Section 5. [ Enactments repealed .] Rep. by the Second Repealing and Amending Act, 1914 (17 of 1914). s . 3 and II Sch

THE FIFTH SCHEDULE.—[ Enactments repealed .] Rep. by the Second Repealing and Amending Act, 1914 (17 of 1914). s . 3 and II Sch. ANNEXURE THE CODE OF CIVIL PROCEDURE (AMENDMENT) ACT, 1976 (104 OF 1976) * * * * * 5. Execution.— The subject of execution is, perhaps, one of the most difficult with which we have had to deal. The present system, in the mofussil at any rate, tends to excessive delay and affords facilities for defeating the claims of creditors. At the same time the creditor often has only himself to blame, owing to his own laches in prosecuting his rights. In the Presidency Towns the same objections cannot be fairly raised; the system works well; whilst, in the mofussil, the difficulties arise not so much from the machinery itself, as from the defective manner in which it is worked. One of the most fruitful sources of litigation is the setting aside of execution sales, on the ground of irregularity in the publication of the sale proclamation. It is notorious that in many of these cases the Court's officer, either through negligence or dishonesty, has not duly published the proclamation, but it is impossible to deal with such cases by any provision in a Code. After a most careful consideration of the Subject, we have not seen our way to any very drastic changes in the present system. We have found ourselves unable to accept the somewhat far reaching proposal of the Committee of 1902 in relation to the execution of decrees by precept: but we are so far in accord with the view expressed by the Committee as to have been able to insert in the Bill, a clause which enables the Court which passed the decree to issue precept to any other Court to attach property of the judgment-debtor, pending execution in the ordinary course. Beyond this we have felt we could not safely go. 5. Specific denial .—[1] [(1)] 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: *[Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability.] 2[(2) Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.] STATE AMENDMENT Jammu and Kashmir and Ladakh (UTs) .— In Rule 5, in sub-rule (1) after first proviso thereto, insert the following proviso, namely:- 5. Dismissal of suit where plaintiff after summons returned unserved, fails for[3] [seven days] to apply for fresh summons. —[4] [(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of[3] [seven days] from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that— (a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or 1. Subs. by Act 22 of 2002, s. 10 for rule 2 (w.e.f. 1-7-2002). 2. Subs. by Act 104 of 1976 s. 59, for certain words (w.e.f. 1-2-1977). 3. Subs. by Act 46 of 1999, s. 19, for "one month" (w.e.f. 1-7-2002). 4. Subs. by Act 24 of 1920 s. 2, for sub-rule (1). * Ins. by Act 4 of 2016, s. 16 and Sch., Shall be applicable to commercial disputes of a specified value (w.e.f. 23-10-2015). (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.] 5. Certain words omitted by Act 46 of 1999, s. 28 (w.e.f. 1-2-1977). 6. Subs. by Act 104 of 1976, s. 70 for "A Judge may" (w.e.f. 1-2-1977). * Subs. by Act 4 of 2016, s. 16 and Sch., Shall be applicable to commercial disputes of a specified value (w.e.f. 23-10-2015). 1 3. Judgment to be signed.— The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by section 152 or on review. 1 4. Judgments of Small Cause Courts.— (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon. (2) Judgments of other Courts.— Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. 1 5. Court to state its decision on each issue.— In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit. 5. Final decree in suit for sale.— (1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order— (a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary,— (b) ordering him to transfer the mortgaged property as directed in the said decree, and, also, if necessary,— (c) ordering him to put the defendant in possession of the property. (2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1) , deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent. thereof. 5. Stay by Appellate Court.— (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. 1[ Explanation. — An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.] (2) Stay by Court which passed the decree. —Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied— (a) that substantial loss may result to the party applying for stay of execution unless the order is made; 5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession, custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter memorandum, paper or writing, or any copy of or extract from any such document, or any other documents whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto. No. 6 ORDER TO PRODUCE DOCUMENTS FOR INSPECTION (O. 11, r. 14.) (Title as in No. 1, supra) Upon hearing………………and upon reading the affidavit of……………….. filed the day of……………20……………; It is ordered that the………………..do, at all reasonable times, on reasonable notice, produce at…………………. , situate at …………………., the following documents, namely,………………, and that the……………be at liberty to inspect and peruse the documents so produced, and to make notes of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the costs of this application be………………………. ==> picture [28 x 13] intentionally omitted <== NOTICE TO PRODUCE DOCUMENTS (O. 11, r. 16) ==> picture [112 x 13] intentionally omitted <== 5. That O. was never married. No. 11 ADMISSION OF FACTS PURSUANT TO NOTICE (O. 12, r. 5) (Title as in No. 1, supra) The defendant [ or plaintiff] in this suit, for the purposes of this suit only, hereby admits the several facts respectively hereunder specified, subject to the qualifications or limitations, if any, hereunder specified, saving all just exceptions to the admissibility of any such facts, or any of them, as evidence in this suit: Provided that this admission is made for the purposes of this suit only, and is not an admission to be used against the defendant [ or plaintiff] on any other occasion or by any one other than the plaintiff [ or defendant, or party requiring the admission]. E. F., pleader [ or agent ] for defendant [ or plaintiff ]. To G. H., pleader [ or agent ] for plaintiff [ or defendant ]. |Facts admitted|Qualifications or limitations, if any, subject to<br>which they are admitted| |---|---| |1. That M. died on the 1st January, 1890…..|1.| |2. That he died intestate……………………...|2.| |3. That N. was his lawful son ……………….|3. But not that he was his only lawful son.| |4. That O. died……………………………….|4. But not that he died on the 1st April, 1896.| |5. That O. was never married……………….|5. ...................................................................| No. 12 NOTICE TO PRODUCE (GENERAL FORM) (O. 12, r. 8.) (Title as in No. 1, supra) 5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff shall be at liberty to apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit. Schedule Description of the mortgaged property 1 [No. 3A PRELIMINARY DECREE FOR FORECLOSURE (Order XXXIV, rule 2.—Where the Court declares the amount due.) (Title) 5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant shall be at liberty to apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit. Schedule (Description of the mortgaged property) 1[ No. 7A PRELIMINARY DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE FOR SALE IS PASSED (Order XXXIV, rule 7.—Where accounts are directed to be taken.) (Title) This suit coming on this .........day, etc.; It is hereby ordered and decreed that it be referred to ……. as — the Commissioner to take the accounts following : (i) an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent. per annum or at such rate as the Court deems reasonable); 5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for the payment in full of the amount payable to the defendant as aforesaid, the defendant shall be at liberty (where such remedy is open to him under the terms of the mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the plaintiff for the amount of the balance; and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit. Schedule ==> picture [184 x 14] intentionally omitted <== 1[ No. 7D FINAL DECREE FOR FORECLOSURE IN A REDEMPTION SUIT ON DEFAULT OF PAYMENT BY MORTGAGOR (Order XXXIV, rule 8) (Title) Upon reading the preliminary decree in this suit on the .............…. day of ……….…. and further order (if any) dated the ………..…… day of ……………... , and the application of the defendant dated the ……….... day of ………..…… for a final decree and after hearing the parties, and it appearing that the payment as directed by the said decree and orders has not been made by the plaintiff or any person on his behalf or any other person entitled to redeem the mortgage. We anticipate that there will be a substantial saving of time, and consequent expense, from the provision requiring that mesne profits shall be ascertained by the Court under the decree itself, and not, as now in execution proceedings. Clause 53 has been introduced to settle a long mooted point upon which there is much diversity to judicial opinion, as to whether or not questions as to the liability of ancestral property in the hands of a son or other descendant to whom it has come otherwise than by descent for the payment of the debt for which the decree was passed, can be determined under clause 47 of the present Bill, corresponding with section 244, of the existing Code. We think they should be. Other amendments deserving notice relate to (1) the power to break open the outer door the judgmentdebtor's dwelling house; (2) the date from which the purchaser's title accrues; (3) oral application for immediate execution; (4) the discretion of the Court in the execution of decrees for the restitution of conjugal rights; (5) execution against partnership property; (6) extended facilities for attaching salaries, and (7) powers to decree-holders to carry decrees in to effect at the expense of the judgment-debtor. We regard the changes made in relation to execution as calculated to materially assist the judgmentcreditor in recovering the fruits of his judgment. 5. Service of process on pleader. —[1] [Any process served on the pleader who has been duly appointed to act in Court for 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. Provided further, that every allegation of fact in the plaint, if not denied in the manner provided under Rue 3-A of this order, shall be taken to be admitted except as against a person under disability. [ 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)]. (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit. 2 [5A. Court to inform parties as to where an appeal lies in cases where parties are not represented by pleaders.— Except where both the parties are represented by pleaders, the Court shall, when it pronounces its judgment in a case subject to appeal, inform the parties present in Court as to the Court to which an appeal lies and the period of limitation for the filing of such appeal and place on record the information so given to the parties.] (3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of rule 4. 6 . Recovery of balance due on mortgage in suit for sale.— Where the net proceeds of any sale held under[1] [rule 5] are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance. (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4)[2] [Subject to the provision of sub-rule (3),] the Court may make an ex parte order for stay of execution pending the hearing of the application. 1[(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.] Take notice that the [ plaintiff or defendant ] requires you to produce for his inspection the following documents referred to in your [plaint or written statement or affidavit, dated the……………day of …………….20………… ]. [ Describe documents required .] X. Y., pleader for the ………….. To Z., pleader for the ……….. No. 8 NOTICE TO INSPECT DOCUMENTS (O. 11, r. 17) (Title as in No. 1, supra) Take notice that you can inspect the documents mentioned in your notice of the ……………..day of……………..20……….. [ except the documents numbered…… …………………….in that notice] [ insert place of inspection ] on Thursday next, the instant, between the hours of 12 and 4 o'clock. Or , that the [ plaintiff or defendant ] objects to giving you inspection of documents mentioned in your notice of the day of………..20………… , on the ground that [ state the ground ]. No. 9 NOTICE TO ADMIT DOCUMENTS (O. 12, r. 3) (Title as in No. 1, supra) Take notice that you are hereby required to produce and show to the Court at the first hearing of this suit all books, papers, letters, copies of letters and other writings and documents in your custody, possession or power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly. G. H., pleader [ or agent ] for plaintiff [ or defendant ]. To E. F. pleader [ or agent ] for defendant [ or plaintiff ]. APPENDIX D DECREES No. 1 DECREE IN ORIGINAL SUIT (O. 20, rr. 6,7) (Title) Claim for ........................................................................................................................................ THIS suit coming on this day for final disposal before ................................... in the presence of ....................................... for the plaintiff and of ............................ for the defendant, it is ordered and decreed that .......................................... and that the sum of Rs ........................................... be paid by the ....................................... to the ............................. on account of the costs of this suit, with interest thereon at the rate of ................................... per cent. per annum from this date to date of realization. GIVEN under my hand and the seal of the Court, this .................... day of…………..20….. Costs of Suit Judge. This suit coming on this................................ day, etc.; It is hereby declared that the amount due to the plaintiff on his mortgage mentioned in the plaint calculated up to this .................................................day of...................... is the sum of Rs......................... for principal, the sum of Rs.................... for interest on the said principal, the sum of Rs. ........................ for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs........ for the costs of this suit awarded to the plaintiff, making in all sum of Rs............ — 2. And it is hereby ordered and decreed as follows: (i) that the defendant do pay into Court on or before the....................................day of............or any later date up to which time for payment may be extended by the Court of the said sum of Rs...................., 1. Subs. by Act 21 of 1929, s. 8 and the Sch., for Forms 3 to 11. (ii) an account of the income of the mortgaged property received up to this date by the defendant or by any other person by the order or for the use of the defendant or which without the wilful default of the defendant or such person might have been so received; (iii) an account of all sums of money property incurred by the defendant up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum); (iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendant which is destructive of, or permanently injurious to, the property or 1. Subs. by Act 21 of 1929, s. 8 and the Sch., for Forms 3 to 11. by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed. It is hereby ordered and decreed that the plaintiff and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned *[and (if the plaintiff be in possession of the said mortgaged property) that the plaintiff shall deliver to the defendant quiet and peaceable possession of the said mortgaged property]. (ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendant, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property. 5. Summons to be either to settle issues or for final disposal.— The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly: Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. |Plaintiff||||Defendant|||| |---|---|---|---|---|---|---|---| ||Rs.|A.|P.||Rs.|A.|P.| |1. Stamp for plaint………..||||Stamp for power……………...|||| |2. Stamp for power……….||||Stamp for petition………|||| |3. Stampfor exhibits……...||||Pleader's fee………….|||| |4. Pleader's fee on Rs. ......||||Subsistence for witnesses…|||| |5. Subsistence for witnesses..||||Service of process……….|||| |6. Commissioner'sfee……||||Commissioner'sfee………..|||| |7. Service of process……..|||||||| |Total||||Total|||| No. 2 SIMPLE MONEY DECREE (Section 34) (Title) Claim for...................................................................................................................................................... THIS suit coming on this........................day for final disposal before..........in the presence of ..............................for the plaintiff and of.................for the defendant; It is ordered that the...................do pay to the.................. the sum of Rs................ with interest thereon at the rate of.......................per cent. per annum from......................................to the date of realization of the said sum and do also pay Rs..................... , the costs of this suit, with interest thereon at the rate of……..per cent. per annum from this date to the date of realization. GIVEN under my hand and the seal of the Court, this........................... day of....................20…………. Judge. Costs of Suit |Plaintiff|Plaintiff|Plaintiff|Plaintiff|Defendant|Defendant|Defendant|Defendant| |---|---|---|---|---|---|---|---| ||Rs.|A.|P.||Rs.|A.|P.| |1. Stamp for plaint..............||||Stamp for power ......|||| |2. Stamp for power.............||||Stamp for petition ..|||| |<br>3. Stampfor exhibit...........||||<br>Pleader's fee .........|||| |4. Pleader's fee on Rs............||||Subsistence for witnesses...|||| |5. Subsistence for witnesses.....||||Service of process ...|||| |6. Commissioner's fee..........||||Commissioner's fee ……|||| |7. Service of process..............|||||||| |<br>Total||||Total|||| ==> picture [35 x 14] intentionally omitted <== PRELIMINARY DECREE FOR FORECLOSURE (Order XXXIV, rule 2.—Where accounts are directed to be taken.) (Title) This suit coming on this................................. day, etc.; It is hereby ordered and decreed that it be — referred to...................... as the Commissioner to take the accounts following: (i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent. per annum or at such rate as the Court deems reasonable); 5. Defendant's interest and liability to be shown.— 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. (ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person might have been so received; (iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum); (iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed. 5. Corporations.— 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. 5. Production of documents. —(1) Any party to a proceeding may seek or the Court may order, at any time during the pendency of any suit, production by any party or person, of such documents in the possession or power of such party or person, relating to any matter in question in such suit. (2) Notice to produce such document shall be issued in the Form provided in Form No. 7 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908). (3) Any party or person to whom such notice to produce is issued shall be given not less than seven days and not more than fifteen days to produce such document or to answer to their inability to produce such document. (4) The Court may draw an adverse inference against a party refusing to produce such document after issuance of a notice to produce and where sufficient reasons for such non-production are not given and order costs. 5. Production of documents.— (1) Any party to a proceeding may seek or the court may order, at any time during the pendency of any suit, production by any party or person, of such documents in the possession or power of such party or person, relating to any matter in question in such suit. (2) Notice to produce such document shall be issued in the form provided in Form No. 7 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908). (3) Any party or person to whom such notice to produce is issued shall be given not less than seven days and not more than fifteen days to produce such document or to answer to their inability to produce such document. (4) The court may draw an adverse inference against a party refusing to produce such document after issuance of a notice to produce and where sufficient reasons for such non-production are not given and order costs. 5. Form of admissions.— A notice to admit facts shall be in Form No. 10 in Appendix C, and admission of facts shall be in Form No. 11 in Appendix C, with such variations as circumstances may require. 6[6. Judgment on admissions.— (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question[-] between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.] 1. Subs. by Act 104 of 1976, s. 62, for "to admit any document" (w.e.f. 1-2-1977). 2. Subs. by Act 46 of 1999, s. 22, for "fifteen" (w.e.f. 1-7-2002). 3. Ins. by Act 104 of 1976, s. 62 (w.e.f. 1-2-1977). 4. Ins. by Act 66 of 1956, s. 14 (w.e.f. 1-1-1957). 6. Subs. by Act 104 of 1976, s. 62, for rule 6 (w.e.f. 1-2-1977). 7. Affidavit of signature 5. Second proviso omitted by Act 46 of 1999, s. 22 (w.e.f. 1-7-2002). 6. Subs. by Act 104 of 1976, s. 62, for rule 6 (w.e.f. 1-2-1977). 5. Endorsements on copies of admitted entries in books, accounts and records.—( 1 ) Save in so far as is otherwise provided by the Bankers' Books Evidence Act, 1891 (XVIII of 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— 1. Subs. by Act 46 of 1999, s. 23, for rules 1 and 2 (w.e.f. 1-7-2002). (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 the book, account or record in which it occurs to be returned to the person producing it. 5. Evidence for hearing of summary judgment.— (1) Notwithstanding anything in this Order, if the respondent in an application for summary judgment wishes to rely on additional documentary evidence during the hearing, the respondent must:— - (a) file such documentary evidence; and (b) serve copies of such documentary evidence on every other party to the application at least fifteen days prior to the date of the hearing. (2) Notwithstanding anything in this Order, if the applicant for summary judgment wishes to rely on documentary evidence in reply to the defendant's documentary evidence, the applicant must:— (a) file such documentary evidence in reply; and (b) serve a copy of such documentary evidence on the respondent at least five days prior to the date of the hearing. (3) Notwithstanding anything to the contrary, sub-rules (1) and (2) shall not require documentary evidence to be:— - (a) filed if such documentary evidence has already been filed; or - (b) served on a party on whom it has already been served. 1[ 5. Power to amend and strike out, issues.— (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.] 5. Case Management Hearings during a trial.— The Court may, if necessary, also hold Case Management Hearings anytime during the trial to issue appropriate orders so as to ensure adherence by the parties to the dates fixed under Rule 2 and facilitate speedy disposal of the suit. 5. Case Management hearings during trial.— The court may, if necessary, also hold Case Management Hearings anytime during the trial to issue appropriate orders so as to ensure adherence by the parties to the dates fixed under Rule 2 and facilitate speedy disposal of the suit. 5. Time, place and purpose of attendance to be specified in summons.— 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. 5. Officer in charge of prison to abstain from carrying out order in certain cases.— Where the person in respect of whom an order is made under rule 2— (a) is certified by the medical officer attached to the prison as unfit to be removed from the prison by reason of sickness or infirmity; or - (b) is under committal for trial or under remand pending trial or pending a preliminary - investigation; or (c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or (d) is a person to whom an order made by the State Government under rule 4 applies, the officer in charge of the prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reasons for so abstaining. 5. Redacting or rejecting evidence. —A court may, in its discretion, for reasons to be recorded in writing— (i) redact or order the redaction of such portions of the affidavit of examination-in-chief as do not, in its view, constitute evidence; or (ii) return or reject an affidavit of examination-in-chief as not constituting admissible evidence. 5. Redacting or rejecting evidence.— A Court may, in its discretion, for reasons to be recorded in writing-- (i) redact or order the redaction of such portions of the affidavit of examination-in-chief as do not, in its view, constitute evidence; or (ii) return or reject an affidavit of examination-in-chief as not constituting admissible evidence. 5. Determination of question as to legal representative.— Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: 1[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.] 5. Commission or request to examine witness not within India.— Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within[4] [India] is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request. 5. Fixing of day for appearance on behalf of Government.— The Court, in fixing the day for[3] [the Government] to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the[7] [Government pleader] to appear and answer on behalf of[8] [the Government][9] *, and may extend the time at its discretion[10] [but the time so extended shall not exceed two months in the aggregate]. 10 [5A. Government to be joined as a party in a suit against a public officer. —Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit. 5. Notice in what capacity served.— Where a summons is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner. 5. Representation of minor by next friend or guardian for the suit.— (1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2) , shall be made by his next friend or by his guardian for the suit. (2) Every order made in a suit or on any application, before the Court in or which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged, and, where the pleader of the party at whose instance such order was 1. The words "to the minor and" omitted by Act 104 of 1976, s. 79. (w.e.f. 1-2-1977). 2. Subs. by s. 79, ibid ., for certain words (w.e.f. 1-2-1977). 3. Ins. by s. 79, ibid . (w.e.f. 1-2-1977). 4. Ins. by Act 16 of 1937, s. 2. obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader. 5. Duty to enquire into facts.— In every suit or proceeding to which this Order applies, it shall be the duty of the Court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant. 1. Subs. by Act 104 of 1976, s. 79, for rule 16 (w.e.f. 1-2-1977). 2. Ins. by s. 80, ibid . (w.e.f. 1-2-1977). 5. Agents and tenants may not institute interpleader suits.— Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or landlords. Illustrations (a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C. (b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute in interpleader-suit against A and C. jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and 5. Hearing and disposal of case.— (1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suit so far as the same are applicable. 1. Ins. by Act 104 of 1976, s. 83 (w.e.f. 1-2-1977). 2. Subs. by s. 83, ibid., for "The agreement" (w.e.f. 1-2-1977). 3. Subs. by s. 83, ibid., for "it was presented" (w.e.f. 1-2.1977). (2) Where the Court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit— (a) that the agreement was duly executed by them, (b) that they have a bona fide interest in the question stated therein, and - (c) that the same is fit to be decided, it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow. 5. Power to order bill, etc., to be deposited with officer of Court.— In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof. 5. Where defendant may be called upon to furnish security for production of property.— (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,— (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. 1[(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.] 5. Injection to corporation binding on its officer.— An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain. Interlocutory orders 5. When Collector may he appointed receiver.— Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector, appoint him to be receiver of such property. ORDER XLI APPEALS FROM ORIGINAL DECREES 5. Rule 1 re-numbered as sub-rule (1) by Act 66 of 1956, s. 14. 6. Subs. by Act 104 of 1976, s. 90, for "pauper" and "paupers" respectively (w.e.f. 1-2-1977), 7. Proviso omitted by Act 66 of 1956, s. 14. 5. Power to alter, etc., decree of Court making reference. —Where a case is referred to the High Court under rule[1] [or under the proviso to section 113], the High Court may return the case for amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose, and make such order as it thinks fit. 5. Application for review in Court consisting of two or more Judges.— Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order a review of which is applied for, continues or continued attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. 5. The Value of the subject-matter of the suit for the purpose of jurisdiction is …….rupees and for the purpose of court-fees is………….rupees. 5. On the……………day of…………20……, the plaintiff re-sold the [ crate of crockery ], on account of the defendant, by public auction, for………..rupees. 6. The expenses attendant upon such re-sale amounted to……..rupees. 5. The defendant has not paid the same. [ As in paras. 4 and 5 of Form No. 1, and Relief claimed. ] No. 13 BREACH OF AGREEMENT TO PURCHASE LAND (Title) A. B., the above-named plaintiff, states as follows:— 5. The value of the subject-matter of the suit for the purpose of jurisdiction is.......... rupees and for the purpose of court-fees is........... rupees. 5. [ Facts showing when the cause of action arose and that the Court has jurisdiction. ] 5. The plaintiff claims— (1) a declaration that the defendant is not entitled to obstruct the passage of the public along the said road; (2) an injunction restraining the defendant from obstructing the passage of the public along the said public road and directing the defendant to remove the earth and stones wrongfully heaped up as aforesaid. No. 38 INJUNCTION AGAINST THE DIVERSION OF A WATER-COURSE (Title ) A. B., the above-named plaintiff, states as follows:— [ As in form No. 27.] The plaintiff claims that the defendant be restrained by injunction from diverting the water as aforesaid. No. 39 RESTORATION OF MOVABLE PROPERTY THREATENED WITH DESTRUCTION AND FOR AN INJUNCTION (Title ) A. B. the above-named plaintiff, states as follows:— 5. No pecuniary compensation would be an adequate compensation to the plaintiff for the loss of the [painting]. [ As in paras. 4 and 5 of Form No . 1. ] 5. He has no claim upon the said property other than for charges and costs, and is ready and willing to deliver it to such persons as the Court shall direct. 6. The suit is not brought by collusion with either of the defendants. [ As in paras. 4 and 5 of Form No. 1. ] 5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant. [ As in paras. 4 and 5 of Form No . 1.] 5. As to the plaintiff's claim for damages the defendant will rely on the above grounds of defence, and says that the acts complain of have not produced any damage to the plaintiff [ If other grounds are relied on, they must be stated, e.g. , limitation as to past damage. ] No. 11 DEFENCE TO SUIT FOR FORECLOSURE 1. The defendant did not execute the mortgage. 5. The plaintiff took possession on the .......... ............of ... ..............and has received the rents ever since. 5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matter —(State why). 6. The agreement is uncertain in the following respects—( State them). 7. (or) The plaintiff has been guilty of delay. 8. (or) The plaintiff has been guilty of fraud ( or misrepresentation). 9. (or) The agreement is unfair. 10. (or) The agreement was entered into by mistake. 5. The deceased at the time of the execution of the said will and codicil did not know and approve the contents thereof [ or of the contents of the residuary clause in the said will, as the case may be ]. 5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property. 5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant may apply to the Court for a final decree for the sale of the mortgaged property; and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the defendant shall produce before the Court or such officer as it appoints, all documents in his possession of power relating to the mortgaged property. 5. And it is hereby further ordered and decreed— (a) that if defendant No. 2 pays into Court to the credit of this suit the amount adjudged due to the plaintiff, but defendant No. 1 makes default in the payment of the said amount, defendant No. 2 shall be at liberty to apply to the Court to keep the plaintiff's mortgage alive for his benefit and to apply for a final decree ( in the same manner as the plaintiff might have done under clause 4 above )— *[(i) that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to defendant No. 2 quiet and peaceable possession of the said property;] or * [(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale defendant No. 2 shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property;] and (b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished. 5. And it is hereby further ordered and decreed,— (a) that, if the plaintiff pays into Court to the credit of this suit the amount adjudged due to defendant No. 2 but defendant No. 1 makes default in the payment of the said amount, the plaintiff shall be at liberty to apply to the Court to keep defendant No. 2's mortgage alive for his benefit and to apply for final decree (in the same manner as the defendant No. 2 might have done under clause 4 above)— * [(i) that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property]; or *[(ii) that the mortgaged property or a sufficient part thereof be sold and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property;] and (b) (if on the application of defendant No. 2 such a final decree for foreclosure is passed), that the whole of the liability of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished. 5. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and be duly applied (after deduction therefrom of the expenses of the sale) first in payment of the amount due to the plaintiff as specified in clause 1 above with such costs of the suit and other costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order) XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be applied in payment of the amount due to defendant No. 2; and that, if any balance be left, it shall be paid to defendant No. 1 or other persons entitled to receive the same. 5. An account of the movable property of the deceased come to the hands of the defendant, or to the hands of any other person by his order or for his use. 5. My employment, trade or profession is that of carried on by me at .................... - I am a director of the following companies:— 5. In the case of movable property, the price of each lot shall be paid at the time of sale or as soon after as the officer holding the sale directs, and in default of payment the property shall forthwith be again put up and re-sold. 5. I say that all documents in my power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed with the plaint, and that I do not have any other documents in my power, possession, control or custody.