THE CODE OF CIVIL PROCEDURE, 1908-15

Fri Mar 20 1908 | Procedural and Administration | Comments (0)

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Year : 1908

(Order XXXIV, rule 4)

(Title)

This suit coming on the ………….…….. day, etc.; It is hereby declared that the amount due to defendant No. 2 on his mortgage calculated up to this ………………… day of..................................................................................................................... is the sum of

Rs. …………..…. for principal, the sum of Rs......................... for interest on the said principal, the sum

of Rs. …………….. for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security together with interest thereon and the sum of Rs.................................................................................................... for the costs of the suit

awarded to defendant No. 2, making in all the sum of Rs. ……………

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

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

(i) that defendant No. 1 do pay into Court on or before the said ………… day of or any

later date of up to which time for payment may be extended by the Court the said sum of Rs. ……….

due to defendant No. 2;

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

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

 

1. Subs. by Act 21 of 1929, s. 8 and Schedule, for Forms 3 to 11.

* Words not required to be deleted.

 

arising from the mortgage or this suit and shall, if so required, deliver up to defendant No. 1 quiet and peaceable possession of the said property; and

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

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

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

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

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

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

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

Schedule

Description of the mortgaged property ]

No. 12

DECREE FOR RECTIFICATION OF INSTRUMENT

(Title)

IT is hereby declared that ……………. , dated the ……………. day of …………… 20............................................................................................................................ , does

not truly express the intention of the parties to such …………………….

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

Here insert name of proper officer.

 

No. 13

Decree to set aside a Transfer in Fraud of Creditors

(Title)

IT is hereby declared that the …………… , dated the …………… day of ………. 20............................................................................................................................ , and

made between …………… and.............. , is void as against the plaintiff and all other the creditors, if any,

of the defendant

No. 14

Injunction against Private Nuisance

(Title)

LET the defendant........................ , his agents, servants and workmen, be perpetually restrained from

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

No. 15

Injuntion against building higher than old level

(Title)

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

No.16

Injunction restraining use of private road

(Title)

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

No. 17

Preliminary decree in an administration-suit

(Title)

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

In creditor’s suit

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

In suits by legatees

2. That an accounts be taken of the legacies given by the testators will , In suits by next-of-kin

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

[After the first paragraph, the decree will, where necessary, order, in a creditor’s suit, inquiry and accounts for legatees, heirs-at-law and next-of-kin. In suits by claimants other than creditors, after the

 

first paragraph, in all cases, an order to inquire and take an account of creditors will follow the first paragraph and such of the others as may be necessary will follow, omitting the first formal words. The form is continued as in a creditor's suit.]

4. An account of the funeral and testamentary expenses.

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

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

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

8. And that if the.................. * shall find it necessary for carrying out the objects of the suit to sell

any part of the movable property of the deceased that the same be sold accordingly, and the proceeds paid into Court.

9. And that Mr. E. F. be receiver in the suit (or proceeding) and receive and get in all outstanding debts and outstanding movable property of the deceased, and pay the same into the hands of the ………..

*(and shall give security by bond for the due performance of his duties to the amount of....................................................................................................................... rupees).

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

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

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

(c) an account, so far as possible, of what is due to the several incumbrancers, and to include a statement of the priorities of such of the incumbrancers as shall consent to the sale hereinafter directed.

11. And that the immovable property of the deceased, or so much thereof as shall be necessary to make up the fund in Court sufficient to carry out the object of the suit, be sold with the approbation of the Judge, free from incumbrances (if any) of such incumbrancers as shall consent to the sale and subject to the incumbrances of such of them as shall not consent.

12. And it is ordered that G. H. shall have the conduct of the sale of the immovable property, and shall prepare the conditions and contracts of sale subject to the approval of the * and that in

case any doubt or difficulty shall arise the papers shall be submitted to the Judge to settle.

13. And it is further ordered that, for the purpose of the inquiries hereinbefore directed, the ……….

*shall advertise in the newspapers according to the practice of the Court, or shall make such inquiries in any other way which shall appear to the *to give the most useful publicity to such inquiries.

14. And it is ordered that the above inquiries and accounts be made and taken, and that all other acts ordered to be done be completed, before the day of ……………. and that the * do certify

the result of the injuries, and the accounts, and that all other acts ordered are completed, and have his certificate in that behalf ready for the inspection of the parties on the ……………. day of …………..

* Here insert name of proper officer.

 

15. And, lastly, it is ordered that this suit [or proceedings] stand adjourned for making final decree to the day of …………………….

[Such part only of this decree is to be used as is applicable to the particular case.]

No. 18

Final Decree In An Administration-suit By a Legatee

(Title)

1. It is ordered that the defendant ………….. do, on or before the ………….. day of pay

into Court the sum of Rs................... , the balance by the said certificate found to be due from the said

defendant on account of the estate of …………….. , the testator and also the sum of Rs................................................................................................................................ for

interest, at the rate of Rs. ……………. per cent. per annum, from the …………….. day of................................................................................................................................ to

the …………. day of …………, amounting together to the sum of Rs. ………………..

2. Let the......................... * of the said Court tax the costs of the plaintiff and defendant in this suit,

and let the amount of the said costs, when so taxed, be paid out of the said sum of Rs. …………….

ordered to be paid into Court as aforesaid, as follows:—

(a) The costs of the plaintiff to Mr........................ , his attorney [or pleader] or and the costs of

the defendant to Mr........................ , his attorney [or pleader].

(b) And (if any debts are due) with the residue of the said sum of Rs. after payment

of the plaintiff’s and defendant's costs as aforesaid let the sums, found to be owing to the several creditors mentioned in the schedule to the certificate, of the.................................................................................. *, together with subsequent

interest on such of the debts as bear interest, be paid; and, after making such payments, let the amount coming to the several legatees mentioned in the................................................................................................. schedule, together with subsequent

interest (to be verified as aforesaid), be paid to them.

3. And if there should then be any residue, let the same be paid to the residuary legatee.

No. 19

Preliminary decree in an Administration-suit by a legatee, where an executor is held personally liable for the payment of legacies

(Title)

1. IT is declared that the defendant is personally liable to pay the legacy of Rs. bequeathed

to the plaintiff. —

2. And it is ordered that an account be taken of what is due for principal and interest on the said legacy.

3. And it is also ordered that the defendant do, within …………….. weeks after the date of the certificate of the ……..…… *, pay to the plaintiff the amount of what the * shall certify

to be due for principal and interest.

4. And it is ordered that the defendant do pay the plaintiff his costs of suit, the same to be taxed in case the parties differ.

* Here insert name of proper officer.

 

No. 20

Final decree in an Administration-suit by next-of-kin

(Title)

1. LET the..................... * of the said Court tax the costs of the “plaintiff and defendant in this suit,

and let the amount of the said plaintiff’s costs, when so taxed, be paid by the defendant to the plaintiff out of the sum of Rs. ……………. , the balance, by the said certificate found to be due from the said defendant on account of the personal estate of E.F., the intestate, within one week after the taxation of the said costs by the said............................................. *and let the defendant retain for her own use out of such sum her

costs, when taxed.

2. And it is ordered that the residue of the said sum of Rs. ………………… after payment of the plaintiff’s and defendant’s costs as aforesaid, be paid and applied by defendant as follows:—

(a) Let the defendant, within one week after the taxation of the said costs by the * as

aforesaid, pay one-third share of the said residue to the plaintiffs A.B., and C.D., his wife, in her right as the sister and one of the next-of-kin of the said E.F., the intestate.

(b) Let the defendant retain for her own use one other third share of said residue, as the mother and one of the next-of-kin of the said E.F., the intestate.

(c) And let the defendant, within one week after the taxation of the said costs by the *…………..

as aforesaid, pay the remaining one-third share of the said residue to G. H., as the brother and the other next- of-kin of the said E.F. the intestate.

No. 21

Preliminary decree in a suit for dissolution of partnership and the taking of partnership accounts

(Title)

IT is declared that the proportionate shares of the parties in the partnership are as follows:—

It is declared that this partnership shall stand dissolved [or shall be deemed to have been dissolved] as from the ………….. day of and it is ordered that the dissolution thereof as from that day be

advertised in the........................... Gazette, etc.

And it is ordered that....................... be the receiver of the partnership-estate and effects in this suit

and do get in all the outstanding book-debts and claims of the partnership.

And it is ordered that the following accounts be taken:—

1. An account of the credits, property and effects now belonging to the said partnership;

2. An account of the debts and liabilities of the said partnership;

3. An account of all dealings and transactions between the plaintiff and defendant, from the foot of the settled account exhibited in this suit and marked (A), and not disturbing any subsequent settled accounts.

And it is ordered that the goodwill of the business heretofore carried on by the plaintiff and defendant as in the plaint mentioned; and the stock-in-trade, be sold on the premises, and that the............................................................................................................... *may,

on the application of any of the parties, fix a reserved bidding for all or any of the lots at such sale, and that either of the parties is to be at liberty to bid at the sale.

And it is ordered that the above accounts be taken, and all the other acts required to be done be completed, before the ……….. day of ……… , and that the * ……….. do certify the result of the accounts, and that all other acts are completed, and have his certificate in that behalf ready for the inspection of the parties on the day of............................................................. And, lastly, it is ordered that this suit stand adjourned for

making a final decree to the ………. day of …………

 

* Here insert name of proper officer.

 

No. 22

Final decree in a suit for dissolution of partnership and the taking of partnership account

(Title)

IT is ordered that the fund now in Court, amounting to the sum of Rs............................................................................................................................. , be applied as

follows:—

1. In payment of the debts due by the partnership set forth in the certificate of the * ………...…..

amounting the whole to Rs. ……………

2. In payment of the costs of all parties in this suit, amounting to Rs. [These

costs must be ascertained before the decree is drawn up .]

3. In payment of the sum of Rs..................... to the plaintiff as his share of the partnership-assets,

of the sum of Rs. …………….. , being the residue of the said sum of Rs........................................................................................................................ now in Court, to

the defendant as his share of the partnership-assets.

[Or, And that the remainder of the said sum of Rs..................... be paid to the said plaintiff (or

defendant) in part payment of the sum of Rs......................... certified to be due to him in respect of

the partnership-accounts.]

4. And that the defendant [or plaintiff] do on or before the ………… day of pay to the

plaintiff [or defendant] the sum of Rs. ………… being the balance of the said sum of Rs ………….

due to him, which will then remain due.

No. 23

Decree for Recovery of Land and Mesne Profit

(Title)

IT is hereby decreed as follows:—

1. That the defendant do put the plaintiff in possession of the property specified in the schedule hereunto annexed.

2. That the defendant do pay to the plaintiff the sum of Rs.................. with interest thereon at the

rate of................. per cent. per annum to the date of realization on account of mesne profits which

have accrued due prior to the institution of the suit.

Or

2. That an inquiry be made as to the account of mesne profits which have accrued due prior to the institution of the suit.

3. That an inquiry be made as to the amount mesne profits from the institution of the suit until [the delivery of possession to the decree-holder] [the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court] [the expiration of three years from the date of the decree].

Schedule

 

* Here insert name of proper officer.

 

Appendix E Execution No. 1

Notice to show cause why a payment or adjustment should not be recorded as certified

(O.21, to r.2.)

(Title)

WHEREAS in execution of the decree in the above-named suit..................... has applied to this Court

that the Sum of Rs. …………….. recoverable under the decree has been paid/adjusted and should be recorded as certified, this is to give you notice that you are to appear before this Court on the …………

day of ………………. 19........................ , to show cause why the payment/adjustment aforesaid should

not be recorded as certified.

GIVEN under my hand and the seal of the Court, this ……………….. day of 20.

Judge .

No. 2

PRECEPT (Section 46) (Title)

Upon hearing the decree-holder it is ordered that this precept be sent to the Court of.......................................................................................................................... at

………………… under section 46 of the Code of Civil Procedure, 1908, with directions to attach the property specified in the annexed schedule and to hold the same pending any application which may be made by the decree-holder for execution of the decree.

Schedule

Dated the ………………….. day of.................... 20

Judge .

No. 3

ORDER SENDING DECREE FOR EXECUTION TO ANOTHER COURT

(O.21, r. 6.)

(Title)

WHEREAS the decree-holder in the above suit has applied to this Court for a certificate to be sent to the Court of ………………… at for execution of the decree in the above suit by the

said Court, alleging that the judgment-debtor resides or has property within the local limits, for the jurisdiction of the said Court, and it is deemed necessary and proper to send a certificate to the said Court under Order XXI, rule 6, of the Code of Civil Procedure, 1908, it is.

Ordered :

That a copy of this order be sent to...................... with a copy of the decree and of any order which

may have been made for execution of the same and a certificate of non-satisfaction. Dated the ……………… day of ……………… 20 ………….

Judge .

No. 4

Certificate of non-satisfaction of decree

(O.21, r. 6.)

(Title)

CERTIFIED that no1 satisfaction of the decree of this Court in suit No ……………. of ........20............................................................................................................................ ,

a copy which is hereunto attached, has been obtained by execution within the jurisdiction of this Court.

Dated the ……………..day of ……………… 20 …………..

Judge .

 

1. If partial, strike out “no” and State to what extent.

 

No. 5

Certificate of Execution of Decree Transferred to another Court ( O. 21, r. 6.)

(Title)

Number of suit and the Court by which the decree was passed

Names of parties

Date of application for execution

Number of the execution case

Processes issued and dates of service thereof

Costs of execution

Amount realized

How the case is disposed of

Remarks

1

2

3

4

5

6

7

8

9

         

Rs.

N.P.

Rs.

N.P.

   
                     

Signature of Muharrir in charge.

Signature of Judge

 

 

In the Court of

 

No. 6

ApplicationforExecutionofDecree

(O.21, r.11.)

 

I,....................... decree-holder, hereby apply for execution of the decree herein-below set forth:—

No. of Suit

Names of parties

Date of Decree

Whether any appeal preferred from decree

Payment of adjustment made if any

Previous application, if any, with date and result

Amount with interest due upon the decree or other relief granted thereby together with particulars of any cross decree.

Amount of costs, if any, awarded

Against whom to be executed

Mode in which the assistance of the Court is required.

1

2

3

4

5

6

7

8

9

10

789 of 1897

A.B. —Plaintiff

C.D. —Defendant

October 11, 1897

No.

None

R.s 72-4-0 recorded on application, dated the 4th March,

1899

Rs. 314-8-2 principal [interest at 6 per cent, per annum, from

date of decree till payment].

Rs. a. p

As awarded in the decree 47 10 4

Subsequently incurred 8 2 0

Total 55 12 4

Against the defendant C.D.

[When attachment and sale of movable

property is sought .

I, Pray that the total amount of Rs. [together with interest on the principal sum up to date of payment] and the cost of taking out this execution, be realised by attachment and sale of defendant’s movable property as per annexed list and paid to me.

[When attachment and sale of immovable

property is sought .]

I Pray that the total amount of Rs. [together with interest on the principal sum up to date of payment] and the cost of taking out this execution, be realised by the attachment and sale of

defendant’s immovable property specified at the foot of this application

and paid to me.]

 

I........................... declare that what is stated herein is true to the best of my knowledge and belief.

Signed , decree-holder .

Dated the ………………….. day of..................... 20

[When attachment and sale of immovable property is sought.] Description and specification of property

The undivided one-third share of the judgment-debtor in a house situated in the village of ………….

value Rs. 40, and bounded as follows:—

East by G’s house; west by H’s house; south by public road; north by private lane and J’s house.

I ……………….. declare that what is stated in the above description is true to the best of my knowledge and belief, and so far as I have been able to ascertain the interest of the defendant in the property therein specified.

Signed........................ , decree -holder.

No. 7

Notice to show cause why execution should not issue

1 [(O. 21, r.16.)]

(Title)

To

WHEREAS ………………… has made application to this Court for execution of decree in Suit No. ……………… of 20 , on the allegation that the said decree has been transferred to him by

assignment 2[or without assignment], this is to give you notice that you are to appear before this Court

……………. on the ………….. day of …………………. 20………………. , to show cause why execution should not be granted.

GIVEN under my hand and the seal of the Court, this.............day of..............20.........

 

No. 8

Warrant of attachment of movable property in execution of a decree

FOR MONEY (O.21. r. 30.)

(Title)

To

 

Judge .

 

The Bailiff of the Court

Decree

     

Principal Interest Costs

Cost of execution Further interest

Total

     
     
 

WHEREAS ………..… was ordered by decree of this Court passed on the day of …………….… 20......................................................... in Suit

No. ……………. of............20................ , to pay to the plaintiff

the sum of Rs. ……………… as noted in the margin; and whereas the said sum of Rs. ………….. has not been paid; These are to command you to attach the movable property of the said as set forth in the schedule hereunto annexed,

or which shall be pointed out to you by the said.................... ,

and unless the said.................. shall pay to you the said sum of

Rs. ……………… together with Rs...................... , the cost of

this attachment, to hold the same until further orders from this Court.

 

1. Subs. by Act 10 of 1914, s. 2 and the First Sch., for “(O. 21, r. 22). 2. Ins. by Act 104 of 1976, s. 95 (w.e.f. 1-2-1977).

 

You are further commanded to return this warrant on or before the……………day of..................................................................................................................... 20….

with an endorsement certifying the day on which and manner in which it has been executed, or why it has not been executed.

GIVEN under my hand and the seal of the Court, this…………day of………..20.......

Schedule

Judge.

No. 9

Warrant for seizure of specific movable property adjudged by decree

(O. 21, r. 31.)

(Title)

To

The Bailiff of the Court,

WHEREAS………………….was ordered by decree of this Court passed on the........................................................................................................................ day

of……......20…………, in Suit No…………of 20..... , to deliver to the plaintiff the movable property (or

a…....... share in the movable property) specified in the schedule hereunto annexed, and whereas the said

property (or share) has not been delivered.

These are to command you to seize the said movable property ( or a........... share of the said movable

property) and to deliver it to the plaintiff or to such person as he may appoint in his behalf.

GIVEN under my hand and the seal of the Court, this………..day of………………20............

Schedule

Judge.

No. 10

Notice to state objections to draft of document

(O. 21, r. 34.)

(Title)

To

TAKE notice that on the……..day of………20…….,..................................... the decree-holder in the

above suit presented an application to this Court that the Court may execute on your behalf a deed of…… whereof a draft is hereunto annexed, of the immovable property specified hereunder, and that the……..day of……………..20……, is appointed for the hearing of the said application, and that you are at liberty

to appear on the said day and to state in writing any objections to the said draft.

Description of property

GIVEN under my hand and the seal of the Court, this…………day of .............20...........

Judge.

 

No. 11

Warrant to the bailiff to give possession of land, etc.

(O.21, r. 35.)

( T i t l e )

To

The Bailiff of the Court.

WHEREAS the undermentioned property in the occupancy of................................ has been decreed to

 

…………, the plaintiff in this suit; you are hereby directed to put the said................................................................................................................................ in possession of

the same, and you are hereby authorized to remove any person bound by the decree who may refuse to vacate the same.

 

GIVEN under my hand and the seal of the Court, this ...................................... day of ...................... 20...........

Schedule

 

No. 12

Notice to show cause why warrant of arrest should not Issue

(O. 21, r. 37.)

(Title)

To

WHEREAS................................................................ has made application to this Court for execution of decree in Suit No.

....................................of 20........................... by arrest and imprisonment of your person, you are hereby required to

appear before this Court on the ................................... day of ...................... 20............................. , to show cause why

you should not be committed to the civil prison in execution of the said decree.

GIVEN under my hand and the seal of the Court, this ................................day of ...............................20........

Judge.

 

 

 

 

To

The Bailiff of the Court.

 

No. 13

Warrant of arrest in execution

(O. 21, r. 38.)

(Title)

 

WHEREAS …. ...........was adjudged by a decree of this Court in suit No .................. of..................... 20............................................................................................................................................................ , dated

Decree

 

Principal

       

Interest

 

Costs

 

Execution

Total

 
       
the………….day of……………20............... ,to pay to the decree-

holder the sum of Rs….......... as noted in the margin, and whereas

the said sum of Rs…............. has not been paid to the said decree-

holder in satisfaction of the said decree, these are to command you to arrest the said judgement-debtor and unless the said judgment-debtor shall pay to you the said sum of Rs…… together with Rs…........................... for the cost of executing this process,

to bring the said defendant before the Court with all convenient speed.

You are further commanded to return this warrant on or before the………………day of………………..20....................................................... ,with an

endorsement certifying the day on which and manner in which it has been executed, or the reason why it has not been executed.

Given under my hand and the seal of the Court, this................................. day of ............................... 20……………

Judge.

No. 14

Warrant of committal of judgement-debtor to jail

(O.21, r. 30.)

(Title)

To

The Officer in charge of the Jail at

WHEREAS……………………………………... who has been brought before this Court this....................................................................................................................................................... day

 

of……………….20............... , under a warrant in execution of a decree which was made and pronounced by the said

Court on the................................... day of .................................20...................... , and by which decree it was ordered that the

said…………………….. should pay...............................; And whereas the said............................................................................................................................................................... has not obeyed

the decree nor satisfied the Court that he is entitled to be discharged from custody; You are hereby 1*** commanded and required to take and receive the said................................................................................................... into the civil prison and keep him

imprisoned therein for a period not exceeding..................... or until the said decree shall be fully satisfied,

or the said…...................... shall be otherwise entitled to be released according to terms and provisions of

section 58 of the Code of Civil Procedure, 1908; and the Court does hereby fix 2*** per diem as the rate of the monthly allowance for the subsistence of the said………..during his confinement under this warrant of committal.

GIVEN under my signature and the seal of the Court, this…………day of……………20……..

Judge.

No. 15

ORDER FOR THE RELEASE OF A PERSON IMPRISONED IN EXECUTION OF A DECREE

(Sections 58, 59) (Title)

To

The Officer in charge of the Jail at

UNDER orders passed this day, you are hereby directed to set free.............................................................................................................. judgment-debtor

now in your custody. Dated

Judge.

No. 16

Attachment in execution

Prohibitory order, where the property to be attached consists of movable property to which the

DEFENDANT IS ENTITLED SUBJECT TO A LIEN OR RIGHT OF SOME OTHER PERSON TO THE IMMEDIATE POSSESSION THEREOF

(O. 21, r. 46.)

(Title)

To

WHEREAS………………………………………………………...has failed to satisfy a decree passed

against……………on the………………...day of…………………….20……….., in Suit No.……of......

20…, in favour of………….for Rs…....................... ;

It is ordered that the defendant be, and is hereby, prohibited and restrained until the further order of this Court, from receiving from……………the following property in the possession of the said,

...............that is to say,….................................. to which the defendant is entitled, subject to any claim of

the said……………, and the said………is hereby prohibited and restrained, until the further order of this Court, from delivering the said property to any person or persons whomsoever.

GIVEN under my hand and the seal of Court, this………………….day of………….20……………….

Judge.

 

1. The words “in the name of the King-Emperor of India,” omitted by the A. O. 1950.

2. The word “annas” omitted by Act 104 of 1976, s. 95 (w.e.f. 1-2-1977).

 

In the Court of

 

1 [No. 16A

AFFIDAVIT OF ASSETS TO BE MADE BY A JUDGMENT-DEBTOR ORDER XXI, RULE 41( 2)]

 

A.B………………………….. Decree-holder

Vs.

C…………………………… Judgment-debtor

I of

 

state on oath

solemn affirmation

 

as follows:—

 

1. My full name is …………………………………

(Block capitals)

2. I live at

*3. I am......................... married

single

widower (widow) divorced

4. The following persons are dependent upon me:—

5. My employment, trade or profession is that of....................

carried on by me at ....................

I am a director of the following companies:—

6. My present annual/monthly/weekly income, after paying income-tax, is as follows:—

(a) From my employment, trade or profession Rs. ....................

(b) From other sources Rs. ....................

*7. (a) I own the house in which I live; its value is Rs. ....................

I pay as outgoings by way of rates, mortgage, interest, etc., the annual sum of Rs. ....................

(b) I pay as rent the annual sum of Rs. ....................

8. I possess the following:—

(a) Banking accounts;

(b) Stocks and shares;

(c) Life and endowment policies;

(d) House property; Give particulars

(e) Other property;

(f) Other securities;

9. The following debts are due to me:— (give particulars)

(a) From of

Rs.

(b) From of

Rs. (etc.)

Sworn before me, etc.]

1. Ins. by Act 104 of 1976, s. 95 (w.e.f. 1-2-1977).

*Strike off the words which are not applicable.

 

No. 17

Attachment in execution

Prohibitory order where the property consists of debts not secured by negotiable instruments

(O. 21, r. 46.)

(Title)

To

WHEREAS………………………...has failed to satisfy a decree passed against......................................................................................................................... on

the…………….day of………20……….., in Suit No……….of 20…………., in favour of……for Rs… ; it is ordered that the defendant be, and is hereby, prohibited and restrained, until the further

order of this Court, from receiving from you a certain debt alleged now to be due from you to the said defendant, namely,………… and that you, the said……………...be, and you are hereby, prohibited and restrained, until the further order of this Court, from making payment of the said debt, or any part thereof, to any person whomsoever or otherwise than into this Court.

Given under my hand and the seal of the Court, this…………..day of……….20…………

Judge.

No. 18

Attachment in execution prohibitory order, where the property consists of shares in the capital of a corporation

(O. 21, r. 46.)

(Title)

To

Defendant and to…......................... , Secretary of Corporation.

WHEREAS………..has failed to satisfy a decree passed against………………..on the…........................................................................................................................ day

of………20……, in Suit No……………of 20…….., in favour of……………….., for Rs….................................................................................................................................. ;

it is ordered that you, the defendant, be, and you are hereby, prohibited and restrained, until the further order of this Court, from making and transfer of……………...shares in the aforesaid corporation, namely,………. or from receiving payment of any dividends thereon; and you,… ,the Secretary of the

said Corporation, are hereby prohibited and restrained from permitting any such transfer or making any such payment.

GIVEN under my hand and the seal of the Court, this…………day of…………20……..

Judge.

No. 19

Order to attach salary of public officer or servant of railway company or local authority

(O. 21, r. 48.)

(Title)

To

WHEREAS……………………, judgment-debtor in the above-named case; is a ( describe office of judgment-debtor) receiving his salary (or allowances) at your hands; and whereas....................................................................................................................... , decree-

holder in the said case, has applied in this Court for the attachment of the salary (or allowances )

of the said................. to the extent of.............. due to him under the decree; You are hereby required to

 

withhold the said sum of………..from the salary of the said…..... in monthly instalments of……and to

remit the said sum (or monthly instalments) to this Court.

GIVEN under my hand and the seal of the Court, this……….day of…………20..............

Ju d g e .

No. 20

ORDER OF ATTACHMENT OF NEGOTIABLE INSTRUMENT

(O. 21, r. 51.)

(Title)

To

The Bailiff of the Court,

WHEREAS an order has been passed by this Court on the……………..day of……….20…............................................................................................................................ , for

the attachment of…………; You are hereby directed to seize the said.............................................................................................................................. and bring the same

into Court.

GIVEN under my hand and the seal of the Court, this………….day of……………20……….

Judge.

No. 21

Attachment

Prohibitory order, where the property consists of money or of any security in the custody of a Court of Justice or 1[Public Officer]

(O. 21, r. 52.)

(Title)

To

Sir,

The plaintiff having applied, under rule 52 of Order XXI of the Code of Civil Procedure, 1908, for an

attachment of certain money now in yours hands (here state how the money is supposed to be in the hands of the person addressed, on what account, etc.), I request that you will hold the said money subject to the further order of this Court.

I have the honour to be,

Sir

Your most obedient Servant.

Dated the……….day of………20……… Judge.

No. 22

Notice of attachment of a decree to the court which passed it

(O. 21, r. 53.)

(Title)

To

The Judge of the Court of................

1. Subs. by the A. O. 1937, for “Officer of Government”.

 

Sir,

I have the honour to inform you that the decree obtained in your Court on the........................................................................................................................ day

of…........……….20………..by…………….in Suit No…………of 20.....................in which he was……….………and ………….was…………has been attached by this Court on the application of……………………., the……….in the suit specified above. You are therefore requested to stay the execution of the decree of your Court until you receive an intimation from this Court that the present notice has been cancelled or until execution of the said decree is applied for by the holder of the decree now sought to be executed or by his judgment-debtor.

 

Dated the……………….day of…….20………..

 

I have the honour, etc.

Judge.

 

 

No. 23

Notice of attachment of a decree to the holder of the decree

(O. 21, r. 53.)

(Title)

To

WHEREAS an application has been made in this Court by the decree-holder in the above suit for the attachment of a decree obtained by you on the………....................day of……......20........................................................................................................................ , in

the Court of……………….in Suit No…….of 20.........., in which………….was………….and….............................................................................................................................. was

……………………; It is ordered that you, the said………..., be, and you are hereby, prohibited and restrained, until the further order of this Court, from transferring or charging the same in any way.

GIVEN under my hand and the seal of the Court, this……….day of………….20………….

Judge.

No. 24

Attachment in execution

Prohibitory order, where the property consists of immovable property

(O. 21, r. 54.)

(Title)

To

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant

WHEREAS you have failed to satisfy a decree passed against you on the….......................................................................................................................... day

of…………..20……….., in Suit No……….of………20.............. , in favour of............................................................................................................................... for

Rs…………; It is ordered that you, the said................ , be, and you are hereby, prohibited and restrained,

until the further order of this Court, from transferring or charging the property specified in the Schedule hereunto annexed, by sale, gift or otherwise, and that all persons be, and that they are hereby, prohibited from receiving the same by purchase, or gift otherwise.

1 [It is also ordered that you should attend Court on the….......................................................................................................................... day

of …………..20………, to take notice of the date fixed for settling the terms of the proclamation of sale.]

GIVEN under my hand and seal of the Court, this…………day of………20………….

Schedule

Judge.

 

 

1. Ins. by Act 104 of 1976, s. 95 (w.e.f. 1-2-1977).

 

No. 25

ORDER FOR PAYMENT TO THE PLAINTIFF, ETC., OF MONEY, ETC., IN THE HANDS OF A THIRD PARTY

(O.21, r. 56.)

(Title)

To

WHEREAS the following property................................. has been attached in execution of a decree in

Suit No……………….of 20………, passed on the……………day of 20......... , in favour of............................................................................................................................... for

Rs........................………………….It is ordered that the property so..................................................................... attached, consisting of Rs…………….in money and Rs..................... in currency-notes, or a sufficient part thereof to satisfy the

said decree, shall be paid over by you, the said…………..to………….

GIVEN under my hand and the seal of the Court, this……………………day of………20..........

Judge.

No. 26

Notice to attaching creditor

(O. 21, r. 58.)

(Title)

To

WHEREAS................................................. has made application to this Court for the removal of attachment

on………….placed at your instance in execution of the decree in Suit No………………of………20.........

this is to give you notice to appear before this Court on………….., the………….day of……..20.................................................................................................................................. ,

either in person or by a pleader of the Court duly instructed to support your claim, as attaching creditor.

GIVEN under my hand and the seal of the Court, this………..day of……….20...........

Judge.

No. 27

Warrant of sale of property in execution of a decree for money

(O. 21, r. 66.)

(Title)

To

The Bailiff of the Court.

THESE are to command you to sell by auction, after giving.............. day's previous notice, by affixing

the same in this Court-house, and after making due proclamation, the................ property attached under a

warrant from this Court, dated the…………day of 20................ , in execution of a decree in favour of……………in Suit No………….of 20 , or so much of the said property as shall realize the sum

of Rs…………………..., being the..................... of the said decree and costs still remaining unsatisfied.

You are further commanded to return this warrant on or before the………….day of.......................................................................................................................... 20

with an endorsement certifying the manner in which it has been executed, or the reason why it has not been executed.

GIVEN under my hand and the seal of the Court, this………..day of………20...........

Judge.

 

No. 28

NOTICE OF THE DAY FIXED FOR SETTLING A SALE PROCLAMATION (O. 21, r. 66.)

(Title)

To

......................................................................................................... Judgment-debtor.

WHEREAS in the above-named suit.................................. , the decree-holder, has applied for the sale

of……………… You are hereby informed……………………that the…………..day of………… 20 , has been fixed for settling the terms of the proclamation of sale.

GIVEN under my hand and the seal of the Court, this…………… day of…………20………

Judge.

 

No. 29

Proclamation of sale

(O. 21, r. 66)

(Title)

(1) Suit No………………….of 20……….., decided by the………..of………in which was plaintiff and was defendant.—Notice is hereby given that, under rule 64 of Order XXI of the Code of Civil Procedure, 1908, an order has been passed by this Court for the sale of the attached property mentioned in the annexed schedule, in satisfaction of the claim of the decree-holder in the suit (1) mentioned in the margin, amounting with costs and interest up-to date of sale to the sum of………………………….

The sale will be by public auction, and the property will be put up for sale in the lots specified in the schedule. The sale will be of the property of the judgment-debtors above-named as mentioned in the schedule below; and the liabilities and claims attaching to the said property, so far as they have been ascertained, are those specified in the schedule against each lot.

In the absence of any order of postponement, the sale will be held by.................... at the monthly sale

commencing at........... O’clock on the……………at…………...., In the event, however, of the debt above specified and of the costs of the sale being tendered or paid before the knocking down of any lot, the sale will be stopped.

At the sale the public generally are invited to bid, either personally or by duly authorized agent. No bid by, or on behalf of, the judgment-creditors above-mentioned, however, will be accepted, nor will any sale to them be valid without the express permission of the Court previously given. The following are the further.

Conditions of sale

1. The particulars specified in the schedule below have been stated to the best of the information of the Court, but the Court will not be answerable for any error, mis-statement or omission in this proclamation.

2. The amount by which the biddings are to be increased shall be determined by the officer conducting the sale. In the event of any dispute arising as to the amount bid, or as to the bidder, the lot shall at once be again put up to auction.

3. The highest bidder shall be declared to be the purchaser of any lot, provided always that he is legally qualified to bid, and provided that it shall be in the discretion of the Court or officer holding the sale to decline acceptance of the highest bid when the price offered appears so clearly inadequate as to make it advisable to do so.

4. For reasons recorded, it shall be in the discretion of the officer conducting the sale to adjourn it subject always to the provisions of rule 69 of Order XXI.

 

5. In the case of movable property, the price of each lot shall be paid at the time of sale or as soon after as the officer holding the sale directs, and in default of payment the property shall forthwith be again put up and re-sold.

6. In the case of immovable property, the person declared to be the purchaser shall pay immediately after such declaration a deposit of 25 per cent. on the amount of his purchase-money to the officer conducting the sale, and in default of such deposit the property shall forthwith be put up again and re-sold.

7. The full amount of the purchase-money shall be paid by the purchaser before the Court closes on the fifteenth day after the sale of the property, exclusive of such day, or if the fifteenth day be a Sunday or other holiday, then on the first office day after the fifteenth day.

8. In default of payment of the balance of purchase-money within the period allowed, the property shall be re-sold after the issue of a fresh notification of sale. The deposit, after defraying the expenses of the sale, may, if the Court thinks fit, be forfeited to Government and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.

Given under my hand and the seal of the Court, this………….day of……….20……..

 

Schedule of Property

 

Judge.

 

 

Number of lot

Description of pro­perty to be sold, with the name of each owner where there are more judgment- debtors than one

The revenue assessed upon the estate or part of the estate, if the property to be sold is an interest in an estate or a part of an estate paying revenue to Government

Detail of any encum­brances to which the property is liable

Claims, if any, which have been put forward to the pro­perty and any other known particulars bearing on its

nature and value

1[The value of the pro­perty as stated by the decree holder

The value of the property as stated by the judgment-debtor.]

             
             

 

1. Ins. by Act 104 of 1976, s. 95 (w.e.f. 1-2-1977).

 

No. 30

ORDER ON THE NAZIR FOR CAUSING SERVICE OF PROCLAMATION OF SALE

(O. 21, r. 66.)

(Title)

To

The Nazir of the Court.

WHEREAS an order has been made for the sale of the property of the judgment-debtor specified in the schedule hereunder annexed, and whereas the………….day of………20..........., has been fixed for the sale of the said property,… copies of the proclamation of sale are by this warrant made over to you,

and you are hereby ordered to have the proclamation published by beat of drum within each of the properties specified in the said schedule, to affix a copy of the said proclamation on a conspicuous part of each of the said properties and afterwards on the Court-house, and then to submit to this Court a report showing the dates on which and the manner in which the proclamations have been published.

Dated the………….day of………………20……….

Schedule

Judge.

 

No. 31

Certificate by officer holding a sale of the deficiency of price on a re-sale of property by reason of the purchaser's default

(O. 21, r. 71.)

(Title)

Certified that at the re-sale of the property in execution of the decree in the above-named suit, in consequence of default on the part of…, purchaser, there was a deficiency in the price of the said property amounting to Rs , and that the expenses attending such re-sale amounted to

Rs……., making a total of Rs................. , which sum is recoverable from the defaulter.

Dated the………….day of…………20……..

Officers holding the sale.

No. 32

Notice to person in possession of movable property sold in execution

(O.21, r, 79.)

(Title)

To

WHEREAS....................................... has become the purchaser at a public sale in execution of the decree

in the above suit of............ now in your possession, you are hereby prohibited from delivering possession

of the said……. to any person except the said………

Given under my hand and the seal of the Court, this…………day of…………20……..

Judge.

 

No. 33

Prohibitory order against payment of debts sold in execution to any other than the purchaser

(O. 21, r. 79.)

(Title)

To

and to

WHEREAS……………has become the purchaser at a public sale in execution of the decree in the above suit of………….. being debts due from you……………to you….................................................................................... ; It is ordered that you

....... be, and you are hereby, prohibited from receiving, and you……………………...from making payment of, the said debt to any person or persons except the said…………..

 

Given under my hand and the seal of the Court, this…………day of………..20……..

No. 34

Prohibitory order against the transfer of share sold in execution

(O. 21, r. 79.)

(Title)

To

 

Judge.

 

........................................and.................................., Secretary of.......................................................................................................... Corporation.

WHEREAS................... has become the purchaser at a public sale in execution of the decree, in the above

suit, of certain shares in the above Corporation, that is to say, of...................................................................................................................... standing in the name of

you……………; It is ordered that you….................. be, and you are hereby, prohibited from making any

transfer of the said shares to any person except the said…...................... , the purchaser aforesaid, or from

receiving any dividends thereon; and you….............. , Secretary of the said Corporation, from permitting

any such transfer or making any such payment to any person except the said.................................................................................................................................. , the purchaser

aforesaid.

Given under my hand and the seal of the Court, this………..day of …………..20………

Judge.

No. 35

Certificate to judgment-debtor authorising him to mortgage lease or sell property

(O. 21, r. 83.)

(Title)

To

WHEREAS in excecution of the decree passed in the above suit an order was made on the…........................................................................................................................ day

of……………..20…….., for the sale of the under-mentioned property of the judgment-debtor ,

and whereas the Court has, on the application of the said judgment-debtor, postponed the said sale to enable him to raise the amount of the decree by mortgage, lease or private sale of the said property or of some part thereof:

This is to certify that the Court doth hereby authorize the said judgment-debtor to make the proposed mortgage, lease or sale within a period of……. from the date of this certificate; provided that all monies payable under such mortgage, lease or sale shall be paid into this Court and not to the said judgment-debtor.

 

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