Section 11. Effect of failure to comply with order

11. Effect of failure to comply with order.— Where the appellant fails to comply with such order, the proceedings shall be stayed, and the appeal shall not proceed without an order in this behalf of,[1] [the Supreme Court], and in the meantime execution of the decree appealed from shall not be stayed. 1. Added by Act 26 of 1920, s. 3. 11. Oral application. —(1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court. (2) Written application. —Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely:— - (a) the number of the suit; (b) the names of the parties; - (c) the date of the decree; (d) whether any appeal has been preferred from the decree; (e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree; (f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results; (g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed; (h) the amount of the costs (if any) awarded; 11. Appeals .—As regards appeals from original decree we have departed but slightly from the existing Code. We have thought it advisable to give legislative sanction to the view that no appeal shall lie from a consent decree, or as to costs except by leave of the Court: but the most important change is that incorporated in clause 97 which renders it obligatory upon a party, who considers himself aggrieved by a preliminary decree, to appeal from that decree, at the risk of being precluded from disputing its correctness on an appeal from the final decree. We feel strongly that this is a most useful provision, as tending to that which is so desirable, viz., finality in litigation. As regards appeals from appellate decrees the only substantial departure from the existing Code is the insertion of clause 103. Experience has shown the desirability of this clause, the effect of which will be to avoid remands, with their consequent delay and expense. (i) the name of the person against whom execution of the decree is sought; and (j) the mode in which the assistance of the Court is required whether,— (i) by the delivery of any property specifically decreed; 1[(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;] - (iii) by the arrest and detention in prison of any person; - (iv) by the appointment of a receiver; (v) otherwise, as the nature of the relief granted may require. (3) The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree. 2 [11A. Application for arrest to state grounds. —Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.] 1. Subs. by Act 104 of 1976, s. 72, for sub-clause (ii) (w.e.f. 1-2-1977). 2. Ins. by s. 72, ibid . (w.e.f. 1-2-1977). 11. Service on several defendants. —Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. As regards appeals from orders a comparison of clause 104 of the Bill with section 588 of the existing Code would support a prima facie inference that the right of appeal from Orders had been materially curtailed. But this inference is dispelled on looking at sub-clause (h) of clause 104 which allows an appeal from any Order made under Rules from which an appeal is expressly allowed by Rules. We have gone carefully into the question of the cases in which an appeal should be allowed from these Orders and our conclusion is expressed in the Rules themselves. 11. Notice.— Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, are material. 11. Rejection of plaint.— The plaint shall be rejected in the following cases: — (a) where it does not disclose a cause of action; 1. Ins. by Act 104 of 1976, s. 57. (w.e.f. 1-2-1977). (b) where the relief claimed is undervalued, 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 returned 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; - 1 [(e) where it is not filed in duplicate;] 2[(f) where the plaintiff fails to comply with the provisions of rule 9:] 3[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.] 11. Procedure in case of non-attendance of one or more of several defendants.— Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear. 11. Order to answer or answer further.— Where any person interrogated omits to answer, or answer 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. 11. Provisions as to documents applied to material objects.— The provisions therein contained as to documents shall, so far as may be, apply to all other material objects producible as evidence. 1. Subs. by Act 104 of 1976, s. 63, for the First proviso (w.e.f. 1-2-1977). *[ORDER XIII-A Summary Judgment 11. If witness appears, attachment may be withdrawn.— Where, at any time after the attachment of his property, such person appears and satisfies the Court,— (a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service, and (b) where he has failed to attend at the time and place named in a proclamation issued under the last preceding rule, that he had no notice of such proclamation in time to attend, the Court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit. 11. Decree may direct payment by instalments.— (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason[5] [incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that] payment of the amount 11. Application of Order to appeals.— In the application of this Order to appeals, so far as may be, the word "Plaintiff" shall be held to include an appellant, the word "defendant" a respondant, and the word "suit" an appeal. 11. Commission to examine or adjust accounts.— In any suit in which an examination or adjustment of the accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment. 11. Retirement, removal or death of guardian for the suit.— (1) Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit. (2) Where the guardian for the suit, retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place. 11. Procedure where[1] [indigent person] fails.— Where the plaintiff fails in the suit or the permission granted to him to sue as an[1] [indigent person] has been withdrawn, or where the suit is withdrawn or dismisses,— (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service[3] [or to present copies of the plaint or concise statement], or (b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees which would have been paid by the plaintiff if he had not been permitted to sue as[1] [an indigent person]. 11. Payment of interest. —In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:— (a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage— (i) on the principal amount found or declared due on the mortgage,—at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court Deems reasonable, 2* * * * *and (iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the mortgage-money,—at the rate agreed between the parties or, failing such rate,[3] [at such rate not exceeding six per cent per annum as the Court deems reasonable]; and 4[(b) subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at such rate as the Court deems reasonable.]] 11. Property attached before judgment not to be re-attached in execution of decree.— Where property is under attachment by virtue of the provisions of this order decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property. 11. Power to dismiss appeal without sending notice to Lower Court.—[4] [(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal]. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. 5[(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.] 5 [11A. Time within which hearing under rule 11 should be concluded.— Every appeal shall be hear under rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.] 11. The following are particulars of (7), (8), (9), (10) (or as the case may be). 11. And that the immovable property of the deceased, or so much thereof as shall be necessary to make up the fund in Court sufficient to carry out the object of the suit, be sold with the approbation of the Judge, free from incumbrances (if any) of such incumbrancers as shall consent to the sale and subject to the incumbrances of such of them as shall not consent.