Civil Procedure Code, Lecture notes of Civil procedure

Download Civil Procedure Code and more Lecture notes Civil procedure in PDF only on Docsity! Code of Civil Procedure, 1908. ACT NO. V OF 1908 [21st March 1908] An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil Judicature. WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows: - PRELIMINARY 1.-(l) This Act may be cited as the Code of Civil Procedure, 1908. (2) It shall come into force on the first day of January 1909. 1[(3) It extends to the whole of Pakistan.] 2. In this Act, unless there is anything repugnant in the subject or context,- (1) "Code" includes rules: (2) "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties which regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint 2[the determination of any question within section 144 and an order under rule 60, 98, 99, 101, or 103 of Order XXI] but shall not include; (a) any adjudication form which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely dispose of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; (3) "Decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made: (4) "District" means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court: (5) "Foreign Court" means a Court situate beyond the limits of 1[Pakistan] which has no authority in 1[Pakistan] and is not established or continued by 2[the Central Government 3***]: (6) "Foreign judgment" means the judgment of a foreign Court: (7) "Government Pleader" Includes any officer appointed by the 4(Provincial Government] to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader : (8) "Judge" means the presiding officer of a civil Court: (9) "Judgment" means the statement given by the Judge of the grounds of a decree or order: (10) "Judgment-debtor" means any person against whom a decree has been passed or an order capable of execution has been made: (11) "Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued: (12) "Mesne profits" of property means those profits which the person in wrongful profession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession: (13) "Movable property" includes growing crops: (14) "Order" means the formal expression of any decision of a civil Court which is not a decree: (15) "Pleader" means any person entitled to appear and plead for another in Court, and includes an advocate, a civil and an attorney of a High Court: (16) "Prescribed" means prescribed by rules: (17) "Public officer" means a person falling under any of the following descriptions, namely: (a) every Judge; (b) [every person in the service of Pakistan].1 [1908: ACT V] Civil Procedure (Part I.- Suits in General. Jurisdiction of the Courts and Res judicata) PART I SUITS IN GENERAL JURISDICTION OF THL3 COURTS AND Res Judicata 9. The Courts shall (subject to the provisions herein cone tamed) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation.- A suit is which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right ma depend entirely on the decision of questions as to religious rites or ceremonies. 10. No Court shall proceed With the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[Pakistan] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[Pakistan] established or continued by 2[the Central Government 3***] and having like jurisdiction, or before 4[the Supreme Court]. Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in 1[Pakistan] from trying a suit founded on the same cause of action. 11. No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.- The expression "former suit" shall denote a Suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as $0 a right of appeal from the decision of such Court. Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly, or impliedly by the other. Explanation 1V.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue -in such suit. Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating. 12. 1[(1)] Where a plaintiff is preclude by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies. 1[(2) Where a person challenges the validity of a judgment, decree or order on the pica of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.] 13. A foreign judgment shall be conclusive as to any matter When thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except; (a) Where it has not been pronounced by a Court of competent jurisdiction; (b) Where LI has not been given on the merits of the case; (c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of 2[Pakistan] in cases in which such law is applicable; (d) Where the proceedings in which the judgment was obtained are opposed to natural justice; (e) Where it has been obtained by fraud; (f) Where it sustains a claim founded on a breach of any law in force in 2[Pakistan). 14. The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. 15. Every suit shall be instituted in the Court of the lowest grade competent to try it. 16. Subject to the pecuniary or other limitations prescribed by any law, suits; (a) for the recovery of immovable property- with or without rent or profits; (b) for the partition of Immovable property; (c) for foreclosure, sale or redemption In the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or Interest in immovable property; (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment; shall be instituted in the Court within the local limits of whose jurisdiction the property is situated '[, or, in the case of suits referred to in- clause (c), at, at the place where the cause of action his wholly or partly arisen: - Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate 1[or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen) or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation.- In this section "property" means property situate in 2[Pakistan]. 17. Where a suit is to obtain relief respecting, or compensation for wrong to immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: - Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court. 18.-(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon 1iroceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the-local limits of its jurisdiction: Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction. (2) Where a statement has not been recorded under subs section (1), and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there (i) try or dispose of the same; or (ii) transfer the same for trial or subordinate to it and competent same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under subsection (1) the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of' this section, and Assistant Judges shall be deemed to District Court. (4) The court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of' such suit, be deemed to be a Court of Small Causes, 124-A.-(1) Where any suit is transferred udder section 22, or any suit, appeal or other proceeding is transferred or withdrawn under subsection (1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the., suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred. (2) Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the' application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceeding is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located.]" 25. 1* * * * * * INSTITUTION OF SUITS 26. Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. SUMMONS AND DISCOVERY 27. Where a suit has been duly instituted, a summons may defendants, be issued to the defendant to appear and answer the claim and may be served in manner prescribed. 28.-(1) A summons may be sent for service in another summons. Province to such Court and in such manner as may be prescribed by rules in force in that Province. (2) The Court to which summons is sent shall, upon another receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto. 29. Summonses 2[and other processes] issued by any Civil or Revenue Court situates 1[outside] 2[Pakistan] may be sent to the Courts 3[in] 4[Pakistan] and served as if they 5[were summonses] issued by such Courts: 6[Provided that the Courts issuing such summonses [or processes] have been established or continued by the authority of the Central Government or that the Provincial Government [of the Province in which such summonses or processes are] to be served has by notification in the official Gazette declared the provisions of this section to apply to 10[such Courts.] 30. Subject to such conditions and limitations as may be prescribed, the Court may, at any. time, either of its own motion or on the application of any party: - (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit. 31. The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects. 32. The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may- (a) issue a warrant for his arrest; (b) attach and sell his property; (c) impose a fine upon him not exceeding [two thousand] rupees; (d) order him to furnish security for his appearance and in default commit him to […..] prison. JUDGMENT AND DECREE 33. The Court. after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow. INTEREST 34.-(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. (2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie. 3[34.A,-(l') Where the Court is of opinion that a suit was instituted with intent to avoid the payment of any public dues payable by the plaintiff or on his behalf, the Court may, while dismissing such suit, make an order for payment of interest on' such public dues at the rate, of two per cent. above the prevailing bank rate. (2) Where the Court is of opinion that the recovery of any public dues from the plaintiff was unjustified, the Court may, while disposing of the suit, make an order for payment of interest on the amount recovered at the rate of two per cent., about the prevailing bank rate. Explanation- In this section- (a) "bank rate" means the bank rate determined and made public under the provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956); and (b) "public dues" includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government or of any local authority.] [34.B. Where and in so far as a decree is for payment of money due to a banking company in repayment of a loan advanced by it, the Court shall, in the decree, provide for 38. A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. 39.-(l) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court; (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b) if such person has not property within the Local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it; or (d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court. (2) The Court which passed a decree may of its own motion it for execution to any subordinate Court of competent Transfer of decree to Court in another Province. Result of execution proceedings to be certified. 40. Where a decree is sent for execution in another Province, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that Province. 41. 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.-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 Court in by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner act 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 foregoing provision, the Court executing a decree sent to it shall have the following powers, namely:- (a) power under section 39 to transfer the decree to another Court, if necessary; (b) power under subsection (1) of section 50 to permit execution to proceed against the legal representatives of a deceased judgment-debtor; (c) power under section 152 to correct clerical or arithmetical errors; (d) power under rule 16 of Order XXI to recognize the assignment of a decree; (e) power under sub-rule (2) of rule 50 of Order XXI to grant leave to a decree-holder to proceed against a person not already recognized as a partner in a firm in an execution proceeding against the firm; (f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of attachment of decree passed by another Court.] 43. Any decree passed by a civil Court established in any 2[area] in 3[Pakistan] to which the provisions relating to execution do not extend [……………..] may, lilt cannot he executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in 5[Pakistan]. 44.-[Omitted by Ordinance (27 of 1981), Second Sched., item 46(5)]. 5(44.A.-(1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed in 3[Pakistan] 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 proo1 of the extent of such satisfaction or adjustment. (3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13. Explanation 1.-"Superior Court" with' reference to the United Kingdom, means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham. Explanation 2.-'4Reciprocating territory" means 1[the United Kingdom and such other country or territory as] the 3[Central Government) may, from time to time, by notification in the 3[official Gazette], declare [to be 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 3.-."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, and (a) With reference to superior Courts in the United Kingdom, includes judgments given and decrees made in any Court in appeals against , such decrees or judgments, but (b) In no case includes an arbitration award, even if such award is enforceable as a decree or judgment.] 45. Execution of decrees in foreign territory.-[Omitted by Ordinance (27 of 1981), Second Sched., item 46(5) ]. 46.-(l) 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.-(l) 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. (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees. (3) Where a question arises as to whether any person is or is representative of a party, such question shall, for the purpose of this section, be determined by the Court. Explanation.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit. LIMIT OF TIME FOR EXECUTION 148....(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of [six] years from. with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates. ARREST AND DETENTION 55.--(l) 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 3[which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year;] Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling house shall be entered after sunset and before sunrise; Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way present 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 be has reason to believe the judgment-debtor is to be found; Provided, thirdly, that if the room ii in the actual occupancy of a woman who is not the Judgement 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 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 l[Provincial Government] may by notification in the 2[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 [Provincial Government] in this behalf. 3[(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the decree, but he shall not be liable to be re-arrested under the decree in execution of which he was so detained in prison.] 56. Notwithstanding anything in this Part, the Court the arrest or detention in the 4[* *] prison execution of a decree for the payment of money. 57. [* * * * * * *] 58. Every person detained in prison in execution of decree shall be released from such detention, before the expiry of the period of detention, if- (a) the amount mentioned in the warrant for his detention is paid to the officer in charge of the prison; or (b) the decree against him is otherwise fully satisfied; or (c) the person on whose application he has been detained so requests; Provided that he shall not be released from such detention without the order of the Court.] 59. [* * * * * * * *] 60. (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 4other saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which. be 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 of 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 any woman; (b) tools of artisans arid, where the judgment-debtor is art agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce, or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section; (c) houses and other buildings (with the materials ahd the sizes thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and cccupied by him; (d) books of accounts; (e) a mere right to sue for damages ; (f) any right of personal service ; (g) stipends and gratuities allowed to 2[pensioners of the 3[Government], or payable out of any service family and the costs of the arrest to the officer arresting him, such office shall at once release him. (h) the wages of labourers and domestic servants, whether payable in money or in kind; (l) Salary to the extent of the first hundred rupees and one half the remainder; Provided that where such salary is the salary of a 6[servant of the State] or a servant of a railway 7* * * or local authority and the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree ;] (j) the pay and allowances of persons to whom the 8[Pakistan Army Act, 1952], 9* * *applies]. [or of persons other than commissioned officers to whom the 1[Pakistan Navy Ordinance, 1961 (XXXV of 1961) applies]; (k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act [1925], for the time being applies in so far as they are declared by the said Act not to be liable to attachment; (l) any allowance forming part of the emoluments of any [servant of the State] or of any servant of a railway 4 * * * or local authority which the [appropriate Government] may by notification in the [official Gazette] declare to be exempt from attachment, and any subsistence grant or allowance made to 7[any such servant] while under suspension; (in) an expectancy of succession by survivorship or other, merely contingent or possible right or interest; (n) A right to future maintenance; (o) Any allowance declared by [any Pakistan law] to be exempt from liability to attachment or sale in execution of a decree; and interest in land in executing of decrees for the payment of money, where such interests are so uncertain or undetermined as in the opinion of the 2[Provincial Government], to make it impossible to fix their value. [(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the 2[Provincial Government] may, by notification in the 4[official Gazette] declare such rules to be in force, or may, by a like notification, modify the same. Every notification issued in the exercise of the powers conferred by this subsection shall set out the rules so continued or modified] DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES AGAINST IMMOVABLE PROPERTY 68. The 2[Provincial Government] may declare by notification in the 4[official Gazette] that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in immovable property, shall be transferred to the Collector. 69. The provisions set forth in the Third Schedule shall apply to all cases in which the execution of a decree has been transferred under the last preceding section. 70. (l) The 2[Provincial Government] may make rules consistent with the aforesaid provisions- (a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for re- transmitting the decree from the Collector to the Court; (d) By appointing a receiver; or (e) In such other manner as the nature of the relief granted may require. [Provided that 2[***] 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 decree was passed, dishonestly transferred, concealed, or removed any part committed any other act of to his property ; or (b) that the judgment-debtor has, or has had date of the decree, the means to pay the decree or some substantial part thereof or neglects or has refused or neglected 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 1~w for the time being in force, is exempt from attachment in execution of the decree]. 52.-(l) 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 they decree had been against him personally. 53. 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. A 54. 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 as estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates. ARREST AND DETENTION 55.--(l) 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 3[which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year;] Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling house shall be entered after sunset and before sunrise; Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way present 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 be has reason to believe the judgment-debtor is to be found; Provided, thirdly, that if the room ii in the actual occupancy of a woman who is not the Judgement 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 l[Provincial Government] may by notification in the 2[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 [Provincial Government] in this behalf. 3[(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the decree, but he shall not be liable to be re-arrested under the decree in execution of which he was so detained in prison.] 61. Notwithstanding anything in this Part, the Court the arrest or detention in the 4[* *] prison execution of a decree for the payment of money. 62. [* * * * * * *] 63. Every person detained in prison in execution of decree shall be released from such detention, before the expiry of the period of detention, if- (a) the amount mentioned in the warrant for his detention is paid to the officer in charge of the prison; or *** or local authority the attachable portion thereof is exempt from attachment until it is actually payable]. 2[Explanation 2.-In clauses (h) and (1), "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.] 3[Explanation 3 -.40 clause (I) "appropriate Government" means- (i) As respects any 4[person] in the service of the Government, or any servant [of railway or] cantonment authority or the port authority of a port, the Central Government: (iii) As respects any other 7[servant of the State] or a servant of any local authority, the Provincial Government]. (2) Nothing in this section shall be deemed-. 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, 61. The [Provincial Government] * * may. by general or special order published in the 2fofficial Gazette], declare that such portion of agricultural produce, or of any class of agriculture produce, as may appear to the 10[Provincial Government] to be for the purpose of providing until the next harvest for the due cultivation of the land and for the support judgment-debtor and his family, shall, in the case of all turists or of any class of agriculturist be exempted from to attachment or sale in execution of a decree. 62. (1) No person executing any process under this directing or authorizing seizure of movable property shall any dw1diling.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.-41) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached. (2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees. 64. 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. Explanation: For the purposes of this section, claims enforce under an attachment include claims for the rateable distribution of assets. 65. 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. (l) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims. (2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner, 67.--{l) The 2[Provincial Government] may by notification in the 4fothcial Gazette], make rules for any local area imposing conditions in respect of the sale of any class of interest in land in executing of decrees for the payment of money, where such interests are so uncertain or undetermined as in the opinion of the 2[Provincial Government], to make it impossible to fix their value. [(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the 2[Provincial Government] may, by notification in the 4[official Gazette] declare such rules to be in force, or may, by a like notification, modify the same. Every notification issued in the exercise of the powers conferred by this subsection shall set out the rules so continued or modified] DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES AGAINST IMMOVABLE PROPERTY 71. The 2[Provincial Government] may declare by notification in the 4[official Gazette] that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in immovable property, shall be transferred to the Collector. (3) Nothing in this section affects any right of [the 2[Government]. RESISTANCE TO EXECUTION [74.-(l) Where the Court is satisfied that the holder of a decree for the possession of property or a purchaser of property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or any other 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 the purchaser, order the judgment- debtor or such other person to undergo simple imprisonment for a term which may extend to thirty days and may further direct that the decree-holder or the purchaser be put into possession of the property. (2) Notwithstanding anything contained in subsection (1), where a judgment-debtor or my other person resists or obstructs the execution of a decree, the Court may direct the officer in charge of the police-station within whose jurisdiction the judgment-debtor or such other person resides or where the property to which the decree relates is situate to provide, the necessary police assistance for the execution of the decree.] INCIDENTAL PROCEEDINGS COMMISSIONS 75.Subjóctto 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. SUITS BY ALIENS AND BY OR AGAINST FO1.ETGN RULES, AMBASSADORS AND ENVOYS 83.-(1) Alien enemies residing [in Pakistan] with the permission of the [Central Government], an alien friends, may sue in the Courts [in the Provinces], as if they were [Citizens of Pakistan]. (2) No alien enemy residing [in Pakistan] without such permission, or residing in a foreign country, shall sue in any of such Courts. Explanation.-Every person residing in a foreign country the Government of which is at war with 2[or engaged in military operations against] 3[Pakistan], and carrying on business in that country without a [license in that behalf under the hand 4* * * of a Secretary to the 5[Central Government] shall, for the purpose of subsection (2), be deemed to be an alien enemy residing in a foreign country. 84.-(1) A foreign State may sue in any Court [in the Province]: Provided that such State has been recognized by the [Central Government]: Provided, also, that the object of the suit is to enforce a private right vested in the head of such State or in any officer of such State iii his public capacity. (2) Every Court shall take judicial notice of the fact that a foreign State has or has not been recognized by the Central Government]. 85.(1) Persons specially appointed by order of the Central Government at the request of the Ruler of any foreign State, or at the request of any person competent, in the opinion of the Central Government to act on behalf of such Ruler, to prosecute or defend any suit on his behalf, 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 the [Ruler]. (3) A person appointed under this section may authorize or appoint persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto. 86. (1) Any [Ruler of a foreign State] may, [……. With the consent of the Central Government, certified by the signature of a Secretary to that Government] but not without such consent, be sued in any competent Court. (2)Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the 5[Ruler] may be send; but it shall not be given unless it appears to [the consenting authority] that the [Ruler]; (a) has instituted a suit in the Court against the person desiring to sue him, or (b) by himself or another trades within the local limits of the jurisdiction of the Court, or (c) is in possession of immovable property situated within those limits and Is to be sued with reference to such property or for money charged thereon. (3) No such [Ruler] shall be arrested under this Code, and, except with [the consent of the Central Government] certified as aforesaid, no decree shall be executed against the property of any such [Ruler.] (4) The Central Government9. ..may by notification in the [official Gazette] authorize a Provincial Government and any Secretary to that Government to exercise with respect to any [Ruler] named in the notification the functions assigned by the foregoing subsections to the consenting authority and a certifying officer respectively. (5) A person may as a tenant of immovable property, sue, without such consent as is mentioned in this section, a '[Ruler) from whom he holds or claims to hold the property. 186-A. (1) No proceeding in any Court shall lie against a diplomatic agent except in a case relating to- (a) any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission; (b) a succession in which the diplomatic agent is Involved as executor, administrator, heir or legates as a private person and not on behalf of the sending State; (c) any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his official functions. (2) No measures of execution shall be taken in respect of a diplomatic agent except in cases which Come under clauses (a), (b) and (c) of subsection (1) and in which such measures can be taken without infringing the inviolability of his person or of his residence. (3) The initiation of any proceedings in a Court by a diplomatic agent shall, preclude him from invoking immunity from jurisdiction under this section in respect of any counter- claim directly connected with the principal claim. (4) The immunity of a diplomatic agent under subsection (1) or subsection (2) may be waived by~ the sending State; and any such waiver shall be express. (5) Waiver of immunity in respect of any proceedings shall not be held to imply waiver of immunity in respect of any measure of execution for which a separate waiver still be necessary. (6) in this section, 'diplomatic agent' in relation to a State means the head of the mission in Pakistan of that State and includes a member of the staff of that mission having diplomatic rank. 87.[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 the foregoing section [the Central Government, 3*** or the Provincial Government, as the case be, may direct the any such [Ruler] shall be sued in the name of an agent or in any other name. 87-A. Suits against Rulers of acceding and merged states.] INTERPLEADER 88. Where two or more persons claim adversely to one another the same debt, sum of money or other property movable or immovable, from another person, who claims no interest therein other than or 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 ii pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted, PART V SPECIAL PROCEEDINGS ARBITRATION 89. [Arbitration] Omitted by the Arbitration Act, 1940 (X of 1940), S. 49 and Third Schedule. SPECIAL CASE 90. Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed. SUITS RELATING TO PUBLIC MATTERS (3) No appeal shall lie from a decree passed by the Court With the consent of panics. 97. 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.(l) Where an more Judges, the appeal opinion of such Judges. (2)Where there is no such judgment varying or reversing the decree shall be confirmed: Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it. 1[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent any High Court.]. 99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of - action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court APPEALS FROM APPEALATE DECABRIS 100.-(l) Save where otherwise expressly provided - in the body of this Code or by any ocher law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely: (a) the decision being contrary to law or to some usage having the force of law. (b) the decision having failed to determine some material issue of law or usage having the force of law (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. 2[(2) * * * * 101. No second appeal shall lie except on the grounds mentioned in section 100. 3[102. No second appeal shall lie,- (a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [twenty-five thousand] rupees; and (b) in any other suit, when the amount or value subject matter of the original suit does not exceed 4[two hundred fifty thousand] rupees. 103. In any second appeal the High Court may, if the evidence on the record is sufficient determine any issue of fact necessary for the disposal of the appeal 5[which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason -of any illegality, omission, error or defect such as is referred to in subsection (1) of section 100]. APPEALS PROM ORDERS 104.-(1) An appeal. shall lie from the following orders, and save as otherwise express1y provided In the body of this Code or by any law for the time being in force, from no other orders: - 2[f) an order under section 35-A; (ff) an order under section 47;] (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is express1y allowed by rules: 3[Provided that no appeal shall lie against any order specified in clause (f) 4save on the ground that no order, or an order for the payment of a Jess amount, ought to have been made]. (2) No appeal shall lie from any order passed in appeal under this section. 105.-(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appeared from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appea11ies does not appeal there from, he shall thereafter be precluded from disputing its correctness. 106. Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court. GENERAL PROVISIONS RELATING TO APPEALS 107.-(1 ) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in' respect of suits instituted therein. 108. The provisions of this Part relating to appeal from original decrees shall, so far as may be, apply to appeal- (a) from appellate decrees, and (b) from orders made under this Code or under any special or local law in which a different procedure is not provided. APPEALS TO THE [SUPREME COURT] 3[109. An appeal from a judgment decree or final order of a High Court shall lie to the Supreme Court - (a) if the amount or value or the subject-matter or the dispute in the court of first instance was and also in appeal is (unless varied by an Act or Parliament) fifty thousand rupees or upward and the judgment decree or final order appealed from has varied or set aside the judgment decree or final order of the Court immediately below; or (b) it the judgment, decree or final order involves directly or indirectly, some claim or question respecting property or the like amount or value and the judgment, decree of final order appealed from has varied of set aside the judgment decree or final order of the Court immediately below; or (c) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.] incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith except as to so much thereof as relates to the costs; and as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation. 119. Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys. 120.(1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20. PART X RULES 121. The rules in the First Schedule shall have effect as if enacted in ,the body or this Code until annulled pt altered in accordance with the provisions or this Part. 122. 3[The High Courts] 4*** may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the civil Courts subject to their superintendence, and may by such rules annul, alter or ad to all of any of the rules in the First Schedule. 123 -(I) A Committee, to be called the Rule Committee, shall be constituted at J[the town which is the usual place of sitting of each of the High Courts 2. . . 30 . . referred to in section 122]. (2) Each such Committee shall consist of the following persona namely:- (a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or 4**** a Divisional Judge for three years. (b) 5 * * * * * * * (c) 6[two advocates practising in that Court and]. (d) a Judge of a Civil Court subordinate to the High Court, 7* * * * (3) The members of each such Committee shall be appointed by the Chief Justice 8* ** who shall also nominate one of their member to be president: Provided that, if the Chief Justice 8*** elects to be himself a member of a Committee, the number of other Judges appointed to be members shall be two and the Chief Justice 8*** shall be the President of the Committee. (4) Each l11ember'of any such Committee shall bold office f or such period as may' be prescribed by the Chief Justice 8* * * in this behalf; and whenever any member retires. resigns, dies or ceases to reside in the Province in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said Chief Justice 8* * * may appoint another person to' be a member in his stead. (5) There shall be a Secretary to each such Committee who shall be appointed by the Chief Justice 8*** and shall receive such remuneration as may be provided in this behalf [by the Provincial Government]. 124. Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration. 125. * * * * * * * * * * . . . . . 126. Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the Province in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any Province, to the previous approval of the 4[Federal Government]. 127. Rules so made and 5[approved] shall be published in the 6[official Gazette ***], and shall from the date of publication or from such other date as may be specified have the same force and effect within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the Pint Schedule. 128.-(1) Such rules shall not be inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any maters relating to the procedure of civil Courts. (2) In particular and without prejudice to the generality or the powers conferred by subsection (1), such rules may provide for all or any of the following matters, namely: (a) the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service; (b) the maintenance and custody, while under attachment or livestock and other movable property the fees pay able for such maintenance and custody, the sale of such livestock and property and the proceeds of such sale. (c) procedure in suits by way of counter claim, and the valuation of such suits for the purposes of jurisdiction; (d) procedure in garnishee and charging orders either fu addition to, or in substitution for, the attachment and sale of debts ; (e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not; (f) summary procedure- (i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a contract express or implied; on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty; or on a guarantee, where the claim against the principle is in respect of a debt or a liquidated demand only; or on a trust; or (ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or bas been only determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant; (g) procedure by way of originating summons; (h) conso1idation of suits, appeals and other proceedings; (i) delegation to any Registrar, Prothonarary or master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and (j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of civil Courts. 129. Notwithstanding anything in this Code, any High Court 1*** may make such rules not inconsistent with 2[its Letters Patent] to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code. 130. * * * * * * * 131. Rule made in accordance with section 129 1* * * shall be published in the 2[official Gazette * * *] and shall from the date of publication or from such other date as may be specified have the force of law. PART XI MISCELLANEOUS evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed. (2) Where a Judge is prevented by any sufficient reason from complying with a direction under subsection (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court. 139. In the case of any affidavit under this Code- (a) any Court or Magistrate, or (b) any officer or other person whom a High Court may appoint in this behalf, or ; (c) any officer appointed by any other Court which the [Provincial Government] has generally or specially empowered in this behalf, may administer the oath to the deponent: 140.--(1) In any Admiralty or Vice-Admiralty cause of salvage, towage or collision, the Court, whether it be exercising its original or its appellate jurisdiction, may if it thinks fit and shall upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed two competent assessors; and such assessor shall attend and assist accordingly: (2) Every such assessor shall receive such fees to for his attendance, to be paid by such of the parties as the Court may direct or as may be prescribed. 141. The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. 142. All orders and notices served on or given to any person under the provision or this Code shall be in writing. 143. Postage, where chargeable on a notice, summons or letter issued under this Code and forwarded by post and the fee for registering the same, shall be paid within a time to be fixed before the communication is made: Provided that the [Provincial Government] 2* * * may remit such postage~ or fee or both or may prescribe a scale of court-fees to be levied in lieu thereof. 144.-(1) Where and in so far as a decree is varied or reversed the Court of first instance shall on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree of such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of cost and for the payment of interested damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection(1) 145. Where any person has become liable as surety: (a) For the performance of any decree or any part thereof; or (b) For the restitution of any property taken in execution of a decree, or (c) For the payment of any money, or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon, the decree or order may be executed against him to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall for the purposes of appeal be deemed a party within the meaning of section 47; Provided that such notice: as the Court in each case thinks sufficient has been given to the surety. 146. Save as otherwise provided by the Code or by any law for the time being in force where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him. 147. In all suits to which any person under disability is a party, any consent or agreement as to any proceeding shall, if liven or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such period, were under no disability and had given such consent or made such agreement. 148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code the Court may, in its discretion, from time to, time, enlarge such period, even though the period originally fixed or granted may have expired. 149. Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. 150. Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred. 151. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 152. Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. 153. The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shal1 be made for the purpose of determining the real question or issue raised by or depending on such proceeding. 154. [Omitted by Ordinance (27 of 1981), Second Sched., item 46(11)]. 155. [Omitted by ibid]. 156. Rep. by the Second Repealing and Amending Act 1914 (XVII of 1914), s.3 and Second Schedule. 157. Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf. 158. In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, section or rule. ORDER I PARTIES SUITS 1. All persons may be joined in one suit as Plaintiffs in whom any right to [relief in respect of or transaction or series of acts or transactions is alleged to exit, whether jointly, (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief; but if no omits, except with the leave of the Court, to sue for all such relief, he shall not afterwards sue for any relief so omitted. Explanation: For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. Illustration: A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907. 3.- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit. 4.- No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except- (a) Claims for mesne profits or arrears of rent in respect of ~he property claimed or any part thereof; (b) Claims for damages for breach of any contract under which the property or any part thereof is held; and (c) Claims in which the relief sought is based on the same cause of action; Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure o~ redemption from asking to be put into possession of the mortgaged property. 5. No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the Plaintiff or defendant sues or is sued as executor, administrator or heir, or are such a~ he was entitled to, or liable for, jointly with the deceased person whom he represent. 6. Where it appears to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient. 7. All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues arc settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have waived. ORDER III RECOGNIZED AGENTS AND PLEADERS 1. Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person. 2. The recognized agent of parties by whom such appearances, applications and acts may be made or done are- (a) persons holding powers-of-attorney, authorizing them to make and do ouch appearances, applications and acts on behalf of such parties ; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only where no other agent is expressly authorized to make and do such appearances, applications and acts. 3.-(l) Processes served on the -recognized agent of a party shall be as effectual as if the same had been served on the in person, unless the Court otherwise directs. (2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent. 2[4-(l) No pleader shall act for any person in unless he has been appointed for the purpose by such a document in writing signed by such person or by his agent or by some other person duly authorized by power of attorney to make such appointment. (2) Every such appointment shall be filed in Court arid shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. (3) For the purposes of sub-rule (2) an application for review of judgment, an application, tinder section 144 or section 152 of this Code, any appeal from any decree or order in the suit end any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit. (4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating- (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorized to appear. Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party. 5. Any process served on the pleader of any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person. 6.-(1) Besides the recognized agents described in rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process. (2) Such appointment maybe special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court. refused to take delivery of the same shall be deemed by the Court issuing the summons to be prima facie proof of service of summons. 11. Save as otherwise prescribed, defendants than one, service of the summons each defendant. 12. Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. 13.-(l) In a suit relating to any business or work against a person who does not reside within; the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or works for such person within such limits, shall be deemed good service. (2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or character. 14. Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property. 15. Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him. Explanation: A servant is not a member of the family within the meaning of this rule. 16. Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. 17. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any), by whom the house was identified and in whose presence the copy was affixed. 18. The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. 19. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. 20.-(l) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for nay other reason the summons cannot be served in the ordinary way, the Court shall order for service of the summons by- (a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or (b) any electronic device of communication which may include telegram, phonogram, telex, fax, radio and television; or (c) urgent mail service or public courier services; or (d) beat of drum in the locality where the defendant resides; or (e) publication in press; or (f) any other manner or mode as it may think fit: Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously]. (2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require [which shall not ordinarily exceed fifteen days]. 21. A summons may be sent by the Court by which it is issued, whether within or without the Province, either by one of its officers or by post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides. 22. Omitted by the A. 0., 1949. 23. The Court to which a summons is sent under rule 2 * * shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regard thereto in a prison, the otherwise to the defendant. 25. Where the defendant resides out of 3[Pakistan] and has no agent in 3[Pakistan] empowered to accept service, the summons shall 4[except in the cases mentioned in rule 26-A] be addressed to the defendant at the place where he is residing and sent to him by post. If the is postal communication between such place and the place where the Court is situate. 26. Where: - (a) In the enteric of any foreign 3[or extra-provincial jurisdiction vested in the Central (3ovcrnment), a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons issued by a Court under this Code in any foreign territory in which the defendant resides, or (b) 3[the Provincial Government] has, by notification in the of1iciaI Gazette], declared, in respect of any Court situate In any such territory and not established or con-wined in the exercise of any such jurisdiction as aforesaid that service by such Court of any summons 6[issued under this Code by a Court of the Province] shall be deemed to be valid service,] the summons may be sent to such Political Agent or Court, by post or otherwise, for the purpose of being served upon the defendant ; and, if the Political Agent or Court returns the summons with an endorsement signed by such Political Agent or by the Judge or other officer of the Court that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be deemed to be evidence of service. [26-A. where the defendant is a servant (not belonging to the military, naval or air forces) of any Government in India, or civil public a servant of a railway company or local authority in India, the officer or on summons together with a copy of it to be retained by the defendant shall be sent, with a request that it may be served on the defendant. (a) In the case of a defendant serving in connection with the affairs of the Government of India or a servant of a Railway in India, to the Secretary to the Government of India in the Ministry of Home Affairs, and (b) in the case of a defendant serving in connection with the affairs of any other Government in India, or in the case of a servant of a local authority in India, to the Home Secretary to that Government or, as the case may be to the Home Secretary to the Government in whose territories the local authority has its jurisdiction. 27. Where the defendant is a public officer (not belonging to the armed forces of Pakistan) or is the servant of a railway company or local authority, the Court may, if it 13. Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g., consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim). 14. Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. 15. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. 16. The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit. 17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 18. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court. ORDER VII PLAINT 1. The plaint shall contain the following particulars:- a) the name of the Court in which the suit is brought; b) the name, description and place of residence of the plaintiff; c) the name, description and place of residence of the defendant, so far as they can be ascertained; d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; e) the facts constituting the cause of action and when it arose; f) the facts showing that the Court has jurisdiction; g) the relief which the plaintiff claims; h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees so far as the case admits. 2. Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed; But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for. 3. Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers. 4. Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps(if any) necessary to enable him to institute a suit concerning it. 5. The plaint shall show that the defendant is or claims to be interested in the subject- matter, and that he is liable to be called upon to answer the plaintiff's demand. 6. Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. 7. Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. 8. Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds they shall be stated as far as may be separately and distinctly. 9. The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it. 1(A) [The plaintiff shall present with his plaint - a) As many copies on plain paper of the plaint as there are defendants, plus two extra copies, unless the Court, by reason of the length of the plaint or the number of the defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claim made, or of the relief claimed in the suit, in which case he shall present such statements; and b) Draft forms of summons and fees for service thereof] 2. Where the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, such statements shall show in what capacity the plaintiff or defendant sues or is sued. 3. The plaintiff may, by leave of the Court, amend such statements so as to make them correspond with the plaint. 4. The chief ministerial officer of the Court shall sign such list and copies or statements if, on examination, he finds them to be correct. 10-(1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. (2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it. 11. The plaint shall be rejected in the following cases:- a) where it does not disclose a cause of action: b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so: c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so: d) where the suit appears from the statement in the plaint to be barred by any law. 12. Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order. 13. The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Documents relied on in Plaint (a) file in the Court an amended list, of his presumptive legal representatives; (b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause. (3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings a rising therefrom, including appeal, revision and review. ORDER VIII WRITTEN STATEMENT AND SET-OFF 1. The defendant may, and, if so required by the Court, shall at or before the first hearing or within such time as the Court may permit, permit, present a written statement of his defence: [Provided that the period allowed for filing the written statement shall not ordinarily exceed[thirty] days] 2. The defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. 3. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. 4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any pay thereof, or else set but how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. 5. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. 6.-(1) Where in suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be se-off. (2)The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgement in respect both of the original claim and of the set-off: but this shall not effect the lien, upon he amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. Illustrations (a) A bequeaths Rs.2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administrations to B's effects. C pays Rs.1,000 as surety for D; then D sues C for the legacy. C cannot set-off the debt of Rs.1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of the Rs.1,000. (b) A dies intestate and in debt to B, C takes out administration to A's effects and B buys parts of the effects from C. In a suit for the purchase money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A. (c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off. (d) A sues B on a bill of exchange for Rs.500 . B holds a judgment against A for Rs.1,000. The two claims being both definite pecuniary demands may be set-off. (e) A sues B for compensation on account of trespass. B holds a promissory note for Rs.1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so for as soon as A recovers both sums as definite pecuniary demands. (f) A and B sue C for Rs.1,000 . C cannot set-off a debt due to him by A alone. (g) A sues B and C for Rs.1,000. B cannot set-off a debt due to him alone by A. (h) A with the partnership firm of B and C Rs.1000. B dies leaving C surviving. A sues C for a debt of Rs.1,500 due in his separate character. C may set-off the debt of Rs.1,000. 7.Where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly. 8. Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be in his written statement. 9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same. 10. Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. [11. - (1) Every party, whether original, added or substituted, who appears in any suit or other proceeding, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service. (2) Such address shall be entered in the Register of suits to be maintained under Order, IV rule 2. (3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under this rule. 12.-(1) Where a party fails to file address for service as provided in the preceding rule, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. (2) The Court may pass an order under sub-rule (1) suo motu or on the application of any party. 13 - (1) In every suit of the nature referred to in rule 4, Order XXII, the written statement shall be accompanied by a statement giving - a) the names and addresses of the persons who, in the event of the death of the defendant, may be made a party as his legal representatives; b) the name and address of the person, who in the event of the death of the defendant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the defendant and make an application for the legal representatives to be made a party. (2) A defendant may at any time - a) file in the Court an amended list of his presumptive representatives; b) nominate another person, in the place of the person nominated under clause (b) of sub- rule (1) for the purposes of that clause. (3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefrom, including appeal, revision of review.] ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE 13. [(1)] In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: [Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reason to be accorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim]. [(2) The provisions of section 5 of the Limitation Act 1908 (X of 1908), shall apply to applications under sub-rule (1)]. 14. No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party. ORDER X EXAMINATIONS OF PARTIES BY THE COURT 1. At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials. 2. At the first hearing of the suit or at any subsequent hearing, any party appearing in person or present in Court or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied[shall]be examined orally by the Court; and the Court may, if it thinks fit, pu in the course of such examination questions suggested by either party. 3. The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record. 4.- (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day. (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. ORDER XI DISCOVERY AND INSPECTION 1. In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite-parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without any order for that purpose: Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness. 2. On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars or to make admissions or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs. 3. In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault. 4. Interrogatories shall be in Form No.2 in Appendix C with such variations as circumstances may require. 5. Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite-party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly. 6. Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer. 7. Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories. 8. Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the Court may allow. 9. An affidavit in answer to interrogatories shall be in Form No.3 in Appendix C, with such variations as circumstances may require. 10. No exception shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court. 11. Where any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court for an order requiring him to answer or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct. 12. Any party may, without filing any affidavit apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be brought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. 13. The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No.5 in Appendix C with such variations as circumstances may require. 14. It shall be lawful for the Court at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. 15. Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is in the opinion of the Court a saving of expense. 3. A notice to admit documents shall be in Form No.9 in Appendix C, with such variations as circumstances may require. 4. Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be unless the Court otherwise directs: Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice: Provided also that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just. 5. A notice to admit facts shall be in Form No.10 in Appendix C and admissions of facts shall be in Form No.11 in Appendix C, with such variations as circumstances may require. 6. Any party may, at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties: and the Court may upon such application make such order, or give such judgment as the Court may think just. 7. An affidavit of the pleader or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents of facts, shall be sufficient evidence of such admissions, if evidence thereof is required. 8. Notice to produce documents shall be in Form No.12 in Appendix C with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served 9. If a notice to admit or produce specifies documents which are not necessary the costs occasioned thereby shall be borne by the party giving such notice. ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS 1. - (1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. (2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. [(3) On production of documents under this rule, the Cour may call upon the parties to admit or deny the documents produced in the Court and record their admission or, as the case may be denial]. 2. No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. 3. The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the ground of such rejection. 4.-(1) Subject to the provisions of the next following sub-rule there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars namely:- a) the number and title of the suit, b) the name of the person producing the document, c) the date on which it was produced, and d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the judge. (2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge. 5-(1) Save in so far as is otherwise provided by the Banker's Books Evidence Act, 1891, where a document admitted in evidence in the suit is an entry in a letter-book or a shop- book or other account in current use, the party on whose behalf the book or account is produced may furnish a copy of the entry. (2) Where such a document is an entry in a public record produced from a public office, or by a public officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced, the Court may require a copy of the entry to be furnished - (a) where the record, book or account is produced on behalf of a party, then by that party, or (b) where the record, book or account is produced in obedience to an order of the Court acting of its own motion, then by either or any party. (3) Where a copy of an entry is furnished under the foregoing provisions of this rule, the Court shall, after causing the copy to be examined, compared and certified in manner mentioned in rule 17 of Order VII, mark the entry and cause he book, account or record in which it occurs to be returned to the person producing it. 6. Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of rule 4, sub-rule (1) together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge. 7.-(1) Every document which has been admitted in evidence or a copy thereof where a copy has been substituted for the original under rule 5, shall form part of the record of the suit. (2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them. 8. Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court for such period and subject to such conditions as the Court thinks fit. 9.-(1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,- (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of: Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor delivers to the proper officer a certified copy to the substituted for the original and undertakes to produce the original if required to do so: Provided also that no document shall be returned which, by for ce of the decree, has become wholly void or useless. (2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it. it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by the Court; and shall, upon the finding or decision on such issue, pronounce judgement according to the terms of the agreement; and, upon the judgment so pronounced, a decree shall follow. ORDER XV DISPOSAL OF THE SUIT AT THE FIRST HEARING 1. Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment. 2. Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants. 3-(1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit: Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects. (2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires. 4. Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies, the Court may at once pronounce judgment or may, if it thinks fit, after framing and recording issues adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues. ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES [1 - (1) Not later than seven days after the settlement of issues, the parties shall present in Court a [certificate of readiness to produce evidence alongwith a] list of witnesses whom they propose to cal either to give evidence or to produce documents. (2) A party shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of permission, it shall record reasons for so doing. (3) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court: Provided that no summons shall be issued for service on a person under rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited]. 2.-(1) The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day's attendance. (2) In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case. (3)Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf. 3. The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally. 4-(1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned, without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid. (2) Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid. 5. Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy. 6. Any person may be summoned to produce a document, without being summoned to give evidence ; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. 7. Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power. [7-A.-(1) Except where it appears to the Court that a summons under this Order should be served by the Court in the same manner as a summons to a defendant, the Court shall make over for service all summons under this Order to the party applying therefor. (2) The service shall be effected by or on behalf of such party by delivering or tendering to the witness in person a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. (3) Rules 16 and 18 of Order V shall apply to summons personally served under this rule, as though the person effecting service were a serving officer]. [8. Every summons under this Order, not being a summons made over to a party for service under rule 7-A of this Order, shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order V as to proof of service shall apply thereto]. 9. Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required. 10-(1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document fails to attend or to produce the document in compliance with such summons, the Court shall, if the certificate of the serving-officer has not been verified by affidavit, and may, if it has been so verified, examine the serving-officer on oath, or cause him to be so examined by another Court, touching the service or non-service of the summons. (2) Where the Court sees reason to believe that such evidence or production is material and that such person has without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document 2. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. 3. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding each default, proceed to decide the suit forthwith. [4. Where a suit or proceeding is set down for a day which is a holiday, the parties thereto shall appear in the Court on the day next following that day, or, when two or more successive days are holidays, on the day next following the last of such successive days, and the Court may then either proceed with the suit on such day, or fix some other day thereafter.] [5. When on day the presiding officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day(notwithstanding the knowledge that the presiding officer would be absent) shall appear in the Court in the |Courthouse on that day and the ministerial officer of the Court authorized in that behalf shall hand over to the parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him]. ORDER XVIII HEARING OF THE SUIT AND EXAMINATION OF WITNESSES 1. The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. 2-(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3)The party beginning may then reply generally on the whole case. 3. Where there are several issues, the burden of proving some of which lies on the other party the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. 4. The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. 5. In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing, in the language of the Court, by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative, and, when completed, shall be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary, correct the same, and shall sign it. 6. Where the evidence is taken down in a language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given. 7. Evidence taken down under section 138 shall be in the form prescribed by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule. 8. Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record. 9. Where English is not the language of the Court, but all the parties to the suit who appear in person, and the pleaders of such as appear by pleaders, do not object to have such evidence as is given in English taken down in English, the Judge may so take it down. 10. The Court may, of its own motion or on the application of any party or his pleader, take down any particular question and answer, or any objection to any question, if there appears to be any special reason for so doing. 11. Where any question put to a witness is objected to by a party or his pleader, and the Court allows the same to be put, the Judge shall take down the question the answer, the objection and the name of the person making it, together with the decision of the Court thereon. 12. The Court may record such remarks as it thinks material respecting the demeanor of any witness while under examination. 13. In cases in which an appeal is not allowed, it shall not be necessary to take down the evidence of the witnesses in writing at length; but the Judge, as the examination of each witness proceeds, shall make a memorandum of the substance of what he deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record. 14.-(1) Where the Judge is unable to make a memorandum as required by this Order, he shall cause the reason of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court. (2) Every memorandum so made shall form part of the record. 15-(1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it. (2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24. 16-(1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided. (2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties. (3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit. 17. The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. 18. The Court may at any stage of a suit inspect any property or thing concerning which any question may arise. ORDER XIX AFFIDAVITS 1. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: holder through the Court; or iii. the expiration of three years from the date of the decree whichever event first occurs. (2) Where an inquiry is directed under clause(b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. 13.-(1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit. (2) In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code. 14-(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court the decree shall- a) specify a day on or before which the purchase-money shall be so paid, and b) direct that on payment into Court of such purchase-money, together with the costs(if any) decreed against the plaintiff, on or before the day referred to in clause(a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase- money and the costs (if any) are not so paid the suit shall be dismissed with costs. (2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,- a) If and in so far as the claims decreed are equal in decree that the claim of each pre- emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and b) If and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions. 15. Where a suit is for the dissolution of a partnership or the taking of partnership accounts the Court, before passing a final, decree, may pass as preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit. 16. In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not herein-before provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit. 17. The Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken or vouched and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised. 18. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then- 1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; 2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. 19-(1) Where the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. (2) Any decree passed in a suit in which a set-off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had been claimed. (3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII or otherwise. 20. Certified copies of the judgment and decree shall be furnished to the parties on application to the Court and at their expense. ORDER XXI EXECUTION OF DECREES AND ORDERS Payment under Decrees 1.-(1) All money payable under a decree shall be paid as follows, namely:- a) into the Court whose duty it is to execute the decree; or b) out of Court to the decree-holder [through a bank or by postal money order or evidence by writing signed by the decree- holder or his authorized agent]; or c) otherwise as the Court which made the decree directs. (2) Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder. 2-(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor also may inform the Court of such payment or adjustment and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. [(3) Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.] Courts executing Decrees 3. Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate or tenure. 4. [Transfer to Court of Small Causes.] Omitted by the A.O., 1949. 5. Where the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Courts. But, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed. 6. The Court sending a decree for execution shall send -