Section 13. Small Cause Court not to attach immovable property

2[ 13. Small Cause Court not to attach immovable property.— Nothing in this Order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.] ORDER XXXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Temporary injunctions 13. Where rejection of plaint does not preclude presentation of fresh plaint.— 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 4[14. Production of document on which plaintiff sues or relies.— (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. 5[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.] 15. [ Statement in case of documents not in plaintiff's possession or powers. ] omitted by Act 46 of 1999, s. 17 ( w.e.f. 1-7-2002). 16 . Suits on lost negotiable instruments.— Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint. 13. Proviso omitted by s. 44, ibid . (w.e.f. 1-2-1977). 14. Subs. by the A.O. 1937, for "by the G.G. in C. or by the L.G., as the case may be". STATE AMENDMENTS Assam. — For clause (a) of sub-section (2) of section 123 the following shall be substituted— "(a) three Judges of the High Court established at the town at which such Committee is constituted, provided that the Chief Justice may appoint only two Judges of the High Court on the Committee if the number of Judges of the High Court does not exceed three." [ Vide Assam Act 8 of 1953, sec. 2.] Tamil Nadu Amendment of section 123, Central Act V of 1908 .—In section (2) of section 123 of the Code of Civil Procedure, 1908 ( Central Act V of 1908),- (a) in clause (b), for the words "two legal practitioners", the words "three legal practitioners" shall be substituted. - (b) in clause (d), the word "Madras" shall be omitted. [ Vide Tamil Nadu Act 15 of 1970, s. 2] 13. Objections as to non-joinder or misjoinder. —All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are 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 been waived. ORDER II Frame of suit 13. Service on agent by whom defendant carries on business. —(1) 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 work 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 charterer. 13. Presumptions of law.— 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). 13. Setting aside decree ex parte against defendant.— 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: 1[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.] 2[ Explanation .—Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.] 13. Decree in administration suit.— (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. 13. Commission to make partition of immovable property.— Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree. 13. Where minor co-plaintiff attaining majority desires to repudiate suit.— (1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit. (2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant. (3) The costs of all parties of such application, and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the Court directs. (4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant. 13. State Government to be deemed a party.— All matters arising between the[1] [State Government] and any party to the suit under rule 10, rule 11,[2] [rule 11A] or rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of section 47. 3 [14. Recovery of amount of court-fees.— Where an order is made under rule 10, rule 11 or rule 11A, the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were an arrear or land revenue.] 13. Application of proceeds.— (1) Such proceeds shall be brought into Court and applied as follows:— first, in payment of all expenses incident to the sale or properly incurred in any attempted sale; secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage, and of costs, properly incurred in connection therewith; thirdly, in payment in all interest due on account of the mortgage in consequence whereof the sale was directed, and of the costs of the suit in which the decree directing the sale was made; fourthly, in payment of the principal money due on account of that mortgage; and lastly, the residue (if any) shall be paid to the person proving himself to be interested in the property sold, or if there are more such persons than one, than two, to such persons according to their respective interests therein or upon their joint receipt. (2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882 (4 of 1882). 1. Ins. by Act 104 of 1976, s. 82 (w.e.f. 1-2-1977). 13. Powers of Court pending appeal .—(1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs. (2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,— (a) impound any movable property in dispute or any part thereof, or (b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which[1] [the Supreme Court] may make on the appeal, or (c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of[2] [any decree or order] which[1] [the Supreme Court] may make on the appeal, or (d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise. 13. And it is further ordered that, for the purpose of the inquiries hereinbefore directed, the ………. *shall advertise in the newspapers according to the practice of the Court, or shall make such inquiries in any other way which shall appear to the …....……….. *to give the most useful publicity to such inquiries. 13. We are sensible that there may be defects and flaws in the Bill which we appena to this Report. The subject is complicated and technical and the time at our disposal has been limited. We do not doubt therefore that much improvement may be made in the Bill before it is finally passed in to law. But in our opinion it is framed on the right lines. We believe for the reasons we have stated that in any reform of civil Procedure it is essential to introduce some elasticity to give wider powers of control to the High Courts, and to invest them with a larger discretion in regard to the conduct of cases which come before them. Mr. Dikshit, Subordinate Judge from Bombay, has been present throughout our deliberations, and we take this opportunity of acknowledging the help we have derived from his experience of the working of the Code in the mofussil. We desire also to record our acknowledgements of the services of Mr. Law of the Legislative Department who has attended to the clerical and press work to our entire satisfaction Simla; August, 31st, 1907. H. ERLE RICHARDS.