Section 9. Suits by or against firms

9. Suits by or against firms .—Attention is directed to the new provision in regard to suits by or against firms, (Order XXX) which will, we hope, prove acceptable to the commercial community. 9. The following debts are due to me:— - (give particulars) (a) From ……………of………………. Rs. (b) From…………….of………………. Rs. (etc.) Sworn before me, etc.] 1. Ins. by Act 104 of 1976, s. 95 (w.e.f. 1-2-1977). *Strike off the words which are not applicable. No. 17 ATTACHMENT IN EXECUTION PROHIBITORY ORDER WHERE THE PROPERTY CONSISTS OF DEBTS NOT SECURED BY NEGOTIABLE INSTRUMENTS (O. 21, r. 46.) ==> picture [31 x 13] intentionally omitted <== To WHEREAS………………………...has failed to satisfy a decree passed against…………………….........on the…………….day of………….…20…….….., in Suit No……….of 20………………………., in favour of……for Rs…………; it is ordered that the defendant be, and is hereby, prohibited and restrained, until the further order of this Court, from receiving from you a certain debt alleged now to be due from you to the said defendant, namely,………… and that you, the said……………...be, and you are hereby, prohibited and restrained, until the further order of this Court, from making payment of the said debt, or any part thereof, to any person whomsoever or otherwise than into this Court. Given under my hand and the seal of the Court, this…………..day of……….20………… Judge. No. 18 ATTACHMENT IN EXECUTION PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF SHARES IN THE CAPITAL OF A CORPORATION (O. 21, r. 46.) (Title) To Defendant and to……………………., Secretary of Corporation. 9. Decree where nothing is found due or where mortgagee has been overpaid.— Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so require, to re-transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property. 4 [10. Costs of mortgagee subsequent to decree.— In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs, charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment:] 1. Ins. by Act 21 of 1929, s. 5. 2. Subs. by Act 104 of 1976, s. 82, for "the last preceding rule" (w.e.f. 1-2-1977). 3. Subs. by s. 82, ibid ., for "on application by him" (w.e.f. 1-2-1977). 4. Subs. by Act 21 of 1929, s. 6, for rule 10. WHEREAS………..has failed to satisfy a decree passed against………………..on the…………….day of………20……, in Suit No……………of 20…….., in favour of……………….., for Rs……………….; it is ordered that you, the defendant, be, and you are hereby, prohibited and restrained, until the further order of this Court, from making any transfer of……………...shares in the aforesaid corporation, namely,………. or from receiving payment of any dividends thereon; and you,………the Secretary of the said Corporation, are hereby prohibited and restrained from permitting any such transfer or making any such payment. GIVEN under my hand and the seal of the Court, this…………day of…………20…….. Judge. No. 19 ORDER TO ATTACH SALARY OF PUBLIC OFFICER OR SERVANT OF RAILWAY COMPANY OR LOCAL AUTHORITY (O. 21, r. 48.) ==> picture [31 x 13] intentionally omitted <== T o WHEREAS……………………, judgment-debtor in the above-named case; is a (describe office of judgment-debtor) receiving his salary (or allowances) at your hands; and whereas………………, decree-holder in the said case, has applied in this Court for the attachment of the salary (or allowances ) of the said……………to the extent of…………due to him under the decree; You are hereby required to withhold the said sum of………..from the salary of the said……..in monthly instalments of …… and to remit the said sum (or monthly instalments) to this Court. GIVEN under my hand and the seal of the Court, this……….day of…………20.............. Judge. 9. Effect of document to be stated.— Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material. 1[Provided that where the mortgagor, before or at the time of the institution of the suit, tenders or deposits the amount due on the mortgage, or such amount as is not subsequently deficient in the opinion of the Court, he shall not be ordered to pay the costs of the suit to the mortgagee and the mortgagor shall be entitled to recover his own costs of the suit from the mortgagee, unless the Court, for reasons to be recorded, otherwise directs.] 1[ 10A . Power of Court to direct mortgagee to pay mesne profits . — Where in a suit for foreclosure, the mortgagor has, before or at the time of the institution of the suit, tendered or deposited the sum due on the mortgage, or such sum as is not substantially deficient in the opinion of the Court, the Court shall direct the mortgagee to pay to the mortgagor mesne profits for the period beginning with the institution of the suit]. ==> picture [34 x 14] intentionally omitted <== ORDER OF ATTACHMENT OF NEGOTIABLE INSTRUMENT ==> picture [51 x 13] intentionally omitted <== (Title) To The Bailiff of the Court, WHEREAS an order has been passed by this Court on the……………..day of……….20……….., for the attachment of…………; You are hereby directed to seize the said…………………and bring the same into Court. GIVEN under my hand and the seal of the Court, this………….day of……………20………. Judge. ==> picture [34 x 13] intentionally omitted <== PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF MONEY OR OF ANY SECURITY IN THE CUSTODY OF A COURT OF JUSTICE OR[1] [PUBLIC OFFICER] ==> picture [64 x 13] intentionally omitted <== ==> picture [32 x 13] intentionally omitted <== To ………………. ………………. Sir, The plaintiff having applied, under rule 52 of Order XXI of the Code of Civil Procedure, 1908, for an attachment of certain money now in yours hands (here state how the money is supposed to be in the hands of the person addressed, on what account, etc.), I request that you will hold the said money subject to the further order of this Court. I have the honour to be, ==> picture [363 x 13] intentionally omitted <== Your most obedient Servant. Dated the……….day of………20……… Judge. ==> picture [34 x 13] intentionally omitted <== NOTICE OF ATTACHMENT OF A DECREE TO THE COURT WHICH PASSED IT ==> picture [64 x 13] intentionally omitted <== 2[ 9. Procedure on admitting plaint.— Where the Court orders that the summons be served on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants.] ==> picture [31 x 13] intentionally omitted <== To The Judge of the Court of................ 1. Subs. by the A. O. 1937, for "Officer of Government". Sir, I have the honour to inform you that the decree obtained in your Court on the ……………………day of…........…….20,……..by…….in Suit No………of 20,....................,in, which, he was……….………and ………….was…………has been attached by this Court on the application of……………………., the……….in the suit specified above. You are therefore requested to stay the execution of the decree of your Court until you receive an intimation from this Court that the present notice has been cancelled or until execution of the said decree is applied for by the holder of the decree now sought to be executed or by his judgment-debtor. I have the honour, etc. Judge. Dated the……………….day of…….20……….. ==> picture [319 x 57] intentionally omitted <== To WHEREAS an application has been made in this Court by the decree-holder in the above suit for the attachment of a decree obtained by you on the………....................day of……......20..............................., in the Court of……………….in Suit No…….of 20.........., in which………….was………….and……….was ……………………; It is ordered that you, the said………..., be, and you are hereby, prohibited and restrained, until the further order of this Court, from transferring or charging the same in any way. GIVEN under my hand and the seal of the Court, this……….day of………….20…………. Judge. No. 24 9. Decree against plaintiff by default bars fresh suit.— (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. ATTACHMENT IN EXECUTION PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF IMMOVABLE PROPERTY ==> picture [64 x 14] intentionally omitted <== ==> picture [31 x 13] intentionally omitted <== T o . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant WHEREAS you have failed to satisfy a decree passed against you on the……………………….........day of…………..20……….., in Suit No……….of………20............., in favour of………………………for Rs…………; It is ordered that you, the said………….., be, and you are hereby, prohibited and restrained, until the further order of this Court, from transferring or charging the property specified in the Schedule hereunto annexed, by sale, gift or otherwise, and that all persons be, and that they are hereby, prohibited from receiving the same by purchase, or gift otherwise. 1[It is also ordered that you should attend Court on the…………………………………………….day of …………..20………, to take notice of the date fixed for settling the terms of the proclamation of sale.] GIVEN under my hand and seal of the Court, this…………day of………20…………. Schedule Judge. 9. Form of affidavit in answer.— An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with such variations as circumstances may require. WHEREAS the following property.....................................has been attached in execution of a decree in Suit No……………….of 20………, passed on the……………day of…………….20...................,in favour of………..for Rs........................…………………. It is ordered that the property so attached, consisting of Rs…………….in money and Rs......…………..in currency-notes, or a sufficient part thereof to satisfy the said decree, shall be paid over by you, the said…………..to…………. GIVEN under my hand and the seal of the Court, this……………………day of………20.......... Judge. No. 26 NOTICE TO ATTACHING CREDITOR (O. 21, r. 58.) (Title) T o … … … … … … … … WHEREAS…………………………...has made application to this Court for the removal of attachment on………….placed at your instance in execution of the decree in Suit No………………of 20......... this is to give you notice to appear before this Court on………….., the………….day of……..20………..., either in person or by a pleader of the Court duly instructed to support your claim, as attaching creditor. GIVEN under my hand and the seal of the Court, this………..day of……….20........... Judge. No. 27 WARRANT OF SALE OF PROPERTY IN EXECUTION OF A DECREE FOR MONEY (O. 21, r. 66.) (Title) T o … … … … … … … … The Bailiff of the Court. 9. Costs.— If a notice to admit or produce specifies documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice. ORDER XIII Production, Impounding and Return of Documents 1 [1. Original documents to be produced at or before the settlement of issues .—(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement. (2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs. - (3) Nothing in sub-rule (1) shall apply to documents— - (a) produced for the cross-examination of the witnesses of the other party; or - (b) handed over to a witness merely to refresh his memory.] 2. [ Effect of non-production of documents .] Rep. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) s. 23 ( w.e.f. 1-7-2002) . THESE are to command you to sell by auction, after giving…………day's previous notice, by affixing the same in this Court-house, and after making due proclamation, the…………..property attached under a warrant from this Court, dated the…………day of………….20................ , in execution of a decree in favour of……………in Suit No………….of 20............, or so much of the said property as shall realize the sum of Rs…………………..., being the………………of the said decree and costs still remaining unsatisfied. You are further commanded to return this warrant on or before the………….day of…………. …….20…….. with an endorsement certifying the manner in which it has been executed, or the reason why it has not been executed. GIVEN under my hand and the seal of the Court, this………..day of………20........... Judge. No. 28 NOTICE OF THE DAY FIXED FOR SETTLING A SALE PROCLAMATION (O. 21, r. 66.) (Title) T o ......................................................................................................... Judgment-debtor. WHEREAS in the above-named suit……………………….., the decree-holder, has applied for the sale of……………… You are hereby informed……………………that the…………..day of………… 20……, has been fixed for settling the terms of the proclamation of sale. GIVEN under my hand and the seal of the Court, this…………… day of…………20……….. Judge. ==> picture [34 x 13] intentionally omitted <== PROCLAMATION OF SALE (O. 21, r. 66) (Title) 9. Return of admitted documents.— (1) Any person, whether a party to the suit or not, desirous of receiving back any documents produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,— (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of: 1[Provided that a document may be returned at any time earlier then that prescribed by this rule if the person applying therefor— (a) delivers to the proper officer for being substituted for the original,— (i) in the case of a party to the suit, a certified copy, and (ii) in the case of any other person, an ordinary copy which has been examined, compared and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and (b) undertakes to produce the original, if required to do so:] Provided also that no document shall be returned which, by force of the decree, has become wholly void or useless. (2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it. (1) Suit No………………….of 20……….., decided by the………..of………in which was plaintiff and was defendant.—Notice is hereby given that, under rule 64 of Order XXI of the Code of Civil Procedure, 1908, an order has been passed by this Court for the sale of the attached property mentioned in the annexed schedule, in satisfaction of the claim of the decree-holder in the suit (1) mentioned in the margin, amounting with costs and interest upto date of sale to the sum of…………………………. The sale will be by public auction, and the property will be put up for sale in the lots specified in the schedule. The sale will be of the property of the judgment-debtors above-named as mentioned in the schedule below; and the liabilities and claims attaching to the said property, so far as they have been ascertained, are those specified in the schedule against each lot. In the absence of any order of postponement, the sale will be held by……………..at the monthly sale commencing at...........O'clock on the……………at…………...., In the event, however, of the debt above specified and of the costs of the sale being tendered or paid before the knocking down of any lot, the sale will be stopped. At the sale the public generally are invited to bid, either personally or by duly authorized agent. No bid by, or on behalf of, the judgment-creditors above-mentioned, however, will be accepted, nor will any sale to them be valid without the express permission of the Court previously given. The following are the further. 9. Time for serving summons.— Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place .at which his attendance is required. 1. Ins. by Act 104 of 1976, s. 66 (w.e.f. 1-2-1977). 2. Subs. by s. 66, ibid., for certain words (w.e.f. 1-2-1977). Conditions of sale 9. Decree for recovery of immovable property.— Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers. 9. Execution by High Court of decree transferred by other Court.— Where the Court to which the decree is sent for execution is a High Court, the decree shall be executed by such Court in the same manner as if it had been passed by such Court in the exercise of its ordinary original civil jurisdiction. Application for execution 9. Effect of abatement or dismissal .—(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of Section 5 of the[1] [Indian Limitation Act, 1877 (15 of 1877)] shall apply to applications under sub-rule (2). 2[ Explanation.— Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.] 9. Commissions to make local investigations.— In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: 1. Subs. by the A.O 1937, for "any civil or military officer of the Government". 2. Ins. by Act 104 of 1976, s. 75 (w.e.f. 1-2-1977). 3. Ins. by Act 46 of 1999, s. 29 (w.e.f. 1-7-2002). 4. Subs. by Act 2 of 1951, s. 3, for "the States". 5. Subs. by Act 104 of 1976, s. 75, for certain words (w.e.f. 1-2-1977). 6. Subs. by the A.O. 1937, for "civil or military officer of the Government". Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. 9. Suits between co-partners.— This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just. 9. Removal of next friend.— (1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within[2] [India], or for any other sufficient cause, application, may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit. (2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf, and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor, and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit. 1. Ins. by Act 104 of 1976, s. 79 (w.e.f. 1-2-1977). 2. Subs. by Act 2 of 1951, s. 3. for "the States". 9. Withdrawal of permission to sue as an[1] [indigent person].— The Court may, on the application of the defendant, or of the Government pleader, of which seven days, clear notice in writing has been given to the plaintiff, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn— (a) if he is guilty of vexatious or improper conduct in the course of the suit; (b) if it appears that his means are such that he ought not to continue to sue as[1] [an indigent person]; or (c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter. [3] [ 9A. Court to assign a pleader to an unrepresented indigent person.— (1) Where a person, who is permitted to sue as an indigent person, is not represented by a pleader, the Court[-] may, if the circumstances of the case so require, assign a pleader to him. - (2) The High Court may, with the previous approval of the State Government, make rules providing for— - (a) the mode of selecting pleaders to be assigned under sub-rule (1); (b) the facilities to be provided to such pleaders by the Court ; (c) any other matter which is required to be or may be provided by the rules for giving effect to the provisions of sub-rule (1).] 9. Removal of attachment when security furnished or suit dismissed.— Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed. 1. Ins. by Act 104 of 1976, s. 85 (w.e.f. 1-2-1977). 2. Subs. by s. 85, ibid. , for rule 8 (w.e.f. 1-2-1977). 9. When party may be put in immediate possession of land the subject-matter of suit.— Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a suit, if the party in possesion of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be put in immediate possession of the land or tenure, and the Court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the Court orders, in any adjustment of accounts which may be directed in the decree passed in the suit. 2[ 9. Registry of memorandum of appeal.— (1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose. (2) Such book shall be called the register of appeal.] 9. Revocation of acceptance of security.— At any time before the admission of the appeal the Court may, upon cause shown, revoke the acceptance of any such security, and make further directions thereon. 4 [9A. Power to dispense with notices in case of deceased parties.— Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court: Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct.] 9. Bar of certain application.— No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained. 1. Ins. by Act 104 of 1976, s. 92 (w.e.f. 1-2-1977). 2. Subs. by s. 92, ibid. , for sub-rule (1) (w.e.f. 1-2-1977). ORDER XLVIII MISCELLANEOUS 9. The plaintiff claims— (1) that the defendants be restrained, by injunction, from taking any proceedings against the plaintiff in relation thereto; (2) that they be required to interplead together concerning their claims to the said property; (3) that some person be authorised to receive the said property pending such litigation; (4) that upon delivering the same to such [person] the plaintiff be discharged from all liability to either of the defendants in relation thereto. No. 41 ADMINISTRATION BY CREDITOR ON BEHALF OF HIMSELF AND ALL OTHER CREDITORS (Title ) - A. B., the above-named plaintiff, states as follows:— 1. E.F. late of................. , was at the time of his death, and his estate still is, indebted to the plaintiff in the sum of....................... [ here insert nature of debt and security, if any ] . 2. E.F. died on or about the........................... day of.......................By his last will, dated the........... day of.............he appointed C.D. his executor [ or devised his estate in trust, etc., or died intestate, as the case may be ] . 9. And that Mr. E. F. be receiver in the suit ( or proceeding) and receive and get in all outstanding debts and outstanding movable property of the deceased, and pay the same into the hands of the ……….. *(and shall give security by bond for the due performance of his duties to the amount of ……….. rupees).