C.P.C. - Section  1 - 158

CPC

SECTION 1 TO 158

 

 

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

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

 PRELIMINARY

 1.  Short title, commencement and extent— (1) This Act may be cited as the Code of Civil Procedure, 1908.

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

[2][(3) It extends to the whole of India except—

(a) the State of Jammu and Kashmir;

(b) the State of Nagaland and the tribal areas :

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole  or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification.

Explanation—In this clause, "tribal areas"  means the territories which, immediately before the 21st day of January, 1972 were included in the tribal  areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution.

(4) In relation to the  Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force  in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code.]

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

(1) "Code" includes rules;

(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed  to include the rejection of a plaint and the determination of any question within [3]* * *  section 144, but shall not include—

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

(b) any order of dismissal for default.

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

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

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

(5) "foreign Court" means a Court situate outside India  and not established or continued by the authority of the Central Government;

(6) "foreign judgment" means the judgment of a foreign Court;

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

(7A) "High Court" in relation to the Andaman and Nicobar  Islands, means the High Court in Calcutta;

(7B) "India", except in sections 1, 29, 43, 44, 44A, 78, 79, 82, 83 and  87A, means the territory of India excluding  the State of Jammu and Kashmir;

(8) "Judge" means the presiding officer of a Civil Court;

(9) "judgment" means  the statement given by the judge of the grounds of a decree or order;

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

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

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

(13) "movable property" includes growing crops;

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

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

(16) "prescribed" means  prescribed by rules :

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

(a) every Judge;

(b) every member of [4][an All-India Service];

(c) every commissioned or gazetted officer in the military, naval or air forces of the Union while serving under the Government.

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

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

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

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

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

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

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

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

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

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

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

 5. Application of the Code of Revenue Courts— (1) Where  any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable  by this Code shall not apply to those Courts, or shall only apply to them  with such modifications as the State Government may prescribe.

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

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

 7. Provincial Small  Cause Courts— The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887)  or under the Berar Small Cause Courts Laws, 1905, or to Courts exercising the jurisdiction of a Court  of Small  Causes under the said Act or Law or to Courts in any part of India  to which the said Act does not extend exercising a corresponding jurisdiction that is to say,—

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

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

(ii) the execution of decrees in such suits;

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

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

section 9,

sections 91 and 92,

sections 94 and 95 so far as they authorize or relate to—

(i) orders for the attachment of immovable property;

(ii) injunctions,

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

(iv) the interlocutory orders referred to in clause (e) of section 94 and

sections 96 to 112  and 115.

[5][77, 157 and 158], and by the Presidency Small Cause Courts Act, 1882, (15 of 1882) the provisions in the body of this Code  shall not extend to any suit or proceedings in any Court of Small Causes established in the towns of Calcutta, Madras  and Bombay :

Provided that —

(1) the High Courts of Judicature at Fort William Madras and Bombay, as the case may be, may from time to time, by notifications in the Official Gazette, direct that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882, (15 of 1882) and  with such modifications and adaptation as may  be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court:

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

STATE AMENDMENTS 

Gujarat— After the words Calcutta, Madras and Bombay the words "and in the City of Ahmedabad" shall be inserted.

[Gujarat Act No. XIX of 1961].

 

 PART I

 SUITS IN GENERAL

 Jurisdiction of the Courts and Res judicata

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

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

[7] [Explanation II]. For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached   to a particular place.].

STATE AMENDMENTS

Maharashtra— After section 9 insert the following section 9A.

 "9A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken such issue to be decided by the court as a preliminary issue:— (1) Notwithstanding anything contained in this code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, on objection to jurisdiction of the court to entertain such suit is taken by any of the parties to the suit the court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting for setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.

 (2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application the court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction".

[Maharashtra Act No. 65 of 1977].

 

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

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

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

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

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

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

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

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

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

[8] [Explanation VII.—The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and  a former proceeding for the execution of that  decree.

Explanation VIII.—An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata  in as subsequent suit, notwithstanding that such Court  of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently  raised.]

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

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

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

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

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

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

(e)  where it has been obtained by fraud;

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

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

 Place of suing

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

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

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

(b) for the partition of immovable property,

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

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

(e) for compensation for wrong to immovable property,

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

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

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

Explanation.— In this section "property" means property situate in India.

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

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

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

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

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

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

 Illustrations

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

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

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

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

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

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

[9] [*   * *]

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

 Illustrations

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.

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

[11][(1)] No objection as to the place of suing shall be allowed by any appellate or Revisional Court  unless such objection was taken in the Court of first  instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.

[12] [2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall  be allowed by any Appellate or Revisional Court unless such  objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection  as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate  or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]

 [13][21A. Bar  on suit to set aside decree on objection as to place of suing— No suit shall lie challenging the validity of a decree passed in  a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.

Explanation.—The expression "former suit" means a suit  which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned].

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

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

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

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

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

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

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

(i) try or dispose of the same; or

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

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

(2) Where   any suit  or proceeding  has been transferred or withdrawn under sub-section (1), the Court which [14][is thereafter to try or dispose of such suit or proceeding] may, subject  to any special directions in the case of any order of transfer, either retry it or proceed from the point at which  it was transferred or withdrawn.

[15] [(3) For the purposes of this section,—

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District  Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order.]

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

[16] [(5) A suit or proceeding may be transferred under this section  from a Court which has no jurisdiction to try it.]

 [17][25. Power of Supreme Court  to transfer suits, etc.— (1) On the application of a party, and after notice to the parties, and after  hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section  is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is  transferred  shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any  application  under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law  applicable  to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.]

 Institution of suits

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

 Summons and Discovery

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

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

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

[18] [(3) Where  the language of the summons sent for service in another State is different  from the language of the record referred to in sub- section (2), a translation of the record,—

(a) in Hindi,  where the language of the Court issuing the summons is Hindi, or

(b)  in Hindi or English where the language of such record is other than Hindi or English,

 shall also be sent together with the record sent under that sub-section].

 29. Service of foreign summonses— Summons and other processes issued by—

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

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

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

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

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

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

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

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

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

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

(a) issue a warrant for his arrest;

(b) attach  and sell his property;

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

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

 Judgment and decree

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

 Interest

 34. Interest— (1) Where  and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such  rate as the Court  deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on  such principal sum for any period prior to the institution of the suit, with further interest  at such rate not exceeding six per cent, per annum as the Court  deems reasonable on such principal  sum from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit :

[19] [Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate  at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

Explanation I.—In this sub-section, "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970 (5 of 1970).

Explanation II.—For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade  or business of the party incurring the liability.]

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

 Costs

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

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

[20][excluding an appeal or a revision] any party objects to the claim of defence on the ground that the claim or defence  or any part of it is, as against the objector, false or vexatious to the knowledge  of the party by whom it has been put forward, and if thereafter, as against the objector, such  claim  or defence is disallowed, abandoned or withdrawn in whole or in part, the Court if it so thinks fit, may, after recording its reasons for holding such claim or defence to be false or vexatious, make  an order for the payment to the object or by the party by whom such claim or defence has been put forward, of  cost by way of compensation.

 (2) No Court  shall make  any such order for the payment of an amount exceeding [21][three thousand rupees] or exceeding the limits of it pecuniary jurisdiction, whichever amount is less:

Provided that  where the pecuniary limits of the jurisdiction of any Court exercising  the jurisdiction of a Court of Small Causes under the Provincial Small Cause  Courts Act, 1887 (9 of 1887) or under a corresponding law in force in any part of India to which the said Act does not extend and not being a Court  constituted under such Act or law, are less than two hundred and fifty rupees, the High Court may empower such Court  to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees :

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

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

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

STATE AMENDMENTS

Uttar Pradesh— (i) For sub-section (1) of section 35A substitute the following.

 "(1) If any suit or other proceedings including proceedings in execution, but not being an appeal or revision, the court finds that the claim or defence or any part thereof is false or vaxatious to the knowledge of the party by whom it has been put forward and if such claim or defence or such part is disallowed, abandoned or withdrawn in whole or in part, the court may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the successful party or costs by way of compensation irrespective of the decisions on other issues in the case".

[U.P. Act No. 24 of 1954].

 (ii) After sub-section (1) insert the following.

 "(1-A) The provisions of sub-section (1) shall mutatis mutandis apply to an appeal where the appellate Court confirms the decision of the trial court and the trial court has not awarded or insufficient, compensatory cost under that sub-section.

 

[U.P. Act No. 57 of 1976].

 

 [22][35B. Costs for causing delay— (1) If, on any date fixed  for the hearing of a suit or for taking any step therein, a party to the suit—

(a) fails  to take the step which he was required by or under this Code to take on that date, or

(b)  obtains an adjournment for taking such step or for producing evidence or on any other ground,

 the Court  may, for  reasons to be recorded, make an order  requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect  of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent  to the further prosecution of—

(a) the suit by the plaintiff, where the plaintiff was ordered to pay  such costs.

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

Explanation.—Where  separate defences have been raised by the defendants or groups of defendants, payment  of such costs shall be a condition precedent to the further prosecution of the defence by such  defendants or groups of defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1) shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid,  a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.]

 PART II

 EXECUTION

 General

 [23][36. Application to orders— The provisions of this Code relating to the execution of decree (including provisions relating to payment  under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including  payment an order).]

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

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

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

[24] [Explanation.—The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of amking the application for execution  of the decree it would have jurisdiction to try the said suit.]

 Courts by which decrees may be executed

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

[25][of competent jurisdiction],—

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

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

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

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

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

[26][(3) For the purposes of this section, a Court shall be  deemed to be a Court of competent jurisdiction if, at the time of making the application  for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.]

STATE AMENDMENTS

Uttar Pradesh— Sub-section (3) of section 39 shall be substituted.

 "(3) For the purpose of this section, a court shall be deemed to be a court of competent jurisdiction if the amount or value of the subject matter of the suit wherein the decree was passed does not exceed the pecuniary limits if any of its ordinary jurisdiction at the time of making the application for the transfer of decree to it, notwithstanding that it had otherwise no jurisdiction to try the suit".

[U.P. Act No. 31 of 1978].

 

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

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

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

[28][(2) Without  prejudice to the generality of the provisions of sub-section (1) the powers of the Court  under that sub-section shall include the following powers of the Court passed the decree, namely:—

(a) power to send the decree for execution to another Court  under section 39;

(b) power to execute the decree against the legal representative of the deceased judgment-debtor under section 50;

(c) power to order attachment of a decree.

(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed  the decree.

(4) Nothing in this section shall be deemed to confer on the Courts to which a decree is sent for execution any of the following powers, namely—

(a) power to order execution at the instance of the transferee of the decree;

(b) in the case of a decree passed against  a firm, power to grant leave to execute such decree against any person other than such a person as is referred to in clause (b),  or clause (c), of sub-rule (1) of rule 50 of Order XXI.]

STATE AMENDMENTS

Uttar Pradesh— Section 42 shall be substituted by following.

 "42. Power of Court in executing transferred decree:— (1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the decree shall be punishable by such court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

 (2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the court under that sub-section shall include the following powers of the court which passed the decree, namely

 (a) power to send the decree for execution to another court under section 39.

 (b) power to execute the decree against the legal representative of the deceased judgment debtor under section 50.

 (c) power to order attachment of a decree.

 (d) power to decide any question relating to the bar of limitation to the executability of the decree.

 (e) power to record payment or adjustment under Rule 2 of order XXI.

 (f) power to order stay of execution under Rule 29 Order XXI,

 (g) in the case of a decree passed against a firm power to grant leave to execute such decree against any person other than a person as is referred to in clause (b) or clause (c) of sub-rule (1) of Rule 50 of Order XXI.

 (3) A court passing an order in exercise of the powers specified in sub-section (2) shall send a copy there of to the court which passed the decree.

 (4) Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution, the power to order execution at the instance of the transfer of a decree"

[U.P. Act No. 14 of 1970].

 

 43. Execution of decrees passed by Civil  Courts in places to which this Code does not extend— Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends.

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

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

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

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

Explanation 1— "Reciprocating territory" means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and "superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification.

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

 45. Execution of decrees outside India— So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be  construed as empowering  a Court in any State to send a decree for execution to any Court established by the authority  of the Central Government outside India to which the State Government  has by notification in the Official Gazette declared this section to apply.

STATE AMENDMENTS

Pondicherry— After section 45 insert the following:—

 "45-A. Execution of decrees etc. passed or made before the Commencement of the Code in Pondicherry—  Any Judgment, decree or order passed or made before the Commencement of this Code by any Civil Court in the Union Territory of Pondicherry shall for the purpose of execution be deemed to have been passed or made under this Code.

 Provided that nothing contained in this section shall be construed as extending the period of limitation to which any proceeding in respect of such judgment decree or order may be subject."

[Act No. 26 of 1968].

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

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

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

 Questions to be determined by Court executing decree

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

[29]*       *      *        *

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

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

Explanation II.—(a) For the purposes of this section, a purchaser of property  at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed  to be questions relating to the execution, discharge  or satisfaction of the decree within the meaning of this section.]

Limit of time for execution

 48. [Execution barred in certain cases].— Rep. by the limitation Act, 1963 (36 of 1963), s. 28 (with effect from the 1st January, 1964)

 Transferees and legal representatives

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

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

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

 Procedure in execution

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

(a) by delivery of any property specifically decreed;

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

(c) by arrest and detention in prison [31][for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section];

(d) by appointing a receiver; or

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

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

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

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

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

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

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

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

STATE AMENDMENTS

Uttar Pradesh— In section 51 of the Code Clause (bb) shall be inserted after clause (b).

 "(bb) by transfer other than sale by attachment or without attachment of any property"

[U.P. Act No. 24 of 1954].

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

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

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

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

 Arrest and detention

 55. Arrest and detention— (1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as  practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the State Government may appoint for the detention of persons ordered by the Courts  of such district to be detained:

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

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

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

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

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

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

(4) Where a judgment-debtor express his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon  the application or upon the decree in execution of which he was arrested, the Court may  release him from  arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree.

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

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

 58. Detention and release— (1) Every person detained in the civil prison in execution of a decree shall be so detained,—

(a) where the decree is for the payment  of a sum of money exceeding [32][one thousand rupees, for a period not exceeding three months, and]

[33] [(b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees, for a period not exceeding six weeks :]

Provided that he shall be released from such detention before the expiration of the [34][said period of detention]—

(i) on the amount  mentioned in the warrant for his detention being  paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application  he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance :

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

[35] [(1A) For the  removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed five hundred rupees.]

(2) A judgment-debtor released from detention under this section shall not merely by reason  of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

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

(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.

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

(a) by the State Government, on the ground of the existence of any infectious or contagious disease, or

(b) by the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any  serious illness.

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

 Attachment

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

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

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

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

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to [37][an agriculturist or a labourer or a domestic servant] and  occupied by him;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the government [38][or of a local authority or of any other employer] or payable out of any service pension fund notified in the Official Gazette by the Central Government or the State government in this behalf, and political pension;

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

(i) salary to the extent  of the first [39][four hundred rupees] and two third of the remainder] in execution of any decree other than a decree for maintenance.

[40] [Provided that where any part of such portion of the salary as is liable to attachment has been under attachment,  whether continuously or intermittently, for a total period of twenty-four  months, such portion sail be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after  the attachment  has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree.]

[41] [(ia) one-third of the salary in execution of any decree for maintenance;]

[42][(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act (62 of 1957), applies;]

(k) all compulsory deposits and other sums in or derived from and fund to which the Provident funds  Act, 1925, (19 of 1925), for the time being applies in so far as they are declared by the said Act not to be liable to attachment;

[43] [(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968 (23 of 1968) for the time being applies in so far as they are declared by the said Act as not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment-debtor;

(kc) the interest of a lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;]

(1) any allowance  forming part of the emoluments of any servant of the Government or of any servant of a railway company or local authority which the appropriate Government  may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant for allowance made to any such servant while under suspension;

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

(n) a right to future maintenance;

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

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

[44] [Explanation I.— The moneys payable in relation to the matters  mentioned in clauses (g), (h), (i), (ia), (j), (1) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable].

Explanation II. [45][In clauses (1) and (ia)], "salary" means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1) derived by a person from his employment whether on duty or on leave].

Explanation [46][III]—In Clause (l), "appropriate Government" means—

(i) as respect any person in the service of the Central Government, or any servant of a Railway Administration or of a cantonment authority or of the port authority of a major port, the Central Government;

(ii) as respects any other [47][servant  of the Government] or a servant of any other local authority skilled the State Government.

[48][Explanation IV.—For the purposes of this proviso, "wages", includes bonus, and labourer" includes a skilled/unskilled or semi-skilled labourer.

Explanation V.—For the purposes of this proviso, the expression "agriculturist" means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer.

Explanation VI.—For the purposes of Explanation V, an  agriculturist shall be deemed to cultivate land personally, if he cultivates land—

(a) by his own labour, or

(b) by the labour of any member of his family, or

(c) by servants or labourers on wages payable in case or in kind (not  being as a share of the produce), or both.]

[49] (1A) Notwithstanding  anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit on any exemption under this section shall be void.]

(2) Nothing in this section shall be deemed to  exempt houses and other buildings (with the materials and the sites  thereof and the land immediately appurtenant thereto and necessary  for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.

STATE AMENDMENTS

Andhra Pradesh— In its application to Andhra area of the State of Andhra Pradesh in section 60(1) clause (g) of the proviso after the words "pensioners of the Government" the words "or a local authority" shall be inserted

[C.P.C. (Andhra Pradesh) (Andhra area) Amendment Act 1950]

 In its application to whole of State of A.P. in proviso to sub-section (1) of section 60.

 (i) after clause (k) the following shall be inserted.

 "(kk) amount payable under policies issued in pursuance of the Rules for the Andhra Pradesh Govt. life Insurance and Provident Fund".

 (ii) after Explanation 2 insert the following:—

 "Explanation 2A.— Where any sum payable to a Government servant is exempt from attachment under the provisions of clause (kk), such sum shall remain exempt from attachment notwithstanding the fact that owing to the death of the Govt. servant it is payable to same other person"

[Act No. XI of 1953 and Act No. X of 1962].

 In its application to Hyderabad area of Andhra Pradesh:

 (i) after clause (g) of the proviso to section 60 (1) insert the following:—

 "(gg) pension granted or continued by the Central Govt. the Govt. of Hyderabad or any other State Govt. on account of part services or present infirmities or as a compassionate allowance and."

 (ii) In Explanation 2A, for the words brackets and letter "Clause (kk)" substitute "Clause (gg) or Clause (kk)"

[A.P. Act No. XVIII of 1953].

 In its application to the State of Andhra Pradesh:

 (i) After clause (kk) of Section 60(1) proviso the following inserted:

 "(kkk) amounts payable under the Andhra Pradesh State Employees Family Benefit Fund Rules."

 (ii) For the words "(kk)', in Explanation 2A, the words "(kkk) inserted.(A.P. Act No. 24 of 1979).

Gujarat— (i) In section 60(1) after clause (g) insert the following.

 "(gg) stipends and gratuities allowed to pensioners of a local authority".

 (ii) Explanation 1, after the word "(g)" insert "(gg)".

[Bombay Act No. LX of 1948).

Himachal Pradesh— (i) In section 60 (1) at the end of Clause (c) insert the following.

 "or compensation paid for such houses and buildings (including compensation for the materials and the sites and the land referred to above) acquired for public purpose".

 (ii) After clause (c), clause (cc) shall be inserted.

 "(cc) Compensation paid for agricultural lands belonging to agriculturists and acquired for public purpose".

[C.P.C. (H.P. Amendment) Act 1956].

Karnataka— In section 60 (1) after clause (p) the following shall be inserted in its application to Karnataka (except Bellary District).

 "(pp) Where the judgment-debtor is a servant of the State Govt. who has insured his life under the rules in force relating to the official branch of Karnataka Govt. Life Insurance Department:—

 (1) in the case of insurance effected prior to the ninth day of may, 1911 the whole of the bonus payable or paid thereunder to such servant, or in the event of his death to his nominee or other person or persons entitled to such bonus under the said rules, and

 (2) in the case of Insurance effected on or after the ninth day of May, 1911, and such insurance is Compulsory premia payable or paid to such servant or in the event of his death to his nominee or other person or persons entitled to such bonus under the said rules.

 

[C.P.C. (Mysore Amendment) Act, 1952].

Kerala— After clause (g) the following clause (gg) shall be inserted:—

 "(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme for the employee of the Government of Kerala.

[Kerala Act 1 of 1988].

Maharashtra— (i) In section 60(1) after clause (g) of the proviso insert the following:—

 "(gg) in the Hyderabad area of the State of Maharashtra any pension granted or continued by the Central Govt. or the Govt. of the former State of Hyderabad or any other State Govt. on account of part services or present infirmities or as a compassionate allowance which is not covered by clause (g)".

 (ii) after clause (kb) insert the following:

 "(kbb) the amounts payable under the policies issued in pursuance of the Rules for the Hyderabad State Life Insurance and Provident Fund, which are not covered under clause (ka) or (kb)".

 

[Maharashtra Act No. LXV of 1977].

Punjab and Haryana— (i) In clause (c) of the proviso to section 60 (1) for the words "occupied by him" substitute the following:—

 "not proved by the decree holder to have been let out on rent or lent to persons other than his father mother, wife, son, daughter, daughter in law, brother, sister or other dependents or left vacant for a period of a year or more".

 (ii) after clause (c) insert the following:—

 "(cc) milch animals, whether in milk or in calf, animals used for the purposes of transport or draught cart and open spaces or endorures belonging to an agriculturist and required for use in case of need for tying cattle parking carts or stacking fodder or manure.

 (ccc) one main residential house and other buildings attached to it (with the material and the sites there of and the land immediately appurtenant there to and necessary for there enjoyment belonging to a judgment-debtor other than an agriculturist and occupied by him:

 Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered".

 (iii) after sub-section (2) insert the following sub-sections.

 "(3) Notwithstanding any other law for the time being in force an agreement by which a debtor agrees to waive any benefit of any exemption under this section shall be void.

 (4) For the purposes of this section the word `agriculturist' shall include every person whether as owner tenant partner or agricultural labour who depends for his livelihood mainly on income from agricultural land as defined in the Punjab Alienation of Land Act. 1910.

 (5) Every member of a tribe notified as agricultural under the Punjab Alienation of Land Act, 1900 and every member of a scheduled caste shall be presumed to be as agriculturist until the contrary is provided.

 (6) No order for attachment shall be made unless the court is satisfied that the property sought to be attached is not exempt from attachment or sale"

 

[Punjab Act No. VII of 1934, 12 of 1940, 6 of 1946 and 44 of 1960].

Rajasthan — (i) In clause (b) of section 60 (1) after the word `Agriculturist' the words `his milch cattle and those likely to calve within two years' shall be inserted.

 (ii) after clause (k) of the proviso to section 60 (1) insert the following.

 "(kk) moneys payable under life Insurance Certificates issued in pursuance of the Rajasthan Govt. Servants Insurance Rules, 1953".

 (iii) after Explanation 3 insert the following:

 "Explanation 4.— Where any money payable to a Govt. servant of the state is exempt from attachment under the provision contained in clause (kk), such money shall remain exempt from the attachment notwithstanding the fact there owing to the death of a Govt. servant it is payable to some other person".

[Rajasthan Act No. 16 of 1957 and 19 of 1958].

Tamil Nadu— "Section 60 (1), clause (g) of the proviso after the words `stipends and gratuties allowed to the pensioners of the Govt. insert the words "or of a local authority"

 

[C.P.C. (Madras Amendment) Act, 1950].

Union Territory of Chandigarh— Same as in Punjab and Haryana

[Act No. 31 of 1966].

Union Territory of Pundicherry— Same as in Tamil Nadu

[Act No. 26 of 1968].

Uttar Pradesh— In section 60(1) after Explanation 1 add the following:

 "Explanation 1-A.— Particulars mentioned in clause (c) are exempt from sale in execution of a decree whether passed before or after the commencement of the Code of Civil Procedure (United Provinces) Amendment Act, 1948 for enforcement of a mortgage of charge thereon".

 

[U.P. Act No. 35 of 1948].

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

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

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

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

 63. Property attached in execution of decrees of several Courts— (1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

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

[50] [Explanation.—For the purposes of sub-section (2), "proceeding taken  by a Court" does  not include an order allowing, to a decree-holder  who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.]

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

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

 Sale

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

[51][*    *]

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

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

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

[52] [(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

Delegation to Collector of power to execute decrees against immovable property

68.—72. Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 7.

 Distribution of assests

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

Provided as follows :—

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

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

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

first, in defraying the expenses of the sale;

secondly, in discharging the amount due under the decree;

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

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

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

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

 Resistance to execution

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

 PART III

 INCIDENTAL PROCEEDINGS

 Commissions

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

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

[53] [(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.]

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

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

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

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

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

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

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

 PART IV

 SUITS IN PARTICULAR CASES

 Suits by or against the Government or public officers in their official capacity.

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

(a) in the case of a suit by or against the Central Government, the Union of India, and

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

[54][(1)][55][Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of—

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

 and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement  that such notice has been so delivered or left.

[56] [(2) A suit  to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit :

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

 (3) No suit instituted against  the Government  or against a public officer in respect  of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—

(a) the name, description and the residence of the  plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person  serving the notice and such notice had been delivered  or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff  had been substantially indicated.]

STATE AMENDMENTS

Madhya Pradesh — (i) After sub-section (3) of Section 80 the following inserted:

 "(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)".

 (ii) In sub-section (1) of section 80 for the words "sub-section (2)" substitute "sub-section (2) or (4)".

 

[M.P. Act No. 29 of 1948].

 

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

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

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

[57](1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done him in his official capacity, a decree  is passed against the Union of India  or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section(2)].

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of [58][such decree].

(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award—

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

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

 Suits by Alliens and by or against  Foreign Rulers, Ambassadors and Envoys

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

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

 84. When foreign State may sue.— A foreign State may sue in any competent Court:

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

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

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

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

[59] foreign State may be sued in any Court otherwise competent to try the suit except with consent of the Central Government certified in writing by a Secretary to that Government :

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid [60][a foreign State] from whom he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which [61][the foreign State] may be sued,  but it shall to  be given, unless it appears to the Central Government that [62][the foreign State].

(a) has instituted a suit in the Court against the person desiring to sue [63][it], or

(b) [64][itself] or another, trades within the local limits of the jurisdiction of the Court, or

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

(d) has expressly or impliedly waived the  privilege accorded to [65][it] by this section.

[66] [(3) Except with the consent of the Central Government, certified in writing by a Secretary to that government, no decree shall be executed against the property of any foreign State.]

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

[67] [(a) any Ruler  of a foreign State;]

[68] [(aa)] any ambassador or Envoy  of a foreign State ;

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

(c) any such member of the staff [69][of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf.

[70][as they apply in relation to a foreign State].

[71][(5) the following persons shall  not be arrested under this Code, namely : —

(a) any ruler of a foreign State;

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

(c) any High Commissioner of a Commonwealth country;

(d) any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as  the Central Government  may, by general or special order, specify in this behalf.

(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1),  the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.]

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

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

 87A. Definitions of "foreign State" and "Ruler" — (1) In this Part,—

(a) "foreign State" means any State outside India which has been recognised by the Central Government; and

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

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

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

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

 Suits against Rulers of former Indian States

 87B. Applications of sections 85 and 86 to Rulers of former Indian States.— (1) In the case of any suit by or against the Ruler of any former Indian State which is based wholly or in part upon a cause of action which arose before the commencement of the Constitution or any proceedings arising out of such suit, the provisions of  section 85 and sub-sections (1) and (3) of section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign State.

(2) In this section—

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

(b) "commencement of the Constitution" means the 26th day of January, 1950; and

(c) "Ruler" in relation to a former Indian State,  has the same meaning  as in article 363 of the Constitution.RInterpleader

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

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

 PART V

 SPECIAL PROCEEDINGS

 Arbitration

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

 Special case

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

 [72][Public nuisances and other wrongful acts affecting the public]

[73][(1) in the case of a public  nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,—

 (a) by the Advocate General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section  shall be  deemed to limit or otherwise affect any right  of suit which may exist independently of its provisions.

[74][leave of the Court] may institute a suit, whether contentious or not, in the principal  Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree—

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has bee removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

(d) directing accounts and inquires;

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

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

(g) settling a scheme; or

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

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B  States, no suit claiming any of the reliefs specified in sub-section (1)  shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.

[75] [(3) The Court  may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income  of such trust or any portion thereof to be applied cy press in one or  more  the following circumstances, namely:—

(a) where the original purposes  of the trust, in whole or in part,—

(i) have been, as far as may be, fulfilled; or

 (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where  there is no such instrument, according to  the spirit of the trust;

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard  being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then  was, but has since ceased to be,   a unit for such purposes; or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective  method of using the property available by virtue of the trust, regard  being had to the spirit of the trust.]

STATE AMENDMENTS

Uttar Pradesh— After clause (b) of sub-section (1) of section 92 insert the following:

 "(bb) for delivery of possession of any trust property against a person who has ceased to be trustee or has been removed".

 

[U.P. Act No. 24 of 1954].

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

 PART VI

 SUPPLEMENTAL PROCEEDINGS

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

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

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

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

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

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

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

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

(b) the suit of the plaintiff  fails and it appears to the Court  that there was no reasonable or probable grounds for instituting the same,

 the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the [76][expense or injury  (including injury to reputation) caused to him];

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

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

 PART VII

  APPEALS

 Appeals from original decrees

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

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

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

[77] [(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.]

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

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

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

Provided that where the Bench hearing the appeal is [78][composed of two or other even number  of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon  that point  only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

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

[79][or non-joinder] of parties or causes of action or any error,  defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

[80][Provided that nothing in this section shall apply to non-joinder of a necessary party.]

 [81][99A. No order under section 47 to be refused or modified unless decision of the case is prejudicially affected—Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error,  defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.}

 Appeals from appellate decrees

 [82][100. Second appeal— (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

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

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law  is involved in any case, it shall formulate that question.

(5) The appeal  shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

 [83][100A. No further appeal in certain cases— Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in  force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order or such single Judge in such appeal or from any decree passed in such appeal.]

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

[84][three thousand rupees].

 [85][103. Power of High Court to determine issues of fact— In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,—

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100.]

 Appeals from orders

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

[Clauses (a) to (f) omitted]

(ff) an order under section 35A;

[86] [(ffa) an order under section 91 or section 92 refusing leave to institute  a suit of the nature referred to in section 91 or section 92, as the case may be;]

(g) an order under section 95;

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

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

Provided that not appeal shall lie  against any order specified in clause (ff) save on the ground   that no order, or an order for the payment  of a less amount, ought to have been made.

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

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

(2) Notwithstanding anything contained  in sub-section (1), where any party aggrieved by an order of remand [87]***** from which an appeal lies  does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

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

 General provisions relating to appeals

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

(a) to determine a case finally;

(b) to remand a case;

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

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

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

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

(a) from appellate decrees, and

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

 Appeals to the Supreme Court

 109. When appeals lie to the Supreme Court— Subject to the provisions  in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies—

(i) that the case involves a substantial question of law of general importance; and

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

 110. [Value of subject matters]  Rep. by the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973).

 111. [Bar of certain appeals]  Rep. by the A.O. 1950.

 111A. [Appeals to Federal Court]  Rep. by the Federal Court Act, 1941 (21 of 1941).

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