendant, but he refused to deliver them.

[As in paras 4 and 5 of Form No. 1]

6. The plaintiff claims—

(1) delivery of the said goods, or . . . . . .  rupees, in case delivery cannot be had;

(2)  . . . . . .  rupees compensation for the detention thereof.

 The Schedule

 No. 33

Against a Fraudulent Purchaser and his Transferee with Notice

 (Title)

 A. B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19. . .  , the defendant C.D., for the purpose of including the plaintiff to sell him certain goods, represented to the plaintiff that [he was solvent, and worth . . . . . .  rupees over all his liabilities].

2. The plaintiff was thereby induced to sell and deliver to C.D. [one hundred boxes of tea], the estimated value of which is . . . . . .  rupees.

3. The said representations were false, and were then known by C.D. to be so [or at the time of making the said representations, C. D. was insolvent, and knew himself to be so].

4. C. D. afterwards transferred the said goods to the defendant E.F. without consideration [or who had notice of the falsity of the representation].

[As in paras 4 and 5 of Form No.1]

7. The plaintiff claims—

(1) delivery of the said goods, or . . . . . .  rupees, in case delivery cannot be had;

(2) . . . . . .  rupees compensation for the detention thereof.

 No. 34

Rescission of a Contract on the Ground of Mistake

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. On the  . . . . . .  day of . . . . . .  19. . .  , the defendant represented to the plaintiff that a certain piece of ground belonging to the defendant, situated at . . . . . ., contained [ten bighas].

2. The plaintiff was thereby induced to purchase the same at the price of . . . . . .  rupees in the belief that the said representation was true, and signed an agreement, of which the original is hereto annexed. But the land has not been transferred to him.

3. On the . . . . . .  day of . . . . . .  19. . .  , the plaintiff paid the defendant rupees as part of the purchase-money.

4. That the said piece of ground contained in fact only [five bighas].

[As in paras 4 and 5 of Form No. 1]

7. The plaintiff claims—

(1)  . . . . . .  rupees, with interest from the  . . . . . . . . day of . . . . . .   19. . .  ;

(2) that the said agreement be delivered up and cancelled.

 No. 35

An Injunction Restraining Waste

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. The plaintiff is the absolute owner of [describe the property].

2. The defendant is in possession of the same under a lease from the plaintiff.

3. The defendant has [cut down a number of valuable trees, and threatens to cut down many more for the purpose of sale] without the consent of the plaintiff.

[As in paras 4 and 5 of Form No. 1]

6. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further waste on the said premises.

[Pecuniary compensation may also be claimed.]

 No. 36

Injunction Restraining Nuisance

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute owner of [the house No. . . . . . . . . , Street, Calcutta].

2. The defendant is, and at all the said times was, the absolute owner of . . . . . . . . [a plot of ground in the same street . . . . . .  ].

3. On the  . . . . . .  day of . . . . . .  19. . .  , the defendant erected upon his said plot a slaughter-house, and still maintains the same; and from that day until the present time has continually caused cattle to be brought and killed there [and has caused the blood and offal to be thrown into the street opposite the said house of the plaintiff].

[4. In consequence the plaintiff has been compelled to abandon the said house, and has been unable to rent the same.]

[As in paras 4 and 5 of Form No. 1]

7. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further nuisance.

 No. 37

Public Nuisance

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. The defendant has wrongly heaped up earth and stones on a public road known as . . . . . .  Street at . . . . . . . . . . .so as to obstruct the passage of the public along the same and threatens and intends, unless restrained from so doing, to continue and repeat the said wrongful act.

[443] [*2. The plaintiff has obtained the leave of the Court for the institution of this suit.

[As in paras 4 and 5 of Form No. 1]

5. The plaintiff claims—

(1) a declaration that the defendant is not entitled to obstruct the passage of the public along the said public road;

(2) an injunction restraining the defendant from obstructing the passage of the public along the said public road and directing the defendant to remove the earth and stones wrongfully heaped up as aforesaid.

Not applicable where suit is instituted by the Advocate-General.]

 No. 38

Injunction against the Diversion of a Water-course

 (Title)

 A.B., the above-named plaintiff, states as follows:—

[As in Form No. 27.]

The plaintiff claims that the defendant be restrained by injunction from diverting the water as aforesaid.

 No. 39

Restoration of Movable Property Threatened with Destruction and for an Injuction

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. Plaintiff is, and at all times hereinafter mentioned was, the owner of [a portrait of his grandfaterher which was executed by an eminent painter], and of which no duplicate exists [or state any facts showing that the property is of a kind that cannot be replaced by money].

2. On the . . . . . .  day of . . . . . .  19. . .  , he deposited the same for safe-keeping with the defendant.

3. On the . . . . . .  day of . . . . . .  19. . .  , he demanded the same from the defendant and offered to pay all reasonable charges for the storage of the same.

4. The defendant refuses to deliver the same to the plaintiff and threatens to conceal, dispose of, cut or injure the same if required to deliver it up.

5. No pecuniary compensation would be an adequate compensation to the plaintiff for the loss of the [painting];

[As in paras 4 and 5 of Form No. 1]

8. The plaintiff claims—

(1) that the defendant be restrained by injunction from disposing of, injuring or concealing the said [painting];

(2) That he be compelled to deliver the same to the plaintiff.

 

 No. 40

Interpleader

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. Before the date of the claims hereinafter mentioned G.H. deposited with the plaintiff [describe the property] for [safe-keeping].

2. The defendant C.D. claims the same [under an alleged assignment thereof to him from G.H.].

3. The defendant E.F. also claims the same [under an order of G.H. transferring the same to him.]

4. The plaintiff is ignorant of the respective rights of the defendants.

5. He has no claim upon the said property other than for charges and costs, and is ready and willing to deliver it to such persons as the Court shall direct.

6. The suit is not brought by collusion with either of the defendants.

[As in paras 4 and 5 of Form No. 1]

9. The plaintiff claims—

(1) that the defendants be restrained, by injunction, from taking any proceedings against the plaintiff in relation thereto;

(20 that they be required to interplead together concerning their claims to the said property;

[(3) that some person be authorised to receive the said property pending such litigation;]

(4) that upon delivering the same to such [person] the plaintiff be discharged from all liability to either of the defendants in relation thereto.

 No. 41

Administration by Creditor on Behalf of Himself and all Other Creditors

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. E.F., late of . . . . . .  , was at the time of his death, and his estate still is, indebted to the plaintiff in the sum of. . .  . [here insert nature of debt and security, if any].

2. E.F., died on or about the day of.  . . . . . .  By his last will, dated the . . . . . .  day of  . . . . . .  he appointed C.D. his executor [ordevised his estate in trust, etc., or died intenstate, as the case may be.]

3. The will was proved by C.D. [or] letters of administration were granted, etc.].

4. The defendant has possessed himself of the movable [and immovable, or the proceeds of the immovable property of E.F., and has not paid the plaintiff his debt.

[As in paras 4 and 5 of Form No. 1]

7. The plaintiff claims that an account may be taken of the movable [and immovable] property of E.F., deceased, and that the same may be administered under the decree of the Court.

 

 

 

No. 42

Administration by Specific Legatee

 (Title)

 [Alter Form No. 41 thus]

[Omit paragraph 1 and commence paragraph 2] E.F., late of . . . . . .  , died on or about the . . . . . .   day of  . . . . . .  . By his last will, dated the . . . . . .  day of . . . . . .   he appointed C.D., his executor, and bequeathed to the plaintiff [here state the specific legacy]. For paragraph 4 substitute—

The defendant is in possession of the movable property of E.F., and, amongst other things, of the said [here name the subject of the specific bequest].

 For the Commencement of paragraph 7 substitute—

The plaintiff claims that the defendant may be ordered to deliver to him the said [here name the subject of the specific bequest]. or that, etc.

 No. 43

Administration by Pecuniary Legatee

 (Title)

 [Alter Form No. 41 thus]

[Omit paragraph 1 and substitute for paragraph 2] E.F., late of . . . . . .  , died on or about the . . . . . .  day of  . . . . . .  .By his last will, dated the  . . . . . .  day of . . . . . .   he appointed C.D. his executor, and bequeathed to the plaintiff a legacy of . . . . . .  rupees.

In paragraph 4 substitute "legacy" for "debt"

 

Another form.

 (Title)

 E.F., the above-named plaintiff, states as follows:—

1. A.B. of K. in the  . . . . . .  died on the  . . . . . .  day of . . . . . .  . By his last will, dated the  . . . . . .  day of . . . . . .  , he appointed the defendant and M. N. [who died in the testator's lifetime] his executors, and bequeathed his property, whether movable or immovable, to his executors in trust, to pay the rents and income thereof to the plaintiff for his life; and after his decease, and in default of his having a son who should attain twenty-one, or a daughter who should attain that age or marry, upon trust as to his immovable property for the person who would be the testator's heir-at-law, and as to his movable property for the persons who would be the testator's next-of-kin if he had died intestate at the time of the death of the plaintiff and such failure of his issue as aforesaid.

2. The will was proved by the defendant on the. . . . . .  day of. . .  . The plaintiff has not been married.

3. The testator was at his death entitled to movable and immovable property; the defendant entered into the receipt of the rents of the immovable property and got in the movable property; he has sold some part of the immovable property.

[As in paras 4 and 5 of Form No. 1.]

6. The plaintiff claims—

(1) to have the movable and immovable property of A.B. administered in this Court, and for that purpose to have all proper directions given and accounts taken;

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

 

 No. 44

Execution of Trusts

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. He is one of the trustees under an instrument of settlement bearing date on or about the  . . . . . .  day of . . . . . .  made upon the marriage of E.F. and G.H., the father and mother of the defendant [or an instrument of transfer of the estate and effects of E.F. for the benefit C.D., the defendant, and the other creditors of E.F.].

2. A.B. has taken upon himself the burden of the said trust, and is in possession of [or of the proceeds of] the movable and immovable property transferred by the said instrument.

3. C.D. claims to be entitled to a beneficial interest under the instrument.

[As in paras 4 and 5 of Form. No. 1.]

6. The plaintiff is desirous to account for all the rents and profits of the said immovable property [and the proceeds of the sale of the said, or of part of the said, immovable property, or movable, or the proceeds of the sale of, or of part of, the said movable property,or the profits accruing to the plaintiff as such trustee in the execution of the said trust]; and he prays that the Court will take the accounts of the said trust, and also that the whole of the said trust estate may be administered in the Court for the benefit of C.D.,the defendant, and all other persons who may be interested in such administration, in the presence of C.D. and such other persons so interested as the Court may direct, or that C.D. may show good cause to the contrary.

[N.B.—Where the suit is by a beneficiary, the plaint may be modelled mutatis mutandis on the plaint by a legatee.]

 No. 45

Foreclosure or Sale

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. The plaintiff is mortgagee of lands belonging to the defendant.

2. The following are the particular of the mortgage:—

(a) (date);

(b) (names of mortgagor and mortgagee);

(c) (sum secured);

(d) (rate of interest);

(e) (property subject to mortgage);

(f) (amount now due);

(g) (if the plaintiff's title is derivative, state shortly the transfers or devolution under which he claims).

 (If the plaintiff is mortgagee in possession add).

3. The plaintiff took possession of the mortgaged property on the  . . . . . .  day of . . . . . .   and is ready to account as mortgagee in possession from that time.

[As in paras 4 and 5 of Form No. 1.]

6. The plaintiff claims—

(1) payment, or in default [sale or] foreclosure [and possession];

 [Where Order 34, rule 6, applies.]

(2) in case the proceeds of the sale are found to be insufficient to pay the amount due to the plaintiff then that liberty be reserved to the plaintiff to apply for . . . . . . [2][an order for the balance].

 No. 46

Redemption

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. The plaintiff is mortgagor of lands of which the defendant is mortgagee.

2. The following are the particulars of the mortgage:-

(a) (date);

(b) (names of mortgagor and mortgagee);

(c) (sum secured);

(d) (rate of interest);

(e) (property subject to mortgage);

(f) (If the plaintiff's title is derivative, state shortly the transfers or devolution under which he claims).

(If the defendant is mortgagee in possession, add)

3. The defendant has taken possession [or has received the rents] of the mortgaged property.

[As in paras 4 and 5 of Form No. 1.]

6. The plaintiff claims to redeem the said property and to have the same reconveyed to him [and to have possession thereof].[444][together with mesne profits].

 No. 47

Specific Performance (No. 1)

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. By an agreement dated the  . . . . . .  day of . . . . . .  and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and referred to, for the sum of . . . . . . . . . . rupees.

2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.

3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.

[As in paras 4 and 5 of Form No. 1.]

6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit.

 No. 48

Specific Performance (No. 2)

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. On the . . . . . .  day of . . . . . .  19. . .  , the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed.

The defendant was absolutely entitled to the immovable property described in the agreement.

2. On the  . . . . . .  day of . . . . . .  19. . .  , the plaintiff Tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.

3. On the  . . . . . .  day of . . . . . .  19. . .  , the plaintiff again demanded such transfer. [Or the defendant refused to transfer the same to the plaintiff.]

4. The defendant has not executed any instrument of transfer.

5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant.

[As in paras 4 and 5 of Form No. 1]

8. The plaintiff claims—

(1) that the defendant transfers the said property to the plaintiff by a sufficient instrument [following the terms of the agreement];

(2)  . . . . . .  rupees compensation for withholding the same.

 No. 49

Partnership

 (Title)

 A.B., the above-named plaintiff, states as follows:—

1. He and C.D., the defendant, have been for  . . . . . .  years [or months] past carrying on business together under articles of partnership in writing [or under a deed, or under a verbal agreement].

2. Several disputes and differences have arisen between the plaintiff and defendant as such partners whereby it has become impossible to carry on the business in partnership with advantage to the partners, [Or the defendant has committed the following breaches of the partnership articles:—

(1)

(2)

(3) . . . . . .  .]

[As in paras 4 and 5 of Form No. 1.]

5. The plaintiff claims—

(1) dissolution of the partnership;

(2) that accounts be taken;

(3) that a receiver be appointed.

(N.B.—In suits for the winding-up of any partnership, omits the claim for dissolution; and instead insert a paragraph stating the facts of the partnership having been dissolved.)

 (4) WRITTEN STATEMENTS

 General defences

Denial—The defendant denies that (set out facts).

The defendant does not admit that (set out facts).

The defendant admits that  . . . . . .  but says that

The defendant denies that he is a partner in the defendant firm of

Protest—The defendant denies that he made the contract alleged or any contract with the plaintiff.

The defendant denies that he contracted with the plaintiff as alleged or at all.

The defendant admits assets but not the plaintiff's claim.

The defendant denies that the plaintiff sold to him the goods mentioned in the plaint or any of them.

Limitation—The suit is barred by article  . . . . . .  or article . . . . . . . . .of the second schedule to the [445][Indian Limitation Act, 1877 (15 of 1877)].

Jurisdiction—The Court has no jurisdiction to hear the suit on the ground that (set forth the grounds.)

On the  . . . . . .  day of . . . . . .  a diamond ring was delivered by the defendant to and accepted by the plaintiff in discharge of the alleged cause of action.

Insolvency—The defendant has been adjudged an insolvent.

The plaintiff before the institution of the suit was adjudged an insolvent and the right to sue vested in the receiver.

Minority—The defendant was a minor at the time of making the alleged contract.

Payment into Court—The defendant as to the whole claim (or as to Rs. . . . . . .  part of the money claimed, or as the case may be) has paid into Court Rs.  . . . . . .  and says that this sum is enough to satisfy the plaintiff's claim (or the part aforesaid).

Performance remitted—The performance of the promise alleged was remitted on the (date).

Rescission—The contract was rescinded by agreement between the plaintiff and defendant.

Res judicata—The plaintiff's claim is barred by the decree in suit (give the reference).

Estoppel—The plaintiff is estopped from denying the truth of (insert statement as to which estoppel is claimed) because (here state the facts relied on as creating the estoppel.)

Ground of defence subsequent to institution of suit—Since the institution of the suit, that is to say, on the. . .  .. day of. . . . . .  (set out facts.)

 No. 1

Defence in Suits for Goods Sold and Delivered

1. The defendant did not order the goods.

2. The goods were not delivered to the defendant.

3. The price was not Rs.

 [or]

4.                                     1.

5.  Except as to Rs. . . . . . .  , same as                    2.

6.                                      3.

7. The defendant [or A.B., the defendant's agent] satisfied the claim by payment before suit to the plaintiff [or to C.D., the plaintiff's agent] on the . . . . . .  day of . . . . . .  19. . .  

8. The defendant satisfied the claim by payment after suit to the plaintiff on the  . . . . . .  day of 19. . .  .

 No. 2

Defence in Suits on Bonds

1. The bond is not the defendant's bond.

2. The defendant made payment to the plaintiff on the day according to the condition of the bond.

3. The defendant made payment to the plaintiff after the day named and before suit of the principal and interest mentioned in the bond.

 

 No. 3

Defence In Suits On Guarantees

1. The principal satisfied the claim by payment before suit.

2. The defendant was released by the plaintiff giving time to the principal debtor in pursuance of a binding agreement.

 No. 4

Defence In Any Suit For Debt

1. As to Rs. 200 of the money claimed, the defendant is entitled to set off for goods sold and delivered by the defendant to the plaintiff.

Particulars are as follows:-                           Rs.

            1907 January 25th            150

            1907 February 1st                       50

                                          Total             200

2. As to the whole [or as to Rs. . . ., part of the money claimed] the defendant made tender before suit of Rs. . .  . . and has paid the same into Court.

 No. 5

Defence In Suits For Injuries Caused By Negligent Driving

1. The defendant denies that the carriage mentioned in the plaint was the defendant's carriage, and that it was under the charge or control of the defendant's servants. The carriage belonged to. . .  . of . . . . . . . . . .Street, Calcutta, livery stable keepers employed by the defendant to supply him with carriages and horses; and the person under whose charge and control the said carriage was, was the servant of the said.

2. The defendant does not admit that the said carriage was turned out of Middleton Street either negligently, suddenly or without warning, or at a rapid or dangerous pace.

3. The defendant says the plaintiff might and could, by the exercise of reasonable care and diligence, have seen the said carriage approaching him, and avoided any collision with it.

4. The defendant does not admit the statements contained in the third paragraph of the plaint.

 No. 6

Defence In All Suits For Wrongs

1. Denial of the several acts [or matters] complained of.

 No. 7

Defence In Suits For Detention Of Goods

1. The goods were not the property of the plaintiff.

2. The goods were detained for a lien to which the defendant was entitled.

Particulars are as follows:-

1907, May 3rd, To carriage of the goods claimed from Delhi to Calcutta:-

45 maunds at Rs. 2 per maund. . . .Rs. 90.

 No. 8

Defence In Suits For Infringement Of Copyright

1. The plainiff is not the author [assignee, etc.]

2. The book was not registered.

3. The defendant did not infringe.

 No. 9

Defence In Suits For Infringement Of Trade Mark

1. The trade mark is not the plaintiff's

2. The alleged trade mark is not a trade mark.

3. The defendant did not infringe.

 No. 10

Defence In Suits Relating To Nuisances

1. The plaintiff's lights are not ancient [or deny his other alleged prescriptive rights.]

2. The plaintiff's lights will not be materially interfered with by the defendant's buildings.

3. The defendant denies that he or his servants pollute the water [or do what is complained of].

[If the defendant claims the right by prescription or otherwise to do what is complained of, he must say so, and must state the grounds of the claim, i.e., whether by prescription, grant or what.]

4. The plaintiff has been guilty of laches of which the following are particulars:—

1870. Plaintiff's mill began to work.

1871. Plaintiff came into possession.

1883. First complaint.

5. As to the plaintiff's claim for damages the defendant will rely on the above grounds of the defence, and says that the acts complained of have not produced any damage to the plaintiff [If other grounds are relied on, they must be stated, e.g., limitation as to past damage.]

 No. 11

Defence To Suit For Foreclosure

1. The defendant did not execute the mortagage.

2. The mortgage was not transferred to the plaintiff (if more than one transfer is alleged, say which is denied).

3. The suit is barred by article . . . . . .  of the second scheduled to the [446][Indian Limitation Act, 1877 (15 of 1877).]

4. The following payments have been made, viz.:—

            (Insert date)          Rs. 1,000

            (Insert date)          Rs. 500

5. The plaintiff took possession on the . . .  . of. . .  .., and has received the rents ever since.

6. The plaintiff released the debt on the. . .   of. . . 

7. The defendant transferred all his interest to A.B. by a document dated.

 No. 12

Defence To Suit For Redemption

1. The plaintiff's right to redeem is barred by article . . .   of the second schedule to the [447][Indian Limitation Act, 1877 (15 of 1877).]

2. The plaintiff transferred all interest in the property to A.B.

3. The defendant, by a document dated the . . .   day of . . .  . transferred all his interest in the mortgage-debt and property comprised in the mortgage to A.B.

4. The defendant never too possession of the mortgaged property, or received the rents thereof.

(If the defendant admits possession for a time only, he should state the time and deny possession beyond what he admits.)

 No. 13

Defence To Suit For Specific Performance

1. The defendant did not enter into the agreement.

2. A. B. was not the agent of the defendant (if alleged by plaintiff).

3. The plaintiff has not performed the following conditions—(Conditions).

4. The defendant did not—(alleged acts of part performance).

5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matter—(State why).

6. The agreement is uncertain in the following respects—(State them).

7. (or) The plaintiff has been guilty of delay.

8. (or) The plaintiff has been guilty of fraud (or misrepresentation).

9. (or) The agreement is unfair.

10. (or) The agreement was entered into by mistake.

11. The following are particulars of (7), (8), (9), (10) (or as the case may be).

12.  The agreement was rescinded under Conditions of Sale, No. 11 (or by mutual agreement).

(In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the agreement or the alleged breaches, or show whatever other ground of defence he intends to rely on, e.g., the [448][Indian Limitation Act,] accord and satisfaction, release, fraud, etc.)

 No. 14

Defence In Administration Suit By Pecuniary Legatee

1. A. B.'s will contained a charge of debts; he died insolvent; he was entitled at his death to some immovable property which the defendant sold and which produced the net sum of Rs.  . . . . . . . . . , and the testator had some movable property which the defendant got in, and which produced the net sum of Rs. . . . . . . . . .

2. The defendant applied the whole of the said sums and the sum of Rs. . . . . . . . . .  which the defendant received from rents of the immovable property in the payment of the funeral and testamentary expenses and some of the debts of the testator.

3. The defendant made up his accounts and sent a copy thereof to the plaintiff on the . . . . . . . . day of . . . . . . . .19 . . . , and offered to plaintiff free access to the vouchers to verify such accounts, but he declined to avail himself of the defendant's offer.

4. The defendant submits that the plaintiff ought to pay the cost of this suit.

 No. 15

Probate Of Will In Solemn Form

1. The said will and codicil of the deceased were not duly executed according to the provisions of the [449][Indian Succession Act, 1865 (10 of 1865)] [or of the [450]Hindu Wills Act, 1870 (21 of 1870)].

2. The deceased at the time the said will and codicil respectively purport to have been executed, was not of sound mind, memory and understanding.

3. The execution of the said will and codicil was obtained by the undue influence of the plaintiff [and others acting with him whose names are at present unknown to the defendant].

4. The execution of the said will and codicil was obtained by the fraud of the plaintiff, such fraud so far as is within the defendant's present knowledge, being [state the nature of the fraud].

5. The deceased at the time of the execution of the said will and codicil did not know and approve the contents thereof [or of the contents of the residuary clause in the said will, as the case may be].

6. The deceased made his true last will, dated the 1st January, 1873, and thereby appointed the defendant sole executor thereof.

The defendant claims—

(1) that the Court will pronounce against the said will and codicil propounded by the plaintiff;

(2) that the Court will decree probate of the will of the deceased, dated the 1st January, 1873, in solemn form of law.

 No. 16

Particulars (O. 6, R. 5.)

 (Title of suit)

Particulars.—The following are the particulars of (here state the matters in respect of which particulars have been ordered) delivered pursuant to the order of the  . . . . . . . . .   of

(Here set out the particulars ordered in paragraphs if necessary.)

 

 

APPENDIX B

 PROCESS

 No. 1

Summons For Disposal Of Suit (O. 5, R. 1, 5.)

 (Title)

To

 [Name, description and place of residence.]

Whereas

 has instituted a suit against you for . . . . . . . . .   you are hereby summoned to appear in this Court in person or by a pleader duly instructed (and able to answer all material questions relating to the suit, or who shall be accompanied by some person, able to answer all such questions, on the . . . . . . . . .   day of . . . . . . . . .   19  . . . . . ., at . . . . . . o'clock in the  . . . . . . . . .   noon, to answer the claim; and as the day fixed for your appearance is appointed for the final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence.

Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, this . . . . . . . . .   of . . . . . . . . .   19 . . . . .

 Judge.

Notice.—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.

2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.

 No. 2

Summons For Settlement Of Issues (O. 5, R. 1, 5.)

 (Title)

To

 [Name, description and place of residence.]

Whereas

 has instituted a suit against you for . . . . . . . . .   you are hereby summoned to appear in this Court in person, or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some persons able to answer all such questions, on the  . . . . . day of . . . . . . . . .   19. . . . ., at  . . . . . . . . .   o'clock in the  . . . . . . . . .   noon, to answer the claim; [451][and further you are hereby directed to file on that day a written statement of your defence and to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counter-claim, and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counter-claim, you shall enter such documents in a list to be annexed to the written statement].

Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, this . . . . . . . day . . . . . . . . .   19....,

 Judge.

Notice.—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call on the witness to produce, on applying to the Court and on depositing the necessary expenses.

2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.

 No. 3

Summons To Appear In Person (O. 5, R. 3.)

 (Title)

To

 [Name, description and place of residence.]

Whereas

 has instituted a suit against you for  . . . . . . . . .   you are hereby summoned to appear in this Court in person on the  . . . . . . . . .  day of . . . . . . . . .   19... at  . . . . . . . . .   o'clock in the . . . . . . . . .   noon, to answer the claim; and you  are directed to produce on that day all the documents upon which you intend to rely in support of your defence.

Take notice that, in default of your appearance of the day before mentioned, the suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, this . . . . . . . . .   day of . . .  . . . . . . . . .   19 . . . .

Judge.

 

 [452][No. 4

Summons in a Summary Suit

  (Order XXXVII, Rule 2)

 (Title)

To

 [Name, description and place of residence.]

Whereas . . . . . . . . .   has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs. . . . . . . . . .   and interest, you are hereby summoned to cause and appearance to be entered for you, within ten days from the service hereof, in default hereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs. . . . . . . . . .   and the sum of Rs. . . . . . . . . .   for costs, together with such interest, if any, as the Court may order.

If you cause an appearance to be entered for you, the plaintiff will thereafter serve upon you a summons for judgment at a hearing of which you will be entitled to move the Court for leave to defend the suit.

Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend.

Given under my hand and the seal of the Court, this  . . . . . . . . .   day of . . . . . . . . .   19...

 Judge.

[3][No. 4A

SUMMONS FOR JUDGMENT IN A SUMMARY SUIT

(Order XXXVII, Rule 3)

 (Title)

In the . . . . . . . . .    Court, at  . . . . . . . . .   suit No.  . . . . . . . . .   of 19...

 XYZ   . . . . . . . . .   Plaintiff.

Versus

 ABC    . . . . . . . . .   Defendant.

Upon reading the affidavit of the plaintiff the Court makes the following order, namely:—

Let all parties concerned attend the Court or Judge, as the case may be, on the . . . . . . . . .   day of 19..., at ... o'clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs. . . . . . . . . .   and for interest and costs.

Dated the  . . . . . . . . .   day of . . . . . . . . .   19...]

No. 5

Notice to Person who, the Court Considers, should be added as Co-Plaintiff

(O. 1, R. 10.)

 (Title)

To

 [Name, description and place of residence.]

Whereas  . . . . . . . . .   has instituted the above suit against . . . . . . . . .   for . . . . . . . . .   and whereas it appears necessary that you should be added as a plaintiff in the said suit in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved.

Take notice that you should on or before the  . . . . . . . . .   day of . . . . . . . . .   19..., signify to this Court whether you consent to be so added.

Given under my hand and the seal of the Court, this . . . . . . . . .   day of . . . . . . . . .   19...,

 Judge.

No. 6

Summons to Legal Representative  of a Deceased Defendant

(O. 22, R. 4.)

 (Title)

To

Whereas the plaintiff . . . . . . . . .   instituted a suit in this Court on the . . . . . . . . .   day of . . . . . . . . .   19..., against the defendant . . . . . . . . .   who has since deceased, and whereas the said plaintiff has made an application to this Court alleging that you are the legal representative of the said, deceased, and desiring that you be made the defendant in his stead;

You are hereby summoned to attend in this Court on the  . . . . . . . . .   day of . . . . . . . . .   19..., at  . . . . . . . . .   a.m. to defend the said suit and, in default of your appearance on the day specified, the said suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, this . . . . . . . . .   day of . . . . . . . . .   19...,

 Judge.

No. 7

Order for Transmission of Summons for Service in the Jurisdiction of another Court

(O. 5, R. 21.)

 (Title)

Whereas it is stated that

defendant/witness in the above suit is at present residing in . . . . . . . . .   : It is ordered that a summons returnable on the day of  . . . . . . . . .   19..., be forwarded to the Court of . . . . . . . . .   for service on the said defendant/witness with a duplicate of this proceeding.

The court-fee of  . . . . . . . . .   chargeable in respect to the summons has been realised in this Court in stamps.Dated . . . . . . . . .  19 . . .

 Judge.

No. 8

Order for Transmission of Summons to be Served on a Prisoner

(O. 5, R. 25.)

 (Title)

To

The Superintendent of the Jail at

Under the provisions of Order V, rule 24, of the Code of Civil Procedure, 1908, a summons in duplicate is herewith forwarded for service on the defendant . . . . . . . . .   who is . . . . . . . . .   a prisoner in jail. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.

 Judge.

No. 9

Order for Transmission of Summons to be Served on a Public Servant or Soldier

(O. 5, RR. 27, 28.)

 (Title)

To

Under the provisions of Order V, rule 27 (or 28, as the case may be), of the Code of Civil Procedure, 1908, a summons in duplicate is herewith forward for service on the defendant . . . . . . . . .   who is stated to be serving under you. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.

 Judge.

 

 No. 10

To Accompany Returns of Summons of Another Court

(O. 5, R. 23.)

Read proceeding from the  . . . . . . . . .   forwarding . . . . . . . . .   for service on in suit No.  . . . . . . . . .   of 19..., of that Court.

Read Serving Officer's endorsement stating that the  . . . . . . . . .   and proof of the above having been duly taken by me on the oath of . . . . . . . . .   and . . . . . . . . .   it is ordered that the  . . . . . . . . .   be returned to the . . . . . . . . .   with a copy of this proceeding.

 Judge.

Note.—This form will be applicable to process other than summons, the service of which may have to be effected in the same manner.

 No. 11

Affidavit Of Process-service To Accompany Return Of A Summons Or Notice

(O. 5, R. 18.)

 (Title)

The Affidavit of . . . . . . . . . . . ., son of . . . . . . . . .   make oath/affirm

I . . . . . . . . .

and say as follows:-

(1) I am a process-server of this Court.

(2) On the . . . . . . . . .   day of . . . . . . . . .   19... I received a summons/notice issued by the Court . . . . . . . . .   in Suit No.  . . . . . . . . .   of 19..., in the said Court, dated the . . . . . . . . .   day of . . . . . . . . .   19 . . . , for service on . . . . . . . . .  

(3) The said . . . . . . . . .   was at the time personally known to me, and I served the said summons/notice on him/her on the . . . . . . . . .   day of...19, at about . . . . . . . . .   o'clock in the noon at  . . . . . . . . .   by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.

(a)

(b)

(a) Here state whether the person served signed or refused to sign the process, and in whose presence.

(b) Signature of process-server.

 or,

 

(3) The said  . . . . . . . .  . . . . . . . . . .   not being personally known to me . . . . . . . . . . . . . . .   accompanied me to the said summons/notice on his/her on the . . . . . . . . .   day of . . . . . . . . .   19 . . . ,  at about. . . . . .  . . . . . . . . .   o'clock in the . . . . . . . . . . . . . noon at . . . . . . . . . . . . . . .   by tendering a copy thereof to him/her and requiring his /her signature to the original summons/notice.

(a)

(b)

(a) Here state whether the person served signed or refused to sign the process, and in whose presence.

(b) Signature of process-server.

 or,

 

(3) The said . . . . . . . . . . . . . . .   and the house in which he ordinarily resides being personally known to me, I went to the said house, in . . . . . . . . . . . . . . .   and thereon the . . . . . . . . . . . . . . .   day of . . . . . . . . .   19..., at about . . . . . . . . .   o'clock in the . . . . . . . . .   noon, I did not find the said. . . . . . . . . . . .

(a)

(b)

(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rules 15 and 17.

(b) Signature of process-server.

 

 or,

 

(3) One  . . . . . . . . .  accompanied me to . . . . . . . . .   and there pointed out to me which he said was the house in which . . . . . . . . .   ordinarily resides. I did not find the said there.

(a)

(b)

(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rule 15 and 17.

(b) Signature of process-server.

 

 or

 

If substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of the order for substituted service.

Sworn/Affirmed by the said . . . . . . .  .   before me this. . . .  day of . . . . . . . . .   19... before me this

 Empowered under section 139 of the Code

of Civil Procedure, 1908, to administer the

oath to deponents.

 

 No. 12

Notice To Defendant

(O. 9, R. 6.)

 (Title)

 To

 [Name, description and place of residence.]

Whereas this day was fixed for the hearing of the above suit and a summons was issued to you and the plaintiff has appeared in this Court and you did not so appear, but from the return of the Nazir it has been proved to the satisfaction of the Court that the said summons was served on you but not in sufficient time to enable you to appear and answer on the day fixed in the said summons;

Notice is hereby given to you that the hearing of the suit is adjourned this day and that the day of . . . . . . . . .   19... is now fixed for the hearing of the same; in default of your appearance on the day last mentioned the suit will be heard and determined in your absence.

GIVEN under my hand and the seal of the Court, this . . . . . . . . .   day . . . . . . . . .   19...

 Judge.

 No. 13

Summons To Witness

(O. 16, RR. 1, 5.)

 (Title)

 To

Whereas your attendance is required to . . . . . . . . .   on behalf of the . . . . . . . . .   in the above suit, you are hereby required [personally] to appear before this Court on the . . . . . . . . .   day of  . . . . . . . . .   19 . . . at  . . . . . . . . .   o'clock in the forenoon, and to bring with you [or to send to this  . . . . . . . . .   Court].

A sum of Rs. . . . . . . . . .   , being your travelling and other expenses and subsistence allowance for one day, is herewith sent. If you fail to comply with this order without lawful excuse, you will be subject to the consequences of non-attendance laid down in rule 12 of Order XVI of the Code of Civil Procedure, 1908.

Given under my hand and the seal of the Court, this . . . . . . . . .   day of . . . . . . . . .   19...

 Judge.

Notice.—(1) If you are summoned only to produce a document and not to give evidence, you shall be deemed to have complied with the summons if you cause such document to be produced in this Court on the day and hour aforesaid.

(2) If you are detained beyond the day aforesaid, a sum of Rs. . . . . . . . . .   will be tendered to you for each day's attendance beyond the day specified.

 No. 14

Proclamation Requiring Attendance Of Witness

(O. 16, R. 10)

 (Title)

 To

Whereas it appears from the examination on oath of the serving officer that the summons could not be served upon the witness in the manner prescribed by law: and whereas it appears that the evidence of the witness is material, and he absconds and keeps out of the way for the purpose of evading the service of the summons: This proclamation is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the  . . . . . . . . .. . . . . .    day of . . . . . . . . . . . . . . .   19 . . . .  . . . . . . at  . . . . . . . . .   o'clock in the forenoon and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.

Given under my hand and the seal of the Court, this . . . .  . . . . . . . .. . . . .   day of . . . . . . . 19. . . . . . .

 Judge.

 

 No. 15

Proclamation Requiring Attendance Of Witness

(O. 16, R. 10.)

 (Title)

 To

Whereas it appears from the examination on oath of the serving officer that the summons has been duly served upon the witness, and whereas it appears that the evidence of the witness is material and he has failed to attend in compliance with such summons: This proclamation is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the day of . . . . . . . . .. . . . . .    19 at  .. . . . . .  . . . . . . . .   o'clock in the forenoon, and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.

Given under my hand and the seal of the Court. this . . . . . . . . . . . . . . . . . day of . . . . . . . . .   19 . .  . . ..

 Judge.

 

 No. 16

Warrant Of Attachment Of Property Of Witness

(O. 16, R. 10.)

 (Title)

 To

The Bailiff of the Court.

Whereas the witness . . . . . . . . . 

cited by . . . . . . . . . . . .

has not, after the expiration of the period limited in the proclamation issued for his attendance, appeared in Court; You are hereby directed to hold under attachment . . . . . . . . .   property belonging to the said witness to the value of . . . . . . . . .   and to submit a return, accompanied with an inventory thereof, within . . . . . . . . .   days.

Given under my hand and the seal of the Court, this . . . . . . . . .   day of . . . . . . . . . . . .. . .   19 . . . . . .

 Judge.

 

 No. 17

Warrant Of Arrest Of Witness

(O. 16, R. 10.)

 (Title)

To

The Bailiff of the Court.

Whereas . . . . . . . . .   has been duly served with a summons but has failed to attend (absconds and keeps out of the way for the purpose of avoiding service of a summons); You are hereby ordered to arrest and bring the said . . . . . . . . .   before the Court.

You are further ordered to return this warrant on or before the . . . . . . . . .   day of 19... with an endorsement certifying the day on and the manner in which it has been executed, or the reason why it has not been executed.

Given under my hand and the seal of the Court, this . . . . . . . . .   day of . . . . . . . . .   19...

 Judge.

 No. 18

Warrant Of Committal

(O. 16 R. 16.)

 (Title)

 To

 The Officer in charge of the Jail at

Whereas the plaintiff (or defendant) in the above-named suit has made application to this Court that security be taken for the appearance of  . . . . . . . . .   to . . . . . . . . .   give evidence (or to produce a document), on the . . . . . . . . .   day of . . . . . . . . .  19...; and whereas the Court has called upon the said . . . . . . . . .   to furnish such security, which he has failed to do; This is to require you to receive the said....into your custody in the civil prison and to produce him before this Court at . . . . . . . . .   on the said day and on such other day or days as may be hereafter ordered.

Given under my hand and the seal of the Court, this . . . . . . . . .   day of . . . . . . . . .   19...

 Judge.

 No. 19

Warrant Of Committal

(O. 16, R. 18.)

 (Title)

 To

 The Officer in Charge of the Jail at

Whereas, whose attendance is required before this Court in the above-named case to give evidence (or to produce a document), has been arrested and brought before the Court in custody; and whereas owing to the absence of the plaintiff (or defendant), the said . . . . . . . . .   cannot give such evidence (or produce such document); and whereas the Court has called upon the said . . . . . . . . .  to give security for his appearance on the . . . . .. . . . . . . . .  day of . . . . . . .  19. . . , at  . . . . . . . . .  which he has failed to do; This is to require you to receive the said... into your custody in the civil prison and to produce him before this Court at . . . . . . . . .  on the . . . . . . . . .   day of . . . . . . . . .   19....

Given under my hand and the seal of the Court, this . . . . . . . . .   day of . . . . . . . . .   19...

 Judge.

 

Appendix C

 DISCOVERY, INSPECTION AND ADMISSION

 No. 1

Order for Delivery of Interrogatories

(O. 11, R. 1.)

In the Court of . . . . . . . . .   Civil Suit No. . . . . . . . of . . . . . . . . .   19 . . . . . . . . .

          A.B.    . . . . Plaintiff,

 against

          C. D. E. F. and G. H          . . . . . . . . . Defendants.

Upon hearing . . . . . . . . .   and upon reading the affidavit of . . . . . . . . .   filed the . . . . . . . . .   day of . . . 19 . . . . . . . . .   It is ordered that the . . . . . . . . .   be at liberty to deliver to the . . . . . . . . . . . . . . . . . . .interrogatories in writing, and that the said . . . . . . . . .   do answer the interrogatories as prescribed by Order XI, rule 8, and that the costs of this application be.

 

 No. 2

Interrogatories

(O. 11, R. 4.)

 (Title as in No. 1, supra.)

Interrogatories on behalf of the above-named [Plaintiff or defendant C.D.] for the examination of the above-named [defendants E.F. and G. H. or plaintiff].

1. Did not, etc.

2. Has not, etc. . . . . . . . . .   etc., . . . . . . . . .   etc.,  . . . . . . . . .   etc.

[The defendant E. F. is required to answer the interrogatories numbered. . . . . . . . . .. ]

[The defendant G.H. is required to answer the interrogatories numbered. . . . . . . . . . .]

 

 No. 3

Answer To Interrogatories

(O. 11, R. 9.)

 (Title as in No. 1, supra.)

The answer of the above-named defendant E.F., to the interrogations for his examination by the above-named plaintiff.

In answer to the said interrogatories, I, the above-named E.F., make oath and say as follow:—

1.

2. Enter answers to interrogatories in paragraphs numbered consecutively.DJ0

3. I object to answer the interrogatories numbered on the ground that [state grounds of objection].

 

 

 No. 4

Order for Affidavit as to Documents

(O. 11, R. 12.)

 (Title as in No. 1, supra.)

Upon hearing . . . . . . . . .   ; It is ordered that the . . . . do within . . . . . . . . .   days from the date of this order, answer on affidavit stating which documents are or have been in his possession or power relating to the matter in question in this suit, and that the costs of this application be.

 No. 5

Affidavit as to Documents

(O. 11, R. 13.)

 (Title as in No. 1, supra.)

I, the above-named defendant C. D., make oath and say as follows:—

1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.

2. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection].

3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.

4. The last-mentioned documents were last in my possession or power on [state when and what has become of them and in whose possession they now are].

5. Accordingly  to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter memorandum, paper or writing, or any copy of or extract from any such document, or any other documents whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto.

 No. 6

Order to Produce Documents for Inspection

(O. 11, R. 14.)

 (Title as in No. 1, supra).

Upon hearing  . . . . . . . . .   and upon reading the affidavit of . . . . . . . . .   filed the day of . . . . . . . . .   19... It is ordered that the  . . . . . . . . .   do, at all reasonable times, on reasonable notice, produce at . . . . . . . . .   situate at . . . . . . . . .   , the following documents, namely, . . . . . . . . .   , and that the . . . . . . . . .  be at libery to inspect and persue the documents so produced, and to make notes of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the costs of this application be.

 No. 7

Notice to Produce Documents

(O. 11. R. 16)

 (Title as in No. 1, supra.)

Take notice that the [plaintiff or defendant] requires you to produce for his inspection the following documents referred to in your [plaint or written statement or affidavit, dated that . . . . . . . . .   day of . . . . . . . . .   19...].

 [Describe documents required.]

 X. Y., Pleader for the

 To Z., Pleader for the.

 No. 8

Notice to Inspect Documents

(O. 11, R. 17.)

 (Title as in No. 1. supra.)

Take notice that you can inspect the documents mentioned in your notice of the  . . . . . . . . .   day of . . . . . . . . .   19... except the documents numbered in that notice] at [insert place of inspection] on Thursday next, . . . . . . . . . . . . . the instant, between the hours of 12 and 4 o'clock.

Or, that the [plaintiff or defendant] objects to giving you inspection of documents mentioned in your notice of the . . . day of . . . . . . . . .   19... on the ground that  [State the ground].

 No. 9

Notice to Admit Documents

(O. 12, R. 3.)

 (Title as in No. 1, supra.)

Take notice that the plaintiff [or defendant] in this suit proposes to adduce in evidence the several document hereunder specified, and that the same may be inspected by the defendant [or plaintiff] his pleader or agent, at  . . . . . . . . . on . . . . . . . . . between the hours of . . . . . . . . .   ; and the defendant [or plaintiff] is hereby required, within forty-eight hours from the ... last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed or executed, as they purport respectively to have been; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered, respectively, saving all just exceptions to the admissibility of all such documents as evidence in this suit.

 G.H., pleader [or agent] for plaintiff

[or defendant]

To E.F., pleader [or agent] for defendant [or plaintiff].

[Here describe the documents and specify as to each document whether it is original or a copy.]

 No. 10

Notice to Admit Facts

(O. 12, R. 5.)

 (Title as in No. 1, supra.)

Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff] to admit, for the purposes of this suit only, the several facts respectively hereunder specified; and the defendant [or plaintiff] is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this suit.

G.H. pleader [or agent] for plaintiff [or defendant].

To E.F., pleader [or agent] for defendant [or plaintiff].

The facts, the admission of which is required, are:—

1. That M. died on the 1st January, 1890.

2. That he died intestate.

3. That N. was his only lawful son.

4. That O. died on the 1st April, 1896.

5. That O. was never married.

 No. 11

Admission of Facts Pursuant to Notice

(O. 12, R. 5.)

 (Title as in No. 1, supra.)

The defendant [or plaintiff] in this suit, for the purposes of this suit only, hereby admits the several facts respectively hereunder specified, subject to the qualifications or limitations, if any, hereunder specified, saving all-just exceptions to the admissibility of any such facts, or any of them, as evidence in this suit:

Provided that this admission is made for the purposes of this suit only, and is not an admission to be used against the defendant [orplaintiff] on any other occasion or by any one other than the plaintiff [or defendant or party requiring the admission].

 E.F., pleader [or agent] for defendant

[or plaintiff]

To G.H., pleader [or agent] for plaintiff [or defendant].

 

Facts admitted

Qualification or limitation, if any, subject to which they are admitted

1.      That M. died on Ist January, 1890

2.      That he died intestate

3.      That N. was his lawful son

4.      That O. Died

5.      That O. was never married.

1.

2.

3. But not that he was hid only lawfulo son .

4. But not that he died on the Ist April, 1896.

5.

 

No. 12

Notice to Produce (General Form)

(O. 12, R. 8.)

 (Title as in No. 1, supra)

Take notice that you are hereby required to produce and show to the Court at the first hearing of this suit all books, papers, letters, copies of letters and other writings and documents in your custody, possession of power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly.

G.H., pleader [or agent] for plaintiff [or defendant].

To E.F., pleader [or agent] for defendant [or plaintiff].

 

 

 

 

 APPENDIX D

DECREES

 

 No. 1

Decree in Original Suit

(O. 20, RR. 6, 7.)

 (Title)

Claim for

This suit coming on this day for final disposal before . . . . . in the presence of . . . . . . . . .   for the plaintiff and of . . . . . . . . . . . . for the defendant, it is ordered and decreed that . . . . . . . . . and that the sum of Rs.  . . . . . . . . . be paid by the . . . . . . . . . to the  . . . . . . . . . on account of the costs of this suit, with interest thereon at the rate of . . . . . . . . . per cent, per annum from this date to date of realization.

Given under my hand and the seal of the Court, this . . . . . . . day of . . . . . . . . .   19...

 Judge.

 Costs of Suit

Plaintiff

Defendant

 

 

Rs.

A.

P.

 

Rs.

A.

P.

 

stamp for plaint

Do. For power

Do. Of exhibits

Pleader's fee on Rs.

Subsistence for witnesses

Commission fee

Service of process

               

         Total

 

 

 

 

Stamp for Power

Do.for petition

Pleader's fee

Subsistence for witnesses

Service of process

Commissioner's fee

              

                     Total

 

 

 

 

 

 

 

 

 

 

 

 

 

No. 2

Simple Money Decree

(Section 34)

 (Title)

Claim for

This suit coming on this . . . . . . . . .   day for final disposal before . . . . . . . . .   in the presence of  . . . . . for the plaintiff and of . . . . . . . . .   for the defendant; It is ordered that the . . . . . . . .do pay to the . . . .. . . the sum of Rs. . . . . . . . . .   with interest thereon at the rate of . . . . . . . . .   per cent per annum from . . . . . . to the date of realization of the said sum and do also pay Rs.... , the cost of this suit, with interest thereon at the rate of . . . . . . . . .   per cent per annum from this date to the date of realization.

Given under my hand and the seal of the Court, this . . . . . . . . .   day  . . . . of . . . . 19 . . .

 Judge.

 

 Costs of Suit

Plaintiff

Defendant

 

Rs.

A.

P.

 

Rs.

A.

P.

Stamp for plaint

Do. For power

Do. Of exhibits

Pleader's fee on Rs.

Subsistence for witnesses

Commission

Serivce of process     

                          Total

 

 

 

Stamp for power

Do. for petition

Pleader's fee

Subsistence for witnesses

Service of process

Commissioner's fee

 

                  Total

 

 

 

 

No. 3

Preliminary Decree for Foreclosure

(Order XXXIV, Rule 2—Where accounts are directed to be taken.)

 (Title)

This suit coming on this . . . . . . . . .   day, etc.; It is hereby ordered and decreed that it be referred to . . . . . . . . . . . . as this Commissioner to take the accounts following:—

(i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);

(ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person might have been so received;

(iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent, per annum);

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.

2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the . . . . day of. . . . . . . . . and that upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.

4. And it is hereby further ordered and decreed—

(i) that the defendant do pay into Court on or before the. . . . . . . .day of . . . . . . . ..., or any later date up to which time for payment may be extended by the Court, such sum as the Court shall fined due and the sum of Rs...........for the costs of the suit awarded to the plaintiff.

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.

5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff shall be at liberty to apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be  at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

 Description of the mortgaged property

 No. 3A

Preliminary Decree for Foreclosure

(Order XXXIV, Rule 2,—Where the Court declares the amount due.)

 (Title)

This suit coming on this.........day, etc.; It is hereby declared that the amount due to the plaintiff on his mortgage mentioned in the plaint calculated up to this........day of..........is the sum of Rs..........for principal, the sum of Rs......for interest on the said principal, the sum of Rs.....for costs, charges and expenses (other than the costs of the suit) properly incured by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs. ........for the costs of this suit awarded to the plaintiff, making in all sum of Rs.

2. And it is hereby ordered and decreed as follows:—

(i) that the defendant do pay into Court on or before for.......day of......or any later date up to which time for payment may be extended by the Court of the said sum of Rs......;

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.

3. And it is hereby further ordered and decreed that, in default if payment as aforesaid, the plaintiff may apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, of so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court  from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

Description of the mortgaged property

 No. 4

Final Decree for Foreclosusre

(Order XXXIV, Rule 3.)

 (Title)

Upon reading the preliminary decree in this suit on the......day of......and further orders (if any) dated the.......day of......and the application of the plaintiff dated the.......day of.......for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders had not been made by the defendant or any person on his behalf or any other person entitled to redeem the said mortgage;

It is hereby ordered and decreed that the defendant and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned; Words not required to be deleted.

 

 [453][and (if the defendant be in possession of the said mortgaged property) that the defendant shall deliver to the plaintiff quiet and peaceable possession of the said mortgaged property].

2. And it is hereby further declared that the whole of the liability whatsoever of the defendant up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.

 No. 5

Preliminary Decree for Sale

 (Order XXXIV, Rule 4—Where accounts are directed to be taken)

 (Title)

This suit coming on this......day, etc,; It is hereby ordered and decree that it be referred to as the Commissioner to take the accounts following:—

(i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent, per annum or at such rate as the Court deems reasonable);

(ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person night have been se received;

(iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum);

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.

2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii), together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the.......day of......., and that upon report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.

4. And it is hereby further order and decreed—

(i) that the defendant do pay into Court on or before the......day of.......or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs.......for the costs of the suit awarded to the plaintiff;

(ii) that on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.

5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.

6. And it is hereby further order and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.

7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient or payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

Description of the mortgaged property.

 No. 5A

Preliminary Decree for Sale

  (Order XXXIV, Rule 4,—When the Court declares the amount date.)

 (Title)

This suit coming on this. . . . . . . . . .day etc; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this. . . . . . . . . . . . .day of. . . . . . . . . .is the sum of Rs. . . . . . . . . for principal, the sum of Rs. . . . . . . . . . . . for interest on the said principal, the sum of Rs. . . . . . . . . . . . for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs. . . . . . . . . . . . for the costs of the suit awarded to the plaintiff, making in all the sum of Rs.

2. And it is hereby ordered and decreed as follows:—

(i) that the defendant do pay into Court on or before the. . . . . . . . . . . .day of. . . . . . . . . or any later date up to which time for payment may be extended by the Court, the said sum of Rs. . . . . . . . . .;

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such cost, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property  free from the said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so- required deliver up to the defendant quiet and peaceable possession of the said property.

3. And it is hereby further ordered and decreed that, it default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged-property; and on such application being made, the mortgaged property or a sufficeint part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession of power relating to the mortgaged property.

4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction herefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to received the same.

5. And it is hereby further ordered and decreed that, if the money realised by such sale such not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred buy any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

Description of the mortgaged property

 No. 6

Final Decree for Sale

  (Order XXXIV, Rule 5)

 (Title)

Upon reading the preliminary decree passed in this suit on the. . . . . . . . . day of. . . . . . . . . and further orders (if any) dated the. . . . . . . . . .day of. . . . . . . . . .and the application of the plaintiff dated the. . . . . . . . . day of. . . . . . . . . .for a final decreed and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the mortgage;

It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.

2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into the Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under the aforesaid preliminary decree and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the plaintiff for such costs of the suit including the costs of this application and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.

 No. 7

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Foreclosure is Passed

  (Order XXXIV, Rule 7.—Where accounts are directed to be taken.)

 (Title)

This suit coming on this. . . . . . . . . day, etc.; It is hereby ordered and decreed that it be referred to as the Commissioner to take the account following:—

(i) an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);

(ii) an account of the income of the mortgaged property received up to this date by the defendant or by any other person by order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received;

(iii) an account of all sums of money properly incurred by the defendant up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as it payable on the principal, or, failing both such rate, at nine per cent per annum);

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the term of the mortgage-deed.

2. It is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under caluse (iv) above, together with interest thereon, shall be adjusted against any sums paid by the defendant under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money, or, as the case may  be, be debited in reduction of the amount due to the defendant on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all conveninent despatch after making all just allowances on or before the. . . . . . . . . .day of. . . . . . . . . and that upon such report of the Commissioner being received, it shall be confirmed and countersigend, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.

4. And it is hereby further ordered and decreed—

(i) that the plaintiff to pay into Court on or before the. . . . . . . . . . . . day of. . . . . . . . . , or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs. . . . . . . . . . . . . . . .for the costs of the suit awarded to the defendant;

(ii) that, on such payment, and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over the the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.

5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant shall be at liberty to apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherswise the Court may give such directions as it thinks fit.

 

Description of the mortgaged property

 No. 7A

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Sale is Passed

  (Order XXXIV, Rule 7.—Where accounts are directed to be taken.)

 (Tile)

This suit coming on this . . . . . . . . . . . . .day, etc.; It is herby ordered and decreed that it be referred to . . . . . . . . . . . . . . . as the Commissioner to take the accounts following:—

(i) an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payble on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);

(ii) an account of the income of the mortgaged property received up to this date by the defendant or by any other person by the order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received;

(iii) an account of all sums of money property incurred by the defendant upto this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent per annum);

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or ommission of the defendant which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgaged-deed.

2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the defendant under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money, or, as the case may be, be debited in reduction of the amount due to the defendant on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the. . . . . . . . . . . . . . .  day of. . . . . . . . . . . . .and that, upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.

4. And it is hereby further ordered and decreed—

(i) that the plaintiff do pay into Court on or before the. . . . . . . . . .day. . . . . . . . . .of or any later date up to which time for payment may be extended by the Court, such sum as the Court shall find due and the sum of Rs. . . . . . . . . . . . . . . . . . for the costs of the suit awarded to the defendant;

(ii) that, or such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom the claims and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.

5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purpose of such sale the defendant shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.

6. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the defendant in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to receive the same.

7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the defendant as aforesaid, the defendant shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the plaintiff for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

Description of the mortgaged property

 No. 7B

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Foreclosure is Passed

  (Order XXXIV, Rule 7.—Where the Court declares the amount due.)

 (Title)

This suit coming on this. . . . . . . . . . . . . . . day, etc.; It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this. . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . is the sum of Rs. . . . . . . . . . . . . . . .for principal, the sum of Rs. . . . . . . . . . . . . . . .for interest on the said principal the sum of Rs. . . . . . . . . . . . . . . .for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of the mortgage-security together with interest thereon, and the sum of Rs. . . . . . . . . . . . . . . .for the costs of the suit awarded to the defendant, making in all the sum of Rs.

2. And it is hereby ordered and decreed as follows:—

(i) that the plaintiff do pay into Court on or before the . . . . . . . . . . . . . .day of. . . . . . . , or any later date up to which time for payment may be extended by the Court the said sum of Rs. . . . . . . . . . .;

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such cost of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents shall be delivered over to the plaintiff, or to such person as he appoints, and the defendant shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom he claims, and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.

3. And it is hereby further ordered and decrees that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

Description of the mortgaged property

 No. 7C

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Sale is Passed

 (Order XXXIV, rule 7.—Where the Court declares the amount due.)

 (Title)

This suit coming on this. . . . . . . . . . . . . . . day, etc., It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this. . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . is the sum of Rs. . . . . . . . . . . . . . . .for principal, the sum of Rs. . . . . . . . . . . . . . . .for interest on the said principal, the sum of Rs. . . . . . . . . . . . . . . .for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of mortgage-security together with interest thereon, and the sum of Rs. . . . . . . . . . . . . . . .for the cost of this suit awarded to the defendant, making in all the sum of Rs.

2. And it is hereby ordered and decreed as follows:—

(i) that the plaintiff do pay into Court on or before the. . . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . or any later date up to which time the payment may be extended by the Court the said sum of Rs. . . . . . . . . . . . . . . .;

(ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff or such person as he appoints, and the defendant shall, if so required, reconvey or re-transfer the said property to the plaintiff free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property.

3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the defendant shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.

4. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payment of any amount which the Court may adjudge due to the defendant in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or other persons entitled to the same.

5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for the payment in full of the amount payable to the defendant as aforesaid, the defendant shall be at liberty (where such remedy is open to him under the terms of the mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the plaintiff for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

Description of the mortgaged property

 No. 7D

Final Decree for Foreclosure in a Redemption Suit on Default of Payment by Mortgagor

  (Order XXXIV, Rule 8.)

 (Title)

Upon reading the preliminary decree in this suit on the. . . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . and further orders (if any) dated the. . . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . , and the application of the defendant dated the. . . . . . . . . . . . . . . day of. . . . . . . . . . . . . . . for a final decree and after hearing the parties, and it appearing that the payment as directed by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other person entitled to redeem the mortgage ;

It is hereby ordered and decreed that the plaintiff and all person claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned[454][and (if the plaintiff be in possession of the said mortgaged property) that the plaintiff shall deliver to the defendant quiet and peaceable possession of the said mortgaged property].

2. And it is hereby further declared that the whole of the liability whatsoever of the plaintiff up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharge and extinguished.

 No. 7E

Final Decree for Sale in a Redemption on Suit on Default of Payment by Mortgagor

  (Order XXXIV, Rule 8)

 (Title)

Upon reading the preliminary decree passed in this suit on the. . . . . . . . . .day of. . . . . . . . . . . . .and further order (if any) dated the. . . . . . . . . .day of. . . . . . . . . . . . ., and the application of the defendant dated the. . . . . . . . . day of. . . . . . . . . .for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other person entitled to redeem the mortgage;

It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold and that for the purposes of such sale the defendant shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.

2. And it is hereby ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the defendant under the aforesaid preliminary decree and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the defendant for such costs of this suit including the costs of this application and such costs, charges and expenses as may be payable under rule 10, together with the subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall  be paid to the plaintiff or other person entitled to receive the same.

 No. 7F

Final Decree in a Suit for Foreclosure, Sale or Redemption where the Mortgagor

Pays the Amount of the Decree

  (Order XXXIV, Rules 3, 5 and 8)

 (Title)

This suit coming on this. . . . . . . . . day for further consideration and it appearing that on the . . . . . . . . . . . .day of. . . . . . . . . . . . .the mortgagor or. . . . . ., the same being a person entitled to redeem, has paid into Court all amounts due to the mortgagee under the preliminary decree dated the. . . . . . .day of. . . . . . .; It is hereby ordered and decreed that:—

(i) the mortgagee do execute a deed of re-conveyance of the property in the aforesaid preliminary decree mentioned in favour of the mortgagor [455][or, as the case may be,. . . . . . . . . who has redeemed the property] or an acknowledgment of the payment of the amount due in his favour;

(ii) the mortgagee do bring into Court all documents in his possession and power relating to the mortgaged property in the suit.

And it is hereby further ordered and decreed that, upon the mortgagee executing the deed of re-conveyance or acknowledgment in the manner aforesaid,—

(i) the said sum of Rs. . . . . . . . . . . . be paid out of Court to the mortgagee;

(ii) the said deeds and documents brought into the Court be delivered out of Court to the mortgagor [456][or the person making the payment] and the mortgagee do, when so required, concur in registering, at the cost of the mortgagor [457][or other person making the payment], the said deed of re-conveyance or the acknowledgment in the officer of the Sub-registrar of. . . . . . . . . ; and

(iii) [458][if the mortgagee, plaintiff or defendant, as the case may be, is in possession of the mortgaged property] that the mortgagee do forthwith deliver possession of the mortgaged property in the aforesaid preliminary decree mentioned to the mortgagor [459][or such person as aforesaid who has made the payment.]

 

 No. 8

Decree against Mortgagor Personally for Balance after the Sale of the

Mortgaged Property

  (Order XXXIV, Rules 6 and 8A)

 (Title)

Upon reading the application of the mortgagee (the plaintiff or defendant, as the case may be) and reading the final decree passed in the suit on the. . . . . . .day of. . . . . . . . . and the Court being satisfied that the net proceeds of the sale held under the aforesaid final decree amounted to Rs. . . . . . . . . . . . . . . . . . . . and have been paid to the applicant out of the Court on the day of. . . . . . and that the balance now due to him under the aforesaid decree of Rs. . . . . . .;

And whereas it appears to the Court that the said sum is legally recoverable from the mortgagor (plaintiff or defendant, as the case may be) personally;

It is hereby ordered and decreed as follows:—

That the mortgagor (plaintiff or defendant, as the case may be) do pay to the mortgagee (defendant or plaintiff, as the case may be) the said sum of Rs. . . . . . with further interest at the rate of six per cent per annum from the. . . . . . .day of. . . . . . (the date of payment out of Court referred to above) up to the date of realisation of the said sum, and the costs of this application.

 No. 9

Preliminary Decree for Foreclousre of Sale

 [Plaintiff          1st Mortgagee,

 vs.

 Defendant No. 1          Mortgagor,

 Defendant No. 2   2nd Mortgagee.]

 (Order XXXIV, Rules 2 and 4)

 (Title)

The suit coming on this . . .  . . . . . . . . . . .. . . . . . . . . . . . day, etc; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this day of. . . . . . . . . . . . . is the sum of Rs. . . . . . for principal, the sum of Rs. . . .for interest on the said principal, the sum of Rs. . . . . . . . . .for costs, charges and expenses (other than the costs of the suit) incurred by the plaintiff in respect of the mortgage-security with interest thereon and the sum of Rs. . . . . . . .  . . . .for the costs of this suit awarded to the plaintiff, making in all the sum of Rs. . . . . . .

(Similar declarations to be introduced with regard to the amount due to defendant No. 2 in respect of his mortgage if the mortgage-money due thereunder has become payable at the date of the suit.)

2. It is further declared that the plaintiff is entitled to payment of the amount due to him in priority to defendant No. 2 [460][or (if there are several subsequent mortgagees) that the several parties hereto are entitle in the following order to the payment of the sums due to them respectively;—]

3. And it is hereby ordered and decreed as follows:—

(i) (a) that defendants or one of them do pay into Court on or before the day of . . . . . . . . .  or any later date up to which time for payment has been extended by the Court the said sum of Rs. . . . . . . . . .due to the plaintiff; and

(b) that defendant No. 1 do pay into Court on or before the day of. . . . . . or any later date up to which time for payment has been extended by the Court the said sum of Rs. . . . . . .due to defendant No. 2; and

(ii) that, on payment of the sum declared to be due to the plaintiff be defendant or either of them in the manner prescribed in clause (i)(a) and on payment thereafter before such date as the Court may fix and such expenses as may be payable under rule 10, together with such subsequent interest as may be payable shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and shall all such documents shall be delivered over to the defendant No. . . . . . (who has made the payment), or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgagee and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims, and also free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant No. . . . (who has made the payment) quiet and peaceable possession of the said property.

(Similar declarations to be introduced, if defendant No. 1 pays the amount found or declared to be due to defendant No. 2 with such variations as may be necessary having regard to the nature of his mortgage.)

4. And it is hereby further ordered and decreed that, in default of payment as aforesaid of the amount due to the plaintiff, the plaintiff shall be at liberty to apply to the Court for a final decree—

(i)[461] [in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is foreclosure and not sale]  that the defendants jointly and severally shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver to the plaintiff quiet and peaceable possession of the said property; or

(ii) [462][in the case of any other mortgage] that the mortgaged property or a sufficient part thereof shall be sold; and that for the purposes of such sale the plaintiff shall produce before Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and

(iii) [463][in the case where a sale is ordered under clause (4) (ii) above] that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and under any further orders that may have been passed in this suit and in payment of the amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to defendant No. 2, and that if any balance be left, it shall be paid to the defendant No. 1 or other persons entitled to receive the same; and

(iv) that, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2 or both of them, as the case may be, shall be at liberty (when such remedy is open under the terms of their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amounts remaining due to them respectively.

5. And it is hereby further ordered and decreed—

(a) that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in the payment of the said amount, defendant No. 2 shall be at liberty to apply to the Court to keep the plaintiff's mortgage alive for his benefit and to apply for a final decree (in the same manner as the plaintiff might have done under clause 4 above)—

[464] [(i) that defendant No. 1 shall thenceforth  stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to defendant No. 2 quiet and peaceable possession of the said property;] or

[465][(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property;] and

(b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.

6. And it is hereby further ordered and decreed [466][in the case where a sale is ordered under clause 5 above]—

(i) that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount paid by defendant No. 2 in respect of the plaintiff's mortgage and the costs of the suit in connection therewith and in payment of the amount which the Court may adjudge due in respect of subsequent interest on the said amount; and that the balance, if any, shall then be applied in payment of the amount adjudged due to defendant No. 2 in respect of his own mortgage under this decree and any further orders that may be passed and in payment of the amount which the Court may adjudge due in respect of such costs of this suit and such costs, charges and expenses as may be payable to defendant No. 2 under rule 10, together with such subsequent interest as may be payable under rule 1, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No. 1 or other persons entitled to receive the same; and

(ii) that, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of the plaintiff's mortgage or defendant No. 2's mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against No. 1 for the amount of the balance.

7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 

 

 

 Schedule

Description of the mortgaged property

 No. 10

Preliminary Decree for Redemption of Prior Mortgage and Foreclosure of Sale on

Subsequent Mortgage

 [Plaintiff          1st Mortgagee,

 vs

 Defendant No. 1          Mortgagor

 Defendant No. 2   2nd Mortgagee.]

 (Order XXXIV, rules 2, 4 and 7)

 (Title)

The suit coming on this. . . . . . day, etc; It is hereby declared that the amount due to defendant No. 2 on the mortgage mentioned in the plaint calculated up to this. . . . . . day of. . . . . . is the sum of Rs. . . . . . . . . for principal, the sum of Rs. . . . . . for interest on the said principal, the sum of Rs. . . . . . .for costs, charges and expenses (other than the costs of the suit) property incurred by defendant No. 2 in respect of the mortgage-security with interest thereon and the sum of Rs. . . for the costs of this suit awarded to defendant No. 2, making in all the sum of Rs.

(Similar declarations to be introduced with regard to the amount due from defendant No. 1 to the plaintiff in respect of his mortgage if the mortgage-money due thereunder has become payable at the date of the suit.)

2. It is further declared that defendant No. 2 is entitled to payment of the amount due to him in priority to the plaintiff [467][or (if there are several subsequent mortgagees) that the several parties hereto are entitled in the following order to the payment of the sums due to them respectively:—].

3. And it is hereby ordered and decreed as follows:—

(i)(a) that the plaintiff or defendant No. 1 or one of them do pay into Court on or before the. . . . . . day of. . . . . . or any later date up to which time for payment has been extended by the Court the said sum of Rs. . . . . . due to defendant No. 2; and

(b) that defendant No. 1 do pay into Court on or before the. . . . . . .day of. . . . . . or any later date up to which time for payment has been extended by the Court the said sum of. Rs. . . . . . .due to the plaintiff; and

(ii) that, on payment of the sum declared due to defendant No. 2 by the plaintiff and defendant No. 1 or either of them in the manner prescribed in clause (i) (a) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, or Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, defendant No. 2 shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the plaintiff or defendant No. 1 (whoever has made the payment), or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by defendant No. 2 or any person claiming under him or any person under whom he claims, and also free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the plaintiff or defendant No. 1 (whoever has made the payment) quiet and peaceable possession of the said property.

(Similar declarations to be introduced, if defendant No. 1 pays the amount found or declared due to the plaintiff with such variations as may be necessary having regard to the nature of his mortgage.)

4. And it is hereby further ordered and decreed that, in default of payment as aforesaid, of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court that the suit be dismissed or for a final decree—

(i) [468][in the case of a mortgage by conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage-deed is foreclosure and not sale] that the plaintiff and defendant No. 1 jointly and severally shall thenceforth   stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall; if so required, deliver to the defendant No. 2 quiet and peaceable possession of the said property; or

(ii) [469][in the case of any other mortgage] that the mortgaged property or a sufficient part thereof shall be sold; and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and

(iii) [470][in the case where a sale is ordered under clause 4(ii) above] that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to defendant No. 2 under the decree and any further orders that may be passed in this suit and in payment of the amount which the Court may adjudge due to defendant No. 2 in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under rule 10, together with such subsequent interest as may be payable under rule 11, or Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908; and that the balance, if any, shall be applied in payment of the amount due to the plaintiff and that, if any balance be left, it shall be paid to defendant No. 1 or other persons entitled to receive the same; and

(iv) that, if the money realised by such sale shall not be sufficient for payment in full of the amounts due to defendant No. 2 and the plaintiff, defendant No. 2 or the plaintiff or both of them, as the case may be, shall be at liberty (when such remedy is open under the terms of their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amounts remaining due to them respectively.

5. And it is hereby further ordered and decreed,—

(a) that, if the plaintiff pays into Court to the credit of this suit the amount adjudged due to defendant No. 2 but defendant No. 1 makes default in the payment of the said amount, the plaintiff shall be at liberty to apply to the Court to keep defendant No. 2's mortgage alive for his benefit and to apply for a final decree (in the same manner as the defendant No. 2 might have done under clause 4 above)—

[471][(i) that defendant No.1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property]; or

[472][(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgage property;] and

(b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.

6. And it is hereby further ordered and decreed (in the case where a sale is ordered under clause 5 above)—

(i) that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount paid by the plaintiff in respect of defendant No. 2's mortgage and the costs of the suit in connection therewith and in payment of the amount which the Court may adjudge due in respect of subsequent interest on the said amount; and that the balance, if any, shall then be applied in payment of the amount adjudged due to the plaintiff in respect of his own mortgage under this decree and any further orders that may be passed and in payment of the amount which the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant No. 1 or other persons entitled to receive the same; and

(ii) that, if the money realised by such sale shall not be sufficient for payment in full of the amount due in respect of the defendant No. 2's mortgage or the plaintiff's mortgage, defendant No. 2 shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 1 for the amount of the balance.

7. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

Description of the mortgaged property

 No. 11

Preliminary Decree for Sale

 [Plaintiff          Sub or derivative mortgage

 vs.

 Defendant No. 1          Mortgagor,

 Defendant No. 2   Original Mortgagee.]

 

 (Order XXXIV, Rule 4)

 (Title)

 

This suit coming on this. . . . . . . . . day, etc; It is hereby declared that the amount due to defendant No. 2 on his mortgage calculated up to this. . . . . . day of. . . . . . is the sum of Rs. . . for principal, the sum of Rs. . . . . . for interest on the said principal, the sum of Rs. . . . . . for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon and the sum of Rs. . . . . . for the costs of the suit awarded to defendant No. 2, making in all the sum of Rs. . . . . . . . . . . . . . . . . . . . . . . . .

(Similar declarations to be introduced with regard to the amount due from defendant No. 2 to the plaintiff in respect of his mortgage.)

2. And it is hereby ordered and decreed as follows:—

(i) that defendant No. 1 do pay into Court on or before th said. . . .day of. . . . . .  or any later date of up to which time for payment may be extended by the Court the said sum of Rs. . . . . . . . . due to defendant No. 2;

(Similar declarations to be introduced with regard to the amount due to the plaintiff, defendant No. 2 being at liberty to pay such amount.)

(ii) that, on payment of the sum declared due to defendant No. 2 by defendant No. 1 in the manner prescribed in clause 2(i) and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, or Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff and defendant No. 2 shall bring into Court all documents in their possession or power relating to the mortgaged property in the plaint mentioned, and all such documents (except such as relate only to the sub-mortgage) shall be delivered over to defendant No. 1, or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the property to defendant No. 1 free from the said mortgage clear of and from all incumbrances created by defendant No. 2 or any person claiming under him or any person under whom  he claims, and free from all liability arising from the mortgage or this suit and shall, if so required, deliver up to defendant No. 1 quiet and peaceable possession of the said property; and

(iii) that, upon payment into the Court by defendant No. 1 of the amount due to defendant No. 2 the plaintiff shall be at liberty to apply for payment to him of the sum declared due to him together with any subsequent costs of the suit and other costs, charges and expenses, as may be payable under rule 10, together with such subsequent interests as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908; and that the balance, if any, shall then be paid to defendant No. 2; and that if the amount paid into the Court be not sufficient to pay in full the sum due to the plaintiff, the plaintiff shall be at liberty (if such remedy is open to him by the terms of the mortgage and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 2 for the amount of the balance.

3. And it is further ordered and decreed that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, the plaintiff shall bring into the Court all documents, etc, [as in sub-clause (ii) of the clause 2.].

4. And it is hereby further ordered and decreed that, in default of payment by defendant Nos. 1 and 2 as aforesaid, the plaintiff may apply to the Court for a final decree for sale, and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and that for the purposes of such sale the plaintiff and defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in their possession or power relating to the mortgaged property.

5. And it is hereby further ordered that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount due to the plaintiff as specified in clause 1 above with such costs of the suit and other costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any shall be applied in payment of the amount due to defendant No. 2; and that, if any balance be left, it shall be paid to defendant No.1 or other persons entitled to receive the same.

6. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be; sufficient for payment in full of the amounts payable to the plaintiff and defendant No. 2, the plaintiff or defendant No. 2, or both of them, as the case may be, shall be at liberty (if such remedy is open under their respective mortgages and is not barred by any law for the time being in force) to apply for a personal decree against defendant No. 2 or defendant No. 1 (as the case may be) for the amount of the balance.

7. And it is hereby further ordered and decreed that, if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in payment of the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply to the Court for a final decree for foreclosure or sale (as the case may)—(declarations in the ordinary form to be introduced according to the nature of defendant No. 2's morgage and the remedies open to him thereunder).

8. And it is hereby further ordered and decreed that the parties are at liberty to apply to the Court as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.

 Schedule

Description of the mortgaged property

 No. 12

Decree for Rectification of Instrument

 (Title)

It is hereby declared that the. . . . . . , dated the. . . . . . . . . day of. . . . . . . 19. . . . ., does not truly express the intention of the parties to such

And it is decreed that the said. . . . . . rectified by

 No. 13

DECREE TO SET ASIDE A TRANSFER IN FRAUD OF CREDITORS

 (Title)

It is hereby declared that the. . . . . . , . . . . . . . . dated the . . . . . . .day of. . . .19. . . . . ., and made between and. . . . . . is void as against the plaintiff and all other the creditors, if any, of the defendant

 No. 14

Injunction Against Private Nuisance

 (Title)

Let the defendant. . . . . . , his agents, servants and workmen, be perpetually restrained from burning, or causing to be burnt, any bricks on the defendant's plot of land marked B in the annexed plan, so as to occasion a nuisance to the plaintiff as the owner or occupier of the dwelling-house and garden mentioned in the plaint a belonging to and being occupied by the plaintiff.

 No. 15

Injunction against Building Higher than Old Level

 (Title)

Let the defendant. . . ., his contractors, agents and workmen, be perpetually restrained from continuing to erect upon his premises in. . . . . . any house or building of a greater height than the buildings which formerly stood upon his said premises and which have been recently pulled down, so or in such manner as to darken, injure or obstruct such of the plaintiff's windows in his said premises as are ancient lights.

 No. 16

Injunction Restraining Use of Private Road

 (Title)

Let the defendant. . . . . . . . . , his agents, servants and workmen, be perpetually restrained from using or permitting to be used any part of the lane at. . . . . . . . . , the soil of which belongs to the plaintiff, as a carriage-way for the passage of carts, carriages or other vehicles, either going to or from the land marked B in the annexed plan or for any purpose whatsoever.

 No. 17

Preliminary Decree in an Administration-Suit

 (Title)

It is ordered that the following accounts and inquiries be taken and made; that is to say—

In creditor's suit

1. That an account be taken of what is due to the plaintiff and all other the creditors of the deceased.

In suits by legatees

2. That an accounts be taken of the legacies given by the testator's will,

In suits by next-of-kin—

3. That an inquiry be made and account taken of what or of what share, if any, the plaintiff is entitled to as next-of-kin [or one of the next-of-kin] of the intestate.

[After the first paragraph, the decree will, where necessary, order, in a creditor's suit, inquiry and accounts for legatees, heirs-at-law and next-of-kin. In suits by claimants other than creditors, after the first paragraph, in all cases, an order to inquire and take an account of creditors will follow the first paragraph and such of the others as may be necessary will follow, omitting the first formal words. The form is continued as in a creditor's suit.]

4. An account of the funeral and testamentary expenses.

5. An account of the movable property of the deceased come to the hands of the defendant, or to the hands of any other person by his order or for his use.

6. An inquiry what part (if any) of the movable property of the deceased is outstanding and undisposed of.

7. And it is further ordered that the defendant do, on or before the. . . . . . day of. . . . . . next, pay into, Court all sums of money which shall be found to have come to his hands, or to the hands of any person by his order or for his use.

8. And that if the. . . . . . [473]shall find it necessary for carrying out the objects of the suit to sell any part of the movable property of the deceased that the same be sold accordingly, and the proceeds paid into Court.

9. And that Mr. E.F. be receiver in the suit (or proceeding) and receive and get in all outstanding debts and outstanding movable property of the deceased, and pay the same into the hands of the . . . . . . 1(and shall give security by bond for the due performance of his duties to the amount. . . . . . . . . .rupees)

10. And it is further ordered that if the movable property of the deceased be found insufficient for carrying out the objects of the suit, then the following further inquiries be made, and accounts taken, that is to say—

(a) an inquiry what immovable property the deceased was seized of or entitled to at the time of his death;

(b) an inquiry what are the incumbrances (if any) affecting the immovable property of the deceased or any part thereof;

(c) an account, so far as possible, of what is due to the several incumbrancers, and to include a statement of the priorities of