THE CODE OF CIVIL PROCEDURE, 1908-2

Sat Mar 21 1908 | Procedural and Administration | Comments (0)

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Year : 1908

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, 2[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:

3[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 4[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 therefor shall not lie.

Costs

35. Costs. —(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of an 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.

5* * * * *

*[35. Costs.— (1) In relation to any Commercial dispute, the Court, notwithstanding anything contained in any other law for the time being in force or Rule, has the discretion to determine:

(a) whether costs are payable by one party to another;

(b) the quantum of those costs; and

(c) when they are to be paid.

1. Subs. by Act 46 of 1999, s. 4, for “not exceeding five hundred rupees” (w.e.f. 1-7-2002).`

2. Subs. by Act 66 of 1956, s. 2, for certain words (w.e.f. 1-1-1957). 3. Ins. by Act 104 of 1976, s. 13 (w.e.f. 1-7-1977).

4. Subs. by Act 66 of 1956, s. 2, for “on such aggregate sum as aforesaid” (w.e.f. 1-1-1957).

5. Sub-section (3) omitted by Act 66 of 1956, s. 3 (w.e.f. 1-1-1957).

*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Schedule (w.e.f. 23-10-2015).

 

Explanatio n .—For the purpose of clause (a), the expression “costs” shall mean reasonable costs relating to—

(i) the fees and expenses of the witnesses incurred;

(ii) legal fees and expenses incurred;

(iii) any other expenses incurred in connection with the proceedings.

(2) If the Court decides to make an order for payment of costs, the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party:

Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing.

Illustration

The Plaintiff, in his suit, seeks a money decree for breach of contract, and damages. The Court holds that the Plaintiff is entitled to the money decree. However, it returns a finding that the claim for damages is frivolous and vexatious.

In such circumstances the Court may impose costs on the Plaintiff, despite the Plaintiff being the successful party, for having raised frivolous claims for damages.

(3) In making an order for the payment of costs, the Court shall have regard to the following circumstances, including—

(a) the conduct of the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;

(c) whether the party had made a frivolous counterclaim leading to delay in the disposal of the case;

(d) whether any reasonable offer to settle is made by a party and unreasonably refused by the other party;

and

(e) whether the party had made a frivolous claim and instituted a vexatious proceeding wasting the time of

the Court.

(4) The orders which the Court may make under this provision include an order that a party must pay––

(a) a proportion of another party’s costs;

(b) a stated amount in respect of another party’s costs;

(c) costs from or until a certain date;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating to a distinct part of the proceedings; and

(g) interest on costs from or until a certain date.]

 

STATE AMENDMENTS

Jammu and Kashmir and Ladakh (UTs).—

In Section 35, in sub-section (1) omit “Commercial”.

[Vide the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O. 1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated (23-10-2020)].

1 [35A. Compensatory costs in respect of false or vexatious claims or defences.— (1) If in any suit or other proceedings 2[including an execution proceeding but 3[excluding an appeal or a revision] any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, 4[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 5[three thousand rupees] or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887), 6[or under a corresponding law in force in 7[any part of India to which the said Act does not extend] and not being a Court constituted 8[under such Act or law], are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees :

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

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

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

 

STATE AMENDMENTS

Jammu and Kashmir and Ladakh (UTs).—

In Section 35A, omit sub-section (2).

[Vide the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, notification No. S.O. 1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated (23-10-2020)].

Uttar Pradesh

Amendment of section 35-A of Act V of 1908.— In the Code of Civil Procedure, 1908 (hereinafter in this Chapter referred to as the principal Act) in section 35-A, after sub- section (1), the following sub-section shall be inserted, namely :—

“Revision.—(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 has awarded insufficient, compensatory cost under that sub-section.”

[Vide Uttar Pradesh Act 57 of 1976, s. 2]

1. Section 35A ins. by Act 9 of 1922, s. 2, which, under section 1(2) thereof may be brought into force in any State by the State Government on any specified date. It has been so brought into force in Bombay, Bengal, U.P., Punjab, Bihar, C.P., Assam, Orissa and Madras.

2. Subs. by Act 66 of 1956, s. 4, for “not being an appeal” (w.e.f. 1-2-1957).

3. Subs. by Act 104 of 1976, s. 14, for “excluding an appeal” (w.e.f. 1-2-1977).

4. Subs. by Act 66 of 1956, s. 4, for certain words (w.e.f. 1-2-1957).

*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Schedule (w.e.f. 23-10-2015).

5. Subs. by Act 104 of 1976, s. 14, for “one thousand rupees” (w.e.f. 1-2-1977).

6. Ins. by Act 2 of 1951, s. 7.

7. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “a Part B State”.

8. Subs. by Act 2 of 1951, s. 7, for “under that Act” (w.e.f. 1-4-1951).

 

Uttar Pradesh

Section 35-A or Schedule of the Act .—(1) For the existing sub-section (1), the following shall be substituted ;

“(1) If in any suit or other proceeding, including proceedings in execution, but not being an appeal or revision, the court finds that the claim or defense or any part thereof is false or vexatious to the knowledge of the party by whom it has been put forward and if such claim or defense 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 defense to be false or vexatious, make an order for the payment to the successful party of costs by way of compensation irrespective of the decision on other issues in the case.”

[Vide Uttar Pradesh Act XXIV of 1954, s. 3]

1 [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 defendent was ordered to pay such costs.

Explanation.— Where separate defences have been raised by the defendant 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

2[36. Application to orders.— The provisions of this Code relating to the execution of decrees (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 under 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

 

1. Ins. by Act 104 of 1976, s. 15 (w.e.f. 1-2-1977).

2. Subs. by Act 104 of 1976, s. 16, for section 36 (w.e.f. 1-2-1977).

 

(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.

1 [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 making 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.

39. Transfer of decree.— (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court 2 [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 within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

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

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

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

3 [(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.]

4 [(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.]

 

STATE AMENDMENT

Uttar Pradesh

Amendment of section 39 of Act no. 5 of 1908 .— In section 39 of the Code of Civil Procedure, 1908, hereinafter referred to as the said Code, for sub-section (3), the following sub-section shall be substituted, namely :—

“(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction of 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.”

[Vide Uttar Pradesh Act 31 of 1978, s. 2]

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.

 

1. Ins. by Act 104 of 1976, s. 17 (w.e.f. 1-2-1977).

2. Ins. by s. 18, ibid. (w.e.f. 1-2-1977).

3. Ins. by Act 104 of 1976, s. 18, (w.e.f. 1-2-1977).

4. Ins. by Act 22 of 2002, s. 2 (w.e.f. 1-7-2002).

 

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

42. Powers of Court in executing transferred decree. — 1[(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 is 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 passed by itself.

2 [(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.

(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 Court 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 AMENDMENT

Uttar Pradesh

Substitution of new section for section 42 of Act V of 1908.— For section 42 of the Code of Civil Procedure, 1908, as amended in its application to Uttar Pradesh (hereinafter referred to as the said Code) the following section shall be substituted and be deemed to have been substituted with affect from December 2, 1968,namely :—

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 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.

(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;

 

1. S. 42 renumbered as sub-section (1) by Act 104 of 1976, s. 19 (w.e.f. 1-2-1977). 2. Ins. by s. 19, ibid., (w.e.f. 1-2-1977).

(f) power to order stay of execution under rule 29 of 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 thereof 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 transferee of a decree.”

[Vide Uttar Pradesh Act 14 of 1970, s. 2]

1 [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.]

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

3 [44A. Execution of decrees passed by Courts in reciprocating territory.— (1) Where a certified copy of a decree of any of the superior Courts of 4*** any reciprocating territory has been filed in a District Court, the decree may be executed in 5[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.

6 [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 of 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.]]

1. Subs. by Act 2 of 1951, s. 8, for section 43 (w.e.f. 1-4-1951).

2. Subs. by Act 2 of 1951, s. 9, for section 44 (w.e.f. 1-4-1951).

3. Ins. by Act 8 of 1937, s. 2.

4. The words “the United Kingdom or” omitted by Act 71 of 1952, s. 2.

5. Subs. by Act 2 of 1951, s. 3, for “the States” (w.e.f. 1-4-1951).

6. Subs. by Act 71 of 1952, s. 2, for Explanations 1 to 3.

1 [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 2*** by the authority of the Central Government 3[outside India] to which the State Government has by notification in the Official Gazette declared this section to apply.]

46. Precepts.— (1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks 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.

4* * * * *

(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.

5[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.]

 

STATE AMENDMENT

Uttar Pradesh

Amendment of section 47.— In section 47 of the principal Act, Explanation II inserted by the U. P. Civil Laws (Reforms and Amendment) Act, 1954, shall be omitted.

[Vide Uttar Pradesh Act 57 of 1976, s. 3]

LIMIT OF TIME FOR EXECUTION

48. [Execution barred in certain cases.]Rep. by the Limitation Act, 1963 (36 of 1963), s. 28 (w.e.f. 1-1-1964).

 

1. Subs. by the A.O. 1937, for section 45.

2. The words “or continued” omitted by the A.O. 1948.

3. Subs. by the A.O. 1950, for “in any Indian State”.

4. Sub-section (2) omitted by Act 104 of 1976, s. 20 (w.e.f. 1-2-1977).

5. Subs. by s. 20, ibid. for the Explanation (w.e.f. 1-2-1977).

 

STATE AMENDMENT

Rajasthan

Insertion of new section 48 A.- After section 48 of the Code of Civil Procedure, 1908 (Central Act V of 1908), in its application thereof to the State of Rajasthan, the following new section shall be, and be deemed always to have been inserted, namely:--

"48-A- Varied application of section 48.- For the purposes of the application of section 48 to the State of Rajasthan;-

(i) a decree, made before the twenty-fifth day of January, 1950, in those parts of Rajasthan where a corresponding provision did not then exist, shall, unless it shall have becomr time-barred or otherwise infructuous before the said day in accordance with any law then prevailing in those parts, be deemed to have been made on the said day, and

(ii) Where a decree might have been made before the twenty-fifth day of January, 1950 in those parts of Rajasthan where a corresponding provision then existed, with a period longer than twelve years provided therein such longer period or the period of twelve years form the said day whichever expires first shall be the period after which, according to section 48, no order for execution shall be made".

[Vide Rajasthan Act XX of 1952, s. 2]

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 1[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:

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

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

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

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

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

(c) that the decree is for a sum for which the judgment-debtor was bound in 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.]

1. Ins. by Act 104 of 1976, s. 21 (w.e.f. 1-2-1977).

2. Ins. by Act 21 of 1936, s. 2.

52. Enfor cement 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 of shares, of such estates.

 

STATE AMENDMENT

Karnataka.—

For Section 54, the following Section shall be substituted, namely.—

“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 of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition or the separate possession of shares, and if necessary on the report of a revenue officer, not below the rank of Tahsildar or such other person as the Court may appoint as Commissioner in that behalf.”

[Vide Karnataka Act 36 of 1998, sec. 2.]

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 dwelling­house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found:

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

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

(2) The 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 1[may be discharged] if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.

(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any

1. Subs. by Act 3 of 1921, s. 2, for “will be discharged”.

proceeding upon the application or upon the decree in execution of which he was arrested, the Court 1[may release] him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him to the civil prison in execution of the decree.

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

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

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

(a) where the decree is for the payment of a sum of money exceeding 2[ 3[five thousand rupees], for a period not exceeding three months, and,]

4 [(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks.]

5 [(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 6[two thousand 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 the ground of his serious illness.

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

(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 civil prison shall not in the aggregate exceed that prescribed by section 58.

 

ATTACHMENT

7 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, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:

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

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

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

1. Subs. by Act 3 of 1921, s. 2, for “shall release”.

2. Subs. by Act 104 of 1976, s. 22, for certain words (w.e.f. 1-2-1977).

3. Subs. by Act 46 of 1999, s. 5, “one thousand rupees” (w.e.f. 1-7-2002).

4. Subs. by s. 5, ibid., by clause (b) (w.e.f. 1-7-2002). 5. Ins. by Act 104 of 1976, s. 22 (w.e.f. 1-2-1977).

6. Subs. by Act 46 of 1999, s. 5, for “five hundred rupees” (w.e.f. 1-7-2002).

7. For amendments to s. 60, in its application to East Punjab, see the Punjab Relief of Indebtedness Act, 1934 (Pun. Act 7 of 1934), s. 35, as amended by Pun. Acts 12 of 1940 and 6 of 1942.

(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 1[an agriculturist or a labourer of 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 2[or of a local authority or of any other employer], or payable out of any service family pension fund 3notified in the Official Gazette by 4[the Central Government or the State Government] in this behalf, and political pensions;

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

6***]

7[(i) salary to the extent of 8[the first 9[ 10[one thousand rupees]] and two third of the remainder] 11[in

execution of any decree other than a decree for maintenance]:

12[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 shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that deeree.]]

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

13[(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, 1957 (62 of 1957), applies;]

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 14[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;

15 [(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 of building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;]

16 [(1) any allowance forming part of the emoluments of any 17[servant of the 18[Government]] or of any servant of a railway company or local authority which the 19 [appropriate Government] may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to 20[any such servant] while under suspension;]

1. Subs. by Act 104 of 1976, s. 23, for “an agriculturist” (w.e.f. 1-2-1977) 2. Ins. by s. 23, ibid. (w.e.f. 1-2-1977).

3. For such a notification, see Gazette of India, 1909, Pt. I, p. 5.

4. Subs. by the A.O. 1937, for “the G.G. in C.”

5. Subs. by Act 9 of 1937, s. 2, for clauses (h) and ( i). The amendments made by that section have no effect in respect of any proceedings arising out of a suit instituted before 1st June, 1937, see ibid., section 3.

6. The words “and salary, to the extent of the first hundred rupees and one-half the remainder of such salary” omitted by Act 5 of 1943, s. 2.

7. Subs. by s. 2, ibid., for clause (i) and the proviso.

8. Subs. by Act 26 of 1963, s. 2, for “the first hundred rupees”.

9. Subs. by Act 104 of 1976, s. 23, for “two hundred rupees and one-half the remainder” (w.e.f. 1-2-1977).

10. Subs. by Act 46 of 1999, s. 6, for “four hundred rupees” (w.e.f. 1-7-2002). 11. Ins. by Act 66 of 1956, s. 6 (w.e.f. 1-1-1957).

12. Subs. by Act 104 of 1976, s. 23, for “the proviso” (w.e.f. 1-2-1977).

13. Subs. by s. 23, ibid., for clause (j) (w.e.f. 1-2-1977). 14. Subs. by Act 9 of 1937, s. 2, for “1897”.

15. Ins. by Act 104 of 1976, s. 23 (w.e.f. 1-2-1977).

16. Subs. by Act 9 of 1937, s. 2, for the original clause (l), see also footnote 3.

17. Subs. by Act 5 of 1943, s. 2, for “public officer”.

18. Subs. by the A.O. 1950 for “crown”.

19. Subs. by the A.O. 1937, for “G.G. in C”.

20. Subs. by Act 5 of 1943, s. 2, for “any such officer or servant”.

(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 1[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 arrear of such revenue.

2 [Explanation I. —The moneys payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), ( j), (l) 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.]

3 [ 4[Explanation II. —In clauses ( i) 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.]

5 [Explanation 6[III]In clause (1) “appropriate Government” means—

(i) as respects any 7[person] in the service of the Central Government, or any servant of 8[a Railway Administration] or of a cantonment authority or of the port authority of a major port, the Central Government; 9* * * * *

(iii) as respects any other 10[servant of the 11[Government]] or a servant of any other 12*** local authority, the State Government.]

13[Explanation IVFor the purposes of this proviso, “wages” includes bonus, and “labourer” includes a skilled unskilled or semi-skilled labourer.

Explanation VFor 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 VIFor 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 cash or in kind (not being as a share of the produce), or both.]

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

(2) Nothing in this section shall be deemed 14*** to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land 15***

16 * * * * *

STATE AMENDMENTS

Kerala.

In clause (g) of the Proviso to sub-section (1) of section 60, after the words “stipends and gratuities allowed by pensioners of the Government” the words “or of a local authority” shall be inserted.

[Vide Kerala Act 13 of 1957, s. 3]

1. Subs. by the A.O. 1937, for “any law passed under the Indian Councils Act 1861 and 1892”.

2. Subs. by Act 104 of 1976, s. 23, for Explanation I (w.e.f. 1-2-1977).

3. Added by Act 9 of 1937, s. 2, The amendments made by that section shall not effect in respect of any proceeding arising out of any suit instituted before 1st June, 1937, see ibid., section 3.

4. Subs. by Act 104 of 1976, s. 23, “Explanation 2. in clauses (h) and (i)” (w.e.f. 1-2- 1977).

5. Ins. by the A.O. 1937.

6. Subs. by Act 104 of 1976, s. 23, for figure “3” (w.e.f. 1-2-1977).

7. Subs. by Act 5 of 1943, s. 2, for “Public officer”.

8. Subs. by the A.O. 1950, for “a Federal Railway”.

9. Clause (ii) omitted by the A.O. 1948.

10. Subs. by Act 5 of 1943, s. 2, for “public officer”.

11. Subs. by the A.O. 1950 for “crown”.

12. The words “railway or” omitted by the A.O. 1950. 13. Ins. by Act 104 of 1976, s. 23 (w.e.f. 1-2-1977).

14. The brackets and letter “(a)”, rep. by Act 10 of 1914, s. 3 and the Second Schedule.

15. The word “or” rep. by, s. 3, ibid., and the Second Schedule.

16. Clause (b) rep. by, s. 3 ibid., and the Second Schedule.

 

In the proviso to sub section (1) of section 60 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908), after clause (g ), the following clause shall be inserted, namely:

“(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme for the employees of the Government of Kerala.”

[Vide Kerala Act 1 of 1988, s. 2.]

Himachal Pradesh.—

Amendment in section 60. — (1) In Section 60 sub-section (1):

(i) at the end of clause (c), add 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 a public purpose;

(ii) after clause (c), the following clause shall be inserted, namely:

(cc) compensation paid for agricultural lands belonging to agriculturists and acquired for a public purpose;

[Vide Himachal Pradesh Act 6 of 1956, sec. 2.]

Tamil Nadu

Amendment of section 60, Central Act V of 1908 .—In clause (g) of the proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908, after the words “stipends and gratuities allowed to pensioners of the Government”, the words “or of a authority” shall be inserted.

[Vide Tamil Nadu Act XXXIV of 1950, s. 2]

Rajasthan

Amendment of section 60, Central Act V of 1908.- In clause (b) of the proviso to sub-section (1) of section 60 of the code of Civil Procedure, 1908 (Central Act V of 1908) in its application to the State of Rajasthan, after the word, “agriculturist” the words “his milch cattle and those likely to calve within two years” shall be inserted.

[Vide Rajasthan Act 19 of 1958, s. 2]

Amendment of section 60, Central Act V of 1908.- In the proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908 (Central Act V of 1908) in the application thereof to the State of Rajasthan,-

(i) after clause (k), the following clause shall be inserted, namely:-

(kk) moneys payable under Life Insurance Certificates issued in pursuance of the Rajasthan Government Servants Insurance Rules, 1953;" and

(ii) after explanation 3 the following explanation shall be inserted, namely:-

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

[Vide Rajasthan Act 16 of 1957, s. 2]

Uttar Pradesh

Addition of explanation (1-A) to sub-section (1) of section 60.— After Explanation (1) of sub-section (1) of section 60 of the Code of Civil Procedure, 1908, insert the following Explanation (I-A) ;

Explanation (I-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, 1908, for enforcement of a mortgage or charge thereon”.

[Vide Uttar Pradesh Act XXXV of 1948, s. 2]

61. Partial exemption of agricultural produce. —The State Government 1*** may, by general or special order published in the Official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in execution of a decree.

1. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, s. 2 and the First Schedule Pt 1.

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

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

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

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

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

1 [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. 2[(1)] Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

3 [(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.]

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

S A L E

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.

66. [Suit purchase being on behalf of plaintiff.]Rep. by Act, 1988 (45 of 1988), s. 7 (w.e.f. 19-5-1988).

67. Power for State Government to make rules as to sales of land in execution of decrees for payment of money. — 4 [(1)] The State Government 5*** may, by notification in the Official Gazette, make rules for any local area imposing conditions in respect of the sale of any class of interests in land in execution of decrees for the payment of money, where such interest are so uncertain or undetermined as, in the opinion of the State Government, to make it impossible to fix their value.

6[(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 5*** 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.]

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

1. Explanation ins. by Act 104 of 1976, s. 24 (w.e.f. 1-2-1977).

2. Section 64 renumbered as sub-section (1) by Act 22 of 2002, s. 3 (w.e.f. 1-7-2002). 3. Ins. by, Act 22 of 2002, s. 3, (w.e.f. 1-7-2002).

4. Section 67 renumbered as sub-section (1) by Act 1 of 1914, s. 3.

5. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, s. 2 and the Schedule, Pt. 1.

6. Added by Act 1 of 1914, s. 3.

7. Ins. by Act 20 of 1983, s. 2 and the Schedule (w.e.f. 15-3-1984).

Delegation to Collector of power to execute decrees against immovable property

68. [Power to prescribe rules for transferring to collector execution of certain decrees.]Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66of 1956), s. 7 (w.e.f. 1-1-1957).

69. [Provisions of Third Schedule to apply.]Rep. by s. 7 ibid, (w.e.f. 1-1-1957) .

70. [Rules of Procedure.]Rep. by s. 7 ibid, (w.e.f. 1-1-1957).

71. [Jurisdiction of Civil Courts barred.]Rep. by s. 7 ibid, (w.e.f. 1-1-1957) .

72. [Collector to deemed to be acting judicially.]Rep. by s. 7 ibid, ( w.e.f. 1-1-1957).


Distribution of assets

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

Provided as follows:—

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

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

First, in defraying the expenses of the sale;

Secondly, in discharging the amount due under the decree;

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

Fourthly, rateably among the holders of decrees for the payment of money against the judgment-debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have no obtained satisfaction thereof.

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

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

Resistance to execution

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

 

PART III

INCIDENTAL PROCEEDINGS

Commissions

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

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

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

 

1. Ins. by Act 104 of 1976, s. 26 (w.e.f. 1-2-1977).

 

(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 1[India.]

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

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

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

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

PART IV

SUITS IN PARTICULAR CASES

Suits by or against the government or public officers in their official capacity

3 [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, 4[the Union of India], and

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

80. Notice.5[(1)] 6[ Save as otherwise provided in sub-section (2), no suits 7[shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir)] or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been 8[delivered to, or left at the office of—]

(a) in the case of a suit against the Central Government, 9 [except where it relates to a railway] a Secretary to that Government;

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

11 [(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 authorized by that Government in this behalf;]

(c) in the case of a suit against 12[any other State Government], a Secretary to that Government or the Collector of the district; 13***

14 * * * * *

1. Subs. by Act 2 of 1951, s. 3, for “the States”.

2. Subs. by Act 2 of 1951, s. 11, for section 78 (w.e.f. 1-4-1951).

3. Subs by the A.O. 1948, for section 79.

4. Subs. by the A.O. 1950, for “the Dominion of India”.

5. S. 80 renumbered as sub-section (1) by Act 104 of 1976, s. 27 (w.e.f. 1-2-1977).

6. Subs. by s. 27, ibid., for “No suit shall be instituted” (w.e.f. 1-2-1977).

7. Subs. by Act 26 of 1963, s. 3, for “ shall be instituted against the Government” (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948, for “Instituted against the Crown”

8. Subs. by the A.O. 1937, for “in the case of the Secretary of State in Council, delivered to, or left at the office of a Secretary to the L.G. or the Collector of the District”.

9. Ins. by Act 6 of 1948, s. 2.

10. Clause (aa) ins. by Act 6 of 1948, s. 2 and relattered as clause (b) and the Former clause (b) omitted by the A.O. 1948. 11. Ins. by Act 26 of 1963, s. 3 (w.e.f. 5-6-1964).

12. Subs. by s. 3, ibid., for “a State Government” (w.e.f. 5-6-1964).

13. The word “and” omitted by the A.O. 1948.

14. Clause (d) omitted ibid.

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

1 [(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and 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.]

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

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

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

82. Execution of decree.2[(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 by 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 3[such decree].

4 [(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 5[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.]

1. Ins. by Act 104 of 1976, s. 27 (w.e.f. 1-2-1977).

2. Subs. by s. 28, ibid., for sub-section (1) (w.e.f. 1-2-1977).

3. Subs. by Act 104 of 1976, s. 28, for “such report” (w.e.f. 1-2-1977).

4. Ins. by Act 32 of 1949, s. 2.

5. Subs. by the A.O. 1950, for “the Dominion of India”.

1 [SUITS BY ALIENS 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 States 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.

86. Suits against foreign Rulers, Ambassadors and Envoys.— (1) No. 2*** foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid

3 [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 4[the foreign State] may be sued, but it shall not be given, unless it appears to the Central Government that 4[the foreign State]—

(a) has instituted a suit in the Court against the person desiring to sue 5[it], or

(b) by 6[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 5[it] by this section.

7[(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 preceding provisions of this section shall apply in relation to—

8[(a) any ruler of a foreign State;]

1. Subs. by Act 2 of 1951, s. 12, for the former heading and sub-sections 83 to 87 (w.e.f. 1-4-1951).

2. The words “Ruler of a” omitted by Act 104 of 1976, s. 29 (w.e.f. 1-2-1977).

3. Subs. by s. 29, ibid., for “a Ruler” (w.e.f. 1-2-1977).

4. Subs. by s. 29, ibid., for “the Ruler (w.e.f. 1-2-1977). 5. Subs. by s. 29, ibid., for “him” (w.e.f. 1-2-1977).

6. Subs. by Act 104 of 1976, s. 29, for “himself” (w.e.f. 1-2-1977).

7. Subs. by s. 29, ibid., for sub-section (3) (w.e.f. 1-2-1977). 8. Ins. by s. 29, ibid. (w.e.f. 1-2-1977).

1[(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 2[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.

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

4[(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 subsection (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 “Rulers”. — (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 .—5[(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 proceeding 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 ; 6***

1. Clause (a) re-lettered as clause (aa) by Act 104 of 1976, s. 29 (w.e.f. 1-2-1977).

2. Subs. by s. 29, ibid, for “or retinue of the Ruler, Ambassador” (w.e.f. 1-2-1977).

3. Subs. by s. 29, ibid, for “as they apply in relation to the Ruler of a foreign State” (w.e.f. 1-2-1977). 4. Ins. by s. 29, ibid. (w.e.f. 1-2-1977).

5. Subs. by Act 54 of 1972, s. 3, for sub-section (1) (w.e.f. 9-9-1972).

6. The word “and” omitted by s. 3, ibid. (w.e.f. 9-9-1972).

1 [(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. ]


Interpleader

88. Where interpleader suit may be instituted.— 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

2 [89. Settlement of disputes outside the Court.— (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:—

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Were a dispute has been referred—

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall .apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

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.

1. Subs. by Act 54 of 1972, s. 3, for clause (b) (w.e.f. 9-9-1972).

2. Ins. by Act 46 of 1999, s. 7 (w.e.f. 1-7-2002), Earlier rep by Act 10 of 1940, s. 49 or the Third Schedule.

 

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

91. Public nuisances and other wrongful acts affecting the public.— 2 [(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.

3 92 . Public charities.—(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 4[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;

5 [(cc) directing a trustee who has been 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 inquiries;

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

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

(g) settling a scheme; or

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

(2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863), 6[or by any corresponding law in force in 7[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 the provisions of that sub-section.

8 [(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 pres in one or more of 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; or

1. Subs. by Act 104 of 1976, s. 30, for the former headings (w.e.f. 1-2-1977).

2. Subs. by s. 30, ibid., for sub-section (1) (w.e.f. 1-2-1977).

3. S. 92 shall not apply to any religious trust in Bihar, see Bihar Act 1 of 1951.

4. Subs. by Act 104 of 1976, s. 31, for “consent in writing of the Advocate-General” (w.e.f. 1-2-1977). 5. Ins. by Act 66 of 1956, s. 9 (w.e.f. 1-1-1957).

6. Ins. by Act 2 of 1951, s. 13 (w.e.f. 1-4-1951).

7. Subs. by the A.O. (No. 2), 1956, for “a Part B State”. 8. Ins. by Act 104 of 1976, s. 31 (w.e.f. 1-2-1977).

 

(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

(e) where the original purposes, in whole or in part, have, since they were laid down:—

(i) been adequately provided for by other means, 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.]

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 so prescribed,

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

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

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison 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.— (1) 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 1[not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the 2[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 pecuniar jurisdiction.

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

1. Subs. by Act 46 of 1999, s. 8, for “not exceeding one thousand rupees” (w.e.f. 1-7-2002).

2. Subs. by Act 104 of 1976, s. 32, for “expense or injury caused to him” (w.e.f. 1-2-1977).

 

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.

1 [(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 Causes, when the amount or value of the subject-matter of the original suit does not exceed 2[ten 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 disputing its correctness in any appeal which may be preferred from the final decree.

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

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

Provided that where the Bench hearing the appeal is 3 [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.

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

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.— No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 5[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:

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

7 [ 99A. No order under section 47 to be reversed 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

8 [100. Second appeal.— (1) Save as otherwise expressly provided in the body of this Code or by any

1. Ins. by Act 104 of 1976, s. 33 (w.e.f. 1-2-1977).

2. Subs. by Act 46 of 1999, s. 9, for “three thousand rupees” (w.e.f. 1-7-2002).

3. Subs. by Act 104 of 1976, s. 34, for certain words (w.e.f. 1-2-1977).

4. Ins. by Act 18 of 1928, s. 2 and the First Schedule. 5. Ins. by Act 104 of 1976, s. 35 (w.e.f. 1-2-1977).

6. Proviso Added by s. 35, ibid. (w.e.f. 1-2-1977). 7. Ins. by s. 36, ibid. (w.e.f. 1-2-1977).

8. Subs. by s. 37, ibid., for section 100 (w.e.f. 1-2-1977).

 

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 e x 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.]

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