Appendix A – PLEADINGS
(1)TITLES OF SUITS
inthe court of……………………………………………………………………
A.B.(add description and residence). . . . . . . . . . . . . . . . . . . .Plaintiff,
against
C.D. (add description and residence) . . . . . . . . . . . . . . . . . . . .Defendant,
(2)description of parties in particularscases
1 [TheUnion of India or the State of………, as the case may be.]
__________________
TheAdvocate General of ……………………………………………….
__________________
TheCollector of………………………………………………………………….
__________________
The State of……………………………………………………………………..
TheA. B. Company, Limited havingits registered office at ………………………………………..
__________________
A.B.,a public officer of the C. D. Company.
__________________
A.B.(add description and residence) ……………………………….., on behalf of himself and all othercreditors of C.D., late of (adddescription andresidence)………………………………………………
__________________
A.B.(add description and residence) ………………………………….., on behalf of himself and ail otherholders of debentures issued bythe……………………………………..Company Limited.
__________________
TheOfficial Receiver…………………………………………………………………
__________________
A.B.,a minor (add description andresidence), …………………………………….. by C.D. [orby the Court of Wards], his next friend. __________________
__________________
A.B.(add description and residence) ……………………………………, a person of unsound mind [or of weakmind], by C.D. his next friend.
__________________
A.B.,a firm carrying on business in partnership at………………………………………………………….
__________________
A.(add description and residence)……………………………………………, byhis constituted attorney, C.D. (adddescription and residence)…………………………………………………
__________________
A.B.(add description andresidence)…………………………………………., Shebait of Thakur.
__________________
A.B.(add description andresidence)………………………………………….., executor of C.D., deceased.
__________________
A.B.(add description and residence)…………………………………………, heir of C.D., deceased.
(3)plaints
No.1
moneylent
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the …………………… day of…………………… 19……/20….., helent the defendant …………………… rupees repayable onthe…………………… day of……………………
2. The defendant has not paid the same, except rupees …………………… paidon the……………………dayof……………………19……/20….
[Ifthe plaintiff claims exemption from any law of limitation, say:–]
3. The plaintiff was a minor [or insane] from the ……………………… dayof ……………………till the …………………… dayof……………………
4. [Facts showing when the cause ofaction arose and that the Court has jurisdiction.]
5. The value of the subject-matter of the suit for the purpose of jurisdictionis…………………… rupees and for the purpose of court-fees is……………………rupees.
6. The plaintiff claims …………………… rupees, with interest at…………………… per cent, from …………………… the…………………… day of …………………… 19…/20………
No.2
moneyoverpaid
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the …………………… day of …………………… 19 …………/20………… the plaintiff agreed to buy and the defendant agreed tosell …………………… bars of silver at …………………… annasper tola of fine silver.
2. The plaintiff procured the said bars to be assayed by E.F., who was paid by the defendant for such assay, and E.F. declared each of the bars to contain 1,500 tolas of fine silver, andthe plaintiff accordingly paid the defendant …………………… rupees.
3. Each of the said bars contained only 1,200 tolas of fine silver, of which factthe plaintiff was ignorant when he made the payment.
4.The defendant has not repaid the sum so overpaid.
[Asin paras. 4and 5of Form No. 1,and relief claimed.]
No.3
GOODSSOLD AT A FIXED PRICE AND DELIVERED
(Title)
A.B.,the above-named plaintiff states as follows:–
1.On the……………………dayof…………………… 19………/20……,E. F.soldand delivered to the defendant[one hundred barrels of flour, or thegoods mentioned in the schedule hereto annexed, orsundry goods.]
2. The defendant promised to pay……………………rupees for the said goods on delivery [or on the……………………dayof……………………someday before the plaint was filed].
3. He has not paid the same.
4. E. F. died on the ……………………day of……………………19……./20……By his last Will he appointed his brother, the plaintiff his executor.
[Asin paras. 4and 5 ofForm No. 1.]
7. The plaintiff as executor of E. F.claims [relief claimed].
No.4
GOODSSOLD AT A REASONABLEPRICE AND DELIVERED
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19……../20………,plaintiff sold and delivered to the defendant [Sundryarticles of house-furniture], but no express agreement was made as to theprice.
2. The goods were reasonably worth……………………rupees.
3. The defendant has not paid the money.
[Asin paras 4and 5 of Form No, 1, andrelief claimed.]
No.5
GOODSMADE AT DEFENDANT’S REQUEST, AND NOT ACCEPTED
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19……/20………,E. F. agreed with the plaintiffthat the plaintiff should make for him [sixtables and fifty chairs] and that E.F. should pay for the goods on delivery……………………rupees.
2. The plaintiff made the goods, and on the ……………………day of ……………………19……/20……, offered todeliver them to E. F., and hasever since been ready and willing so to do.
3. E. F. has not accepted thegoods or paid for them.
[Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.6
deficiencyupon a re-sale [goods sold at auction]
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19……/20………,the plaintiff put up at auction sundry [goods],subjectto the condition that all goods not paid for and removed by the purchaser within[ten days] after the saleshould be re-sold by auction on his account, of which condition the defendanthad notice.
2. The defendant purchased [one crate ofcrockery] at the auction at the price of ……………………rupees.
3. The plaintiff was ready and willing to deliver the goods to the defendant on thedate of the sale and for [ten days] after.
4. The defendant did not take away the goods purchased by him, nor pay for themwithin [ten days] after thesale, nor afterwards.
5. On the ……………………day of ……………………19…/20………,the plaintiff re-sold the [crate ofcrockery], on account of the defendant, by public auction, for ……………………rupees.
6. The expenses attendant upon such re-sale amounted to ……………………rupees.
7. The defendant has not paid the deficiency thus arising, amounting to ……………………rupees.
[Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.7
servicesat a reasonable rate
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. Between the ……………………day of ……………………19…/20………,and the ……………………day of 19……/20……, at……………………,plaintiff [executed sundry drawings,designs and diagrams] for the defendant, at his request; but no expressagreement was made as to the sum to be paid for such services.
2. The services were reasonably worth ……………………rupees.
3. The defendant has not paid the money.
[Asin paras4 and 5of Form No. 1, and reliefclaimed.]
No.8
servicesand materials at a reasonable cost
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19………/20……,at ……………………the plaintiff built a house [knownas No……………………,in ……………………,and furnished the materials therefor, for the defendant, at his request, but noexpress agreement was made as to the amount to be paid or such work andmaterials.
2. The work done and materials supplied were reasonably worth ……………………rupees.
3. The defendant has not paid the money.
[Asin paras 4and 5 ofForm No. 1, and reliefclaimed.]
No.9
useand occupation
(Title)
A.B.,the above-named plaintiff, executor of the will of X.Y., deceased, states as follows:–
1. That the defendant occupied the [house No. ……………………,……………………Street], by permission of the said X,Y., from the ……………………day of ……………………19. ……/20…….,until the day of ……………………19……/20…….,and no agreement was made as to payment for the use of the said premises.
2. That the use of the said premises for the said period was reasonably worth ……………………rupees.
3. The defendant has not paid the money.
[Asin paras 4and 5of Form No. 1.]
6. The plaintiff as executor of X. Y., claims[relief claimed.]
No.10
ONAN AWARD
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19………/20…..,the plaintiff and defendant, having a difference between them concerning [ademand of the plaintiff for the price of ten barrels of oil which the defendantrefused to pay], agreed in writing to submit the difference to the arbitrationof E. F. and G.H., and the original document is annexed hereto.
2. On the ……………………day of ……………………19……./20…….,the arbitrators awarded that the defendant should [pay the plaintiff ……………………rupees].
3. The defendant has not paid the money.
[Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.11
ONA FOREIGN JUDGMENT
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19……./20…….,at ……………………,in the State [or Kingdom] of ……………………,the ……………………Court of that State [or Kingdom,] in a suit therein pending between theplaintiff and the defendant, duly adjudged that the defendant should pay to theplaintiff ……………………rupees, with interest from the said date.
2. The defendant has not paid the money.
[Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.12
againstsurety for payment ofrent
(Title)
A.B;the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19 ……/20……,E. F. hired from the plaintifffor the term of years, the [house No. ……………………,…………………… street],at the annual rent of……………………rupees, payable [monthly].
2. The defendant agreed, in consideration of the letting of the premises to E.F. to gurantee the punctual payment of the rent.
3. The rent for the month of ……………………19……/20……,amounting to ……………………rupees, has notbeen paid.
[If,by the terms of the agreement, notice is required to be given to the surety,add:–]
4.On the ……………………day of ……………………19………/20……,the plaintiff gave notice to the defendant of the non-payment of the rent, anddemanded payment thereof.
5. The defendant has not paid the same.
[Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.13
breachof agreement to purchase land
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of……………………19………/20……,the plaintiff and defendant entered into an agreement, and the original documentis hereto annexed.
[Or,onthe ……………………day of ……………………19 ………/20…..,the plaintiff and defendant mutually agreed that the plaintiff should sell tothe defendant and that the defendant should purchase from the plaintiff fortybighas of land in the village of……………………for……………………rupees.]
2. On the ……………………day of ……………………19……/20…….,the plaintiff, being then the absolute owner of the property [and the same beingfree from all incumbrances, as was made to appear to the defendant], tendered tothe defendant a sufficient instrument of transfer of the same [or,was ready and willing, and is still ready and willing, and offered, totransfer the same to the defendant by a sufficient instrument] on the payment bythe defendant of the sum agreed upon.
3. The defendant has not paid the money.
[Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.14
NOTDELIVERING GOODS SOLD
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19……/20…….,the plaintiff and defendant mutually agreed that the defendant should deliver[one hundred barrels of flour] to the plaintiff on the ……………………day of ……………………19………/20……,and that the plaintiff should pay therefor ……………………rupees on delivery.
2. On the [said] day the plaintiff was ready and willing, and offered, to pay thedefendant the said sum upon delivery of the goods.
3. The defendant has not delivered the goods, and the plaintiff has been deprivedof the profits which would have accrued to him from such delivery.
(Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.15
wrongfuldismissal
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19………/20…..,the plaintiff and defendant mutually agreed that the plaintiff should serve thedefendant as [an accountant, or inthe capacity of foreman, or as thecase may be], and that the defendant should employ the plaintiff as suchfor the term of [one year] and pay him for his services ……………………rupees[monthly].
2. On the ……………………day of ……………………19………/20……,the plaintiff entered upon the service of the defendant and has ever since been,and still, is ready and willing to continue in such service during the remainderof the said year whereof the defendant always has had notice.
3. On the ……………………day of ……………………19………/20……,the defendant wrongfully discharged the plaintiff, and refused to permit him toserve as aforesaid, or to pay him for his services.
[Asin paras 4and 5 ofForm No. 1, and reliefclaimed.]
No.16
breachof contract to serve
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19………/20……,the plaintiff and defendant mutually agreed that the plaintiff should employ thedefendant at an [annual] salary of ……………………rupees, and that the defendant should serve the plaintiff as [an artist] for theterm of [one year].
2. The plaintiff has always been ready and willing to perform his part of theagreement [and on the day……………………of ……………………19………/20…..,offered so to do].
3. The defendant (entered upon) the service of the plaintiff on the above-mentionedday, but afterwards, on the ……………………day of ……………………19………/20……,he refused to serve the plaintiff as aforesaid.
[Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.17
againsta builder for defective workmanship
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19………/20……,the plaintiff and defendant entered into an agreement, and the original documentis hereto annexed. [Or state the tenorof the contract.]
[2.The plaintiff duly performed all the conditions of the agreement on hispart.]
3. The defendant [built the house referred to in the agreement in a bad andunworkman like manner].
[Asin paras 4and 5of Form No. 1,and relief claimed.]
No.18
ONA BONDFOR THE FIDELITY OF A CLERK
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19……/20…….,the plaintiff took E. F. intohis employment as a clerk.
2. In consideration thereof, on the ……………………day of ……………………19……/20……,the defendant agreed with the plaintiff that if E.F., should not faithfully perform his duties as a clerk to the plaintiff,or should fail to account to the plaintiff for all moneys, evidence of debt orother property received by him for the use of the plaintiff, the defendant wouldpay to the plaintiff whatever loss he might sustain by reason thereof, notexceeding ……………………rupees.
[Or,2.In consideration thereof, the defendant by his bond of the same datebound himself to pay the plaintiff the penal sum of ……………………rupees, subject to the condition that if E.F., should faithfully perform his duties as clerk and cashier to theplaintiff and should justly account to the plaintiff for all monies, evidencesof debt or other property which should be at any time held by him in trust forthe plaintiff, the bond should be void.]
[Or,2.In consideration thereof, on the same date the defendant executed a bondin favour of the plaintiff, and the original document is hereto annexed.]
3. Between the ……………………day of ……………………19……/20……,and the ……………………day of …………………… 19……/20……,E. F. received money and otherproperty, amounting to value of ……………………rupees,for the use of the plaintiff, for which sum he has not accounted to him, and thesame still remains due and unpaid.
[Asin paras 4and 5 ofForm No. 1, and reliefclaimed.]
No.19
BYTENANT AGAINST LANDLORD, WITH SPECIAL DAMAGE
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19………/20……,the defendant, by a registered instrument, let to the plaintiff [the house No…………,…………Street] for the term of ……………………years, contracting with the plaintiff, that he, the plaintiff, and his legalrepresentatives should quietly enjoy possession thereof for the said term.
2. All conditions were fulfilled and all things happened necessary to entitle theplaintiff to maintain this suit.
3. On the……………………day of ……………………19………/20…….,during the said term, E. F. whowas the lawful owner of the said house, lawfully evicted the plaintiff therefrom,and still withholds the possession thereof from him.
4. The plaintiff was thereby [prevented from continuing the business of a tailor atthe said place, was compelled to expend ……………………rupees in moving, and lost the custom of G.H. and I. J., by such removal].
[Asin paras 4and 5 of Form No. 1,and relief claimed.]
No.20
ONAN AGREEMENT OF INDEMNITY
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19……/20…….,the plaintiff and defendant, being partners in trade under the style of A.B. and C. D., dissolvedthe partnership, and mutually agreed that the defendant should take and keep allthe partnership property, pay all debts of the firm and indemnify the plaintiffagainst all claims that might be made upon him on account of any indebtedness ofthe firm.
2. The plaintiff duly performed all the conditions of the agreement on his part.
3. On the ……………………day of ……………………19……/20…….,[a judgment was recovered against the plaintiff and defendant by E. F.,in the High Court of Judicature at……………………upon a debt due from the firm to E.F., and on the day of……………………19……/20…….,]the plaintiff paid ……………………rupees[in satisfaction of the same].
4. The defendant has not paid the same to the plaintiff.
[Asin paras 4and 5of Form No. 1, and reliefclaimed.]
No.21
procuringproperty by fraud
(Title)
A.B.,the-above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19………/20…..,the defendant, for the purpose of inducing the plaintiff to sell him certaingoods, represented to the plaintiff that [he, the defendant, was solvent, andworth ……………………rupees over all his liabilities].
2. The plaintiff was thereby induced to sell [and deliver] to the defendant, [drygoods] of the value of……………………rupees.
3. The said representations were false [orstate the particulars falsehoods] and were then known by the defendant tobe so.
4. The defendant has not paid for the goods, [or,if the goods were not delivered.] The plaintiff, in and shipping thegoods and procuring their restoration, expended ……………………rupees.
[Asin paras 4and 5 of Form No. 1,and relief claimed.]
No.22
fraudulentlyprocuring credit to be given to another person
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ……………………day of ……………………19………/20…….,the defendant represented to the plaintiff that E.F., was solvent and in good credit, and worth ……………………rupees over all his liabilities [or that E.F., then held a responsible situation and was in good circumstances, andmight safely be trusted with goods on credit].
2. The plaintiff was thereby induced to sell to E.F. (rice) of the value of ……………………rupees [on……………………. monthscredit].
3. The said representations were false and were then known by the defendant to beso, and were made by him with intent to deceive and defraud the plaintiff [orto deceive and injure the plaintiff].
4. E. F. [did not pay for the saidgoods at the expiration of the credit aforesaid, or] has not paid for the saidrice, and the plaintiff has wholly lost the same.
[Asin paras 4and 5 of Form No. 1, andrelief claimed.]
No.23
pollutingthe water under the plaintiff’s land
(Title)
A.B., theabove-named plaintiff, states as follows:–
1. The plaintiff is, and at all the times hereinafter mentioned was, possessed ofcertain land called …………………… and situate in…………………… and of a well therein, and of water in the well, andwas entitled to the use and benefit of the well and of the water therein, and tohave certain springs and streams of water which flowed and ran into the well tosupply the same to flow or run without being fouled or polluted.
2. On the …………………… day of …………………… 19……/20…….,the defendant wrongfully fouled and polluted the well and the water therein andthe springs and streams of water which flowed into the well.
3. In consequence the water in the well became impure and unfit for domestic andother necessary purposes, and the plaintiff and his family arc deprived of theuse and benefit of the well and water.
[Asin paras 4and 5 of Form No. 1,and relief claimed]
No.24
carryingon a noxious manufacture
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. The plaintiff is, and at all the times hereinafter mentioned was, possessed ofcertain lands called ….., situate in …….
2. Ever since the ….. day of ….. 19……../20……., the defendant has wrongfullycausedto issue from certain smelting works carried on by the defendant largequantities of offensive and unwholesome smoke and other vapours and noxiousmatter, which spread themselves over and upon the said lands, and corrupted theair, and settled on the surface of the lands.
3. Thereby the trees, hedges, herbage and crops of the plaintiff growing on thelands were damaged and deteriorated in value, and the cattle and lives k of theplaintiff on the lands became unhealthy, and many of them were poisoned anddied.
4. The plaintiff was unable to graze the lands with cattle and sheep as heotherwise might have done, and was obliged to remove his cattle, sheep andfarming s k therefrom, and has been prevented from having so beneficial andhealthy a use and occupation of the lands as he otherwise would have had.
[Asin paras 4 and 5 ofForm No. 1, and relief claimed.]
No.25
obstructinga right of way
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. The plaintiff is, and at all the time hereinafter mentioned was, possessed of [ahouse in the village of …..].
2. He was entitled to a right of way from the [house] over a certain field to apublic highway and back again from the highway over the field to the house, forhimself and his servants [with vehicles, oron foot] at all times of the year.
3. On the ….. day of ….. 19……../20……, the defendant wrongfully obstructed the saidway, so that the plaintiff could not pass [with vehicles, or on foot, orin any manner] along the way [and has ever since wrongfully obstructedthe same].
4. [State special damage, if any.]
[Asin paras 4 and 5 ofForm No. 1, and relief claimed.]
No.26
obstructingaHIghway
(Title)
1. The defendant wrongfully dug a trench and heaped up earth and stones in thepublic highway leading from ….. to ….. so as to obstruct it.
2. Thereby the plaintiff, while lawfully passing along the said highway, fell overthe said earth and stones [or intothe said trench] and broke his arm, and suffered great pain, and was preventedfrom attending to his business for a long time, and incurred expense for medicalattendance.
[Asin paras 4 and 5of Form No. 1, and reliefclaimed.]
No.27
divertinga water-course
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. The plaintiff, is and at the time hereinafter mentioned was, possessed of a millsituated on a [stream] known as the ….., in the village of ….., district of…..
2. By reason of such possession the plaintiff was entitled to the flow of thestream for working the mill.
3. On the ….. day of ….. 19……../20……, the defendant, by cutting the bank of thestream, wrongfully diverted the water thereof, so that less water ran into theplaintiff’s mill.
4. By reason thereof the plaintiff has been unable to grind more than ….. sacksper day, whereas, before the said diversion of water, he was able to grind …..sacks per day.
[Asin paras 4 and 5 ofForm No. 1, and relief claimed.]
No.28
OBSTRUCTINGA RIGHT TO USE WATER FOR IRRIGATION
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. Plaintiff is, and was at the time hereinafter mentioned, possessed of certainlands situate, etc., andentitled to take and use a portion of the water of a certain stream forirrigating the said lands.
2. On the ….. day of ….. 19……../20……, the defendant prevented the plaintiff fromtaking and using the said portion of the said water as aforesaid, by wrongfullyobstructing and diverting the said stream.
[Asin paras 4 and 5of Form No. 1, and reliefclaimed.]
No.29
injuriescaused by negligence on a railroad
(Title)
AB., the above-named plaintiff,states as follows:–
1. On the ….. day of ….. 19……../20……, the defendants were common carriers ofpassengers by railway between….. and …..
2.On the day the plaintiff was a passenger in one of the carriages of thedefendants on the said railway.
3.While he was such passenger, at….. [or near the station of …..or…..betweenthe stations of…..and…..], a collision occurred on the said railway caused by the negligence andunskilfulness of the defendants’ servants, whereby the plaintiff was muchinjured [having hisleg broken,hishead cut, etc., and state the specialdamage, if any, as], and incurred expense formedicalattendance and is permanently disabled from carrying onhisformer business as [a salesman].
[Asin paras 4 and 5of Form No. I and relief claimed.]
[Orthus:–2.On that day the defendants by their servants so negligently and unskilfullydrove and managed an engine and a train of carriage attached thereto upon andalong the defendant’s railway which the plaintiff was then lawfully crossing,that the said engine and train were driven and struck against the plaintiff,whereby, etc., as in para. 3.]
No.30
injuriescaused by negligent driving
(Title)
A.B.,theabove-named plaintiff, states as follows:–
1. The plaintiff is a shoemaker, carrying on business at ….. . The defendant isamerchantof…..
2.On the ……dayof ….. 19……../20…….,the plaintiff was walking southward along Chowringhee, in the City of Calcutta,at about 3o’clock in the afternoon. He was obliged to cross Middleton Street, which is astreet running into Chowringhee at right angles. While he was crossing thisstreet, and just before he could reach the foot pavement on the further sidethereof, a carriage of the defendant’s, drawn by two horses under the chargesand control of the defendant’s servants, was negligently, suddenly and withoutany warning turned at a rapid and dangerous pace out of Middleton Street intoChowringhee. The pole of the carriage struck the plaintiff and knockedhimdown, and he was much trampled by the horses.
3.Bythe blow and fall and trampling the plaintiff’s left arm was broken and he wasbruised and injured on the side and back, as well as internally, and inconsequence thereof the plaintiff was for four months ill and in suffering, andunable to attend tohisbusiness, and incurred heavymedicaland other expenses, and sustained great loss of business and profits.
[Asin paras 4 and 5 ofForm No. 1, and relief claimed.]
No.31
FORMALICIOUS PROSECUTION
(Title)
A.B.,theabove-named plaintiff, states as follows:–
1.On the …..dayof ….. 19……../20…….,the defendant obtained a warrant of arrest from ….. [a Magistrate of the saidcity, or as the case may be] ona charge of …..andthe plaintiff was arrested thereon, and imprisoned for ….. [days, orhours,and gave bail in the sum of …..rupeesto obtainhisrelease].
2. In so doing the defendant acted maliciously and without reasonable or probablecause.
3. On the….. day of ….. 19……../20……., the Magistrate dismissed the complaint of thedefendant and acquitted the plaintiff.
4. Many persons, whose names are unknown to the plaintiff, hearing of the arrest,and supposing the plaintiff to be a criminal, have ceased to do business withhim; or in consequence of thesaid arrest, the plaintiff lost his situation as clerk to one E.F., or in consequence the plaintiff suffered pain of body and mind, andwas prevented from transacting his business, and was injured in his credit, andincurred expense in obtaining his release from the said imprisonment and indefending himself against the said complaint.
[Asin paras 4 and 5of Form No. 1, and reliefclaimed.]
No.32
MOVABLESWRONGFULLY DETAINED
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ….. day of ….. 19……../20……., plaintiff owned [orstate facts showing a right to the possession] the goods mentioned in theschedule hereto annexed [or describethe goods,] the estimated value of which is….. rupees.
2. From that day until the commencement of this suit the defendant has detained thesame from the plaintiff.
3. Before the commencement of the suit, to wit, on the ….. day of …..19……../20…….,the plaintiff demanded the same from the defendant, but he refused to deliverthem.
[As in paras 4 and 5of Form No. 1]
6.The plaintiff claims–
(1)delivery of the said goods, or….. rupees, in case delivery cannot be had;
(2)….. rupees compensation for the detention thereof.
TheSchedule
No.33
againsta fraudulent purchaser and HIstransferee with notice
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ….. day of ….. 19……../20………, the defendant C.D., for the purpose of nducing the plaintiff to sell him certain goods,represented to the plaintiff [he was solvent, and worth ….. rupees over allhis liabilities].
2. The plaintiff was thereby induced to sell and deliver to C.D. [one hundred boxes of tea], the estimated value of which is …..rupees.
3. The said representations were false, and were then known by C.D., to be so [or at the time of making the said representation, C. D.was insolvent, and knew himself to be so].
4. C. D. afterwards transferredthe said goods to the defendant E. F.without consideration [or whohad notice of the falsity of the representation].
[Asin paras 4 and 5of Form No. 1.]
7. The plaintiff claims–
(1)delivery of the said goods, or….. rupees, in case delivery cannot be had;
(2)….. rupees compensation for the detention thereof.
No.34
rescissionof a contract on the ground of mistake
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ….. day of ….. 19……../20…….., the defendant represented to the plaintiffthat a certain piece of ground belonging to the defendant, situated at …..contained [ten bighas].
2. The plaintiff was thereby induced to purchase the same at the price of …..rupees in the belief that the said representation was true, and signed anagreement, of which the original is hereto annexed. But the land has not beentransferred to him.
3. On the ….. day of ….. 19……../20…….., the plaintiff paid the defendant ….. rupeesas part of the purchase-money.
4. That the said piece of ground contained in fact only [five bighas].
[Asin paras 4 and 5 ofForm No. 1.]
7. The plaintiff claims–
(1)….. rupees, with interest from the ….. day of ….. 19……../20……..,
(2)that the said agreement be delivered up and cancelled.
No.35
ANINJUNCTION RESTRAINING WASTE
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. The plaintiff’s is the absolute owner of [describethe property].
2.The defendant is in possession of the same under a lease from theplaintiff.
3. The defendant has [cut down a number of valuable trees, and threatens to cutdown many more for the purpose of sale] without the consent of the plaintiff.
[Asin paras 4 and 5of Form No. 1.]
6. The plaintiff claims that the defendant be restrained by injunction fromcommitting or permitting any further waste on the said premises.
[Pecuniarycompensation may also be claimed.]
No.36
injunctionrestraining nuisance
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute ownerof [the House No ….. Street, Calcutta].
2. The defendant is, and at all the said times was, the absolute owner of [a plotof ground in the same street ……].
3.On the …..dayof ….. 19……../20…….,the defendant erected upon hissaid plota slaughter-house, and still maintains the same; and from that day until thepresent time has continually caused cattle to be brought and killed there [andhas caused the blood and offal to be thrown into the street opposite the saidhouse of the plaintiff].
[4.In consequence the plaintiff has been compelled to abandon the said house, andhas been unable to rent the same.]
[Asin paras 4and 5of Form No. 1.]
7. The plaintiff claims that the defendant be restrained by injunction fromcommitting or permitting any further nuisance.
No.37
publicnuisance
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. The defendant has wrongly heaped up earth and stones on a public road known as….. Street at ….. so as to obstruct the passage of the public along the sameand threatens and intends, unless restrained from so doing, to continue andrepeat the said wrongful act.
2 [3 2.The plaintiff has obtained the leave of the Court for the institution of thissuit.]
[Asin paras 4 and 5of Form No. 1.]
5. The plaintiff claims–
(1)a declaration that the defendant is not entitled to obstruct the passage of thepublic along the said public road;
(2)an injunction restraining the defendant from obstructing the passage of thepublic along the said public road and directing the defendant to remove theearth and stones wrongfully heaped up as aforesaid.
No.38
injunctionagainst the diversion of a water-course
(Title)
AB., the above-named plaintiff,states as follows:–
[Asin Form No. 27. ]
Theplaintiff claims that the defendant be restrained by injunction from divertingthe water as aforesaid.
No.39
RESTORATIONOF MOVABLEPROPERTY THREATENED WITH DESTRUCTION, AND FOR ANINJUNCTION
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. Plaintiff is, and at all times hereinafter mentioned was, the owner of [aportrait of his grandfather which was executed by an eminent painter], and ofwhich no duplicate exists [or statesany facts showing that the property is of a kind that cannot be replaced bymoney].
2.On the….. day of ….. 19……../20………, he deposited the same for safe-keeping with thedefendant.
3. On the ….. day of ….. 19……../20………, he demanded the same from the defendant andoffered to pay all reasonable charges for the storage of the same.
4. The defendant refuses to deliver the same to the plaintiff and threatens toconceal, dispose of, cut or injure the same if required to deliver it up.
5. No pecuniary compensation would be an adequate compensation to the plaintiff forthe loss of the [painting];
[Asin paras 4and 5of Form No. 1.]
8. The plaintiff claims–
(1)that the defendant be restrained by injunction from disposing of, injuring orconcealing the said [painting];
(2)That he be compelled to deliver the same to the plaintiff.
No.40
Interpleader
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. Before the date of the claims hereinafter mentioned G.H. deposited with the plaintiff [describethe property] for[safe-keeping].
2. The defendant C. D, claims thesame [under an alleged assignment thereof to him from G. H.].
3. The defendant E. F. also claimsthe same [under an order of G. H.transferring the same to him.)
4. The plaintiff is ignorant of the respective rights of the defendants.
5. He has no claim upon the said property other than for charges and costs, and isready 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.
[Asin paras 4 and 5of Form No. 1.]
9. The plaintiff claims–
(1)that the defendants be restrained, by injunction, from taking any proceedingsagainst the plaintiff in relation thereto;
(2)that they be required to interplead together concerning their claims to the saidproperty;
(3)that some person be authorised to receive the said property pending suchlitigation;
(4)that upon delivering the same to such [person] the plaintiff be discharged fromall liability to either of the defendants in relation thereto.
No.41
administrationby creditor on behalf of HImselfand all other CREDITORS
(Title)
A.B.,The above-named plaintiff, states as follows:–
1. E. F., late of ….., was at thetime of his death, and his estate still is, indebted to the plaintiff in the sumof ….. [here insert nature of debtand 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 devisedhis estate in trust, etc., or diedintestate, as the case may be.]
3. The will was proved by C. D. [orletters of administration were granted, etc.].
4.The defendant has possessed himself of his movable [and immovable, orthe proceeds of the immovable] property of E.F., and has not paid the plaintiff his debt.
[Asin paras 4 and 5of Form No. 1.].
7. The plaintiff claims that an account may be taken of the movable [and immovable]property of E. F., deceased,and that the same may be administered under the decree of the Court.
No.42
administrationby specific legatee
(Title)
[AlterForm No. 41 thus]
[Omitparagraph 1 and commenceparagraph 2] E. F., lateof ….. died on or about the ….. day of ….. .By his last will, dated the….. day of ….. he appointed C. D.his executor, and bequeathed to the plaintiff [herestate the specific legacy.]
Forparagraph 4substitute–
Thedefendant is in possession of the movable property of E.F., and, amongst other things, of the said [herename the subject of the specific bequest].
Forthe commencement of paragraph 7substitute–
Theplaintiff claims that the defendant may be ordered to deliver to him the said….. [here name the subject of thespecific bequest], orthat, etc.
No.43
administrationby pecuniary legatee
(Title)
[AlterForm No. 41thus]
[Omitparagraph 1 and substitute forparagraph 2] E. F., lateof ….. died on or about the ….. day of ….. By his last will, dated the….. day of ….. he appointed C. D.his executor, and bequeathed to the plaintiff a legacy of ….. rupees.
Inparagraph 4substitute “legacy” for “debt”,
Anotherform
(Title)
E.F., theabove-named plaintiff, states as follows:–
1. A. B. of K.in the ….. died on the ….. day of ….. By his last will, dated the …..day of ….. he appointed the defendant and M.N. [who died in the testator’s lifetime] his executors, and bequeathedhis property, whether movable or immovable, to his executors in trust, to paythe rents and income thereof to the plaintiff for his life; and after hisdecease, and in default of his having a son who should attain twenty-one, or adaughter who should attain that age or marry, upon trust as to his immovableproperty for the person who would be the testator’s heir-at-law, and as to hismovable property for the persons who would be the testator’s next-of-kin if hehad died intestate at the time of the death of the plaintiff, and such failureof his issue as aforesaid.
2. The will was proved by the defendant on the ….. day of ….. . The plaintiffhas not been married.
3. The testator was at his death entitled to movable and immovable property; thedefendant entered into the receipt of the rents of the immovable property andgot in the movable property; he has sold some part of the immovable property.
[Asin paras 4 and 5of Form No. 1.]
6. The plaintiff claims–
(1)to have the movable and immovable property of A.B., administered in thisCourt, and for that purpose to have all proper directions given and accountstaken;
(2)such further or other relief as the nature of the case may require.
No.44
executionof trusts
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. He is one of the trustees under an instrument of settlement bearing date, on orabout the ….. day of ….. made upon the marriage of E.F. and G. H., the fatherand mother of the defendant [or aninstrument of transfer of the estate and effects of E.F. for the benefit of C. D., thedefendant, and the other creditors of E.F.].
2.A. B. has taken upon himself the burden of the said trust, and is inpossession of [or of theproceeds of] and the movable and immovable properly transferred by the saidinstrument.
3. C. D. claims to be entitled toa beneficial interest under the instrument.
[Asin paras 4 and 5of Form No. 1.]
6. The plaintiff is desirous to account for all the rents and profits of the saidimmovable property [and the proceeds of the sale of the said, orof the part of the said, immovable property, ormovable, or the proceedsof the sale of, or of part of,the said movable property, or theprofits accruing to the plaintiff as such trustee in the execution of the saidtrust]; and he prays that the Court will take the accounts of the said trust,and also that the whole of the said trust estate may be administered in theCourt for the benefit of C. D., thedefendant, and all other persons who may be interested in such administration,in the presence of C. D. andsuch other persons so interested as the Court may direct, or that C.D. may show good cause to the contrary.
[N.B.–Where the suit is by abeneficiary, the plaint may be modelled mutatis mutandis onthe plaint by a legatee.]
No.45
foreclosureor sale
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. The plaintiff is mortgagee of lands belonging to the defendant.
2.The following are the particulars of the mortgage:–
(a)(date);
(b)(names of mortgagor and mortgagee);
(c)(sum secured);
(d)(rate of interest);
(e)(property subject to mortgage);
(f)(amount now due);
(g)(if the plaintiff’s title is derivative, state shortly the transfers ordevolution under which he claims).
(Ifthe plaintiff is mortgagee in possession, add)
3. The plaintiff took possession of the mortgaged property on the ….. day of….. and is ready to account as mortgagee in possession from that time.
[Asin paras 4 and 5 ofForm No. 1.]
6. The plaintiff claims–
(1)payment, or in default [sale or]foreclosure [land possession];
[WhereOrder XXXIV, rule 6,applies.]
(2)in case the proceeds of the sale are found to be insufficient to pay theamount due to the plaintiff, then that liberty be reserved to the plaintiff toapply for ….. 4 [anorder for the balance].
No.46
Redemption
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. The plaintiff is mortgagor of lands of which the defendant is mortgagee.
2. The following are the particulars of the mortgage:–
(a)(date);
(b)(names of mortgagor and mortgagee);
(c)(sum secured);
(d)(rate of interest);
(e)(properly subject to mortgage);
(f)(If the plaintiff’s title is derivative, state shortly the transfers ordevolution under which he claims).
(Ifthe defendant is mortgagee in possession, add)
3.The defendant has taken possession [orhas received the rents] of the mortgaged property.
[Asin paras 4 and 5 ofForm No. 1.]
6. The plaintiff claims to redeem the said property and to have the same reconveyedto him [and to have possession thereof.] 5 [togetherwith mesne profits].
No.47
specificperformance (No.1)
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. By an agreement dated the ….. day of ….. and signed by the defendant, hecontracted to buy of [or sell to] the plaintiff certain immovable propertytherein described and referred to, for the sum of ….. rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreementon his part, but the defendant has not done so.
3The plaintiff has been and still is ready and willing specifically to performthe agreement on his part of which the defendant has had notice.
[Asin paras 4 and 5of Form No. 1.]
6. The plaintiff claims that the Court will order the defendant specifically toperform the agreement and to do all acts necessary to put the plaintiff in fullpossession of the said property [or toaccept a transfer and possession of the said property] and to pay the costs ofthe suit.
No.48
specificperformance (No.2)
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. On the ….. day of ….. 19……../20………, the plaintiff and defendant entered into anagreement, in writing, and the original document is hereto annexed. Thedefendant, was absolutely entitled to the immovable property described in theagreement.
2. On the ….. day of ….. 19……../20………, the plaintiff tendered ….. rupees tothedefendant, and demanded a transfer of the said property by a sufficientinstrument.
3. On the ….. day of ….. 19……../20………, the plaintiff again demanded such transfer. [Orthe defendant refused to transfer the same to the plaintiff.]
4. The defendant has not executed any instrument of transfer.
5. The plaintiff is still read and willing to pay the purchase-money of the saidproperty to the defendant
[Asin paras 4 and 5of Form No. 1.]
8. The plaintiff claims–
(1)that the defendant transfers the said property to the plaintiff by a sufficientinstrument [following the terms of the agreement];
(2)….. rupees compensation for withholding the same.
No.49
partnership
(Title)
A.B.,the above-named plaintiff, states as follows:–
1. He and C. D., the defendant,have been for ….. years [or months]past carryingon business together under articles of partnership in writing [or under a deed, orunder a verbal agreement].
2. Several disputes and differences have arisen between the plaintiff and defendantas such partners whereby it has become impossible to carry on the business inpartnership with advantage to the partners, [Orthe defendant has committed the following breaches of the partnershiparticles:–
(1)
(2)
(3)]
[Asin paras 4 and 5of Form No. 1.]
5. The plaintiff claims–
(1)dissolution of the partnership;
(2)that accounts be taken;
(3)that a receiver be appointed.
[N.B.–In suits for the winding-up of anypartnership, omit the claim for dissolution; and instead insert a paragraphstating the facts of the partnership having been dissolved.]
(4)written statements
Generaldefences
Denial
Thedefendant denies that (set out facts).
Thedefendant does not admit that (set outfacts).
Thedefendant admits that ….. but says that …..
Thedefendant denies that he is a partner in the defendant firm of …..
Protest
Thedefendant denies that he made the contract alleged or any contract with theplaintiff.
Thedefendant denies that he contracted with the plaintiff as alleged or at all.
Thedefendant admits assets but not the plaintiffs claim.
Thedefendant denies that the plaintiff sold to him the goods mentioned in theplaint or any of them.
Limitation
Thesuit is barred by article ….. or article ….. of the second schedule to the 6 IndianLimitation Act, 1877 (15 of 1877).
Jurisdiction
TheCourt has no jurisdiction to hear the suit on the ground that (setforth the grounds).
Onthe ….. day of ….. a diamond ring was delivered by the defendant to andaccepted by the plaintiff in discharge of the alleged cause of action.
Insolvency
Thedefendant has been adjudged an insolvent.
Theplaintiff before the institution of the suit was adjudged an insolvent and theright to sue vested in the receiver.
Minority
Thedefendant was a minor at the time of making the alleged contract.
Paymentinto Court
Thedefendant as to the whole claim (or asto Rs. ….. part of the money claimed, oras the case may be) has paid into Court Rs. ….. and says that this sumis enough to satisfy the plaintiffs claim (orthe partaforesaid).
Performanceremitted
Theperformance of the promise alleged was remitted on the (date).
Rescission
Thecontract was rescinded by agreement between the plaintiff and defendant.
Resjudicata
Theplaintiffs claim is barred by the decree in suit (givethe reference).
Estoppel
Theplaintiff is estopped from denying the truth of (insertstatement as to which estoppel is claimed) because (herestate the facts relied on as creating the estoppel.)
Groundof defence subsequent to institution of suit
Sincethe institution of the suit, that is to say, on the ….. day of ….. (setout facts).
No.1
defencein suits for goods sold and delivered
1. The defendant did not order the goods.
2. The goods were not delivered to the defendant.
3. The Price was not Rs. …..
[or]
4. 1.
5. Except as to Rs. ….. same as …… 2.
6. 3.
7. The defendant [or A. B.,the defendant’s agent] satisfied the claim by payment before suit to theplaintiff [or to C.D., the plaintiffs agent] on the ….. day of ….. 19 …../20……
8. The defendant satisfied the claim by payment after suit to the plaintiff on the….. day of ….. 19……../20……….
No.2
defencein suits on bonds
1. The bond is not the defendant’s bond.
2. The defendant made payment to the plaintiff on the day according to thecondition of the bond.
3. The defendant made payment to the plaintiff after the day named and before suitof the principal and interest mentioned in the bond.
No.3
defencein suits on guarantees
1. The principal satisfied the claim by payment before suit.
2. The defendant was released by the plaintiff giving time to the principal debtorin pursuance of a binding agreement.
No.4
defencein any suit for debt
1. As to Rs. 200 of the money claimed, the defendant is entitled to set off forgoods sold and delivered by the defendant to the plaintiff.
Particularsare as follows:–
Rs.
1907 January 25th………………………………………………………………………….150
” February 1st ………………………………………………………………………..50
Total 200
2. As to the whole [or as to Rs………, part of the money claimed] the defendant made tender before suit of Rs…… and has paid the same into Court.
No.5
defencein suits for injuries caused by negligent driving
1. The defendant denies that the carriage mentioned in the plaint was thedefendant’s carriage, and that it was under the charge or control of thedefendant’s servants. The carriage belonged to ….. of ….. Street, Calcutta,livery stable keepers employed by the defendant to supply him with carriages andhorses; and the person under whose charge and control the said carriage was,was the servant of the said.
2. The defendant does not admit that the said carriage was turned out of MiddletonStreet either negligently, suddenly or without warning, or at a rapid ordangerous pace.
3. The defendant says the plaintiff might and could, by the exercise of reasonablecare and diligence, have seen the said carriage approaching him, and avoided anycollision with it.
4. The defendant does not admit the statements contained in the third paragraph ofthe plaint.
No.6
defencein all suits for wrongs
1. Denial of the several acts [or matters]complained of.
No.7
defencein suits for detention of goods
1. The goods were not the property of the plaintiff.
2. The goods were detained for a lien to which the defendant was entitled.
Particularsare as follows:–
1907,May 3rd. To carriage of the goods claimed from Delhi to Calcutta:–
45maunds at Rs. 2 per maund ….. Rs. 90.
No.8
defencein suits for infringement or copyright
1. The plaintiff is not the author [assignee,etc.].
2. The book was not registered.
3. The defendant did not infringe.
No.9
defencein suits for infringement of trade mark
1. The trade mark is not the plaintiffs.
2. The alleged trade mark is not a trade mark.
3. The defendant did not infringe.
No.10
defencein suits relating to nuisances
1. The plaintiffs lights are not ancient [ordeny his other alleged prescriptive rights].
2. The plaintiffs lights will not be materially interfered with by the defendant’sbuildings.
3. The defendant denies that he or his servants pollute the water [ordo what is complained of].
[Ifthe defendant claims the right by prescription or otherwise to do what iscomplained of, he must say so, and must state the grounds of the claim, i.e.,whether by prescription, grant orwhat.]
4. The plaintiff has been guilty of laches of which the following areparticulars:–
1870. Plaintiff’s mill began to work.
1871. Plaintiff came into possession.
1883. First complaint.
5. As to the plaintiff’s claim for damages the defendant will rely on the abovegrounds of defence, and says that the acts complained of have not produced anydamage to the plaintiff [If otherground’s are relied on, they must be stated, e.g., limitationas to past damage.]
No.11
defenceto suit for foreclosure
1. The defendant did not execute the mortgage.
2. The mortgage was not transferred to the plaintiff (ifmore than one transfer is alleged, say which is denied).
3. The suit is barred by article ….. of the second schedule to the 6 IndianLimitation Act, 1877 (15 of 1877).
4. The following payments have been made, viz.:–
(Insertdate)– ….. Rs. 1,000
(Insertdate)– ….. Rs. 500
5. The plaintiff took possession on the ….. of ….., and has received the rentsever since.
6. That plaintiff released the debt on the ….. of …..
7. The defendant transferred all his interest to A.B. by a document date …..
No.12
defenceto suit for redemption
1. The plaintiffs right to redeem is barred by article ….. of the second scheduleto the 7Indian Limitation Act, 1877 (15 of 1877).
2. The plaintiff transferred all interest in the property to A.B.
3. The defendant, by a document dated the ….. day of ….. transferred all hisinterest in the mortgage-debt and property comprised in the mortgage to A.B.
4. The defendant never took possession of the mortgaged property, or received therents thereof.
(Ifthe defendant admits possession for atime only, he should state the time, and deny possession beyond what he admits.)
No.13
defenceto suit for specific performance
1. The defendant did not enter into the agreement.
2. A. B. was not The agent of thedefendant (if alleged by plaintiff).
3. The plaintiff has not performed the following conditions–(Conditions).
4. The defendant did not–(alleged actsof part performance).
5.The plaintiff’s, title to the property agreed to be sold is not such asthe defendant is bound to accept by reason of the following matter–(Statewhy).
6.The agreement is uncertain in the following respects–(Statethem).
7.(or) The plaintiff has been guilt of delay.
8. (or) The plaintiff has been guilty of fraud (ormisrepresentation).
9. (or) The agreement is unfair.
10. (or) The agreement was enteredinto by mistake.
11. The following are particulars of (7), (8), (9), (10) (oras the case may be).
12. The agreement was rescinded under Conditions of Sale, No. 11 (orby mutual agreement).
(Incases where damages are claimed and the defendant disputeshis liability to damages, he must denythe agreement or the alleged breaches, or show whatever other ground of defencehe intends to rely on, e.g., the6 Indian Limitation Act, accord and satisfaction, release, fraud, etc.)
No.14
defencein administration suit by pecuniary legatee
1. A. B.’swill contained a charge of debts; he died insolvent; he was entitled athis death to some immovable property which the defendant sold and which producedthe net sum of Rs. ….., and the testator had some movable property which thedefendant got in, and which produced the net sum of Rs. …..
2. The defendant applied the whole of the said sums and the sum of Rs. …..whichthe defendant received from rents of the immovable property in the payment ofthe funeral and testamentary expenses and some of the debts of the testator.
3. The defendant made up his accounts and sent a copy thereof to the plaintiff onthe ….. day of ….. 19……../20………, and offered the plaintiff free access to thevouchers to verify such accounts, but he declined to avail himself of thedefendant’s offer.
4. The defendant submits that the plaintiff ought to pay the cost of the suit.
No.15
proBateof will in solemn form
1. The said will and codicil of the deceased were not duly executed according tothe provisions of the 7 Indian Succession Act, 1865 (10 of 1865) [orof the Hindu Wills Act, 1870 (21 of 1870)].
2. The deceased at the time the said will and codicil respectively purport to havebeen executed, was not of sound mind, memory and understanding.
3. The execution of the said will and codicil was obtained by the undue influenceof the plaintiff [and others acting with him whose names are at present unknownto the defendant].
4. The execution of the said will and codicil was obtained by the fraud of theplaintiff, such fraud so far as is within the defendant’s present knowledge,being [State the nature of the fraud].
5. The deceased at the time of the execution of the said will and codicil did notknow and approve of the contents thereof [orof the contents of the residuary clause in the said will, asthe case may be].
6. The deceased made his true last will, dated the 1st January, 1873, and therebyappointed the defendant sole executor thereof. The defendant claims–
(1)that the Court will pronounce against the said will and codicil propounded bythe plaintiff;
(2)that the Court will decree probate of the will of the deceased, dated the 1stJanuary, 1873, in solemn form of law.
No.16
particulars[O,VI,r. 5]
(Titleof suit.)
Particulars–Thefollowing are the particulars of (herestate the matters in respect of which particulars have been ordered) deliveredpursuant to the order of ….. the …..of …..
(Hereset out the particulars ordered in paragraphs, if necessary.)
___________________
1. Substituted by A.O. 1950, for “The Secretary of State or the Federation of India or the Province of…………, as the case maybe.”
2. Substituted by Act 104 of 1976, section 93, for paragraph 2 (w.e.f. 1-2-1977).
3. Not applicable where suit is instituted by the Advocate-General.
4. Substituted by Act 104 of 1976 section 93, for “a decree for the balance” (w.e.f. 1-2-1977).
5. Added by Act 104 of 1976, section 93 (w.e.f. 1-2-1977).
6. See now the Limitation Act, 1963 (36 of 1963).
7. See now the Indian Succession Act, 1925 (39 of 1925).
Appendix B – PROCESS
No. 1
summons for disposal of suit (O. V, r. 1 and r. 5)
(Title)
To
…………………………………[Name, description and place of residence.]
whereas ……… has instituted a suit against you for ….. you are hereby summoned to appear in this Court in person or by a pleader duly instructed (and able to answer all material questions relating to the suit, or who shall be accompanied by some person, able to answer all such questions, on the ….. day of ….. 19…./20…., at. ….. O’clock in the ….. noon, to answer the claim; and as the day fixed, for your appearance is appointed for the final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
Given under my hand and the seal of the Court, that ….. day of ….. 19…../20…..
Judge.
notice.–1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
No. 2
summons for settlement of issue
(O. V, rr. 1, 5)
(Title)
To
………………………………………………[Name, description and place of residence]
Whereas …………………………………………………………………………. has instituted a suit against you for ……………. you are hereby summoned to appear in this Court in person, or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions, on the ………….. day of ………… 19…./20…., at ………….. O’clock in the ………… noon, to answer the claim; 1[and further you are hereby directed to file on that day a written statement of your defence and to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counter-claim, and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counter-claim, you shall enter such documents in a list to be annexed to the written statement].
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
given under may hand and the seal of the Court, this day of ………… 19 …../20…..
Judge.
notice–1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
No. 3
summons to appear in person
(O. V, r. 3)
(Title)
To
…………………………………………. [Name, description and place of residence]
whereas ………………………………………………………………… has instituted a suit against you for …………. you are hereby summoned to appear in this Court in person on the ………… day of …………. 19…../20….., at ………… O’clock in the …………. noon, to answer the claim; and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence.
Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.
given under may hand and the seal of the Court, that ………… day of ………… 19…./20…..
Judge.
2 [No. 4
summons in a summary suit
(O. XXXVII, r. 2)
(Title)
To
………………………………….. [Name, description and place of residence]
whereas ………… has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs. ………… and interest, you are hereby summoned to cause an appearance to be entered for you, within ten days from the service hereof, in default whereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs. ……….. and the sum of Rs. ……….. for costs, together with such interest, if any, as the Court may order.
If you cause an appearance to be entered for you, …………. the plaintiff will thereafter serve upon you a summons for judgment at the hearing of which you will be entitled to move the Court for leave to defend the suit.
Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend.
given under may hand and the seal of the Court, this ………. day of ………… 19…./20……
Judge.]
3 [No.4A
summons for judgment in a summary suit
(O. XXXVII, r. 3)
(Title)
In the ……… Court, at …………. Suit No ……….. of 19……/20…..
XYZ….. …………………………………………………………………Plaintiff
Versus
ABC ….. ………………………………………………………………..Defendant
Upon reading the affidavit of the plaintiff the Court makes the following order, namely :–
Let all parties concerned attend the Court or Judge, as the case may be, on the …………. day of ……… 19…./20…., at …………. O’clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rs. ………… and for interest and costs.
Dated the ………… day of …………. 19…../20……]
No. 5
NOTICE TO PERSON WHO, THE COURT CONSIDERS,
SHOULD BE ADDED AS CO-PLAINTIFF
(Title)
To
……………………………………………. [Name, description and place of residence]
whereas …………. has instituted the above suit against ………… for …………. and, whereas it appears necessary that you should be added as a plaintiff in the said suit in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved.
Take notice that you should on or before the ………… day of ………… 19 …./20…… signify to this Court whether you consent to be so added.
Given under my hand and the seal of the Court, this ………… day of ………… 19 …../20……
Judge.
No.6
summons to legal representative of a deceased defendant
(O. XXII, r. 4)
(Title)
To
whereas the plaintiff …..instituted a suit in this Court on the ….. day of ….. 19…../20….., against the defendant ….. who has since deceased, and whereas the said plaintiff has made an application to this Court alleging that you are the legal representative of the said ….. deceased, and desiring that you be made the defendant in his stead ;
You are hereby summoned to attend in this Court on the ….. day of ….. 19……/20….., at ….. A. M. to defend the said suit and, in default of your appearance on the day specified, the said suit will be heard and determined in your absence.
given under my hand and the seal of the Court, this ….. day of …..19…../20……
Judge.
No. 7
ORDER FOR TRANSMISSION OF SUMMONS FOR SERVICE IN THE JURISDICTION OF ANOTHER COURT
(O. V, r. 21)
(Title)
whereas it is stated that ……………………………………….. fendant/witness in the above suit is at present residing in ……:. It is ordered that a summons returnable on the ….. day of ….. 19…../20….., be forwarded to the …..Court of ….. for service on the said….. defendant/witness with a duplicate of this proceeding.
The Court-fee of ….. chargeable in respect to the summons has been realised in this Court in stamps.
Date ……..
Judge.
No. 8
order for transmission of summons to be served on a prisoner
(O.V, r. 25)
(Title)
To
…………….
…………….
The Superintendent of the Jail at ………………………………………………………..
under the provisions of Order V, rule 24, of the Code of Civil Procedure, 1908, a summons in duplicate is herewith forwarded for service on the defendant ….. who is ….. a prisoner in jail. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.
Judge.
No. 9
order for transmission of summons to be served on a
public servant or soldier
(O. V, rr. 27, 28)
(Title)
To
……………
……………
Under the provisions of Order V, rule 27 (or 28, as the case may be), of the Code of Civil Procedure, 1908, a summons in duplicate is herewith forwarded for service on the defendant ….. who is stated to be serving under you. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with statement of service endorsed thereon by you.
Judge.
No. 10
TO ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT
(O. V, r. 23)
(Title)
Read proceeding from the ….. forwarding ….. for service on ……………in suit No ….. of 19……/20…… of that Court.
Read Serving Officer’s endorsement stating that the ….. and proof of the above having been duly taken by me on the oath of ….. and ….. it is ordered that the ….. be returned to the ….. with a copy of this proceeding.
Judge.
note.–This form will be applicable to process other than summons, the service of which may have to be effected in the same manner.
No. 11
affidavit OR process-server to accompany return of a summons or notice
(O.V, r. 18)
(Title)
The affidavit of ……………….., son of …………………………………………………
I ………………………………………………….. make oath/affirm and say as follows :–
(1) I am a process-server of this Court.
(2) On the …………. day of ………… 19…./20……, I received a ………………………………………summons/notice issued by the Court of ……….. in Suit No. ………… of 19……/20….., in the said Court, dated the ………. day of ………… 19…../20….., for service on ……….. .
(3) The said …………. was at the time personally known to me, and I served the said summons/notice on him/her on the ………. day of ……… 19 …../20…., at about ………. O’clock in the ….. noon at ……. by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.
(a)
(b)
(a) Here state whether the person served, signed or refused to sign the process, and in whose presence.
(b) Signature of process-server.
or,
(3) The said ….. not being personally known to me ….. accompanied me to ….. and pointed out to me a person whom he stated to be the said ….. and I served the said summons/notice on him/her on the ….. day of ….. 19…../20….., at about ….. O’clock in the ….. noon at ….. by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.
(a)
(b)
(a) Here state whether the person served, signed or refused to sign the process, and in whose presence.
(b) Signature of process-server.
or,
(3) The said ….. and the house in which he ordinarily resides being personally known to me, I went to the said house, in ….. and thereon the ….. day of ….. 19…../20….., at about ….. O’clock in the ….. noon, I did not find the said …..
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rules 15 and 17.
(b) Signature of process-server.
or,
(3) One ….. accompanied me to ….. and there pointed out to me ….. which he said was the house in which ….. ordinarily resides. I did not find the said ….. there.
(a)
(b)
(a) Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rules 15 and 17
(b) Signature of process-server.
or
If substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of the order for substituted service.
Sworn/Affirmed by the said ….. before me this ….. day of ….. 19…../20…..
Empowered under section 139 of the
Code of Civil Procedure, 1908, to
administer the oath to deponents.
No. 12
NOTICE TO DEFENDANT
(O. IX, r. 6)
(Title)
To
…………………………………. [Name, description and place of residence]
whereas this day was fixed for the hearing of the above suit and a summons was issued to you and the plaintiff has appeared in this Court and you did not so appear, but from the return of the Nazir it has been proved to the satisfaction of the Court that the said summons was served on you but not in sufficient time to enable you to appear and answer on the day fixed in the said summons ;
Notice is hereby given to you that the hearing of the suit is adjourned this day and that the …… day of ….. 19…./20….., is now fixed for the hearing of the same; in default of your appearance on the last mentioned the suit will be heard and determined in your absence.
given under my hand and the seal of the Court, this ….. day of …..19…../20…..
Judge.
No. 13
summons to witness
(O. XVI, rr. 1, 5)
(Title)
To
………………………………… [Name, description and place of residence]
whereas your attendance is required to ……………………………………… on behalf of the ………………………………………………………………………… in the above suit, you are hereby required [personally] to appear before this Court on the …………… day of……………. 19……/20….., at ……….. O’clock in the forenoon, and to bring with you [or to send to this …………. Court].
A sum of Rs. …….., being your travelling and other expenses and subsistence allowance for one day, is herewith sent. If you fail to comply with this order without lawful excuse, you will be subject to the consequences of non-attendance laid down in rule 12 of Order XVI of the Code of Civil Procedure, 1908.
given under my hand and the seal of the Court, this …………. day of ….. 19 …../20…..
Judge.
Notice–(1) If you are summoned only to produce a document and not to give evidence, you shall be deemed to have complied with the summons if you cause such document to be produced in this Court on the day and hour aforesaid.
(2) If you are detained beyond the day aforesaid, a sum of Rs. ….. will be tendered to you for each day’s attendance beyond the day specified.
No. 14
proclamation requiring attendance of witness
(O. XVI, r. 10)
(Title)
To
……………………………….. [Name, description and place of residence]
WHEREAS it appears from the examination on oath of the serving officer that the summons could not be served upon the witness in the manner prescribed by law; and whereas it appears that the evidence of the witness is material, and he absconds and keeps out of the way for the purpose of evading the service of the summons : This proclamation is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the ….. day of ….. 19……/20….. at….. O’clock in the forenoon and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.
Given Under my hand and the seal of the Court, this ….. day of….. 19…../20…..
Judge.
No. 15
proclamation requiring attendance of witness
(O. XVI, r. 10)
(Title)
To
……………………………….. [Name, description and place of residence]
whereas it appears from the examination on oath of the serving officer that the summons has been duly served upon the witness, and whereas it appears that the evidence of the witness is material and he has failed to attend in compliance with such summons: This proclamation is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908, issued requiring the attendance of the witness in this Court on the ….. day of ….. 19…../20…., at ….. O’clock in the forenoon, and from day to day until he shall have leave to depart; and if the witness fails to attend on the day and hour aforesaid he will be dealt with according to law.
Given under my hand and the seal of the Court, this ….. day of….. 19…../20…..
Judge.
No. 16
warrant of attachment of property of witness
(O. XVI, r. 10)
(Title)
To
The Bailiff of the Court.
whereas the witness …………………………………………… cited by……………………………… has not, after the expiration of the period limited in the proclamation issued for his attendance, appeared in Court; You are hereby directed to hold under attachment ….. property belonging to the said witness to the value of ….. and to submit a return, accompanied with an inventory thereof, within…. days.
Given under my hand and the seal of the Court, this ….. day of ….. 19…../20…..
Judge
No. 17
warrant of arrest of witness
(O. XVI, r. 10)
(Title)
To
The Bailiff of the Court.
whereas ….. has been duly served with a summons but has failed to attend (absconds and keeps out of the way for the purpose of avoiding service of a summons); You are hereby ordered to arrest and bring the said ….. before the Court.
You are further ordered to return this warrant on or before the ….. day of ….. 19…../20…. with an endorsement certifying the day on and 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 …….. 19…../20…..
Judge.
No. 18
warrant of committal
(O. XVI, r. 16)
(Title)
To
The Officer in charge of the Jail at …………….
whereas the plaintiff (or defendant) in the above-named suit has made application to this Court that security be taken for the appearance of ….. to give evidence (or to produce a document), on the ….. day of ….. 19…./20…..; and whereas the Court has called upon the said ….. to furnish such security, which he has failed to do; This is to require you to receive the said ….. into your custody in the civil prison and to produce him before this Court at ….. on the said day and on such other day or days as may be hereafter ordered.
Given under my hand and the seal of the court, this ….. day of ….. 19…../20…..
Judge.
No. 19
warrant of committal
(O. XVI, r. 18)
(Title)
To
The Officer in charge of the Jail at……………….
Whereas …….., whose attendance is required before this Court in the above-named case to give evidence (or to produce a document), has been arrested and brought before the Court in custody; and whereas owing to the absence of the plaintiff (or defendant), the said ….. cannot give such evidence (or produce such document); and whereas the Court has called upon the said ….. to give security for his appearance on the ….. day of ….. 19…./20…., at….. which he has failed to do; This is to require you to receive the said ….. into your custody in the civil prison and to produce him before this Court at ….. on the ….. day of….. 19…./20….. Given under my hand and the seal of the Court, this ….. day of ….. 19…../20……
Given under my hand and the seal of the court, this……. day of…… 19…../20…….
Judge.
_____________________
1. Substituted by Act 104 of 1976, section 94, for certain words (w.e.f. 1-2-1977).
2. Substituted by Act 104 of 1976, section 94, for Form No. 4 (w.e.f. 1-2-1977).
3. Inserted by Act 104 of 1976, section 94 (w.e.f. 1-2-1977).
Appendix C – DISCOVERY, INSPECTION AND ADMISSION
No. 1
order for delivery of interrogatories
(O. XI, r. 1)
In the Court of …………
Civil Suit No…….. of………. 19…../20…..
A.B. ………………………………………………………………………….Plaintiff,
against
C. D. E. F. and G. H. ………………………………………………. Defendants.
Upon hearing …………. and upon reading the affidavit of …………. filed the ………. day of ……….. 19…./20….; It is ordered that the ………… be at liberty to deliver to the ………… interrogatories in writing, and that the said ……… do answer the interrogatories as prescribed by Order XI, rule 8, and that the costs of this application be ………..
No. 2
interrogatories
(O. XI, r. 4)
(Title as in No. 1, supra)
Interrogatories on behalf of the above-named [Plaintiff or defendant C. D.] for the examination of the above-named [defendants E.F. and G.H. or plaintiff].
1. Did not, etc.
2. Has not, etc. etc. etc. etc.
[The defendant E. F. is required to answer the interrogatories numbered …..].
[The defendant G. H. is required to answer the interrogatories numbered …..]
No. 3
answer to interrogatories
(O. XI, r. 9)
(Title as in No. 1, supra)
The answer of the above-named defendant E.F., to the interrogatories for his examination by the above-named plaintiff.
In answer to the said interrogatories, I, the above-named E.F., make oath and say as follows:–
1. Enter answer to interrogatories in paragraphs numbered consecutively.
2. Enter answer to interrogatories in paragraphs numbered consecutively.
3. I object to answer the interrogatories numbered ….. on the ground that [state grounds of objection].
No. 4
ORDER FOR AFFIDAVIT AS TO DOCUMENTS
(O. XI, r. 12)
(Title as in No. 1 supra)
Upon hearing …..; It is ordered that the ….. do within ….. days from the date of this order, answer on affidavit stating which documents are or have been in his possession or power relating to the matter in question in this suit, and that the costs of this application be ….. .
No. 5
affidavit as to documents
(O. XI, r. 13.)
(Title as in No. 1, supra.)
I, the above-named defendant C. D., make oath and say as follows :–
1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.
2. I object to produce the said documents set forth in the second part of the First Schedule hereto [state grounds of objection].
3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.
4. The last-mentioned documents were last in my possession or power on [state when and what has become of them and in whose possession they now are].
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 document 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. XI, r. 14)
(Title as in No. 1, supra)
Upon hearing ….. and upon reading the affidavit of ….. filed the ….. day of ….. 19…../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 persue 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 cost of this application be …..
No. 7
NOTICE TO PRODUCE DOCUMENTS
(O. XI, r. 16)
(Title as in No. 1, supra)
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….. 19…./20….].
[Describe documents required.]
X. Y., Pleader for the …..
To Z., Pleader for the …..
No. 8
NOTICE TO INSPECT DOCUMENTS
(O. XI, r. 17)
(Title as in No. 1, supra)
Take notice that you can inspect the documents mentioned in your notice of the ….. day of ….. 19…./20….. [except the documents numbered ….. in that notice] at [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 ….. 19…./20…., on the ground that [state the ground].
No. 9
NOTICE TO ADMIT DOCUMENTS
(O. XII, r. 3)
(Title as in No. 1, supra.)
Take notice that the plaintiff [or defendant] in this suit proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant [or plaintiff], his pleader or agent at ………………….on………………….between the hours of ………………….; and the defendant [or plaintiff] is hereby required, within forty-eight hours form the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed or executed, as they purport respectively to have been ; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered, respectively, saving all just exceptions to the admissibility of all such documents as evidence in this suit.
G. H., pleader [or agent] for plaintiff [or defendant].
To E. F., pleader [or agent] for defendant [or plaintiff].
[Here describe the documents and specify as to each document whether it is original or a copy.]
No. 10
NOTICE TO ADMIT FACTS
(O. XII, r. 5)
(Title as in No. 1, supra)
Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff] to admit, for the purposes of this suit only, the several facts respectively hereunder specified; and the defendant [or plaintiff] is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this suit.
G. H. pleader [or agent] for plaintiff [or defendant].
To E. F., pleader [or agent] for defendant [or plaintiff].
The facts, the admission of which is required, are:–
1. That M. died on the 1st January, 1890.
2. That he died intestate.
3. That N. was his only lawful son.
4. That O. died on the 1st April, 1896.
5. That O. was never married.
No. 11
admission of facts pursuant to notice
(O. XII, 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 qualification 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 which they are admitt
1. That M. died on the 1st January, 1890. . . .
2. That he died intestate . . . . . . . . . . . . . ..
3. That N. was his lawful son . . . . . . . . . . . .
4. That O. died . . . . . . . . . . . . . . . . . . . .
5. That O. was never married . . . . . . . . . . .
1. . . . . . . . . . .
2. . . . . . . . . . .
3. But not that he was his only lawful-son.
4. But not that he died on the 1st April, 1896.
5. . . . . . . . . .
No. 12
NOTICE TO PRODUCE GENERAL FORM
(O. XII, r. 8)
(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 of 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
decreein original suit
(O.XX, rr. 6,7)
(Title)
Claim for……………………………………………………………………………………………
this suitcoming on this day for final disposal before …………………in the presence of …………………for the plaintiff and of………………… for the defendant, it is ordered and decreedthat ………………… 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 rateof ………………… per cent, per annum from this date to the date of realization.
given under myhand and the seal of the Court, this ………………… day of …………………19………/20…….
Judge.
Costs of Suit
Plaintiff
Defendant
Rs.
A.
P.
Rs.
A.
P.
1. Stamp for plaint…..
Stamp for Power…….
2. Stamp for power…..
Stamp for petition…..
3. Stamp for exhibits…
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 for process..
No. 2
simplemoney decree
(Section 34)
(Title)
Claimfor……………………………………………………………………………………….
This suit coming on this day forfinal 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 perannum from ………………… to the date of realization of the said sum and do also payRs. ……………………. 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 myhand and the seal of this Court, this…………………day of…………………19……/20………
Judge.
Costs of Suit
Plaintiff
Defendant
Rs.
A.
P.
Rs.
A.
P.
1. Stamp for plaint…..
Stamp for Power…….
2. Stamp for power…..
Stamp for petition…..
3. Stamp for exhibits…
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 for process..
1 [No. 3
preliminarydecree for foreclosure
(OrderXXXIV, rule 2–Whereaccounts are directed to be taken.)
(Title)
(1)This suit coming on this …………………day,etc.; It is hereby ordered anddecreed that it be referred to ………………… as the Commissioner to take the accountsfollowing :–
(i) anaccount of what is due on this date to the plaintiff for principal and intereston his mortgage mentioned in the plaint (such interest to be computed at therate payable on the principal or where no such rate is fixed, at six per centper annum or at such rate as the Court deems reasonable);
(ii) anaccount of the income of the mortgaged property received up to this date by theplaintiff or by any other person by the order or for the use of the plaintiffor which without the wilful default of the plaintiff or such person might havebeen so received;
(iii)an account of all sums of money properly incurred by the plaintiff upto this date for costs, charges and expenses (other than the costs of the suit)in respect of the mortgage-security, together with interest thereon (suchinterest to be computed at the rate agreed between the parties, or, failingsuch rate, at the same rate as is payable on the principal, or, failing bothsuch rates, at nine per cent per annum);
(iv) anaccount of any loss or damage caused to the mortgaged property before this dateby any act or omission of the plaintiff which is destructive of, or permanentlyinjurious to, the property or by his failure to perform any of the dutiesimposed upon him by any law for the time being in force or by the terms of themortgage-deed.
2. And it is hereby furtherordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interestthereon, shall first be adjusted against any sums paid by the plaintiff underclause (iii) together withinterest thereon, and the balance, if any, shall be added to the mortgage-moneyor, as the case may be, be debited in reduction of the amount due to theplaintiff of account of interest on the principal sum adjudged due andthereafter in reduction or discharge of the principal.
3. And it is hereby furtherordered that the said Commissioner shall present the account to this Court withall convenient despatch after making all just allowances on or before the………………… day of ………………… and that upon such report of the Commissioner beingreceived, it shall be confirmed and countersigned, subject to suchmodifications as may be necessary after consideration of such objections as theparties to the suit may make.
4. And it is hereby furtherordered and decreed–
(i) that thedefendant do pay into Court on or before the ………………… day of ………………… or anylater date up to which time for payment may be extended by the Court, such sumas the Court shall find due, and the sum of Rs. ………………… for the costs of thesuit awarded to the plaintiff.
(ii) that, onsuch payment and on payment thereafter before such date as the Court may fix ofsuch amount as the Court may adjudge due in respect of such costs of the suitand such costs, charges and expenses as may be payable under rule 10, togetherwith such subsequent interest as may be payable under rule 11, of Order XXXIVof the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shallbring into Court all documents in his possession or power relating to themortgaged property in the plaint mentioned, and all such documents shall bedelivered over to the defendant, or to such person as he appoints, and theplaintiff shall, if so required, re-convey or re-transfer the said propertyfree from the said mortgage and clear of and from all incumbrances created bythe plaintiff or any person claiming under him or any person’ under whom heclaims and free from all liability whatsoever arising from the mortgage or thissuit and shall, if so required, deliver up to the defendant quiet and peaceablepossession of the said property.
5. And it is hereby further orderedand decreed that, in default of payment as aforesaid, the plaintiff shall be atliberty to apply to the Court for a final decree that the defendant shallthenceforth stand absolutely debarred and foreclosed of and from all right toredeem the mortgaged property described in the schedule annexed hereto andshall, if so required, deliver up to the plaintiff quiet and peaceablepossession of the said property; and that the parties shall be at liberty toapply to the Court from time to time as they may have occasion, and on suchapplication or otherwise the Court may give such directions as it thinks fit.]
Schedule
(Descriptionof the mortgaged property)
1 [No.3A
preliminary decree for foreclosure
(OrderXXXIV, rule 2.-Wherethe Court declares the amount due.)
(Title)
This suit coming on this …………………day, etc.; It is herebydeclared that the amount due to the plaintiff on his mortgage mentioned in theplaint calculated up to this ………………… day of ………………… is the sum ofRs. …………………for principal, the sum of Rs. ………………… for interest on the said principal, thesum of Rs. ………………… for costs, charges and expenses (other than the costs of thesuit) properly incurred by the plaintiff in respect of the mortgage-security,together with interest thereon, and the sum of Rs. ………………… for the costs ofthis suit awarded to the plaintiff, making in all the sumof Rs. …………………
2. And it is hereby ordered anddecreed 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 bythe Court of the said sum of Rs. …………;
(ii) that, onsuch payment and on payment thereafter before such date as the Court may fix ofsuch amount as the Court may adjudge due in respect of such costs of the suitand such costs, charges and expenses as may be payable under rule 10, togetherwith such subsequent interest as may be payable under rule 11, of Order XXXIVof the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shallbring into Court all documents in his possession or power relating to themortgaged property in the plaint mentioned, and all such documents shall bedelivered over to the defendant, or to such person as he appoints and theplaintiff shall, if so required, re-convey or re-transfer the said propertyfree from the said mortgage and clear of and from all incumbrances created bythe plaintiff or any person claiming under him or any person under whom heclaims and free from all liability whatsoever arising from the mortgage or thissuit and shall, if so required, deliver up to the defendant quiet and peaceablepossession of the said property.
3. And it is hereby furtherordered and decreed that, in default of payment as aforesaid, the plaintiff mayapply to the Court for a final decree that the defendant shall thenceforthstand absolutely debarred and foreclosed of and from all right to redeem themortgaged property described in the Schedule annexed hereto and shall, if sorequired, deliver up to the plaintiff quiet and peaceable possession of thesaid property ; and that the parties shall be at liberty to apply to the Courtfrom time to time as they may have occasion, and on such application orotherwise the Court may give such directions as it thinks fit.
Schedule
(Description of the mortgaged property)
1 No. 4
finaldecree for foreclosure
(OrderXXXIV, rule 3.)
(Title)
Upon reading the preliminarydecree passed in this suit on the………………… day of ………………… and further orders (ifany) dated the ………………… day of ………………… and the application of the plaintiffdated the ………………… day of ………………… for a final decree and after hearing theparties and it appearing that the payment dierceted by the said decree andorders has not been made by the defendant or any person on his behalf or anyother person entitled to redeem the said mortgage :
Itis hereby ordered and decreed that the defendant and all persons claimingthrough or under him be and they are hereby absolutely debarred and foreclosedof and from all right of redemption of and in the property in the aforesaidpreliminary decree mentioned : [and (if the defendant be in possession of the said mortgaged property) thatthe defendant shall deliver to the plaintiff quiet and peaceable possession ofthe said mortgaged property.]
2.And it is hereby further declared that the whole of the liability whatsoever ofthe defendant up to this day arising from the said mortgage mentioned in theplaint or from this suit is hereby discharged and extinguished.
*Words not required to be deleted.
No.5
preliminarydecree for sale
(OrderXXXIV, rule 4-Whereaccounts are directed to be taken.)
(Title)
This suit coming onthis…………………day, etc.; It ishereby ordered and decreed that it be referred to…………………as theCommissioner to take the accounts following :–
(i) an account of what is due on this date to the plaintiff forprincipal and interest on his mortgage mentioned in the plaint (such interestto be computed at the rate payable on the principal or where no such rate isfixed, at six per cent per annum or at such rate as the Court deemsreasonable);
(ii) an accountof the income of the mortgaged property received up to this date by theplaintiff or by any other person by the order or for the use of the plaintiffor which without the wilful default of the plaintiff or such person might havebeen so received ;
(iii) an accountof all sums of money properly incurred by the plaintiff up to this date forcosts, charges and expenses (other than the costs of the suit) in respect ofthe mortgage-security, together with interest thereon (such interest to becomputed at the rate agreed between the parties, or, failing such rate, at thesame rate as is payable on the principal, or, failing both such rates, at nineper cent per annum) ;
(iv) an account of any loss or damage caused to the mortgagedproperty before this date by any act or omission of the plaintiff which isdestructive of, or permanently injurious to, the property or by his failure toperform any of the duties imposed upon him by any law for the time being inforce or by the terms of the mortgage-deed.
2. And it is hereby furtherordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interestthereon, shall first be adjusted against any sums paid by the plaintiff underclause (iii), together withinterest thereon, and the balance, if any, shall be added to the mortgage-moneyor, as the case may be, be debited in reduction of the amount due to theplaintiff on account of interest on the principal sum adjudged due andthereafter in reduction or discharge of the principal.
3. And it is hereby furtherordered that the said Commissioner shall present the account to this Court withall convenient dispatch after making all just allowances on or before the………………… day of ………………… and that upon such report of the Commissioner beingreceived, it shall be confirmed and counter-signed, subject to suchmodification as may be necessary after consideration of such objections as theparties to the suit may make.
4. And it is hereby furtherordered and decreed–
(i)that the defendant do pay into Court on or before the ………………… dayof………………… or any later date up to which time for payment may be extended bythe Court, such sum as the Court shall find due and the sum of Rs…………………….. for the costs of the suit awarded to the plaintiff ;
(ii) that, on such payment and on payment thereafter before suchdate as the Court may fix of such amount as the Court mayadjudge 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 OrderXXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bringinto Court all documents in his possession or power relating to the mortgaged property in theplaint mentioned, and all such documents shall be delivered over to the defendant, or tosuch person as he appoints, and the plaintiff shall, if so required, re-convey or re-transferthe said property free from the mortgage and clear of and from all incumbrances created by theplaintiff of any person claiming under him or any person under whom he claims and shall,if so required, deliver up to the defendant quiet and peaceable possession ofthe said property.
5. And it is hereby furtherordered and decreed that, in default of payment as aforesaid, the plaintiff mayapply 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 partthereof shall be directed to be sold ; and for the purposes of such sale theplaintiff shall produce before the Court, or such officer as it appoints, alldocuments in his possession or power relating to the mortgaged property.
6. And it is hereby furtherordered and decreed that the money realised by such sale shall be paid intoCourt and shall be duly applied (after deduction therefrom of the expenses ofthe sale) in payment of the amount payable to the plaintiff under this decreeand under any further orders that may be passed in this suit and in payment ofany amount which the Court may adjudge due to the plaintiff in respect of suchcosts of the suit, and such costs, charges and expenses as may be payable underrule 10, together with such subsequent interest as may be payable under rule11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908,and that the balance, if any, shall be paid to the defendant or other personsentitled to receive the same.
7. And it is hereby furtherordered and decreed that, if the money realised by such sale shall not besufficient for payment in full of the amount payable to the plaintiff asaforesaid, the plaintiff shall be at liberty (where such remedy is open to himunder the terms of his mortgage and is not barred by any law for the time beingin force) to apply for a personal decree against the defendant for the amountof the balance ; and that the parties are at liberty to apply to the Court fromtime to time as they may have occasion, and on such application or otherwisethe Court may give such directions as it thinks fit.
Schedule
(Descriptionof mortgaged property).]
1 [No.5A
preliminarydecree for sale
(OrderXXXIV, rule 4-When theCourt declares the amount due.)
(Title)
This suit coming on this …………………day, etc.; It is herebydeclared that the amount due tp the plaintiff on the mortgage mentioned in theplaint calculated up to this………………… day of ………………… is the sum of Rs. …………………for principal, the sum of Rs. …………………. for interest on the said principal, the sumof Rs. …………………….. for costs, charges and expenses (other than the costs ofthe suit) properly incurred by the plaintiff in respect of themortgage-security, together with interest thereon, and the sum of Rs. …………………for the costs of the suit awarded to the plaintiff, making in all the sum of Rs. …………………
2. And it is hereby ordered anddecreed as follows :–
(i) that the defendant do pay into Court on or before the ………………… dayof………………… or any later date up to which time for payment may be extended bythe Court, the said sum of Rs. …………………
(ii) that,on such payment and on payment thereafter before such date as the Court may fixof such amount as the Court may adjudge due in respect of such costs of thesuit 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, ofOrder XXXIV of the First Schedule to the Code of Civil Procedure, 1908, theplaintiff shall bring into Court all documents in his possession or power relatingto the mortgaged property in the plaint mentioned, and all such documents shallbe delivered over to the defendant, or to such person as he appoints, and theplaintiff shall, if so required, re-convey or re-transfer the said properlyfree from the said mortgage and clear of and from all incumbrances created bythe plaintiff or any person claiming under him or any person under whom heclaims and shall, if so required deliver up to the defendant quiet andpeaceable possession of the said property.
3. And it is hereby furtherordered and decreed that, in default of payment as aforesaid, the plaintiff mayapply 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 partthereof shall be directed to be sold ; and for the purposes of such sale theplaintiff shall produce before the Court or such officer as it appoints alldocuments in his possession or power relating to the mortgaged property.
4. And it is hereby furtherordered and decreed that the money realised by such sale shall be paid intoCourt and shall be duly applied (after deduction therefrom of the expenses ofthe sale) in payment of the amount payable to the plaintiff under this decreeand under any further orders that may be passed in this suit and in payment ofany amount which the Court may adjudge due to the plaintiff in respect of suchcosts of the suit, and such costs, charges and expenses as may be payable underrule 10, together with such subsequent interest as may be payable under rule11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908,and that the balance, if any, shall be paid to the defendant or other personsentitled to receive the same.
5. And it is hereby furtherordered and decreed that, if the money realised by such sale shall not besufficient for payment in full of the amount payable to the plaintiff asaforesaid, the plaintiff shall be at liberty (where such remedy is open to himunder the terms of his mortgage and is not barred by any law for the time beingin force) to apply for a personal decree against the defendant for the amountof the balance ; and that the parties are at liberty to apply to the Court fromtime to time as they may have occasion, and on such application or otherwisethe Court may give directions as it thinks fit.
Schedule
(Description of the mortgagedproperty).]
1 [No. 6
finaldecree for sale
(OrderXXXIV, rule 5)
(Title)
Upon reading the preliminarydecree passed in this suit on the ………………… day of …………………and further orders (ifany) dated the ………………… day of ………………… and the application of the plaintiffdated the ………………… day of ………………… for a final decree and after hearing theparties and it appearing that the payment directed by the said decree andorders has not been made by the defendant or any person on his behalf of anyother person entitled to redeem the mortgage;
It is hereby ordered and decreedthat the mortgaged property in the aforesaid preliminary decree mentioned or asufficient part thereof be sold, and that for the purposes of such sale theplaintiff shall produce before the Court or such officer as it appoints alldocuments in his possession or power relating to the mortgaged property.
2. And it is hereby furtherordered and decreed that the money realised by such sale shall be paid into theCourt and shall be duly applied (after deduction therefrom of the expenses ofthe sale) in payment of the amount payable to the plaintiff under the aforesaidpreliminary decree and under any further orders that may have been passed inthis suit and in payment of any amount which the Court may have adjudged due tothe plaintiff for such costs of the suit including the costs of this applicationand such costs, charges and expenses as may be payable under rule 10, togetherwith such subsequent interest as may be payable under rule 11, of Order XXXIVof the First Schedule to the Code of Civil Procedure, 1908 and that thebalance, if any, shall be paid to the defendant or other persons entitled toreceive the same.
No. 7
preliminarydecree for redemption where on default of payment by mortgagora decree for foreclosure is passed
(OrderXXXIV, rule 7-Whereaccounts are directed to be taken)
(Title)
This suit coming on this …………………day, etc.; It is hereby orderedand decreed that it be referred to. ……………… as the Commissioner to take theaccount following:-
(i) an account of what is due onthis date to the defendant for principal and interest on the mortgage mentionedin the plaint (such interest to the computed at the rate payable on theprincipal or where no such rate is fixed, at six per cent per annum or at suchrate as the Court deems reasonable) ;
(ii) an account of the income of the mortgaged property received upto this date by the defendant or by any other person by order or for the use ofthe defendant or which without the wilful default of the defendant or suchperson might have been so received;
(iii) an account of all sums ofmoney properly incurred by the defendant up to this date for costs, charges andexpenses (other than the costs of the suit) in respect of the mortgage-securitytogether with interest thereon (such interest to be computed at the rate agreedbetween the parties, or, failing such rate, at the same rate as is payable onthe principal, or, failing both such rates, at nine per cent per annum) ;
(iv) an account of any loss or damage caused to the mortgagedproperty before this date by any act or omission of the defendant which isdestructive of, or permanently injurious to, the property or by his failure toperform any of the duties imposed upon him by any law for the time being inforce or by the terms of the mortgage-deed.
2. It is hereby further orderedand decreed that any amount received under clause (ii) or adjudged due underclause (iv) above, togetherwith interest thereon, shall be adjusted against any sums paid by the defendantunder clause (iii) together with interest thereon, and the balance,if any, shall be added to the mortgage-money, or, as the case may be, be debitedin reduction of the amount due to the defendant on account of interest on theprincipal sum adjudged due and thereafter in reduction or discharge of theprincipal.
3. And it is hereby furtherordered that the said Commissioner shall present the account to this Court withall convenient despatch after making all just allowances on or before the…………………day of ………………… and that upon such report of the Commissioner beingreceived, it shall be confirmed and countersigcnd, subject to such modificationas may be necessary after consideration of such objections as the parties tothe suit may make.
4. And it is hereby furtherordered and decreed–
(i) that the plaintiff do pay into Court on or before the………………… day of………………… or any later date up to which time for payment may be extended by theCourt, such sum as the Court shall find due and the sum of Rs. ………………… forthe costs of the suit awarded to the defendant ;
(ii) that, on such payment, and on payment thereafter before suchdate as the Court may fix of such amount as the Court may adjudgedue in respect of such costs of the suit and such costs, charges and expensesas may be payable under rule 10, together with such subsequent interest as maybe payable under rule 11, of Order XXXIV of the First Schedule to the Code ofCivil Procedure, 1908, the defendant shall bring into Court all documents inhis possession or power relating to the mortgaged property in the plaintmentioned, and all such documents shall be delivered over to the plaintiff, orto such person as he appoints, and the defendant shall, if so required,re-convey or re-transfer the said property free from the said mortgage andclear of and from all incumbrances created by the defendant or any personclaiming under him or any person under whom he claims and free from allliability whatsoever arising from the mortgage or this suit and shall, if sorequired, deliver up to the plaintiff quiet and peaceable possession of thesaid property.
5. And it is hereby furtherordered and decreed that, in default of payment as aforesaid, the defendantshall be at liberty to apply to the Court for a final decree that the plaintiffshall thenceforth stand absolutely debarred and foreclosed of and from allright to redeem the mortgaged property described in the Schedule annexed heretoand shall, if so required, deliver up to the defendant quiet and peaceablepossession of the said property; and that the parties shall be at liberty toapply to the Court from time to time as they may have occasion, and on suchapplication or otherwise the Court may give such directions as it thinks fit.
Schedule
(Descriptionof the mortgaged property).]
1 [No. 7A
preliminarydecree for redemption where on default of payment by mortgagora decree for sale is passed
(OrderXXXIV, rule 7.–Whereaccounts are directed to be taken.)
(Title)
This suit coming on this …………………day, etc.; It is hereby orderedand decreed that it be referred to ………………… as the Commissioner to take theaccounts following:-
(i) an account of what is due onthis date to the defendant for principal and interest on the mortgage mentionedin the plaint (such interest to be computed at the rate payble on the principalor where no such rate is fixed, at six per cent per annum or at such rate asthe Court deems reasonable);
(ii) an accountof the income of the mortgaged property received up to this date by thedefendant or by any other person by the order or for the use of the defendantor which without the wilful default of the defendant or such person might havebeen so received;
(iii) an account of all sums ofmoney property incurred by the defendant up to this date for costs, charges andexpenses (other than the costs of the suit) in respect of the mortgage-securitytogether with interest thereon (such interest to be computed at the rate agreedbetween the parties, or, failing such rate, at the same rate as is payable onthe principal, or, failing both such rates, at nine per cent. per annum);
(iv) an account of any loss ordamage caused to the mortgaged property before this date by any act or omissionof the defendant which is destructive of, or permanently injurious to, theproperty or by his failure to perform any of the duties imposed upon him by anylaw for the time being in force or by the terms of the mortgaged-deed.
2.And it is hereby further ordered and decreed that any amount received underclause (ii) or adjudged due under clause (iv) above, together with interestthereon, shall first be adjusted against any sums paid by the defendant underclause (iii) together with interest thereon,and the balance, if any, shall be added to the mortgage-money, or, as the casemay be, be debited in reduction of the amount due to the defendant on account ofinterest on the principal sum adjudged due and thereafter in reduction ordischarge of the principal.
3. And it is hereby furtherordered that the said Commissioner shall present the account to this Court withall convenient despatch after making all just allowances on or before the …..day of ….. and that, upon such report of the Commissioner being received, itshall be confirmed and countersigned, subject to such modification as may benecessary after consideration of such objections as the parties to the suit maymake.
4. And it is hereby furtherordered and decreed-
(i) that the plaintiff do payinto Court on or before the ….. day of ….. or any later date up to whichtime for payment may be extended by the Court, such sum as the Court shall finddue and the sum of Rs. ….. for the costs of the suit awarded to the defendant;
(ii) that, or such payment andon payment thereafter before such date as the Court may fix of such amount asthe 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 suchsubsequent interest as may be payable under rule 11, of Order XXXIV of theFirst Schedule to the Code of Civil Procedure, 1908, the defendant shall bringinto Court all documents in his possession or power relating to the mortgagedproperty in the plaint mentioned, and all such documents shall be deliveredover to the plaintiff, or to such person as he appoint, and the defendantshall, if so required, re-convey or re-transfer the said property free from thesaid mortgage and clear of and from all incumbrances created by the defendantor any person claiming under him or any person under whom he claims and shall,if so required, deliver up to the plaintiff quiet and peaceable possession ofthe said property.
5. And it is hereby furtherordered and decreed that, in default of payment as aforesaid, the defendant mayapply to the Court for a final decree for the sale of the mortgaged property ;and on such application being made, the mortgaged property of a sufficient partthereof shall be directed to be sold ; and for the purposes of such sale thedefendant shall produce before the Court or such officer as it appoints, alldocuments in his possession or power relating to the mortgaged property.
6. And it is hereby furtherordered and decreed that the money realised by such sale shall be paid intoCourt and shall be duly applied (after deduction therefrom of the expenses ofthe sale) in payment of the amount payable to the defendant under this decreeand under any further orders that may be passed in this suit and in payment ofany amount which the Court may adjudge due to the defendant in respect of suchcosts of the suit and such costs, charges and expenses as may be payable underrule 10, together with such subsequent interest as may be payable under rule11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908,and that the balance, if any, shall be paid to the plaintiff or other personsentitled to receive the same.
7. And it is hereby furtherordered and decreed that, if the money realised by such sale shall not besufficient for payment in full of the amount payable to the defendant asaforesaid, the defendant shall be at liberty (where such remedy is open to himunder the terms of his mortgage and is not barred by any law for the timebeing- in force) to apply for a personal decree against the plaintiff for theamount of the balance ; and that the parties are at liberty to apply to theCourt from time to time as they may have occasion, and on such application orotherwise the Court may give such directions as it thinks fit.
Schedule
(Descriptionof the mortgaged properly).]
1 [No. 7B
preliminarydecree for redemption where on default of payment by mortgagor a decree forforeclosure is passed
(OrderXXXIV, rule 7.-Where theCourt declares the amount due.)
(Title)
This suit coming on this …..day, etc.; It is herebydeclared that the amount due to the defendant on the mortgage mentioned in theplaint calculated up to this ….. day of ….. is the sum of Rs. ….. forprincipal, the sum of Rs. ….. for interest on the said principal, the sum ofRs. ….. for costs, charges and expenses (other than the costs of the suit)properly incurred by the defendant in respect of the mortgage-security togetherwith interest thereon, and the sum of Rs. ….. for the costs of the suitawarded to the defendant, making in all the sum of Rs. …..
2. And it is hereby ordered anddecreed as follows:–
(i) that the plaintiff do payinto Court on or before the ….. day of ….. or any later date up to whichtime for payment may be extended by the Court the said sum of Rs. …..;
(ii) that, on such payment andon payment thereafter before such date as the Court may fix of such amount asthe 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 suchsubsequent interest as may be payable under rule II, of Order XXXIV of theFirst Schedule to the Code of Civil Procedure, 1908, the defendant shall bringinto Court all documents in his possession or power relating to the mortgagedproperty in the plaint mentioned, and all such documents shall be deliveredover to the plaintiff, or to such person as he appoints, and the defendant shall,if so required, re-convey or re-transfer the said property free from the saidmortgage and clear of and from all incumbranccs created by the defendant or anyperson claiming under him or any person under whom he claims, and free from allliability whatsoever arising from the mortgage or this suit and shall, if sorequired, deliver up to the plaintiff quiet and peaceable possession of thesaid property.
3. And it is hereby furtherordered and decreed that, in default of payment as aforesaid, the defendant mayapply to the Court for a final decree that the plaintiff shall thenceforthstand absolutely debarred and foreclosed of and from all right to redeem themortgaged property described in the schedule annexed hereto and shall, if sorequired, deliver up to the defendant quiet and peaceable possession of thesaid property; and that the parties shall be at liberty to apply to the Courtfrom time to time as they may have occasion, and on such application orotherwise the Court may give such directions as it thinks fit.
Schedule
(Descriptionof the mortgaged properly).]
1 [No. 7C
preliminarydecree for redemption where on default of payment by mortgagor a decree for saleis passed
(OrderXXXIV, rule 7.-Where theCourt declares the amount due.)
(Title)
This suit coming on this …..day, etc.; It is herebydeclared that the amount due to the defendant on the mortgage mentioned in theplaint calculated up to this ….. day of ….. is the sum of Rs. ….. forprincipal, the sum of Rs. ….. for interest on the said principal, the sum ofRs. ….. for costs, charges and expenses (other than the costs of the suit)properly incurred by the defendant in respect of mortgage-security togetherwith interest thereon, and the sum of Rs. ….. for the cost of this suitawarded to the defendant, making in all the sum of Rs……
2. And it is hereby ordered anddecreed as follows: –
(i) that the plaintiff do payinto Court on or before the ….. day of ….. or any later date up to whichtime the payment may be extended by the Court the said sum of Rs. …..;
(ii) that, on such payment andon payment thereafter before such date as the Court may fix of such amount asthe 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 suchsubsequent interest as may be payable under rule 11, of Order XXXIV of theFirst Schedule to the Code of Civil Procedure, 1908, the defendant shall bringinto Court all documents in his possession or power relating to the mortgagedproperty in the plaint mentioned, and all such documents shall be deliveredover to the plaintiff or such person as he appoints, and the defendant shall,if so required, re-convey or re-transfer the said property to the plaintifffree from the said mortgage and clear of and from all incumbrances created bythe defendant or any person claiming under him or any person under whom heclaims and shall, if so required, deliver up to the plaintiff quiet and peaceablepossession of the said property.
3. And it is hereby furtherordered and decreed that, in default of payment as aforesaid, the defendant mayapply 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 partthereof shall be directed to be sold ; and for the purposes of such sale thedefendant shall produce before the Court or such officer as it appoints alldocuments in his possession or power relating to the mortgaged property.
4. And it is hereby furtherordered and decreed that the money realised by such sale shall be paid intoCourt and shall be duly applied (after deduction therefrom of the expenses ofthe sale) in payment of the amount payable to the defendant under this decreeand under any further orders that may be passed in this suit and in payment ofany amount which the Court may adjudge due to the defendant in respect of suchcosts of the suit and such costs, charges and expenses as may be payable underrule 10, together with such subsequent interest as may be payable under rule11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908,and that the balance, if any, shall be paid to the plaintiff or other personsentitled to the same.
5. And it is hereby furtherordered and decreed that, if the money realised by such sale shall not besufficient for the payment in full of the amount payable to the defendant asaforesaid, the defendant shall be at liberty (where such remedy is open to himunder the terms of the mortgage and is not barred by any law for the time beingin force) to apply for a personal decree against the plaintiff for the amountof the balance ; and that the parties are at liberty to apply to the Court fromtime to time as they may have occasion, and on such application or otherwisethe Court may give such directions as it thinks fit.
Schedule
(Descriptionof the mortgaged property).]
1 [No.7D
finaldecree for foreclosure in a redemption suit on default of payment by mortgagor
(OrderXXXIV, rule 8)
(Title)
Upon reading the preliminarydecree in this suit on the ….. day of ….. and further orders (if any) datedthe ….. day of ….. and the application of the defendant dated the ….. dayof ….. for a final decree and after hearing the parties, and it appearingthat the payment as directed by the said decree and orders has not been made bythe plaintiff or any person on his behalf or any other person entitled toredeem the mortgage;
It is hereby ordered and decreedthat the plaintiff and all persons claiming through or under him be and theyare hereby absolutely debarred and foreclosed of an from all right ofredemption of and in the property in aforesaid preliminary decree mentioned 2 [and (if the plaintiff be inpossession of the said mortgaged properly) that the plaintiff shalldeliver to the defendant quiet and peaceable possession of the said mortgagedproperty].
2. And it is hereby furtherdeclared that the whole of the liability whatsoever of the plaintiff up to thisday arising from the said mortgage mentioned in the plaint or from this suit ishereby discharge and extinguished.
1 [No.7E
finaldecree for sale in a redemption suit on default of payment by mortgagor
(OrderXXXIV, rule 8)
(Title)
Upon reading the preliminarydecree passed in this suit on the ….. day of ….. and further orders (ifany) dated the ….. day of ….. and the application of the defendant datedthe ….. day of ….. for a final decree and after hearing the parties and itappearing that the payment directed by the said decree and orders has not beenmade by the plaintiff or any person on his behalf or any other person entitledto redeem the mortgage;
It is hereby ordered and decreedthat the mortgaged property in the aforesaid preliminary decree mentioned or asufficient part thereof be sold and that for the purposes of such sale thedefendant shall produce before the Court, or such officer as it appoints, alldocuments in his possession or power relating to the mortgaged property.
2. And it is hereby furtherordered and decreed that the money realised by such sale shall be paid intoCourt and shall be duly applied (after deduction therefrom of the expenses ofthe sale) in payment of the amount payable to the defendant under the aforesaidpreliminary decree and under any further orders that may have been passed inthis suit and in payment of any amount which the Court may have adjudged due tothe defendant for such costs of this suit including the costs of thisapplication and such costs, charges and expenses as may be payable under rule10, together with the subsequent interest as may be payable under rule 11, ofOrder XXXIV of the First Schedule to the Code of Civil Procedure, 1908, andthat the balance, if any, shall be paid to the plaintiff or other personsentitled to receive the same.]
1 [No.7F
finaldecree in a suit for foreclosure, sale or redemption where THE mortgagor pays the amount of the decree
(OrderXXXIV, rules 3, 5 and 8)
(Title)
This suit coming on this …..day for further consideration and it appearing that on the ….. day of …..the mortgagor or ….. the same being a person entitled to redeem, has paidinto Court all amounts due the mortgagee under the preliminary decree dated the….. day of …..; It is hereby ordered and decreed that:–
(i) the mortgagee do execute adeed of re-conveyance of the properly in the aforesaid preliminary decreementioned in favour of the mortgagor [or, as the case may be, ….. who hasredeemed the property] or an acknowledgment of the payment of the amount due inhis favour ;
(ii) the mortgagee do bring intoCourt all documents in his possession and power relating to the mortgagedproperty in the suit.
And it is hereby further orderedand decreed that, upon the mortgagee executing the deed of re-conveyance oracknowledgment in the manner aforesaid,-
(i) the said sum of Rs. ….. bepaid out of Court to the mortgagee ;
(ii) the saiddeeds and documents brought into the Court be delivered out of Court to themortgagor 2 [or the person making the payment] and the mortgagee do,when so required, concur in registering, at the cost of the mortgagor [or otherperson making the payment], the said deed of re-conveyance or theacknowledgment in the office of the Sub-registrar of …..; and
(iii) 2 [if the mortgagee, plaintiff ordefendant, as the case may be, is in possession of the mortgaged property] thatthe mortgagee do forthwith deliver possession of the mortgaged properly in theaforesaid preliminary decree mentioned to the mortgagor 2 [or suchperson as aforesaid who has made the payment].
1 [No. 8
decreeagainst mortgagor personally for balance after the sale of THE mortgagedproperty
(OrderXXXIV, rules 6 and 8A)
(Title)
Upon reading the application ofthe mortgagee (the plaintiff or defendant, as the case may be) and reading thefinal decree passed in the suit on the ….. day of ….. and the Court beingsatisfied that the net proceeds of the sale held under the aforesaid finaldecree amounted to Rs. ….. and have been paid to the applicant out of theCourt on the …… day of ….. and that the balance now due to him under theaforesaid decree is Rs. …..;
And whereas it appears to theCourt that the said sum is legally recoverable from the mortgagor (plaintiff ordefendant, as the case may be) personally;
It is hereby ordered and decreedas follows:–
That the mortgagor (plaintiff ordefendant, as the case may be) do pay to the mortgagee (defendant or plaintiff,as the case may be) the said sum of Rs ….. with further interest at the rateof six per cent per annum from the ….. day of ….. (the date of payment outof Court referred to above) up to the date of realisation of the said sum, andthe costs of this application.]
1 [No. 9
preliminarydecree for foreclosure of sale
[Plaintiff. . . . . . . . . . . . . 1st Mortgagee,
Versus
Defendant No. 1 . . . . . . . Mortgagor,
Defendant No. 2 . . . . . . . 2nd Mortgagee.]
(OrderXXXIV, rules 2 and 4)
(Title)
The suit coming on this …..day, etc; It is hereby declaredthat the amount due to the plaintiff on the mortgage mentioned in the plaintcalculated 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) incurred bythe plaintiff in respect of the mortgage-security with interest thereon and thesum of Rs. ….. for the costs of this suit awarded to the plaintiff, making inall the sum of Rs. …..
(Similardeclarations to be introduced with regard to the amount due to defendant No. 2 in respect of his mortgage if the mortgage-mortey duethereunder has became payable at the date of the suit.)
2. It is further declared thatthe plaintiff is entitled to payment of the amount due to him in priority todefendant No. 2 2 [or (if there are several subsequent mortgagees) that theseveral parties hereto are entitled in the following order to the payment ofthe sums due to them respectively:–].
3. And it is hereby ordered anddecreed as follows :-
(i) (a) that defendants or one of them do pay into Court on orbefore the ….. day of ….. or any later date up to which time for paymenthas been extended by the Court the said sum of Rs. ….. due to the plaintiff;and
(b) thatdefendant No. 1 do pay into Court on or before the …. day of ….. or anylater date up to which time for payment has been extended by the Court the saidsum of Rs. ….. due to defendant No. 2 ; and
(ii) that, on payment of the sumdeclared to be due to the plaintiff by defendants or either of them in themanner prescribed in clause (i)(a) and on payment thereafter before such dateas the Court may fix of such amount as the Court may adjudge due in respect ofsuch costs of the suit and such costs, charges and expanses as may be payableunder rule 10, together with such subsequent interest as may be payable underrule 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 orpower relating to the mortgaged property in the plaint mentioned, and all suchdocuments shall be delivered over to the defendant No. …… (who has made thepayment), or to such person as he appoints, and the plaintiff shall, if sorequired, re-convey or re-transfer the said properly free from the saidmortgage and clear of and from all incumbrances created by the plaintiff or anyperson claiming under him or any person under whom he claims, and also freefrom all liability whatsoever arising from the mortgage or this suit and shall,if so required, deliver up to the defendant No. …… (who has made thepayment) quiet and peaceable possession of the said property.
(Similardeclarations to be introduced, if defendant No. 1 pays the amount found or declared to be due to defendant No. 2 with such variations as may be necessaryhaving regard to the nature of hismortgage.)
4. And it is hereby further ordered and decreed that, in defaultof payment as aforesaid of the amount due to the plaintiff, the plaintiff shallbe at liberty to apply to the Court for a final decree-
(i)2 [in the case of a mortgage by conditional saleor an anomalous mortgage where the only remedy Provided for in themortgage-deed is foreclosure and not sale] that the defendants jointlyand severally shall thenceforth stand absolutely debarred and foreclosed of andfrom all right to redeem the mortgaged property described in the Scheduleannexed hereto and shall, if so required deliver to the plaintiff quiet andpeaceable possession of the said property; or
(ii)2 [in the case of any other mortgage] thatthe mortgaged property or a sufficient party thereof shall be sold; and thatfor the purposes of such sale the plaintiff shall produce before Court or suchofficer as it appoints, all documents in his possession or power relating tothe mortgaged property; and
(iii) 2 [in the case where a sale is ordered under clause 4(ii) above] that the money realised bysuch sale shall be paid into Court and be duly applied (after deductiontherefrom of the expenses of the sale) in payment of the amount payable to theplaintiff under this decree and under any further orders that may have beenpassed in this suit and in payment of the amount which the Court may adjudgedue to the plaintiff in respect of such costs of the suit and such costs,charges and expenses as may be payable under rule 10, together with suchsubsequent interest as may be payable under rule 11, of Order XXXIV of theFirst Schedule to the Code of Civil Procedure, 1908, and that the balance, ifany, shall be applied in payment of the amount due to defendant No. 2, and thatif any balance be left, it shall be paid to the defendant No. 1 or otherpersons entitled to receive the same ; and
(iv) that, if the money realisedby such sale shall not be sufficient for payment in full of the amounts due tothe plaintiff and defendant No. 2, the plaintiff or defendant No. 2 or both ofthem, as the case may be, shall be at liberty (when such remedy is open underthe terms of their respective mortgages and is not barred by any law for thetime being in force) to apply for a personal decree against defendant No. 1 forthe amounts remaining due to them respectively.
5. And it is hereby furtherordered and decreed–
(a) that if defendant No. 2 paysinto 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, defendantNo. 2 shall be at liberty to apply to the Court to keep the plaintiffs mortgagealive for his benefit and to apply for a final decree (in the same manner as the plaintiff might have done under clause 4 above)–
2 [(i)that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosedof and from all right to redeem the mortgaged property described in theSchedule annexed hereto and shall, if so required, deliver up to defendant No.2 quiet and peaceable possession of the said property;] or
2 [(ii)that the mortgaged property or a sufficient part thereof be sold and that forthe purposes of such sale defendant No. 2 shall produce before the Court orsuch officer as it appoints, all documents in his possession or power relatingto the mortgaged property;] and
(b) (if on the application ofdefendant No. 2 such a final decree for foreclosure is passed), that the wholeof the liability of defendant No. 1 arising from the plaintiffs mortgage orfrom the mortgage of defendant No. 2 or from this suit shall be deemed to havebeen discharged and extinguished.
6. And it is hereby furtherordered and decreed 2 [in thecase where a sale is ordered under clause 5 above]–
(i) that the money realised by such sale shall be paid into Courtand be duly applied (after deduction therefrom of the expenses of the sale)first in payment of the amount paid by defendant No. 2 in respect of theplaintiffs mortgage and the costs of the suit in connection therewith and inpayment of the amount which the Court may adjudge due in respect of subsequentinterest on the said amount; and that the balance, if any, shall then beapplied in payment of the amount adjudged due to defendant No. 2 in respect ofhis own mortgage under this decree and any further orders that may be passedand in payment of the amount which the Court may adjudge due in respect of suchcosts of this suit and such costs, charges and expenses as may be payable todefendant No. 2 under rule 10, together with such subsequent interest as may bepayable under rule 11, of Order XXXIV of the First Schedule to the Code ofCivil Procedure, 1908, and that the balance, if any, shall be paid to defendantNo. 1 or other persons entitled to receive the same ; and
(ii) that, if the money realised by such sale shall not besufficient for payment in full of the amount due in respect of the plaintiffsmortgage or defendant No. 2’s mortgage, defendant No. 2 shall be at liberty(where such remedy is open to him under the terms of his mortgage and is notbarred by any law for the time being in force) to apply for a personal decreeagainst No. 1 for the amount of the balance.
7. And it is hereby furtherordered and decreed that the parties arc at liberty to apply to the Court fromtime to time as they may have occasion, and on such application or otherwisethe Court may give such directions as it thinks fit.
Schedule
(Descriptionof the Mortgaged property).]
1 [No. 10
preliminarydecree for redemption of prior mortgage and foreclosure or sale on subsequentmortgage
[Plaintiff………………………… 2nd Mortgagee,
versus
DefendantNo. 1 ………………………… Mortgagor,
DefendantNo. 2………………………… 1st Mortgagee.]
(Order XXXIV, rules 2, 4 and 7)
(Title)
The suit coming on this …..day, etc.; It is herebydeclared that the amount due to defendant No. 2 on the mortgage mentioned inthe plaint calculated up to this ….. day of ….. is the sum of Rs. ….. forprincipal, the sum of Rs. ….. for interest on the said principal, the sum ofRs. ….. for costs, charges and expenses (other than the costs of the suit)properly incurred by defendant No. 2 in respect of the mortgage-security withinterest thereon and the sum of Rs. ….. for the costs of this suit awarded todefendant No. 2, making in all the sum of Rs. …..
(Similardeclarations to be introduced with regard to the amount due from defendant No. 1 to the plaintiff in respect of his mortgage if the mortgage-money due thereunder hasbecome payable at the date of the suit.)
2. It is further declared thatdefendant No. 2 is entitled to payment of the amount due to him in priority tothe plaintiff [or (if there are several subsequent mortgagees) that the severalparties hereto arc entitled in the following order to the payment of the sumsdue to them respectively :–].
3. And it is hereby ordered anddecreed as follows:–
(i) (a) that the plaintiff or defendant No. 1 or one of them do payinto Court on or before the ….. day of ….. or any later date up to whichtime for payment has been extended by the Court the said sum of Rs. ….. dueto defendant No. 2 ; and
(b) that defendant No. 1 do payinto Court on or before the ….. day of ….. or any later date up to whichtime for payment has been extended by the Court the said sum of Rs. …… due to the plaintiff; and
(ii) that, onpayment of the sum declared due to defendant No. 2 by the plaintiff anddefendant No 1 or either of them in the manner prescribed in clause (i)(a) andon payment thereafter before such date as the Court may fix of such amount asthe 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 suchsubsequent interest as may be payable under rule 11, of Order XXXIV of theFirst Schedule to the Code of Civil Procedure, 1908, defendant No. 2 shallbring into Court all documents in his possession or power relating to themortgaged property in the plaint mentioned, and all such documents shall bedelivered over to the plaintiff or defendant No. 1 ( whoever has made thepayment) or to such person as he appoints, and defendant No. 2 shall, if sorequired, re-convey or re-transfer the said property free from the saidmortgage and clear of and from all incumbrances created by defendant No. 2 orany person claiming under him or any person under whom he claims, and also freefrom all liability, whatsoever arising from the mortgage or this suit andshall, if so required, deliver up to the plaintiff or defendant No. 1 (whoeverhas made the payment) quiet and peaceable possession of the said property.
(Similardeclarations to be introduced, if defendant No. 1 pays the amount found, or declared due to the plaintiff with suchvariations as may be necessary having regard to the nature of his mortgage.)
4. And it is hereby furtherordered and decreed that, if default of payment as aforesaid, of the amount dueto defendant No. 2, defendant No. 2 shall be at liberty to apply to the Courtthat the suit be dismissed or for a final decree–
(i)2 [in the case of a mortgage by conditionalsale or an anomalous mortgage where the only remedy provided for in the mortgage-deedis foreclosure and not sale] thatthe plaintiff and defendant No. 1 jointly and severally shall thenceforth standabsolutely debarred and foreclosed of and from all rights to redeem themortgaged property described in the Schedule annexed hereto and shall ; if sorequired, deliver to the defendant No. 2 quiet and peaceable possession of thesaid property; or
(ii)2 [in the case of any other mortgage] thatthe mortgaged properly or a sufficient part thereof shall be sold ; and thatfor the purposes of such sale defendant No. 2 shall produce before the Court orsuch officer as it appoints, all documents in his possession or power relatingto the mortgaged property; and
(iii)2 [in the case where a sale is ordered underclause 4(ii) above] that the money realised by such saleshall be paid into Court and be duly applied (after deduction therefrom of theexpenses of the sale) in payment of the amount payable to defendant No. 2 underthe decree and any further orders that may be passed in this suit and inpayment of the amount which the Court may adjudge due to defendant No. 2 inrespect of such costs of the suit and such costs, charges and expenses as maybe payable to the plaintiff under rule 10, together with such subsequentinterest as may be payable under rule 11, or Order XXXIV of the First Scheduleto the Code of Civil Procedure, 1908 ; and that the balance, if any, shall beapplied in payment of the amount due to the plaintiff and that, if any balancebe left, it shall be paid to defendant No. 1 or other persons entitled toreceive the same ; and
(iv) that, if the money realisedby such sale shall not be sufficient for payment in full of the amounts due todefendant No. 2 and the plaintiff, defendant No. 2 or the plaintiff or both ofthem, as the case may be, shall be at liberty (when such remedy is open underthe terms of their respective mortgages and is not barred by any law for thetime being in force) to apply for a personal decree against defendant No. 1 forthe amounts remaining due to them respectively.
5. And it is hereby furtherordered and decreed,–
(a) that, if the plaintiff paysinto Court to the credit to this suit the amount adjudged due to defendant No.2 but defendant No. 1 makes default in the payment of the said amount, theplaintiff shall be at liberty to apply to the Court to keep defendant No. 2’smortgage alive for his benefit and to apply for a final decree (in the same manner as the defendant No. 2 might have done under clause 4 above)–
2 [(i)that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosedof and from all right to redeem the mortgaged property described in theSchedule annexed hereto and shall, if so required, deliver up to the plaintiffquiet and peaceable possession of the said property]; or
2 [(ii) that the mortgaged property or asufficient part thereof be sold and that for the purposes of such sale theplaintiff shall produce before the Court or such officer as it appoints, alldocuments in his possession or power relating to the mortgaged property;] and
(b) (if onthe application of defendant No. 2 such a final decree for foreclosure ispassed), that the whole of the liability of defendant No. 1 arising from theplaintiff’s mortgage or from the mortgage of defendant No. 2 or from this suitshall be deemed to have been discharged and extinguished.
6. And it is herebyfurther ordered and decreed (in thecase where a sale is ordered under clause 5 above)–
(i) that the money realised by such sale shall be paid into Courtand be duly applied (after deduction therefrom of the expenses of the sale)first in payment of the amount paid by the plaintiff in respect of defendantNo. 2’s mortgage and the costs of the suit in connection therewith and inpayment of the amount which the Court may adjudge due in respect of subsequentinterest on the said amount; and that the balance, if any, shall then beapplied in payment of the amount adjudged due to the plaintiff in respect ofhis own mortgage under this decree and any further orders that may be passed andin payment of the amount which the Court may adjudge due in respect of suchcosts of the suit and such costs, charges and expenses as may be payable to theplaintiff under rule 10, together with such subsequent interest as may bepayable under rule 11, of Order XXXIV of the First Schedule to the Code ofCivil Procedure, 1908, and that the balance, if any, shall be paid to defendantNo. 1 or other persons entitled to receive the same ; and
(ii) that, if the money realised by such sale shall not besufficient for payment in full of the amount due in respect of defendant No.2’s mortgage or the plaintiffs mortgage, defendant No. 2 shall be at liberty(where such remedy is open to him under the terms of his mortgage and is notbarred by any law for the lime being in force) to apply for a personal decreeagainst defendant No. 1 for the amount of the balance.
7. And it is hereby furtherordered and decreed that the parties are at liberty to apply to the Court fromtime to time as they may have occasion, and on such application or otherwisethe Court may give such directions as it thinks fit.
Schedule
(Descriptionof the mortgage property).]
1 [No. 11
preliminarydecree for sale
Plaintiff. . . . . . . . . . . Sub or derivative mortgagee,
versus.
DefendantNo. 1. . . . . . . . . . . Mortgagor,
DefendantNo. 2. . . . . . . . . . . Original Mortgagee.]
(Order XXXIV, rule 4)
(Title)
This suit coming on this ……day, etc. ; It is herebydeclared that the amount due to defendant No. 2 on his mortgage calculated upto this ….. day of ….. is the sum of Rs. ….. for principal, the sum ofRs. ….. for interest on the said principal, the sum of Rs. ….. for costs,charges and expenses (other than the costs of the suit) in respect of themortgage-security together with interest thereon and the sum of Rs. ….. forthe costs of the suit awarded to defendant No. 2, making in all the sum of Rs……
(Similardeclarations to be introduced with regard to the amount due from defendant No. 2 to the plaintiff in respect of his mortgage.)
2. And it is hereby ordered anddecreed as follows:–
(i) that defendant No. 1 do payinto Court on or before the said ….. day of ….. or on later date up towhich time for payment may be extended by the Court the said sum of Rs. …..due to defendant No. 2;
(Similardeclarations to be introduced with regard to the amount due to the plaintiff,defendant No. 2 being atliberty to pay such amount.)
(ii) that, on payment of the sumdeclared due to defendant No. 2 by defendant No. 1 in the manner prescribed inclause 2 (i) and on payment thereafter before such date as the Court may fix ofsuch amount as the Court may adjudge due in respect of such costs of the suitand such costs, charges and expenses as may be payable under rule 10, togetherwith such subsequent interest as may be payable under rule 11 of Order XXXIV ofthe First Schedule to the Code of Civil Procedure, 1908, the plaintiff anddefendant No. 2 shall bring into Court all documents in their possession orpower relating to the mortgaged property in the plaint mentioned, and all suchdocuments (except such as relate only to the sub-mortgage) shall be deliveredover to defendant No. 1, or to such person as he appoints, and defendant No. 2shall, if so required, re-convey or re-transfer the property to defendant No. 1free from the said mortgage clear of and from all ineumbranccs created bydefendant No. 2, or any person claiming under him or any person under whom heclaims, and free from all liability arising from the mortgage or this suit andshall, if so required, deliver up to defendant No. 1 quiet and peaceablepossession of the said property ; and
(iii) that, upon payment intothe Court by defendant No. 1 of the amount due 10 defendant No. 2, theplaintiff shall be at liberty to apply for payment to him of the sum declareddue to him together with any subsequent costs of the suit and other costs,charges and expenses, as may be payable under rule 10, together with such subsequentinterest as may be payable under rule 11, of Order XXXIV of the First Scheduleto the Code of Civil Procedure, 1908; and that the balance, if any, shall thenbe paid to defendant No. 2 ; and that if the amount paid into the Court be notsufficient to pay in full the sum due to the plaintiff, the plaintiff shall beat liberty (if such remedy is open to him by the terms of the mortgage and isnot barred by any law for the time being in force) to apply for a personaldecree against defendant No. 2 for the amount of the balance.
3. And it is further ordered anddecreed that if defendant No. 2 pays into Court to the credit of this suit theamount adjudged due to the plaintiff, the plaintiff shall bring into the Courtall documents, etc. [as insub-clause (it) of clause 2],
4. And it is hereby furtherordered and decreed that, in default of payment by defendant Nos. 1 and 2 asaforesaid, the plaintiff may apply to the Court for a final decree for sale,and on such application being made the mortgaged property or a sufficient partthereof shall be directed to be sold ; and that for the purposes of such salethe plaintiff and defendant No. 2 shall produce before the Court or suchofficer as it appoints, all documents in their possession ,or power relating tothe mortgaged properly.
5. And it is hereby furtherordered and decreed that the money realised by such sale shall be paid intoCourt and be duly applied (after deduction therefrom of the expenses of thesale) first in payment of the amount due to the plaintiff as specified inclause 1 above with such costs of the suit and other costs, charges andexpenses as may be payable under rule 10, together with such subsequentinterest as may be payable under rule 11 of Order XXXIV of the First Scheduleto the Code of Civil Procedure, 1908, and that the balance, if any, shall beapplied in payment of the amount due to defendant No. 2; and that, if anybalance be left, it shall be paid to defendant No. 1 or other person entitledto receive the same.
6. And it is hereby furtherordered and decreed that, if the money realised by such sale shall not besufficient for payment in full of the amounts payable to the plaintiff anddefendant No. 2, the plaintiff or defendant No. 2, or both of them, as the casemay be, shall be at liberty (if such remedy is open under their respectivemortgages and is not barred by any law for the time being in force) to applyfor a personal decree against defendant No. 2 or defendant No. I (as the casemay be) for the amount of the balance.
7. And it is hereby furtherordered and decreed that, if defendant No. 2 pays into Court to the ercdit ofthis suit the amount adjudged due to the plaintiff, but defendant No. 1 makesdefault in payment of the amount due to defendant No. 2, defendant No. 2 shallbe at liberty to apply to the Court for a final decree for foreclosure or sale(as the case may be)–(declarations inthe ordinary form to be introduced according to the nature of defendant No. 2’s mortgage and the remedies open tohim thereunder).
8. And it is hereby further ordered and decreed that the partiesare at liberty to apply to the Court as they may have occasion, and on suchapplication or otherwise the Court may give such directions as it thinks fit.
Schedule
(Descriptionof the mortgaged property).]
No. 12
decreefor rectification of instrument
(Title)
it ishereby declared that the ….., dated the ….. day of …..19…./20….,and does nottruly express the intention of the parties to such …..
And it is decreed that the said….. be rectified by …..
No. 13
decreeto set aside a transfer in fraud of creditors
(Title)
it ishereby declared that the ……., dated the ….. day of ……19…./20…..,and madebetween ….. and ….. is void as against the plaintiff and all other thecreditors, if any, of the defendant …..
No. 14
INJUNCTIONAGAINST PRIVATE NUISANCE
(Title)
let thedefendant ….. his agents, servants and workmen, be perpetually restrainedfrom burning, or causing to be burnt, any bricks on the defendant’s plot ofland marked B in the annexed plan, so as to occasion a nuisance to theplaintiff as the owner or occupier of the dwelling-house and garden mentionedin the plaint as belonging to and being occupied by the plaintiff.
No. 15
injunctionagainst building HIgher than old level
(Title)
let the defendant ….. hiscontractors, agents and workmen, be perpetually restrained from continuing tocrect upon his premises in ….. any house or building of a greater height thanthe buildings which formerly stood upon his said premises and which have beenrecently pulled down, so or in such manner as to darken, injure or obstructsuch of the plaintiffs windows in his said premises as are ancient lights.
No. 16
injunctionrestraining use of private road
(Title)
let thedefendant ….., his agents, servants and workmen, be perpetually restrainedfrom using or permitting to be used any part of the lane at ….., the soil ofwhich belongs to the plaintiff, as a carriage-way for the passage of carts,carriages or other vehicles, either going to or from the land marked B in theannexed plan or for any purpose whatsoever.
No. 17
preliminarydecree in an administration-suit
(Title)
it isordered that the following accounts and inquiries be taken and made; that is tosay–
Increditor’s suit–
1.That an account be taken of whatis due to the plaintiff and all other the creditors of the deceased.
Insuits by legatees–
2. That an account be taken ofthe legacies given by the testator’s will. In suits by next-of-kin–
3. That an inquiry be made andaccount taken of what or of what share, if any, the plaintiff is entitled to asnext-of-kin [or one of thenext-of-kin] of the intestate.
[After the first paragraph, thedecree will, where necessary, order, in a creditor’s suit, inquiry and accountsfor legatees, heirs-at-law and next-of-kin. In suits by claimants other thancreditors, after the first paragraph, in all cases, an order to inquire andtake an account of creditors will follow the first paragraph and such of theothers as may be necessary will follow, omitting the first formal words. Theform is continued as in a creditor’s suit.]
4. An account of the funeral andtestamentary expenses.
5. An account of the movableproperty of the deceased come to the hands of the defendant, or to the hands ofany other person by his order or for his use.
6. An inquiry what part (if any)of the movable property of the deceased is outstanding and undisposed of.
7. And it is further orderedthat the defendant do, on or before the ….. day of ….. next, pay into Courtall sums of money which shall be found to have come to his hands, or to thehands of any person by his order or for his use.
8. And that if the ………….3 shallfind it necessary for carrying out the objects of the suit to sell any part ofthe movable property of the deceased, that the same be sold accordingly, andthe proceeds paid into Court.
9. And that Mr. E.F, be receiver in the suit (or proceeding) and receive and getin all outstanding debts and outstanding movable property of the deceased, andpay the same into the hands of the ……… (and shall give security bybond for the due performance of his duties to the amount of ….. rupees).
10. And it is further orderedthat if the movable property of the deceased be found insufficient for carryingout the objects of the suit, then the following further inquiries be made, andaccounts taken, that is to say–
(a) aninquiry what immovable property the deceased was seized of or entitled 10 atthe time of his death ;
(b) an inquiry what are theincumbrances (if any) affecting the immovable property of the deceased or anypart thereof ;
(c) an account, so far aspossible, of what is due to the several incumbrancers, and to include astatement of the priorities of such of the incumbrancers as shall consent tothe sale hereinafter directed.
11. And that the immovable propertyof the deceased, or so much thereof as shall be necessary to make up the fundin Court sufficient to carry out the object of the suit, be sold with theapprobation of the Judge, free from incumbrances (if any) of such incumbrancersas shall consent to the sale and subject to the incumbrances of such of them asshall not consent.
12. And it is ordered that G.H. shall have the conduct of thesale of the immovable property, and shall prepare the conditions and contractsof the sale subject to the approval of the ……….. 3 and that in caseany doubt or difficulty shall arise the papers shall be submitted to the Judgeto settle.
13. And it is further orderedthat, for the purpose of the inquiries hereinbefore directed, the ……… 3 shalladvertise in the newspapers according to the practice of the Court, or shallmake such inquiries in any other way which shall appear to the ……….. 3 togive the most useful publicity to such inquiries.
14. And it is ordered that theabove inquiries and accounts be made and taken, and that all other acts orderedto be done be completed, before the ………… day of ………. and that the ………….3 docertify the result of the injuries, and the accounts, and that all other actsordered are completed, and have his certificate in that behalf ready for theinspection of the parties on the ….. day of …..
15. And, lastly, it is orderedthat this suit [or proceedings] stand adjourned for making final decree to the….. day of …..
[Such part only of this decreeis to be used as is applicable to the particular case.]
No. 18
finaldecree in an administration-suit by a legatee
(Title)
1. It is ordered that thedefendant ….. do, on or before the ….. day of ….. pay into Court the sumof Rs. ….. the’ balance by the said certificate found to be due from the saiddefendant on account of the estate of ….. the testator and also the sum ofRs. ….. for interest, at the rate of Rs. ….. per cent per annum, from the….. day of ….. to the ….. day of ….. amounting together to the sum ofRs. …..
2. Let the …………3 of the saidCourt tax the costs of the plaintiff and defendant in this suit, and let theamount of the said costs, when so taxed, be paid out of the said sum of Rs…… ordered to be paid into Court as aforesaid, as follows:
(a) Thecosts of the plaintiff to Mr ….. his attorney [or pleader] or andthe costs of the defendant to Mr ….. his attorney [or pleader].
(b) And (if any debts are due) with theresidue of the said sum of Rs. ….. after payment of the plaintiffs anddefendant’s costs as aforesaid let the sums, found 10 be owing to the severalcreditors mentioned in the ….. schedule to the certificate, of the………….3 ,together with subsequent interest on such of the debts as bear interest, bepaid ; and, after making such payments, let the amount coming to the severallegatees mentioned in the schedule, together with subsequent interest (to beverified as aforesaid), be paid to them.
3. And if there should then beany residue, let the same be paid to the residuary legatee.
No. 19
preliminarydecree in an administration-suit by a legatee, where an executor is heldPersonally liable for the payment of legacies
(Title)
1. It is declared that the defendant is personally liable to paythe legacy of Rs. ….. bequeathed to the plaintiff.
2. And it is ordered that anaccount be taken of what is due for principal and interest on the said legacy.
3.And it’ is also ordered that the defendant do, within ………….. weeks afterthe date of the certificate of the ……………3 , pay to theplaintiff the amount of what the ……….. 3 shall certify to be duefor principal and interest.
4. And it is ordered that thedefendant do pay the plaintiff his costs of suit, the same to be taxed in casethe parties differ.
No. 20
finaldecree in an administration-suit by next-of-kin
(Title)
1. Let the …………. 3 of the said Court tax the costs ofthe plaintiff and defendant in this suit, and let the amount of the saidplaintiffs costs, when so taxed, be paid by the defendant to the plaintiff outof the sum of Rs. ….. the balance by the said certificate found to be duefrom the said defendant on account of the personal estate of E.F., the intestate, within one weekafter the taxation of the said costs by the said ………….3 , and letthe defendant retain for her own use out of such sum her costs, when taxed.
2. And it is ordered that theresidue of the said sum of Rs. ….. after payment of the plaintiffs anddefendant’s costs as aforesaid, be paid and applied by defendant as follows:–
(a) Let thedefendant, within one week after the taxation of the said costs by the …………3 asaforesaid, pay one-third share of the said residue to the plaintiffs A.B., and CD., hiswife, in her right as the sister and one of the next-of-kin of the said E.F., the intestate.
(b) Let thedefendant retain for her own use one other third share of the said residue, asthe mother and one of the next-of-kin of the said E.F., the intestate.
(c) And let the defendant, within one week afterthe taxation of the said costs by the ………. 3 as aforesaid, paythe remaining one-third share of the said residue to G.H., asthe brother and the other next-of-kin of the said E.F., the intestate.
No. 21
preliminarydecree in a suit for dissolution of partnership and the taking of partnershipaccounts
(Title)
it is declaredthat the proportionate shares of the parties in the partnership are asfollows:–
It is declared that thispartnership shall stand dissolved [or shallbe deemed to have been dissolved] as from the ….. day of ….., and it isordered that the dissolution thereof as from that day be advertised in the….. Gazette, etc.
And it is ordered that ….. bethe receiver of the partnership-estate and effects in this suit and do get inall the outstanding book-debts and claims of the partnership.
And it is ordered that thefollowing accounts be taken:–
1. An account of the credits,property and effects now belonging to the said partnership;
2. An account of the debts andliabilities of the said partnership;
3. An account of all dealingsand transactions between the plaintiff and defendant, from the foot of thesettled account exhibited in this suit and marked (A), and not disturbing anysubsequent settled accounts.
And it is ordered that thegoodwill of the business heretofore carried on by the plaintiff and defendantas in the plaint mentioned, and the stock-in-trade, be sold on the premises, andthat the ………….. 3 may, on the application of any of the parties, fixa reserved bidding for all or any of the lots at such sale, and that either ofthe parties is to be at liberty to bid at the sale.
And it is ordered that the aboveaccounts be taken, and all the other acts required to be done be completed,before the ….. day of ….., and that the ….. 3 do certify theresult of the accounts, and that all other acts are completed, and have hiscertificate in that behalf ready for the inspection of the parties on the …..day of …..
And, lastly, it is ordered thatthis suit stand adjourned for making a final decree to the ….. day of …..
No. 22
finaldecree in a suit for dissolution of partnership and the taking of partnership accounts
(Title)
it isordered that the fund now in Court, amounting to the sum of Rs. ….. beapplied as follows :–
1. In payment of the debts dueby the partnership set forth in the certificate of the …………. 3 amountingin the whole to Rs. …………. .
2. In payment of the costs ofall parlies in this suit, amounting to Rs. ……………..
[Thesecosts must be ascertained before the decree is drawn up.]
3. In payment of the sum of Rs………… to the plaintiff as his share of the partnership-assets, of the sum ofRs. ….. being the residue of the said sum of Rs. ………. now in Court, to thedefendant as his share of the partnership-assets. –
[Or, And thatthe remainder of the said sum of Rs. ………. be paid to the said plaintiff (or defendant in part payment of thesum of Rs. ……… certified to be due to him in respect of thepartnership-accounts.]
4. And that the defendant [or plaintiff] do on or before the……… day of ……… pay to the plaintiff [ordefendant] the sum of Rs. ….. being the balance of the said sum of Rs…… due to him, which will then remain due.
No. 23
decreefor recovery of land and mesne profit
(Title)
it ishereby decreed as follows :–
1. That the defendant do put theplaintiff in possession of the property specified in the schedule hereuntoannexed.
2. That the defendant do pay tothe plaintiff the sum of Rs. ….. with interest thereon at the rate of ….per cent per annum to the date of realization on account of mesne profits which have accrued dueprior to the institution of the suit.
Or
2. That an inquiry be made as the account of mesne profits which have accrued dueprior to the institution of the suit.
3. That an inquiry be made as tothe amount of mesne profitsfrom the institution of the suit until [the delivery of possession to thedecree-holder] [the relinquishment of possession by the judgment-debtor withnotice to the decree-holder through the Court] [the expiration of three yearsfrom the date of the decree].
___________________
1. Substituted by Act 21 if 1929,section 8 and Schedule, for Forms 3 to 11.
2.Words not required to be deleted.
3.Here insert name of proper officer.
Total
Total
Total
Total
Appendix E – EXECUTION
No. 1
NOTICE TO SHOW CAUSE WHY A PAYMENT OR ADJUSTMENT SHOULD NOT BE
RECORDED AS CERTIFIED (O. XXI, r. 2.)
(Title)
To
…………………………..
…………………………..
whereas in execution of decree in the above-named suit ….. has applied to this Court that the sum of Rs. ….. recoverable under the decree has been paid/adjusted and should be recorded as certified, this is to give you notice that you are to appear before this Court on the ….. day of ….. 19…./20…., to show cause why the payment/adjustment aforesaid should not be recorded as certified.
given under my hand and the seat of the Court, this ….. day of 19…../20…. .
Judge.
No. 2
precept
(Section 46)
(Title)
upon hearing the decree-holder it is ordered that this precept be sent to the Court of …… at …… under section 46 of the Code of Civil Procedure, 1908, with directions to attach the properly specified in the annexed schedule and to hold the same pending any application which may be made by the decree-holder for execution of the decree.
Schedule
Dated the ………….. day of …………. 19…./20…. .
Judge
No. 3
order sending decree for execution to another court
(O. XXI, r. 6.)
(Title)
whereas the decree-holder in the above suit has applied to this Court for a certificate to be sent to the Court of ….. at ….. for execution of the decree in the above suit by the said Court alleging that the Judgment-debtor resides or has property within the local limits, of the Jurisdiction of the said court, and it is deemed necessary and proper to send a certificate to the said Court under Order XXI, rule 6, of the Code of Civil Procedure, 1908, it is …..
Ordered :
That a copy of this order be sent to ….. with a copy of the decree and of any order which may have been made for execution of the same and a certificate of non-satisfaction.
Dated the ……………… day of ………………. 19……../20…. .
Judge
No. 4
certificate of non-satisfaction of decree
(Title)
Certified that no* satisfaction of the decree of this Court in suit No. ….. of 19…./20…., a copy which is hereunto attached, has been obtained by execution within the jurisdiction of this Court.
Dated the …………….. day of ………………… 19………/20…. .
Judge
No. 5
certificate of the execution of decree transferred to another court
(0.21.1.6.)
(Title)
No. of Suit and the Court by which the decree was passed
Names if parties
Date of application for excution
Number of the execution case
Process issued and dates of service thereof
Costs of execution
Amount realized
How the case disposed of
Remarks
1
2
3
4
5
6
7
8
9
Signature of Muharrir in charge Signature of Judge
No. 6
APPLICATION FOR EXECUTION OF DECREE (O. XXI, R. 11.)
In the Court of ………………….
I…………… decree-holder, hereby apply for execution of the decree herein-below set forth :—
No. of Suit
Names of parties
Date of decree
Whether any appeal preferred from decree
Payment or adjustment made, if any
Previous application, if any, with date and result
Amount with interest due upon the decree or other relief granted thereby together with particulars, of any cross decree
Amount of costs, if any, awarded
Against whom to be executed
Mode in which the assistance of the Court is required
1
2
3
4
5
6
7
8
9
10
789 of 1897
A.B.- Plaintiff C.D.- Defendant
October 11,1987
No.
None
Rs. 72-4-0 recorded on application dated the 4th March 1809
Rs. 314-8-2 principal [interest at 6 per cent, per annum, from data of decree till payment.]
As awarded in the decree subsequently incurred
Rs. a. p.
47 10 4
8 2 0
Against the defendant C.D
[When attachment and sale of movable property is sought ]
I, pray that the total amount of Rs. ……….[together with interest on the principal sum up to date of payment] and the costs of taking out this execution, be realized by attachment and sale of defendant’s movable property as per annexed list and paid to me. [When attachment and sale of movable property is sought.] I, pray that the total amount of Rs. ……….[together with interest on the principal sum up to date of payment] and the costs of taking out this execution, be realized by attachment and sale of defendant’s movable property as per annexed list and paid to me.
Total 55 12 4
I …………. declare that what is stated herein is true to the best of my knowledge and belief.
Signed ………………, decree-holder.
Dated the …………. day of ………… 19…./20…. .
[When attachment and sale of immovable property is sought.]
Description and specification of property
The undivided one-third share of the judgment-debtor in a house situated in the village of ….. value Rs. 40, and bounded as follows :-
East by G’s house; West by H’s house; South by public road; North by private lane and J’s house.
I ….. declare that what is stated in the above description is true to the best of my knowledge and belief, and so far as I have been able to ascertain the interest of the defendant in the property therein specified.
Signed ……………. decree-holder.
No. 7
notice to show cause why execution should not issue
1 [(0. XXI, r. 16.)]
(Title)
To
………………………….
………………………….
whereas ….. has made application to this Court for execution of decree in Suit No. ….. of 19…./20…., on the allegation that the said decree has been transferred to him by assignment 2 [or without assignment], this is to give you notice that you are to appear before this Court ….. on the ….. day of ….. 19…./20…., to show cause why execution should not be granted.
given under my hand and the seal of the Court, this ……….. day of ………. 19…./20…. .
Judge
No. 8
warrant of attachment of movable property in execution of a decree FOR MONEY
(O. XXI, r. 30)
(Title)
To
The Bailiff of the Court ………….
whereas ………. was ordered by decree of this Court passed on the ….. day of ….. 19…../20…., in Suit No. ….. of 19…./20…., to pay to the plaintiff ….. the sum of Rs. ….. as noted in the margin; and whereas the said sum of Rs. ….. has not been paid; These are to command you to attach the movable property of the said ….. as set forth in the schedule hereunto annexed, or which shall be pointed out to you by the said ….. and unless the said shall pay to you the said sum of Rs. ….. together with Rs. ….. the costs of this attachment, to hold the same until further orders from this Court.
Decree
Principal Interest
Costs
Costs of execution
Further interest
Total
You are further commanded to return this warrant on or before the ………day of ……… 19…./20…., with an endorsement certifying the day on which and manner in which it has been executed, or why it has not been executed.
GIVEN under my hand and the seal of the Court, this ………… day of ………. 19……../20….,
Schedule
Judge
No. 9
warrant for seizure of specific movable property adjudged by decree
(0.XXI, r.31)
(Title)
To
The Bailiff of the Court.
whereas ….. was ordered by decree of this Court passed on the ….. day of ….. 19…./20…., in Suit No. ….. of 19…./20…., to deliver to the plaintiff the movable property (or a ….. share in the movable property) specified in the schedule hereunto annexed, and whereas the said property (or share) has not been delivered;
These are to command you to seize the said movable property (or a ….. share of the said movable property) and to deliver it to the plaintiff or to such person as he may appoint in his behalf.
given under my hand and the seal of the Court, this ….. day of ….. 19…../20….
Schedule
Judge
No. 10
NOTICE TO STATE OBJECTIONS TO DRAFT OF DOCUMENT
(O. XXI, r.34)
(Title)
To
………………………..
………………………..
take notice that on the ….. day of …… 19 …../20…., the decree-holder in the above suit presented an application to this Court that the Court may execute on your behalf a deed of ….. whereof a draft is hereunto annexed, of the immovable property specified hereunder, and that the ….. day of ….. 19…./20…., is appointed for the hearing of the said application, and that you are at liberty to appear on the said day and to state in writing any objections to the said draft.
Description of property
given under my hand and the seal of the Court, this …… day of ….. 19…../20….
Judge
No. 11
warrant to the bailiff to give possession of land, etc
(O. XXI, r. 35)
(Title)
To
The Bailiff of the Court.
whereas the undermentioned property in the occupancy of ….. has been decreed to ….. the plaintiff in this suit; You are hereby directed to put the said ….. in possession of the same, and you are hereby authorized to remove any person bound by the decree who may refuse to vacate the same.
given under my hand and the seal of the Court, this ….. day of ….. 19…../20…. .
Schedule
Judge
No. 12
notice to show cause why warrant of arrest should not issue
(O.XXI,r.37)
(Title)
To
………………………..
whereas ….. has made application to this Court for execution of decree in Suit No. ….. of 19…./20…., by arrest and imprisonment of your person, you are hereby required to appear before this Court on the ….. day of ….. 19…./20…., to show cause why you should not be committed to the civil prison in execution of the said decree.
given under my hand and the seal of the Court, this ….. day of ….. 19…../20…. .
Judge.
No. 13
warrant of arrest in execution (O. 21, r. 38)
(Title)
To
The Bailiff of the Court.
WHEREAS …………. Was adjudged by a decree of the Court in suit No. ……….. of 19……/20…., dated the day of………..19…./20…., to pay to the decree-holder the sum of Rs……… as noted in the margin, and whereas the said sum of Rs. …………. has not been paid to the said decree-holder in satisfaction of the said decree, these are to command you to arrest the said judgment-debtor and unless the said judgment-debtor shall pay to you the said sum of Rs……. together with Rs. ……… for the costs of executing this process, to bring the said defendant before the Court with all convenient speed.
Decree
Principal Interest
Costs
Execution
Total
You are further commanded to return this warrant on or before the ….. day of ….. 19…./20…., with an endorsement certifying the day on which 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 ….. 19…../20….
Judge
No. 14
WARRANT OF COMMITTAL OF JUDGMENT-DEBTOR TO JAIL
(O. XXI, r. 40)
(Title)
To
The Officer in charge of the Jail at…………..
WHEREAS ……….. who has been brought before this Court this ………. day of…………19…./20…., under a warrant in execution of a decree which was made and pronounced by the said Court on the …………… day of………….. 19…./20…., and by which decree it was ordered that the said ………….. should pay …………..; And whereas the said ……….. has not obeyed the decree nor satisfied the Court that he is entitled to be discharged from custody; You are hereby 3[***] commanded and required to take and receive the said ………….. into the civil prison and keep him imprisoned therein for a period not exceeding ….or until the said decree shall be fully satisfied, or the said ………….. shall be otherwise entitled to be released according to the terms and provisions of section 58 of the Code of Civil Procedure, 1908; and the Court does hereby fix 4[***] per diem as the rate of the monthly allowance for the subsistence of the said ………….. during his confinement under this warrant of committal.
GIVEN under my signature and the seal of the Court, this …………………. day of………….. 19…./20…..
Judge
No. 15
ORDER FOR THE RELEASE OF A PERSON IMPRISONED IN EXECUTION OF A DECREE
(Sections 58, 59)
(Title)
To
The Officer in charge of the Jail at……………
UNDER orders passed this day, you are hereby directed to set free …………… judgment-debtor now in your custody.
Dated ……………
Judge
No. 16
ATTACHMENT IN EXECUTION
PROHIBITORY ORDER. WHERE THE PROPERTY TO BE ATTACHED CONSISTS OF MOVABLE PROPERTY TO WHICH THE DEFENDANT IS ENTITLED SUBJECT TO A LIEN OR RIGHT OF SOME OTHER PERSON TO THE IMMEDIATE POSSESSION THEREOF
(O. XXI, r. 46)
(Title)
To
…………………
…………………
WHEREAS …………. has failed to satisfy a decree passed against ………. on the ……….. day of ………. 19…./20…., in Suit No ………………. of 19…./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 ……………. the following property in the possession of the said, …………… that is to say, ………………. to which the defendant is entitled, subject to any claim of the said ……………. and the said …………… is hereby prohibited and restrained, until the further order of this Court, from delivering the said property to any person or persons whomsoever.
GIVEN under my hand and the seal of the Court, this ………………. day of …………. 19…/20…..
Judge
No. 16A
AFFIDAVIT OF ASSETS TO BE MADE BY A JUDGMENT-DEBTOR
2[O. XXI, r. 41(2)]
In the Court of……………………………………………………………………………………………………………………………………………………………………. A.B. …………………………………………………………………………………………………. Decree-holder
Versus
C.D. …………………………………………………………………………………………….Judgment-debtor
I ……………of……………………………………………………… state on Oath/solemn affirmation as follows :–
1. My full name is ………………………………………….
(Block capitals)
2. I live at………………………………………….
3. I am* …………………………………….. married/single/widower (widow)/divorced
4. The following persons are dependant upon me:–
5. My employment, trade or profession is that of ……………
carried on by me at………………..
I am a director of the following companies:–
6. My present annual/monthly/weekly income, after paying income-tax, is as follows:–
(a) From my employment, trade or profession Rs……………
(b) From other sources Rs. ……………
7. *(a) I own the house in which I live; its value is Rs. ……………
I pay as outgoings by way of rates, mortgage, interest, etc., the annual sum of Rs. ……………
(b) I pay as rent the annual sum of Rs. ……………
8. I possess the following:–
(a) Banking accounts;
(b) Stocks and shares;
(c) Life and endowment policies;
(d) House property; Give particulars.
(e) Other property;
(f) Other securities;
9. The following debts are due to me:–
(give particulars)
(a) From …………… of……….. ….
Rs ………………
(b) From ………….. of ……………..
Rs ……………….. (etc.)
Sworn before me, etc.]
________________________
* 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. XXI, r. 46)
(Title)
To
…………………
…………………
WHEREAS ………….. has failed to satisfy a decree passed against ………….. . on the ……………. day of ………….. 19…./20…., in Suit No …………. of 19…/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 …………. 19…/20…..
Judge
No. 18
ATTACHMENT IN EXECUTION
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF SHARES IN THE CAPITAL OF A CORPORATION
(O. XXI, r. 46)
(Title)
To
…………………
…………………
Defendant and to ………………. Secretary of Corporation.
WHEREAS ……………… has failed to satisfy a decree passed against ………….. on the ………………….. day of ………….. 19…/20…., in Suit No. ………….. of 19…/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 dividend 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 …………… 19…/20….
Judge
No. 19
ORDER TO ATTACH SALARY OF PUBLIC OFFICER OR SERVANT OF RAILWAY COMPANY OR LOCAL AUTHORITY
(O. XXI, r. 48)
(Title)
To
…………………
…………………
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) or 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 …………… 19…/20…..
Judge
No. 20
ORDER OF ATTACHMENT OF NEGOTIABLE INSTRUMENT
(O. XXI, r. 51)
(Title)
To
The Bailiff of the Court.
WHEREAS an order has been passed by this Court on the …………….. day of ………….. 19…/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 ……….. 19…/20…..
Judge
No. 21
ATTACHMENT
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF MONEY OR OF ANY SECURITY IN THE CUSTODY OF A COURT OF JUSTICE OR 2[PUBLIC OFFICER]
(O. XXI, r. 52)
(Title)
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 your 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,
Sir
Your most obedient servant.
Judge
Dated the ……………day of…………… 19…./20…..
No. 22
NOTICE OF ATTACHMENT OF A DECREE TO THE COURT WHICH PASSED IT
(O. XXI, r. 53)
(Title)
To
…………………
…………………
The Judge of the Court of…………………
Sir,
I have the honour to inform you that the decree obtained in your Court on the ………….. day of…………… 19…/20….. by …………… in Suit No……………. of 19…./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 slay 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…………… 19…./20…
No. 23
NOTICE OF ATTACHMENT OF A DECREE TO THE HOLDER OF THE DECREE
(O. XXI, r. 53)
(Title)
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 ……………. 19…./20…., in the Court of…………. in Suit No. ………. of 19…/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 ………….. 19…/20…..
Judge
No. 24
ATTACHMENT IN EXECUTION
PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF IMMOVABLE PROPERTY
(O. XXI, r. 54)
(Title)
To
…………………………………………………………………………………………………. Defendant
WHEREAS you have failed to satisfy a decree passed against you on the ………….. day of ……………………. 19…/20…., in Suit No. …………of 19…/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, gift or otherwise.
2(It is also ordered that you should attend the Court on the …………… day of…………… 19…/20…., to take notice of the date fixed for settling the terms of the proclamation of sale.)
GIVEN under my hand and the seal of the Court, this …………… day of …………… 19…/20…..
Schedule
Judge
No. 25
ORDER FOR PAYMENT TO THE PLAINTIFF, ETC., OF MONEY, ETC., IN THE HANDS OF A THIRD PARTY
(O. XXI, r. 56)
(Title)
To
………………
………………
WHEREAS the following property …………………. has been attached in execution of a decree in Suit No ………………. of …………………..19…./20…., passed on the ……..day of ……….. 19…./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 ……… 19…/20…..
Judge
No. 26
NOTICE TO ATTACHING CREDITOR
(O. XXI, r. 58)
(Title)
To
………………
………………
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 …………. 19…./20…., this is to give you notice to appear before this Court on ……………. the …………… day of …………… 19…/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………. 19…/20….
Judge
No. 27
WARRANT OF SALE OF PROPERTY IN EXECUTION OF A DECREE FOR MONEY
(O. XXI, r. 66)
(Title)
To
The Bailiff of the Court.
THESE are to command you to sell by auction, after giving …………. days’ 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 …………….. 19…/20…., in execution of a decree in favour of ………….. in Suit No. …………… of 19…/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 ……………. 19…./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……….. 19…./20…..
Judge
No. 28
NOTICE OF THE DAY FIXED FOR SETTLING A SALE PROCLAMATION
(O. XXI, r. 66)
(Title)
To
……………………………………………………………………………………….. Judgment-debtor.
Whereas in the above name suit……………. the decree-holder, has applied for the sale of ………………..; You are hereby informed ……………… that the …………… day of …………… 19…/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 ……………. 19…/20…..
Judge
No. 29
PROCLAMATION OF SALE
(O. XXI, r. 66)
(Title)
(1) Suit No. …………… of 19…./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 up to 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.
Conditions of sale
1. The particulars specified in the schedule below have been stated to the best of the information of the Court, but the Court will not be answerable for any error, mis-statement or omission in this proclamation.
2. The amount by which the biddings are to be increased shall be determined by the officer conducting the sale. In the event of any dispute arising as to the amount bid, or as to the bidder, the lot shall at once be again put up to auction.
3. The highest bidder shall be declared to be the purchaser of any lot, provided always that he is legally qualified to bid, and provided that it shall be in the discretion of the Court or officer holding the sale to decline acceptance of the highest bid when the price offered appears so clearly inadequate as to make it advisable to do so.
4. For reasons recorded, it shall be in the discretion of the officer conducting the sale to adjourn it subject always to the provisions of rule 69 of Order XXI.
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.
6. In the case of immovable property, the person declared to be the purchaser shall pay immediately after such declaration a deposit of 25 per cent, on the amount of his purchase-money to the officer conducting the sale, and in default of such deposit the property shall forthwith be put up again and re-sold.
7. The full amount of the purchase-money shall be paid by the purchaser before the Court doses on the fifteenth day after the sale of the property, exclusive of such day, or if the fifteenth day be a Sunday or other holiday, then on the first office day after the fifteenth day.
8. In default of payment of the balance of purchase-money within the period allowed, the property shall be re-sold after the issue of a fresh notification of sale. The deposit, after defraying the expenses of the sale, may, if the Court thinks fit, be forfeited to Government and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.
given under my hand and the sale of the Court, this ………. day……… of 19…/20….
Judge
Schedule of Property
Number of lot
Description of property to be sold with the name of each owner where there are more judgment-debtors than one
The revenue assessed upon the estate or part of the estate, if the property to he sold is an interest in an estate or a part of an estate paying revenue to Government
Detail of any encum-brances to which the property is liable
Claims if any, which have been put forward to the property and any other known particulars bearing on its nature and value
2[The value of the property as stated by the decree-holder
the value of the property as stated by the judgment debtor]
No. 30
ORDER ON THE NAZIR FOR CAUSING SERVICE OF PROCLAMATION OF SALE
(O. XXI, r. 66)
(Title)
To
The Nazir of the Court,
WHEREAS an order has been made for the sale of the property of the judgment-debtor specified in the schedule hereunder annexed, and whereas the ……………. day of …………. 19…/20…., has been fixed for the sale of the said property, …………… copies of the proclamation of sale are by this warrant made over to you, and you are hereby ordered to have the proclamation published by beat of drum within each of the properties specified in the said schedule, to affix a copy of the said proclamation on a conspicuous part of each of the said properties and afterwards on the Court-house, and then to submit to this Court a report showing the dates on which and the manner in which the proclamations have been published.
Dated the ……………….. day of…………. 19…/20…
Schedule
Judge
No. 31
CERTIFICATE BY OFFICER HOLDING A SALE OF THE DEFICIENCY OF PRICE ON ARE SALE OF PROPERTY BY REASON OF THE PURCHASER’S DEFAULT
(O. XXI, r. 71)
(Title)
CERTIFIED that at the re-sale of the property in execution of the decree in the above-named suit, in consequence of default on the part of ……………….., purchaser, there was a deficiency in the price of the said property amounting to Rs ………………… and that the expenses attending such re-sale amounted to Rs ……………. making a total of Rs……… which sum is recoverable from the defaulter.
Dated the ………………… day of………………. 19…./20…..
Officer holding the sale
No. 32
NOTICE TO PERSON IN POSSESSION OF MOVABLE PROPERTY SOLD IN EXECUTION
(O. XXI, r. 79)
(Title)
To
………………
………………
WHEREAS …………….. has become the purchaser at a public sale in execution of the decree in the above suit of……………. now in your possession, you are hereby prohibited from delivering possession of the said ………………. to any person except the said…………….
GIVEN under my hand and the seal of the Court, this ………………. day of ……………… 19…./20…..
Judge
No. 33
PROHIBITORY ORDER AGAINST PAYMENT OF DEBTS SOLD IN EXECUTION TO ANY OTHER THAN THE PURCHASER
(O. XXI, r. 79)
(Title)
To
………………
………………
and to
………………
………………
WHEREAS …………… has become the purchaser at a public sale in execution of the decree in the above suit of………… being debts due from you …….. to you……………; It is ordered that you………… be, and you are hereby, prohibited from receiving, and you …….. from making payment of, the said debt to any person or persons except the said ……………..
GIVEN under my hand and the seal” of the Court, this……………….. day of …………. 19…./20…
Judge
No. 34
PROHIBITORY ORDER AGAINST THE TRANSFER OF SHARE SOLDIN EXECUTION
(O. XXI, r. 79)
(Title)
To
…………………………………………….and……………. Secretary of………….. Corporation.
WHEREAS …………… has become the purchaser at a public sale in execution of the decree, in the above suit, of certain shares in the above Corporation, that is to say, of………….. standing in the name of you…………..; It is ordered that you…………… be, and you are hereby, prohibited from making any transfer of the said shares to any person except the said…………… the purchaser aforesaid, or from receiving any dividends thereon; and you…………… Secretary of the said Corporation, from permitting any such transfer or making any such payment to any person except the said …………… the purchaser aforesaid.
GIVEN under my hand and the seal of the Court, this…………… day of………….. 19…/20…
Judge
No. 35
CERTIFICATE TO JUDGMENT-DEBTOR AUTHORISING HIM TO MORTGAGE, LEASE OR SELL PROPERTY
(O. XXI, r. 83)
(Title)
WHEREAS in execution of the decree passed in the above suit an order was made on the………………….. day of ……………………….. 19…. /20…., for the sale of the under-mentioned property of the judgment-debtor…………………… and whereas the Court has, on the application of the said judgment-debtor, postponed the said sale to enable him to raise the amount of the decree by mortgage, lease or private sale of the said property or of some part thereof:
This is to certify that the Court doth hereby authorize the said judgment-debtor to make the proposed mortgage, lease or sale within a period of…………… from the date of this certificate; provided that all monies payable under such mortgage, lease or sale shall be paid in to this Court and not to the said judgment-debtor.
GIVEN under my hand and the seal of the Court, this……………….. day of…………… 19…/20…. .
Description of property.
Judge
No. 36
NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE
(O. XXI, rr. 90 and 92)
(Title)
To
………………
………………
WHEREAS the under-mentioned property was sold on the…………… day of………… 19…./20…., in execution of the decree passed in the above-named suit, and whereas………….. the decree-holder [or judgment-debtor], has applied to this Court to set aside the sale of the said property on the ground of a material irregularity [or fraud] in publishing [or conducting] the sale, namely, that ……………………………………………..
Take notice that if you have any cause to show why the said application should not be granted, you should appear with your proofs in this Court on the…………………… day of …………….. 19…./20…., when the said application will be heard and determined.
GIVEN under my hand and the seal of the Court, this ……………..day of …………… 19…./20…
Description of property.
Judge
No. 37
NOTICE TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE
(O. XXI, rr. 91 and 92)
(Title)
To
………………
………………
WHEREAS ………………. the purchaser of the under-mentioned property sold on the day of…………… 19…/20…., in execution of the decree passed in the above-named suit, has applied to this Court to set aside the sale of the said property on the ground that …………. the judgment-debtor, had no saleable interest therein.
Take notice that if you have cause, to show why the said application should not be granted, you should appear with your proofs in this Court on the…………… day of ……………… 19…/20…., when the said application will be heard and determined.
GIVEN under my hand and the seal of the Court, this……………….. day of ……….. 19…/20…..
Description of property
Judge
No. 38
CERTIFICATE OF SALE OF LAND
(O. XXI, r. 94)
(Title)
THIS is to certify …………… that has been declared the purchaser at a sale by public auction on the ……………. day of ……………. 19…/20…., of …………… in execution of decree in this suit, and that the said sale has been duly confirmed by this Court.
GIVEN under my hand and the seal of the Court, this………. day of…….. 19…./20…..
Judge
No. 39
ORDER FOR DELIVERY TO CERTIFIED PURCHASER OF LAND AT A SALE IN EXECUTION
(O. XXI, r. 95)
(Title)
To
The Bailiff of the Court.
WHEREAS …………… has become the certified purchaser of ………….. at a sale in execution of decree in Suit No. …………… of…….. ….. 19…./20….; You are hereby ordered to put the said ……………. the certified purchaser, as aforesaid, in possession of the same.
GIVEN under my hand and the seal of the Court, this …………… day of …………… 19…./20…
Judge
No. 40
SUMMONS TO APPEAR AND ANSWER CHARGE OF OBSTRUCTING EXECUTION OF DECREE
(O. XXI, r. 97)
(Title)
To
………………
………………
WHEREAS …………… the decree-holder in the above suit, has complained to this Court that you have resisted (or obstructed) the officer charged with the execution of the warrant for possession:
You are hereby summoned to appear in this Court on the ………………. day of …………… 19…./20…., at….. AM., to answer the said complaint.
GIVEN under my hand and the seal of the Court, this ………………… day of …………… 19…/20…. .
Judge
No. 41
WARRANT OF COMMITTAL
(O, XXI, r. 98)
(Title)
To
The Officer in charge of the Jail at ………………………………………………………………….
WHEREAS the under-mentioned property has been decreed to ……………. the plaintiff in this suit, and whereas the Court is satisfied that …………… without any just cause resisted [or obstructed] and is still resisting [or obstructing] the said………. in obtaining possession of the property, and whereas the said …………… has made application to this Court that the said ….. be committed to the civil prison;
You are hereby commanded and required to take and receive the said ………. … into the civil prison and to keep him imprisoned therein for the period of ………. … days.
GIVEN under my hand and the seal of the Court, this ……………… day of……………. 19…/20…
Judge
No. 42
AUTHORITY OF THE COLLECTOR TO STAY PUBLIC SALE OF LAND
(Section 72)
(Title)
To
…………………………………………………………. Collector of………………………………………..
SIR,
In answer to your communication No. ………….. dated ……………. representing that the sale in execution of the decree in this suit of………………… land situate within your district is objectionable, I have the honour to inform you that you are authorised to make provision for the satisfaction of the said decree in the manner recommended by you.
I have the honour to be,
Sir,
Your obedient servant
Judge
_______________________________________________________________
1 Substituted by Act 10 of 1914, sec 2 and Schedule I, for O. 21, r. 22)
2 Inserted by Act 104 of 1976, section 95 w.e.f. 1-2-1977.
3 The words, in the name of the King-Emperor of India, omitted by the A.O. 1950.
4 The words annas omitted by Act 104 of 1976, section 95 w.e.f. 1-2-1977.
5 Inserted by Act 104 of 1976, section 95 w.e.f. 1-2-1977.
6 Substituted by the A.O. 1937, for Officer of Government.
Appendix F – SUPPLEMENTAL PROCEEDINGS
No. 1
warrant of arrest before judgment
(O. XXXVIII, r. 1)
(Title)
To
The Bailiff of the Court.
whereas ………………., the plaintiff in the above suit, claims the sum of Rs ………………..
Principal Interest
Costs
Total
as noted in the margin, and has proved to the satisfaction of the Court that there is probable cause for believing that the defendant ……………….. is about to ……………….. These are to command you to demand and receive from the said ……………….. the sum of Rs. ……………….. as sufficient to satisfy the plaintiffs claim, and unless the said sum of Rs. ……………….. is forthwith delivered to you by or on behalf of the said ……………….. to take the said ……………….. into custody, and to bring him before this Court in order that he may show cause why he should not furnish security to the amount of Rs ……………….. for his personal appearance before the Court, until such time as the said suit shall be fully and finally disposed of, and until satisfaction of any decree that may be passed against him in the suit.
given under my hand and the seal of the Court, this ……………….. day of ……………….. 19…/20…. .
Judge
No. 2
security for appearance of a defendant arrested before judgment
(O. XXXVIII, r. 2)
(Title)
whereas at the instance of ……………, the plaintiff in the above suit, . ……………….. the defendant, has been arrested and brought before the Court;
And whereas on the failure of the said defendant to show cause why he should not furnish security for his appearance, the; Court has ordered, him to furnish such security:
Therefore I, ……………….. have voluntarily become surety and do hereby bind myself, my heirs and executors, to the said Court that the said defendant shall appear at any time when called upon, while, the suit is pending and until satisfaction, of any decree that may be passed against him in the said suit ; and in default of such appearance I bind Myself; my heirs and executors, to pay to the said Court at its order, any sum of money that may be adjudged against the said defendant in the said suit.
Witness my hand at ……………….. this ……………….. day of ……………….. 19………./20…. .
(Signed)
Witnesses:
1.
2.
No. 3
summons to defendant to appear on surety’s application for discharge
(O. XXXVIII, r.3)
(Title)
To
………………….
………………….
whereas ……………….. who became surety on the ……………….. day of ……………….. 19………../20…., for your appearance in the above suit, has applied to this Court to be discharged from his obligation:
You are hereby summoned to appear in this Court in person on the ……………….. day of ……………….. 19 ………./20…., at . ……………….. A.M., when the said application will be heard and determined.
given under my hand and the seal of the Court, this ……………….. day of ……………….. 19………./20…. .
Judge
No.4
order for committal
(O. XXXVIII, r.4)
(Title)
To
………………
………………
whereas ……………….., plaintiff in, this suit, has made application to the Court that security be taken for the appearance of ……………….., the defendant, to answer any judgment that may be passed against him in the suit; and whereas the Court has called upon the defendant to furnish such security, or to offer a sufficient deposit in lieu of security, which he had failed to do; it is ordered that the said defendant ……………….. be committed to the civil prison until the decision of the suit; or, if judgment be pronounced against him until satisfaction of the decree.
given under my hand and the seal of the Court, this ……………….. day of ……………….. 19………./20….
Judge
No. 5
ATTACHMENT BEFORE JUDGMENT WITH ORDER TO CALL FOR SECURITY FOR FULFILMENT OF DECREE
(O. XXXVIII, r. 5)
(Title)
To
The Bailiff of the Court,
WHEREAS ……………….. has proved to the satisfaction of the Court that the defendant in the above suit…………,
These are to command you to call upon the said defendant ……………….. on or before, the, ……………….. day of ……………….. 19……/20…., …….. either, to furnish security for the sum of rupees ……………….. to, produce and place at the disposal of this Court when required or the value thereof, or such portion of the value as may be sufficient to satisfy any decree that, may be, passed against him ; or to appear and show cause why he should not furnish security ; and you are further, ordered to attach the said ……………….. and keep the same under safe and secure custody until the further order of the Court ; and you are further commanded to this warrant on or before the ……………….. day of ……………….. 19………./20…., with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why if has not been executed.
given under my hand and the seal of the Court, this ………………..day of ……………….. 19………./20…. .
Judge
No. 6
security for the production of property
(O. XXXVIII, r. 5)
(Title)
whereas at the instance of ………………, the plaintiff in the above suit, ……………….. the defendant has been directed by the Court to furnish security in the sum of Rs. ………………..to produce and place at the disposal of the Court the properly specified in the schedule hereunto annexed ;
Therefore I, ……………….. have voluntarily become surety and do hereby bind myself, my heirs and executors, to the said Court, that the said defendant shall produce and place at the disposal of the Court, when required, the property specified in the said schedule, or the value of the same, or such portion thereof as may be sufficient to satisfy the decree; and in default of his so doing 1 bind myself, my heirs and executors, to pay to the said Court, at its order, the said sum of Rs. ………………..or such sum not exceeding the said sum as the said Court may adjudge.
Schedule
Witness my hand at ………………..this ……………….. day of ……………….. 19 ………./20…. .
(Signed)
Witnesses.
1.
2.
No. 7
attachment before judgment, on proof offailure to furnish security
(O. XXXVIII, r. 6)
(Title)
To
The Bailiff of the Court.
whereas ……………….., the plaintiff in this suit, has applied to the Court to call upon ……………….. the defendant, to furnish security to fulfil any decree that may be passed against him in the suit, and whereas the Court has called upon the said ……………….. to furnish such security, which he has failed to do; these are to command you to attach ……………….. the property of the said ……………….., and keep the same under safe and secure custody until the-further order of the Court, and you are further commanded to return this warrant on or before the ……………….. day of ……………….. 19 ………/20…., with an endorsement certifying the date on which and 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. ……………….. 19………./20…. .
Judge
No. 8
temporary injunction
(O. XXXIX, r. 1)
(Title)
Upon motion made into this Court by ……………….. Pleader of [or Counsel for] the plaintiff A. B., and upon reading the petition of the said plaintiff in this matter filed [this day) [or the plain filed in this suit on the ……………….. day of. ………………., or the written statement of the said plaintiff filed on the ……………….. day of ………………..,] and upon hearing the evidence of ……………….. and ……………….. in support thereof [if after notice and defendant not appearing: add, and also, the evidence of ……………….. as to service of notice of this motion upon the defendant C, D.]: This Court doth order that an injunction be awarded to restrain the defendant C. D., his servants, agents and workmen, from pulling down, or suffering to be pulled down, the house in the plaint in the said suit of the plaintiff mentioned [or in the written statement, or, petition, of the plaintiff and evidence at the hearing of this motion mentioned], being No. 9, Oilmongers Street, Hindupur, in a Taluk of ……………….. and from selling the materials whereof the said house is composed, until the hearing of this suit of until the further order of this Court. Date this. ……………….. day of ………………..19………./20…. .
Judge
[Where the injunction is sought to restrain the negotiation of a note or bill, the ordering pan of the order may run thus :—]
……………….. to restrain the defendant ……………….. and ……………….. from parting without the custody of them or any of them or endorsing, assigning or negotiating the promissory note [or bill of exchange] in question, dated on or about the ………………., etc., mentioned in the plaintiff’s plaint [or petition) and the evidence heard at this motion until the hearing of this suit, or until the further order of this Court.
[In Copyright cases]….. to restrain the defendant C. D., his servants, agents or workmen, from printing, publishing or vending a book, called ……………….. or any part thereof, until the, etc.
[Where part only of a book is to be restrained]
……………….. to restrain the defendant C. D., his servants, agents or workmen, from printing, publishing, selling or otherwise disposing of such parts of the book in the plaint [or petition and evidence, etc.] mentioned to have been published by the defendant as hereinafter specified, namely, that part of the said book which is entitled ……………….. and also that part which is entitled ……………….. [or which is contained in page ……………….. to page ………………..both inclusive] until ……………….. etc.
[In Patent cases] ……………….. to restrain the defendant C. D., his agents, servants and workmen, from making or vending any perforated bricks [or as the case may be] upon the principle of the inventions in the plaintiffs plaint [or petition, etc., or written statement, etc.,] mentioned, belonging to the plaintiffs, or either of them, during the remainder of the respective terms of the patents in the plaintiffs plaint [or as the case may be] mentioned, and from counterfeiting, imitating or resembling the same inventions or either of them, or making any addition thereto, or substraction therefrom, until the hearing, etc.
[In cases of Trade marks] ……………….. to restrain the defendant C. D., his servants, agents or workmen, from selling, or exposing for sale, or procuring to be sold, any composition or blacking [or as the case may be] described as or purporting to be blacking manufactured by the plaintiff A. B., in bottles’ having affixed thereto such labels as in the plaintiff’s plaint [or petition, etc.] mentioned, or any other labels so contrived or expressed as, by colourable imitation or otherwise, to represent the composition or blacking sold by the defendant to be the same as the composition or blacking manufactured and sold by the plaintiff A. B., and from using trade-cards so contrived or expressed as to represent that any composition or blacking sold or proposed to be sold by the defendant is the same as the composition or blacking manufactured or sold by the plaintiff A. B. until the, etc.
[To restrain a partner from in any way interfering in the business]
……………….. to restrain the defendant C. D., his agents, and servants, from entering into any contract, and from accepting, drawing, endorsing or negotiating any bill of exchange, note or written security in the name of the partnership-firm of B. and D., and from contracting any debt, buying and selling any goods, and from making or entering into any verbal or written promise, agreement or undertaking, and from doing, or causing to be done, any act, in the name or on the credit of the said partnership-firm of B. and D., or whereby the said partnership-firm can or may in any manner become or be made liable to or for the payment of any sum of money, or for the performance of any contract, promise or undertaking until the, etc.
No. 1 [9]
appointment of a receiver
(O. XL, r. 1)
(Title)
To
whereas ……………….. has been attached in execution of a decree passed in the above suit on the ……………….. day of ……………….. 19………./20…., in favour of ……………….. ; You are hereby (subject to your giving security to the satisfaction of the Court) appointed receiver of the said property under Order XL of the Code of Civil Procedure, 1908, with full powers under the provisions of that Order.
You are required to render a due and proper account of your receipts and disbursements in respect of the said property on ……………….. You will be entitled to remuneration at the rate of ……………….. per cent upon your receipts under the authority of this appointment.
given under my hand and the seal of the Court, this ……………….. day of. ……………….. 19 …………/20…. .
Judge
No. 2 [10]
BOND TO BE GIVEN BY RECEIVER
(O. XL, r. 3)
(Title)
Know all men by these presents, that we, ……………….. and ……………….. and ……………….. are jointly and severally bound to ……………….. of the Court of ……………….. in Rs ……………….. to be paid to the-said ……………….. or his successor in office for the time being. For which payment to be made we bind ourselves, and each of us, in the whole, our and each of our heirs, executors and administrators, jointly and severally, by these presents.
Dated this ……………….. day of ……………….. 19………./20…. .
Whereas a plaintiff has been filed in this Court by ……………….. against ……………….. for the purpose of [here insert the object of suit];
And whereas the said ……………….. has been appointed, by order of the above-mentioned Court, to receive the rents and profits of the immovable property and to get in the outstanding movable properly of ……………….. in the said plaint named :
Now the condition of this obligation is such, that if the above-bounden ……………….. shall duly account for all and every the sum and sums of money which he shall so receive on account of the rents and profits of the immovable property, and in respect of the movable property, of the said ……………….. at such periods as the said Court shall appoint, and shall duly pay the balances which shall from lime to time be certified to be due from him as the said Court hath directed or shall hereafter direct, then this obligation shall be void, otherwise it shall remain in full force.
Signed and delivered by the above-bounden in the presence of ………………..
Note.–If deposit of money is made, the memorandum thereof should follow the terms of the condition of the bond.
______________________
1. The number of the Form, originally misprinted as 6, was corrected by Act 10 of 1914, section 2 and Schedule 1.
2. The number of the Form, originally misprinted as 7, was corrected by Act 10 of 1914, section 2 and Schedule 1.
Appendix H – MISCELLANEOUS
No. 1
agreement of parties as to issues to be tried
(Order XIV, rule 6)
(Title)
whereas we, the parties in the above suit, are agreed as to the question of fact [or of law] to be decided between us and the point at issue between us is whether a claim founded on a bond, dated the ………………… day of………………… 19………/20….,and filed as Exhibit………………… in the said suit, is or is not beyond the statute of limitation (or state the point at issue whatever it may be):
We therefore severally bind ourselves that, upon the finding of the Court in the negative [or affirmative] of such issue, ………………… will pay to the said ………………… the sum of Rupees ………………… (or such sum as the Court shall hold to be due thereon), and I, the said ………………… , will accept the said sum of Rupees ………………… (or such sum as the Court shall hold to be due) in full satisfaction of my claim on the bond aforesaid [or that upon such finding I, the said ………………… ., will do or abstain from doing, etc.]
………………………………………………………………………………………..Plaintiff.
………………………………………………………………………………………Defendant.
vs.
Witnesses:
1.
2.
Dated the …………………day of …………………19…………/20…….. .
No. 2
NOTICE OF APPLICATION FOR THE TRANSFF.R OF A SUIT TO ANOTHER COURT FOR TRIAL
(Section 24)
In the Court of the District Judge of …………………………………………………………………………
No……………………………………………………of 19…………/20…….. .
To
whereas an application, dated the ………………… day of………………… 19 …………./20…., has been made to this Court by ………………… the ………………… in Suit No ………………… of 19 ………./20…., now pending in the Court of the ………………… at ………………… in which ………………… is plaintiff and ………………… is defendant, for the transfer of the suit for trial to the Court of the………………… at ………………… :-
You are hereby informed that the ………………… day of ………………… 19 ………/20…., has been fixed for the hearing of the application, when you will be heard if you desire to offer any objection to it.
given under my hand and the seal of the Court, this ………………… day of ………………… 19………./20……. .
Judge
1 [No.2A
LIST OF WITNESSES PROPOSED TO BE CALLED BY PLAINTIFF/DEFENDANT
(Order XVI, Rule 1.)
Name of the party which proposes to call the witness
Name and address of the witness
Remarks]
No. 3
NOTICE OF PAYMENT INTO COURT
(Or. XXIV, r . 2)
(Title)
take notice that the defendant has paid into Court Rs. ………………………………….and says that sum is sufficient to satisfy the plaintiffs claim in full.
X. Y., Pleader for the defendant.
To Z., Pleader for the plaintiff..
No. 4
notice to show causE (general form)
(Title)
To
…………………
…………………
Whereas the above-named ……………….. has made application to this Court that ………………..;
You are hereby warned to appear in this Court in person or by a pleader duly instructed on the ………………… day of……………….. 19………./20…….., at ………………… O’clock in the forenoon, to show cause against the application, failing wherein, the said application will be heard and determined ex parte.
given under my hand and the seal of the Court, this………………..day of……………….. 19………./20……..
Judge
No. 5
LIST OF DOCUMENTS PRODUCED BY PLAINTIFF/DEFENDANT
(Order XIII, rule 1.)
(Title)
No.
Description of document
Date, if any, which the document bears
Signature of partyor pleader
1
2
3
4
No. 6
NOTICE TO PARTIES OF THE DAY FIXED FOR EXAMINATION OF A WITNESS ABOUT TO LEAVE TI IE JURISDICTION
(Order XVIII, R. 16.)
(Title)
To
………………………………………………………………………….Plaintiff (or defendant)
whereas in the above suit application has been made to the Court by…………………that the examination of…………………a witness required by the said …………………in the said suit may be taken immediately; and it has been shown to the Court’s satisfaction that the said witness is about to leave the Court’s jurisdiction (or any other good and sufficient cause to be stated);
Take notice that the examination of the said witness ………………… will be taken by the Court on the …………………day of …………………19…………/20……..
Dated the …………………, day of………………… 19………/20……..
Judge
No. 7
commission to examine absent witness
(O. XXVI, rr. 4, and 18.)
(Title)
To
…………………….
…………………….
whereas the evidence of ………………… is required by the ………………… in the above suit; and whereas …………………; you are requested to take the evidence on interrogatories [or viva voce] of such witness ………………… and you are hereby appointed Commissioner for that purpose. The evidence will be taken in the presence of the parties or their agents if in attendance, who will be at liberty to question the witness on the points specified, and you are further requested to make return of such evidence as soon as it may be taken.
Process to compel the attendance of the witness will be issued by any Court having jurisdiction on your application.
A sum of Rs. ………………… being your fee in the above, is herewith forwarded,
given under my hand and the seal of the Court, this ………………… day of………………… 19 …………/20……..
Judge
No. 8
letter of request
(O. XXVI, r. 5.)
(Title)
(Heading: -To the President and Judges of, etc., etc., or as the case may be.)
whereas a suit is now pending in the…………………in which A. B. is plaintiff and C.D. is defendant; And in the said suit the plaintiff claims.
(Abstract of claim.)
And whereas it has been represented to the said Court that it is necessary for the purposes of justice and for the due determination of the matters in dispute between the parties, that the following persons should be examined as witnesses upon oath touching such matters, that is to say:
…………………………………………..E .F., of…………………………………………….
…………………………………………..G. H., of………………………………………….and
……………………………………………I. J., of………………………………………………
And it appearing that such witnesses are resident within the jurisdiction of your honourable Court;
Now I…………………….. , is the………………… of the said Court, have the honour to request, and do hereby request, that for the reasons aforesaid and for the assistance of the said Court, you, as the President and Judges of the said …………………or some one or more of you, will be pleased to summon the said witness (and such other witnesses as the agents of the said plaintiff and defendant shall humbly request you in writing so to summon) to attend at such time and place as you shall appoint before the some one or more of you or such other person as according to the procedure of your Court is competent to take the examination of witnesses, and that you will cause such witnesses to be examined upon the interrogatories which accompany this letter of request (or viva voce) touching the said matters in question in the presence of the agents of the plaintiff and defendant, or such of them as shall, on due notice given, attend such examination.
And I further have the honour to request that you will be pleased to cause the answers of the said witnesses to be reduced into writing, and all books, letters, papers and documents produced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of your tribunal, or in such other way as is in accordance with your procedure, and to return the same, together with such request in writing, if any, for the examination of other witnesses to the said Court.
(Note–If the request is directed to a Foreign Court, the words “through 2 [the Ministry of External Affairs of the Government of India] for transmission” should be inserted after the words “other witnesses” in the last line of this form.]
No. 9
commission for a local investigation, or to examine accounts
(O. XXVI, rr. 9, 11.)
(Title)
To
whereas it is deemed requisite, for the purposes of this suit, that a commission for…………………should be issued; You are hereby appointed Commissioner for the purpose of …………………………………
Process to compel the attendance before you of any witnesses, or for the production of any documents whom or which you may desire to examine or inspect, will be issued by any Court having jurisdiction on your application.
A sum of Rs. …………………being your fee in the above, is herewith forwarded.
given under my hand and the seal of the Court, this ………………… day of …………………19…………/20……..
Judge
No. 10
COMMISSION TO MAKE A PARTITION
(O. XXVI, r. 13.)
(Title)
To
whereas it is deemed requisite for the purposes of this suit that a commission should be issued to make the partition or separation of the property specified in, and according to the rights as declared in, the decree of this Court, dated the ……………………………………day of………………… 19…………./20……..; You are hereby appointed Commissioner for the said purpose and are directed to make such inquiry as may be necessary, to divide the said property according to the best of your skill and judgment in the shares set out in the said decree, and to allot such shares to the several parties.
You are hereby authorized to award sums to be paid to any party by any other party for the purpose of equalizing the value of the shares.
Process to compel the attendance before you of any witnesses or for the production of any documents, whom or which you may desire to examine or inspect, will be issued by any Court having jurisdiction on your application.
A sum of Rs. . …………………being your fee in the above, is herewith forwarded.
given under my hand and the seal of the Court, this ………………… day of ………………… 19………/20……
Judge
3 [No. 11
NOTICE TO CERTIFICATED, NATURAL, OR, DE FACTO GUARDIAN
(Order XXXII, rule 3.)
(Title)
To
…………………………………………………….(Certified/Natural/de facto Guardian)
whereas an application has been presented on the part of the plaintiff36/ on behalf of the minor defendant* in the above suit for the appointment of a guardian for the suit for the minor defendant……………… you (insert the name of the guardian appointed or declared by Court, or natural guardian, or the person in whose care the minor is) are hereby required to take notice that unless you appear before this Court on or before the day appointed for the hearing of the case and stated in the appended summons, and express your consent to act as guardian for the suit for the minor , the Court will proceed to appoint some other person to act as a guardian for the minor, for the purposes of he said suit.
given under my hand and the seal of the Court, this………………… day of………………… 19…………/20……..
Judge
1 [No. 11A
notice to minor defendant
(Order XXXII, rule 3)
(Title)
To
………………………………………………………………………….Minor Defendant.
whereas an application has been presented on the part of the plaintiff in the above suit for the appointment of ………………… *as guardian for the suit for you, the minor defendant, you are hereby required to take notice to appear in this Court in person on the ………………… day of………………… 19……………at………………… O’clock in the forenoon to show cause against the application, failing which the said application will be heard and determined ex parte.
given under my hand and the seal of the Court, this. ………………… day of………………… 19…………/20……..
Judge]
No. 12
notice to opposite party of day fixed for hearing evidence of pauperism
(O. XXX, r. 6.)
(Title)
To
………………………
………………………
wherheas………………… ……………………………………………………………………….has applied to this Court for permission to institute a suit against…………………in forma pauperis under Order XXXIII of the Code of Civil Procedure, 1908; and whereas the Court sees no reason to reject the application; and whereas the………………… day of ………………… 19…………/20……., has been fixed for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof:
Notice is hereby given to you under rule 6 of Order XXXIII that in case you may wish to offer any evidence to disprove the pauperism of the applicant, you may do so on appearing in this Court on the said. ………………… day of. ………………… 19…………/20………
given under my hand and the seal of the Court, this ………………… day of………………… 19…………/20………
Judge
No. 13
NOTICE TO SURETY OF HIS LIABILITY UNDER A DECREE
(Section 145)
(Title)
To
……………………..
……………………..
Whereas you . ………………… did on ………………… become liable as surety for the performance of any decree which might be passed against the said . ………………… defendant in the above suit; and whereas a decree was passed on the………………… day of. ………………… 19…………/20…….., against the said defendant for the payment of…………………and whereas application has been made for execution of the said decree against you :
Take notice that you are hereby required on or before the………………… day of ………………… 19…………/20…….., to show cause why the said decree should not be executed against you, and if no sufficient cause shall be, within the lime specified, shown to the satisfaction of the Court, an order for its execution will be forthwith issued in the terms of the said application.
given under my hand and the seal of the Court, this ………………… day of …………………19…………/20……..
Judge
No. 14
REGISTER OF CIVIL SUITS
(O. IV, r. 2)
COURT OF THE ………………… OF …………………AT……………………………………
Register of Civil Suits in the year 19……../20……..
Plaintiff
Defendant
Claim
Appearance
Judgment
Appeal
Execution
Return of Execution
Date of presentation of plaint
Name
Particulars
Day for parties to appear
Date
Date of application
Minute of other return than Payment or arrest, and date to every return
Number of suit
Description
Amount of value
Plaintiff
For whom
Date of decision of appeal
Date of order
Name
Place of residence
When the cause of action accrued
Defendant
For what, or amount
Judgment in appeal
Against whom
Description
Date of decision of appeal
For what and amount, if money
Place of residence
Amount of costs
No. 15
REGISTER OF APPEALS
(O. 41, R. 9)
COURT (OR HIGH COURT) AT…………………
Register of Civil Suits in the year 19……/20…..
Appellant
Respondent
Decree appealed from
Appearance
Judgment
Date of memorandum
Number of appeal
Name
Name
Of what Court
Day for parties to appear
Date
Description
Description
Number of Original Suit
Appellant
Confirmed reserved or varied
Place of residence
Place of residence
Particulars
Rspondent
For what or amount
Amount or value
____________________
1. Inserted by Act 104 of 1976, section 96 (w.e.f. 1-2-1977).
2. Substituted by the A.O. 1950, for “His Majesty’s Secretary of State for Foreign Affairs”.
*. Strike off the words which are not applicable.
3. Subs. by Act of 1976, sec 96, for Form 11 (w.e.f. 1-2-1977).
Appendix G – APPEAL, REFERENCE AND REVIEW
No. 1
memorandum of appeal (0.XLI, r.l)
(Title)
The………………………………………………………………………………………………………………………………
……………….. above-named appeals lo the ……………….. Court at ……………….. from the decree of ……………….. in Suit No. ……………….. of ……………….. 19………. dated the ……………….. day of ……………….. 19………., and sets for the following grounds of objection to-the decree appealed from, namely:–
No. 2
security bond to be given on order being made to stay execution of decree
(O. XLI, r. 5)
(Title)
To
This security bond on stay of execution of decree executed by ………………….. witnesseth:–
That ………………….the plaintiff in Suit No ……………….. of 19 ……………….. having sued ………………..
the defendant, in this Court and a decree having been passed on the ……………….. day of ………………..19………., in favour of the plaintiff, and the defendant having preferred an appeal from the said decree in the………. Court, the said appeal is still pending.
Now the plaintiff decree-holder having applied to execute the decree, the defendant has made an application praying for stay of execution and has been called upon to furnish security. Accordingly I, of my own free will, stand security to the extent of Rs ………………… mortgaging the properties specified in the schedule hereunto annexed, and covenant that if the decree of the first Court be confirmed or varied by the Appellate Court the said defendant shall duly act in accordance with the decree of the Appellate Court and shall pay whatever may be payable by him thereunder, and if he should fail therein then any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient to pay the amount due, I and my legal representatives will be personally liable to pay the balance, To this effect I execute this security bond this ……………….. day of ………………..19……/20….
Schedule
(Signed)
Witnessed by
1.
2.
Note : Unless appropriately altered, the printed from binds the surety only to an immediate appeal from the decree mentioned in the bond, and does not cover any obligation in respect of any further appeal.
And further, in Form No. 3 of the said Appendix G, for the opening words “This security bond on stay of execution of decree executed by…..witnesseth–“.
Substitute the following:–
“This security bond, on order being made for execution of decree, …………………. executed by
……………….. witnesseth–“.
No. 3
security bond to be given during the pendency of appeal
(O. XLI, r. 6)
(Title)
To
This security bond on stay of execution of decree executed by witnesseth :–
That ……………….. the plaintiff in Suit No ……………….. of ……………….. 19 ………, having sued, the defendant, in this Court and a decree having been passed on the ……………….. day of 19………. in favour of the plaintiff, and the defendant having preferred an appeal from the said decree in the. ……………….. Court, the said appeal is still pending.
Now the plaintiff decree-holder has applied for execution of the said decree and has been called upon to furnish security. Accordingly I, of my own free will, stand security to the extent of Rs. ……………….. mortgaging the properties specified in the schedule hereunto annexed, and covenant that if the decree of the first Court be reversed or varied by the Appellate Court, the plaintiff shall restore any property which may be or has been taken in execution of the said decree and shall duly act in accordance with the decree of the Appellate Court and shall pay whatever may be payable by him thereunder, and if he should fail therein then any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient to pay the amount due, I and my legal representatives will be personally liable to pay the balance. To this effect I execute this security bond this ……………….. day of ……………….. 19……….
Schedule
(Signed)
Witnessed by
1.
2.
No. 4
SECURITY FOR COSTS OF APPEAL
(O, XLI, r. 10)
(Title)
To
Tins security bond for costs of appeal executed by. ……………….. witnesseth :–
This appellant has preferred an appeal from the decree in Suit No. ……………….. of 19………., against the respondent, and has been called upon to furnish security. Accordingly I; of my own free will, stand security for the costs of the appeal, mortgaging the properties specified in the schedule hereunto annexed. I shall not transfer the said properties or any part thereof, and in the event of any default on the part of the appellant. I shall duly carry out any order that may be made against me with regard to payment of the costs of appeal. Any amount so payable shall be realized from the properties hereby mortgaged, and if the proceeds of the sale of the said properties are insufficient to pay the amount due I and my legal representatives will be personally liable to pay the balance. To this effect I execute this security bond this . ……………….. day of ……………….. 19. ………………..
Schedule
(Signed)
Witnessed by
1.
2.
No. 5
intimation to lower court of admission of appeal
(O. XLI, r. l3)
(Title)
To
You arc hereby directed to take notice that ……………….. the ……………….. in the above suit, has preferred an appeal to this Court from the decree passed by you therein on the ………………..day of ……………….. 19……….,
You are requested to send with all practicable despatch all material papers in the suit. Dated the ……………….. day of ……………….. 19……….,
Judge
No. 6
NOTICE TO RESPONDENT OF THE DAY FIXED FOR THE HEARING OF THE APPEAL
(O. XLI, r. 14)
(Title)
Appeal from the ……………….. of the Court ……………….. of ……………….. dated the ………………..day of ……………….. 19 ………
To
…………………………………………………………………………Respondent
take notice that an appeal from the decree of ……………….. in this case has been presented by ……………….. and registered in this Court, and that the ……………….. day of ……………….. 19 ……………….. has been fixed by this Court for the hearing of this appeal.
If no appearance is made on your behalf by yourself, your pleader, or by some one by law authorized to act for you in this appeal, it will be heard and decided in your absence.
given under my hand and the seal of the Court, this ……………….. day of ……………….. 19 ………………..
Judge
[Note.-If a stay of execution has been ordered, intimation should be given of the fad on this notice.]
No. 7
NOTICE TO A PARTY TO A SUIT NOT MADE A PARTY TO THE APPEAL BUT JOINED BY THE COURT AS A RESPONDENT
(O. XLI, r. 20)
(Title)
To
whereas you were a party in Suit No ……………….. of 19 ………… in the Court of ……………….., and whereas the ……………….. has preferred an appeal to this Court from the decree passed against him in the said suit and it appears to this Court that you are interested in the result of the said appeal;
This is to give you notice that this Court has directed you to be made a respondent ini the said appeal and has adjourned the bearing thereof till the ……………….. day of ……………….. 19………..at ……………….. a.m. If no appearance is made on your behalf on the said day and at the said hour the appeal will be heard and decided in your absence.
given under my hand and the seal of the Court, this ……………….. day of ……………….. 19……….
Judge
No. 8
memorandum of cross objection
(O. XLI, r. 22)
(Title)
whrreas the ……………….. has preferred an appeal to the ……………….. Court at ……………….. from the decree of ……………….. in Suit No. of ………………..19……….dated the ……………….. day of ………………..19………. and whereas notice of the day fixed for hearing the appeal was served on the ……………….. on the ……………….. day of ……………….. 19 ………… the ……………….. files this memorandum of cross objection under rule 22 of Order XLI of the Code of Civil Procedure, 1908, and sets forth the following grounds of objection to the decree appealed from, namely:-
……………………………………………………………………………………………………….
……………………………………………………………………………………………………….
No.9
DECREE IN APPEAL
(O. XLI, r. 35)
(Title)
Appeal No. ……………….. of 19 ………… from the decree of the Court of ……………….. dated the ……………….. day of ……………….. 19….
Memorandum of Appeal
……………………………………………………………………………………………….Plaintiff.
……………………………………………………………………………………………….Defendant.
The ………………..above-named appeals to the ……………………….. Court at ……………….. from the decree of………………………. in the above suit, dated the ……………….. day of ……………….. 19………., for the following reasons, namely: –
This appeal coming on for hearing on the ………………..day of ……………….. 19 ………. before ……………….. in the presence of ……………….. for the appellant and of ……………….. for the respondent, it is ohlered-
The costs of this appeal, as detailed below, amounting to Rs. ……………….. are to be paid by ……………….. The costs of the original suit are to be paid by ………………..
given under my hand and the seal of the Court, this ……………….. day of ………………..19……….
Judge
Costs of appeal
Appellant
Amount
Respondent
Amount
1.Stamp for memorandum of appeal
Rs.
A.
P.
Rs.
A.
P.
Stamp for powers
2. Do. for power
3. Service of processes
Do. for petition.
4. Pleader’s fee on Rs.
Service of processes
Pleader’s fee on Rs.
Total
Total
No. 10
application to appeal in forma pauperis
(O. XLIV, r. 1)
(Title)
I……………………………. …… the above-named, present the accompanying memorandum of appeal from the decree in the above suit and apply to be allowed to appeal as a pauper.
Annexed is a full and true schedule of all the movable and immovable property belonging to me with the estimated value thereof.
Dated the ………………… day of ……………….. 19……….
(Signed)
[Note.-Wbere the application is by the plaintiff he should state whether he applied and was allowed to sue in the Court of first instance as a pauper.]
No. 11
NOTICE OF APPEAL IN FORMA PAUPERIS
(O. XLIV, r. 1)
(Title)
whereas the above-named……………….. has applied to be allowed to appeal as a pauper from the decree in the above suit dated the………………… day of ……………….. 19………. and whereas the ………………… day of ……………….. 19………. has been fixed for hearing the application, notice is hereby given to you that if you desire to show cause why the applicant should not be allowed to appeal as a pauper an opportunity will be given to you of doing so on the afore-mentioned date.
given under my hand and the seal of the Court, this………………… day of ……………….. 19……….
Judge
No. 12
NOTICE TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO THE 1 [SUPREME COURT] SHOULD NOT BE GRANTED
(O. XLV, r. 8.)
(Title)
To
2 [TAKE notice that…………………………………………………………has applied to this Court for a certificate-
(i) that the case involves a substantial question of law of general importance, and
(ii) that in the opinion of this Court the said question needs to be decided by the Supreme Court.]
The………………… day of ……………….. 19……/20…., is fixed for you to show cause why the Court should not grant the certificate asked for.
given under my hand and the seal of the Court, this …………………day of ………………..19……….
Registrar
No. 13
NOTICE TO, RESPONDENT OF ADMISSION OF APPEAL TO THE [SUPREME COURT]
(O. XV, r. 8.)
(Title)
To
…………………..
…………………..
whereas ………………… the ………………… in the above case, has furnished the security and made the deposit required by Order XLV, rule 7, of the Code of Civil Procedure, 1908;.
Take notice that the appeal of said ………………… to 263 [the Supreme Court] has been admitted on the ……………… day of ………………… 19……….
given under my hand and sea of the Court, this…………………day of ………………… 19……….
Registrar
No. 14
notice to show cause why a review should not be granted
(O. XVII, r. 4.)
(Title)
To
take notice that………………… has applied to this Court for a review of its decree passed on the. ………………… day of ………………… 19………. in the above case. The………………… day of………………… 19…………is fixed for you to show cause why the Court should not grant a review of its decree in this case.
given under my hand and seal of the Court, this ………………… day of ………………… 19. ………
Judge
____________________
1. Substituted by the A.O. 1950 for “KING IN COUNCIL”.
2. Substituted by Act 49 of 1973, section 4, for the former paragraph.
3. Substituted by the A.O. 1950 for “His majesty in Council”.
Schedule 2 – THE SECOND SCHEDULE (Repealed)
Arbitration
[Rep. By the Arbitration Act, 1940 (10 of 1940) sec. 49 (1) and Third Sch.]
Schedule 3 – THE THIRD SCHEDULE (Repealed)
Execution of Decrees by Collectors
[rep. By the Code of Civil procedure (amendment) Act, 1956 (66 of 1956), sec. 15 (w.e.f. 2-12-1956.]
Schedule 4 – THE FOURTH SCHEDULE (Repealed)
Enactments amended
[rep. By the Repealing and Amending Act, 1952. (48 of 1952), sec. 2 and Sch. I (w.e.f. 2-8-1952).]
Schedule 5 – THE FIFTH SCHEDULE (Repealed)
Enactments repealed
[Rep. By the Second Repealing and Amending Act, 1914 (17 of 1914), sec. 3 and Sch. II.]
