Section 10. Power to order further security or payment

10. Power to order further security or payment. —Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to[1] [the Supreme Court], such security appears inadequate, or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid, the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within like time, the required payment. 10. Deposit of money, etc., in Court.— Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court. STATE AMENDMENT Uttar Pradesh Amendment of Order XXXIX.— In the First Schedule, in Order XXXIX — 1. The words "after notice to the defendant" omitted by Act 104 of 1976, s. 86. (w.e.f. 1-2-1977). 2. The words "after notice to the plaintiff" omitted by s. 86, ibid . (w.e.f. 1-2-1977). 3. Ins. by s. 86, ibid. (w.e.f. 1-2-1977). - (a) in rule 2, in sub-rule (2) the following proviso shall be inserted, namely :— "provided that no such injunction shall be granted — (a) where no perpetual injunction could be granted in view of the provisions of section 38 and section 41 of the Specific Relief Act, 1963, or (b) to stay the operation of an order for, transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government, or (c) to say, any disciplinary proceeding pending or intended or, the effect of any adverse entry, against any employee of the Government, or 10. Suit in name of wrong plaintiff. —(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties. —The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose 1. Subs. by Act 104 of 1976, s. 52, for rule 8 (w.e.f. 1-2-1977). 2. Ins. by s. 52, ibid . (w.e.f. 1-2-1977). 3. The proviso added by, ibid ., s. 52 (w.e.f. 1-2-1977). presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. 10. Procedure where witness fails to comply with summons .—[1] [(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— (a) shall, if the certificate of the serving officer has not been verified by the affidavit, or if service of the summons has affected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any 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 at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. (d) to affect the internal management or affairs of, any educational institution including a University, or a society, or (e) to restrain any election, or (f) to restrain, any auction intended to be made or, the effect of any auction made, by the Government, or (g) to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished, or (h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being in force ; and any order for injunction granted in contravention of these provisions shall be void." ; (b) in rule 4 — (i) after the words "by the court", the words "for reasons to be recorded, either on its own motion or" shall be inserted ; - (ii) at the end, the following proviso shall be inserted, namely:— "Provided that if at any stage of the suit it appears to the Court that the party in whose favour the order of injunction exists is dilating the proceeding or is otherwise abusing the process of Court, it shall set aside the order for injunction." [ Vide Uttar Pradesh Act 57 of 1976, s. 13] Uttar Pradesh Amendment of order XXXIX of First Schedule.— In the First Schedule to the said Code, in Order XXXIX, in rule 2, in sub-rule (2), in the proviso, clause (d) shall be omitted . [ Vide Uttar Pradesh Act 17 of 1991, s. 8] ORDER XL APPOINTMENT OF RECEIVERS 10. Mode of service. —Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court. (4) Where defendant added, plaint to be amended. —Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the[1] [Indian Limitation Act, 1877 (XV of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. (3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12: Provided that no Court of Small Causes shall make an order for the attachment of immovable property. 1 [ Explanation VII .— The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII . —An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.] 10. Malice, knowledge, etc.— Wherever it is material to allege malice, fradulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. 10. Procedure when party fails to present written statement called for by Court.— Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up:] *[Provided that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.] STATE AMENDMENT Jammu and Kashmir and Ladakh (UTs).― In Rule 10, insert the following proviso, namely:- Provided that no court shall make an order to extend the time provided under Rule 1 of this order for filing of the written statement. [ Vide the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O. 1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation of Central Laws ) Order, 2020, Notification No. S.O . 3774(E), dated (23-10-2020)]. ORDER IX Appearance of parties and consequence of non-appearance 10. Procedure in case of non-attendance of one or more of several plaintiff's.— Where there are more plaintiffs than one, and one or more of them appear and the others do not appear, the Court may, at the instance of the plaintiff or plaintiff's appearing, permit the suit to proceed in the same way as if all the plaintiff's had appeared, or make such order as it thinks fit. 10. No exception to be taken.— No exceptions 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. 10. Court may send for papers from its own records or from other Courts.— (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same. (2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice. (3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit. 10. Any particular question and answer may be taken down.— 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. 3 11 . Questions objected to and allowed by Court. —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. 10. Decree for delivery of movable property.— Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had. 10. Application for execution.— Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof. 10. Procedure in case of assignment before final order in suit .—(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). [2] [10A . Duty of pleader to communicate to Court death of a party.— Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.] 10. Procedure of Commissioner .—(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit.— The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in person.— Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. 1[ Commissions for scientific investigation, performance of ministerial act and sale of movable property 2[ 10. Suit against person carrying on business in name other than his own.— Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly.] 1. Subs. by Act 104 of 1976, s. 78, for rule 8 (w.e.f. 1-2-1977). 2. Subs. by s. 78, ibid. , for rule 10 (w.e.f. 1-2-1977). ORDER XXXI Suits by or against trustees, executors and administrators 10. Stay of proceedings on removal, etc., of next friend.— (1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place. (2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may, apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit. 10. Costs where[1] [indigent person] succeeds.— Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as[1] [an indigent person]; such amount shall be recoverable by the[4] [State Government] from any party ordered by the decree to pay the same and shall be a first charge, on the subject-matter of the suit. 10. Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale. —Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree. 10. Appellate Court may require appellant to furnish security for costs.— (1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both: Where appellant resides out of India.— Provided that the Court shall demand such security in all cases in which the appellant is residing out of[3] [India], and is not possessed of any sufficient immovable property within[3] [India] other than the property (if any) to which the appeal relates. (2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal. 10. And it is further ordered that if the movable property of the deceased be found insufficient for carrying out the objects of the suit, then the following further inquiries be made, and accounts taken, that is to say— (a) an inquiry what immovable property the deceased was seized of or entitled to at the time of his death; (b) an inquiry what are the encumbrances (if any) affecting the immovable property of the deceased or any part thereof; (c) an account, so far as possible, of what is due to the several incumbrancers, and to include a statement of the priorities of such of the incumbrancers as shall consent to the sale hereinafter directed. 10. New procedure .—We have given power to provide by Rules for Counter-claims, Third Party Procedure, Summary Procedure in suits for debt or liquidated demands as for instance, rent, or any other definite sum payable under a contract and Originating summons. We are of opinion that these forms of proceeding may usefully be adopted in some areas but that this is a matter which should be left for each High Court to decide.