AHMEDABAD CITY CIVIL COURT RULES, 1961
In exercise of the powers under Art.227 of the Constitution of India
and S.122 of the Code of Civil Procedure, 1908and all other powers them
enabling and with the
previous approval of the Governor and the Government of Gujarat,
the Honourable the Chief Justice and Judges of the High Court are
pleased to make the following Rules for the Ahmedabad City Civil
Court:
1CHAPTER I
11These Rules shall be called the Ahmedabad City Civil Court
Rules, 1961.
22These Rules shall come into force from the 4th day of
November, 1961.
Procedure and Practice.
3Advocates and Pleaders to have precedence inter se
according to seniorityAdvocates of the High Court of Gujarat,
Pleaders entitled to appear, plead and act In the former District Court of Ahmedabad and pleaders holding Sanads In respect of district constituted by local limits of the jurisdiction of the Ahmedabad
City Civil Court, shall be entitled to appear, plead and act
in the conduct of all suits and other proceedings. The Advocate shall have precedence as between themselves according to
seniority upon the roll but the Advocate General and after him the
Government pleader shall have precedence over all other Advo— cates. The pleaders shall take precedence after the Advocates and inter se will take precedence according to the seniority at the Bar.
4Shall not appear and plead for parties on both sidesNo
Advocate or pleader shall appear and plead for parties on both
sides of the record in asuitor matter, even if the interest of such
parties is the same.
5Transfer of briefAn advocate or Pleader may transfer his
brief in a case to another Advocate or Pleader when he is prevented or is likely to be prevented for any reason from attending to the same.
6Reference to “Advocate“ to Include reference to
“Pleader“.— Reference to an “Advocate“ in these Rules shall unless the context otherwise requires include reference to a “Pleader“.
CHAPTER 2The Officers their Office hours and general duties Office
Rules.
7723[(1) The Court (except on Sundays, holidays and Saturdays)
will work from 11.00 a.m. to 5.15 p.m. with a recess from 2.00 p.m.
to 2.45 p.m.
(2) The Offices of the Court (except on Sundays, Holidays and
2nd and 4th Saturdays of each calendar month) will be open daily from 10.45 a.m. to 5.45 p.m. but no work unless of an urgent nature will be received after 3.45 p.m. (The Offices will remain closed on 2nd and 4th Saturdays of each calendar month and on
the remaining Saturdays working hours shall be the same as
prescribed above.)).
(3) The principal Judge may, with the previous permission of
the High Court, alter the hours prescribed in sub—rules (1) and (2)
above, but so as not to reduce the total number of hours in the
week.
(4) The Court may be closed by the Principal Judge, for the
ordinary annual vacation of six weeks after previous publication in
the Government Gazette, at least a month before the date of the
commencement of the vacation, but the period should be so fixed as to fall between the 15th of March and 30th June of each year.
(5) Instead of the vacation of six weeks referred to in sub—rule
(4) above, the Principal Judge may, with the previous permission
of the High Court, close the Court for five weeks between the 15th March and 30th June and for the remaining one week in October/November which may be prefixed or suffixed to the Diwali
Holidays.]
8Receipt of documents by OfficersThe Officers of the
Court shall not receive any pleading, petition, affidavit or like
document, on the file (except original exhibited) unless the same shall be fairly and legibly transcribed on durable paper, fool— scap size and all office copies shall be transcribed in like manner.
9Separate books for each year to be keptThe several
Officers of the Court shall keep for every year separate books for their respective offices for the several business belonging thereto.
10Keeping of recordsEach officer shall safely keep all
records and monuments, and shall class them in regular order so
that recourse may be speedily had thereto.
11No Officer to be receiver or guardian without previous
sanctionNo Officer of the Court shall accept the office of receiver or guardian of the property of a minor in any suit or matter without the previous sanction of the Principal Judge.
12No Advocate, Pleader or Officer of Court to be a surety
or bailNo Advocate, Pleader or Officer of the Court shall be surety in any cause or matter in the Court nor shall any such person as aforesaid be bail for any, prisoner committed for trial at the Sessions Court or admitted for trial at the Sessions Court or admitted to bail by that Court.
13Provision for performance of the Registrar’s duties
during his absenceIn the temporary absence of the Registrar one
of his Assistant or some other (qualified) Officer may be authorised
by the Principal Judge to perform the duties usually performed by
the Registrar.
l4General list of suitsAll suits shall be entered in the
Registrar’s Office in a list called the Registrar of suits. In such
list
shall be entered the number and, the class, of suits, the date of
filing, the names of the Plaintiff and the Defendant, their respective
Advocates or Pleaders, if any, the day fixed for the hearing and the date of disposal.
l5Prospective list of suitsEvery fortnight, or sooner if
necessary a list shall be made out of suits ripe for hearing. Such
list shall be called the Prospective list of suits, and shall be put up near the Registrar’s Office. Provided that. after giving notice to the opposite party, any party to the suit—may apply to the Registrar
when the suit is ripe for hearing to put it on the Prospective List.
l6working of Prospective ListErom the Prospective List
shall be taken in their suits required for hearing for each of the
Courts.
l7Summary suitsSummary suits under Order XXXVII of
the Civil Procedure Code shall be placed on the board for hearing before the Judge taking chamber business on application of the Plaintiff or his Advocate, but not earlier than fourteen days after service of the summons.
l8List of Long CausesSuits in which written statements are called for but not filed will be set down for hearing and final disposal as undefended, l4 days after the expiry of the time
allowed for filing the written statement, but not before the date of
hearing specified in the writ of summons. Defended suits (either
fixed or postponed), will be proceeded within their order on the list of Defendant long causes, but for good cause shown, the hearing
of a suit may be expedited on application to the Judge nominated to hear Interlocutory Applications.
l9Transfer of Suit abated to Stayed List Awhen an order
is made referring a suit to arbitration, such suit shall be transferred from the Prospective List of causes to a separate list called
“Stayed List “A“. Such suit shall be restored to the Prospective List
of causes after the award Is filed.
2OTransfer to Stayed List B of suits where no postponement date fixed and commission issuedSuits In which orders
for commissions for examination of witnesses are made and no
definite date for postponement therein is fixed, shall be considered as stayed suits, and shall be entered in the Stayed List B. Such suits after the return of the Commission may. by direction of the Registrar, be restored to the Prospective List.
2lTransfer to Stayed List B of suits where Interim stay IssuedA suit In which an interim stay of proceedings has been granted, shall be removed from the General List into the stayed List
B, and shall be restored to the General List on the order discharging
the Interim stay.
22Office copy of Records and searchEvery Officer in
charge of records .shall, at the request of any party to a suit or proceeding, or of his Advocate or Pleader, grant copies, or allow search of all proceedings, depositions and documents filed in the suit or proceedings to which he is a party, or such parts thereof as may require, on payment of the proper fees and charges, except in execution matters when it shall be in the discretion of such Officer to refuse such copies or allow search subject to the order of the Judge in Chambers:
Provided that no fee shall be charged where the Inspection sought is by a party or his Advocate in a pending proceedings.
23Furnishing copy of photographs to the other sideWhen photographs are filed in Court, as exhibits to pleadings or when photographs are disclosed and relied on, the party seeking to use them is bound, on request, to furnish a sufficient number of copies of such photographs to the other side on payment of a due
proportion of the photographers charges properly incurred.
CHAPTER 3Exercise of Jurisdiction.
24Commercial causesCommercial causes and proceedings
in chambers herein shall be heard before such Judge as the
Principal Judge shall, from time to time. appoint.
25Setting down of short causesSuits which are accepted
as short causes will be set down for hearing on Wednesdays in priority to other matters. A Judge hearing short causes shall have power to dispose of the same as provided in the following rule and can accordingly transfer to the long cause list any short cause he
does not think fit to try as a short cause, forthwith or at some other
date.
Explanation.—Short Causes shall mean suits of simple character
such as suits for maintenance, suits under S.9 of the Specific Relief Act, 1963. Suits instituted under Rule 63 and R.103 of Order XXI of the Code of Civil Procedure, 1908and Suits under S.47 of the PRESIDENCY SMALL CAUSE COURTS ACT, 1882
26Transfer of Short cause to long cause listShort causes
in which a written statement of defence Is filed shall ordinarily be transferred to the long cause list unless the Judge before whom the cause Is set down Is of opinion that the defence is put in for the purpose only of gaining time, in which case, the same may be heard forthwith or may be put down for hearing as a short cause on such
day as the Judge shall direct.
27MotionsMotions for interlocutory or interim reliefs, or
orders including motions necessary for the progress of a suit which are required to be heard by a Judge shall ordinarily be heard on Mondays by the Judge nominated for the purpose by the Principal Judge but if urgent, they may be heard on any other day.
28Short notice of motions for interlocutory or interim
reliefs etcApplications for leave to serve short notice of motion
shall be made to the Judge nominated to hear applications for
inter— locutory or interim reliefs or orders. Such applications may
be made in Court or in Chambers. CHAPTER 4Chamber business.
29Chamber workChamber work will ordinarily and so far as Time allows be disposed of on Thursdays.
3ODisposal of Chamber work In Commercial CausesThe
Judge who shall have been appointed to hear Commercial Causes shall sit in Chambers on such days as may be necessary to dispose of Chamber matters therein.
3lMatter before Judge in Chambers may be referred to
Court and Vice VersaThe Court in its discretion may at any time
direct any matter to be referred to or disposed of by a Judge sitting
in Chambers, and a Judge sitting in Chambers may at any time. if he thinks fit, direct any application made to him in Chambers to be made In Court or transfer any matter to the Court at any stage thereof.
32Judge’s Summons(i) The mode of proceeding in Chambers
on any application when notice is required to be given shall,
unless otherwise ordered or provided by the rules of the Court, be
by summons. The application together with the affidavit in support. if any, with sufficient number of copies thereof for service on
other parties, shall In the first instance be presented in the office for being registered.
(ii) The summons shall be in form No. 7, with such variations as the circumstances may require. The office shall cause the summons together with the copy of the application and affidavit, to be served on the opposite party.
33bength of ServiceUnless otherwise ordered, such summons shall be served four clear days before the turn thereof, exclusive of 4[2nd and 4th Saturday of every month. Sundays and Holidays. The notice may be made returnable in a shorter time by
leave of the Judge, which shall be mentioned In It.
34Procedure for Chamber Summonses applicable to
Notices of Motions or applicationsThe procedure prescribed in
rule 3O, Rule 3l and Rule 32 shall, unless otherwise provided in the
Rules,
apply mutatis mutandis to a Notice of Motion or application to be
heard in Court.
35Chamber workThe following matters may be disposed of by a Judge in Chambers:—
(a) Admission and rejection of plaints.
(b) Summary suits under Order XXXVII, Code of Civil Procedure,
in which leave to defend has not been obtained.
(c) Orders concerning substituted service of summons, etc.
(d) Applications for extension of time under the Code of Civil Procedure. Order XXVII, rule 7, and generally all applications for further time not otherwise provided for.
(e) Applications for arrest before judgment and for attachment before judgment.
(f) Applications arising from the death, marriage or insolvency
of parties to suits or from the assignment, creation or devolution of any estate or title pendente lite.
(g) Orders concerning the production and Inspection of documents. (h) Attachment of property of an absconding witness.
(i) Applications to amend the plaint or subsequent proceedings or to strike out any matter therein.
(j) Applications for further and better statement or particulars under Order VI. rule 5.
(k) Applications for commissions to examine witnesses under the Code of Civil Procedure. Order XXVI, rule 1.
(l) All proceedings in execution referred by the Registrar. (m) Applications for leave under Order XXI, rule 50, sub—rule
(2).
(n) Applications for leave to issue execution under Order XXX, rule 9.
(o) All proceedings on the returns of writs or notices Issued before or after judgment requiring cause to be shown in chambers.
(p) Applications for confirming sales in execution or under a decree.
(q) Applications for stay of execution under the Code of Civil
Procedure. Order XXI, rule 26 (1) and (2).
(r) All questions under Code of Civil Procedure, section 47. (s) Applications for statements of names and disclosure of
partners, addresses and residence under Order XXX, rule 1 and
Rule 2.
(t) Applications for leave to sue or defend in forma pauperis.
(u) Applications for orders of reference to arbitration unless the suit is on one of the boards for the day.
(v) Applications relating to the conduct or frame of suits previous
to the hearing unless the suit is on one of the boards for the day.
(w) Applications in all matters arising under the Indian Arbitration Act and generally in the matter of any Act, unless otherwise, provided in the Act itself or by the rules thereunder or by these rules.
(x) Applications for the admission of a next friend of an infant and for the appointment of new next friends and guardians ad item.
(y) Applications by receivers, guardians and others relating to the management and disposal of property.
(z) Applications for discharge from custody, subsistence money not being paid.
(aa) Such other matters as are not expressly required to be
disposed of in Court, and which the Judge thinks fit to be heard in
Chambers and such other applications as are herein directed to be made in Chambers.
36Affidavits on Chamber Summonses.—Unless otherwisedered by the Judge, affidavits in reply to the Chamber Summonses shall be filed not later than I p.m. on the penultimate working
day preceding the date fixed for hearing. Not more than one
affidavit in rejoinder shall be filed without the leave of the Judge
and such affidavit shall be confined strictly to matters of reply. The affidavit in rejoinder shall be filed not later than 4.15 p.m. on the working day preceding the day named for the hearing. If such
working day is a 5[2nd or 4th Saturday of the month], affidavits in
reply shall be filed, not later than 11.30 a.m. and the affidavit in rejoinder not later 1.30 p.m. of such day.
CHAPTER 5Institution of the Suit.
37How plaint is to be written etc..—(1) The plaint and the documents to be annexed thereto shall be legibly written, typed or printed in the English Language or the Gujarati language on
durable foolscap paper or other paper similar to it in size and
quality and with an inner margin of about an inch and a quarter
wide. The following documents shall be annexed to the Plaint, viz. ( 1 ) Appearance or Vakalatnama. (2) List of documents upon which the plaintiff relies, and (3) Documents or copies of documents on which the plaintiff sues. The plaint and the document annexed to it. if any, shall be stitched together book— wise in the following
order: (1) Plaint, (2) Appearance or Vakalatnama, (3) List of documents upon which the plaintiff relies and (4) Documents or copies
of documents on which the plaintiff sues. Dates and sums occurring in the plaint shall be expressed in figures and the latter in
rupees and paise. When Indian dates are given the corresponding
English dates shall always be added. The plaint shall be divided
into paragraphs numbers consecutively. It shall contain the particulars required by Order VII. R.1 of the Code of Civil Procedure, 1908. Every alteration, interlineations and erasures in the
plaint shall be marked and authenticated by the initials of the officer of the Court before whom it is declared:
Provided that where the plaintiff has not annexed the original documents on which he sues with the plaint, he shall produce the same for the inspection of the Court when the plaint is represented if the same are in his possession or power.
(2) The plaint shall be verified on solemn affirmation or oath before an Officer of the Court if within the local jurisdiction and
elsewhere In India before the Officer empowered under S.139 of the Code of Civil Procedure, 1908. The verification shall be in Form No.
1.
6(3) The plaintiff shall furnish, alongwith the plaint, in long cause suits, a copy thereof legibly written, typed or printed on durable fool scap ledger paper in an envelope for the purpose of drawing the decree. If necessary, in future.]
38Official title only of Advocate General to appear In suit
by or aginst himWhen the Advocate—General Is a party to a suit
In his official capacity he shall be named and described in the pleadings by his official title only. Before the name of any person shall be used in any suit as relator, such person shall sign a written authority to the Advocate for that purpose, and such authority shall be filed in the Registrar’s office.
39Appearance and particulars of claimThe plaint shall be
accompanied, where the plaintiff acts by Advocate, with a Vakalatnama
(Form No. 2) and in case of debt there shall be annexed to,
and filed with, the plaint particulars of the plaintiffs claim.
40Plaint shall be accompanied by Docket(i) The plaint
shall be presented in the office of the Registrar to such person on the establishment of the City Civil Court as may be authorised in that behalf by the Registrar. It will be accompanied by a Docket which shall contain the short title, the names and addresses of the plaintiffs and the advocate presenting the plaint, the amount of court—fee paid on the plaint, and the date of presentation and such other particulars as may be prescribed under these Rules.
(ii) Verification of Docket sheet.—The person receiving the plaint shall verily the date of presentation and the statements on the
Docket Sheet as to the amount of Court—fee paid and shall countersign the same in token on their correctness. As soon as the plaint
is presented, it shall be entered in the Lodging Register on the date of presentation and the plaint shall be marked with the serial
number in the Lodging Register for purpose of identification.
(iii) Stating names and addresses of plaintiff and his advocate on the Docket.—The addresses of the Plaintiff and his advocate stated on the Docket shall for all purpose be considered as their
registered addresses. All correspondence despatched to those addresses
shall be deemed to have been received by them when despatched by or through the office.
4lExamination of plaint(i) When the plaint is presented,
the office shall examine the plaint in order to see whether all the
requirements of the Rules or the law have been complied with and
In particular, whether proper court—fee stamp has been paid.
(ii) If the plaint does not conform with the requirements of the Rules or the law. the plaintiff or the advocate shall be informed to complete the requirements, and if he does not remove the office objections within fourteen days, from the date he is so Informed,
the plaint shall be placed before the Registrar for orders.
(iii) The Registrar may grant time not exceeding one month in
Short Causes and two months In other Causes, for the removal of
the office objections. If the office objections are not removed within
the time extended by the Registrar, the plaint shall be placed before the Court for such orders as the Court may think fit.
(iv) The Court may, on the regular application filed in that
behalf, excuse the delay In removing the office objections or grant
such further time as It may deem fit on such terms and conditions as It may deem proper.
42Compliance of office objections(l) When the plaintiff or
his Advocate does not agree with the office as to the amount of
Court—fee payable on the Plaint, the question of proper Court—fee
shall be decided by the Registrar. If the decision of the Registrar is
not accepted by the plaintiff or his Advocate, the plaint shall be
placed before the Principal Judge or such Judge as he may nominate for assessment of the Court—fee payable.
(ii) The deficit Court—fee required to be paid according to the decision of the Registrar or the Judge shall be paid within such time as may be fixed by the Registrar or the Principal Judge or the Judge nominated by him as the case may be, falling which the
matter shall be placed before the Court for orders regarding rejection of the Plaint.
43Register of SuitsWhen all the office objections have been
removed and the deficit Court—fees paid, the plaint shall be admitted,
and on admission, shall be entered in the Register of suits.
The suit shall be numbered in accordance with the serial number
of the entry in the Register and an endorsement thereof shall be
made on the plaint.
44Endorsement on admissionWhen a plaint is admitted
the words “Admitted this day“ shall be endorsed thereon and
signed or initialed by the Registrar, the words ‘written statement‘
being added when such statement is required.
45Hearing of other applicationsAn application which affects the state of the daily board of a particular Judge shall ordinarily be heard by that Judge.
46Copy of plaint to be furnished to defendantAny defendant,
or his Advocate, applying to the plaintiff, or his Advocate, for
a copy of the plaint with the annexures. shall be furnished with the
same, but where several of the defendants are represented by the
same Advocate, it shall be sufficient to supply one copy of the plaint and annexures to such Advocate:
Provided that if the application is made after the passing of a
decree in a suit, such copies need only be furnished to the defendant or his Advocate on payment of the copying charges:
Provided also that If the application is made by a defendant on whom a copy of the plaint has been served or his Advocate, such copies need only be furnished to the defendant or his Advocate on payment of the copying charges.
47Party engaging more than one Advocate to furnish name and address of advocate with whom correspondence should be carried onWhen a party engages more than one
Advocate in suit or matter, he shall intimate to the Registrar the
name and address of the Advocate with whom all correspondence
should be carried on and give similar intimation to all other parties in the suit or matter.
CHAPTER 6Writ of Summons.
48Process fee etc..—(i) Within fifteen days from the date of admission of the plaint, the plaintiff or his advocate shall pay the prescribed process fees for service of the’writ of summons upon defendant and alongwith such fees, he shall file as many copies of the plaint as there are defendants, for service along with the Writ of Summons:
Provided that the Registrar may, having regard to the number
of defendants or to the length of the plaint or any other sufficient
reasons, order that instead of copies of the plaint, concise statements
of the plaint may be served along with the Writs of Summons.
(ii) The requisite number of the concise statements of the plaint shall be supplied within the time prescribed for the payment of process fees.
(iii) The process fees shall be paid in accordance with the Rules
made by the High Court from time to time under S.32 of the Bombay Court
Fees Act, 1959.
49Summons for final disposalIn every suit the summons
to a defendant to appear and answer shall be for final disposal and
shall be in one of the Forms Nos. 3, 4 and 5 with such variations as the circumstances of the case may require.
5OName and address of the Advocate to be stated in every processThe name and address of the Advocate appearing for a
party shall be stated in every writ of summons, witness summons, notice motion, chamber summons, notice or warrant, and every process of the Court issued at his Instance or taken out by him.
51Examination of Summons by office.—The Office shall
prepare the writ of summons. In conformity with the rules and put up the summons before the Officer empowered to sign them for signature and cause the seal of the Court to be affixed thereon.
52Sealing of summons, rule etc..—The seal of the Court shall
not be put to any writ of summons, warrant, rule, order or other mandatory process unless the same be signed with the name of the Officer whose duty it is to prepare and make out of the same, and unless the name of the party or his Advocate be subscriber thereunto together with the day of the month and year when the same shall issue from such office.
53Returnable date of summonsUnless otherwise ordered
every writ of summons shall be made returnable as follows:—
(1) If the defendant or all the defendants reside within the local limits of the Court—
(a) in short causes, four weeks from the date of admission of the Plaint:
(b) in long causes, eight weeks from the date of the admission of the plaint.
(2) In all other cases within such time as may be considered sufficient for the transmission, service and return of the summons.
54Hearing of suit not to be until certain days after service
of summonsUnless otherwise ordered, no suit for final disposal shall be heard:—
(a) Until after ten clear days in case of short causes and four weeks in case of long causes, from the service of the writ of summons if the defendant or all the defendants, shall reside within the local limits of the Court:
(b) Until after fourteen clear days in case of short causes and
four weeks in case of long causes from such service if, the defendant,
or any of the defendants shall reside outside the local limits
of the court, provided the defendant, or all the defendants, as the
case may be, shall reside in India:
(c) in all other cases, within such time as the Registrar may fix having regard to the place where the writ of summons is to be served.
55(1) Action when notice returned unserved(1) When any
writ of summons is returned unserved, the plaintiff or his advocate
shall move the Registrar for the issue of amended summons or fresh summons, as the case may be, within one month from the
date when it is returned unserved or within such further time not
exceeding one month: as the Registrar may allow.
(2) The office shall, on due payment of the process fees within
the time prescribed in sub—rule (1 ) above, issue a fresh or amended
summons and cause it to be served.
56Undertaking by Advocate(i) A writ of summons need not
be served on a defendant personally, if he has appeared and if his
Advocate undertakes In writing to accept service.
(ii) When an Advocate has filed his appearance for a party in a
suit or matter, he shall accept service, on behalf of his client, of
all
processes issued, in the suit or matter until he is discharged.
57Number of Writs for such servicesWhere an advocate
undertakes in writing to accept service on behalf of one or more
defendants or defendant in the action, it shall be sufficient to take out and serve only one writ of summons on the said Advocate on
behalf of his client or clients.
58Service of summons and NoticeUnless otherwise ordered by the Court or Judge, or unless otherwise prescribed in
these rules, all writs of summons witnesses, notice of motion and
other processes shall be served through the Court Bailiffs.
59Notice of written statement in summons when called
forWhen a written statement shall be called for from a defendant
In the first instance, notice to that effect shall be given in the
margin of the writ of summons calling on the defendant within four weeks from the service thereof (unless the Judge shall otherwise orders) to file his written statement and serve a copy thereof on the plaintiff or his Advocate.
6OJudgment for want of written statementApplication for
Judgment for want of written statement shall be made by motion
on notice to the opposite party but no such motion shall be made
before the date. on which the summons Is returnable. On the
hearing of such application, if the opposite party does not appear
or appears but does not file the written statement and further time
to file the written statement is not granted to him by the Court, the
suit shall be set down on the daily board for passing judgment for
want of written statement on such date as the Court may think fit. This rule shall not apply to commercial causes which shall be governed by rule 14.
Appearance of Defendant.
61Appearance of defendant or VakalatnamaThe defendant
shall, on or before the day fixed In the writ of summons for the filing of his written statement. If such be called for, or otherwise
before the date fixed for his appearance, file with the Registrar an appearance or Vakalatnama. In the event of the defendant not
filing such appearance or his advocate not filing a Vakalatnama, the suit will be set down as undefended. Should the defended then appear and desire to defend, the suit shall be subject to transfer to the defended list, or to postponement, with cost not exceeding Rs.
3O to be paid by such defendant to the plaintiff.
62In default of written statement defendant may appear
with the consent of the JudgeIf in a suit where there are more
defendants than one, any defendant shall have failed to file his written statement If such be called for, within the time fixed in the margin of the writ of summons, or any time extended by order and
the suit has not been set down as undefended as against him, such
defendant shall not be allowed to appear and defend at the trial
except with the consent of the Judge upon such terms as to the filing of his written statement, giving discovery, and the payment of costs of adjournment, as a condition precedent to leave to defend, or otherwise, as the Judge may order, or .upon such other terms, if any, as the Judge in his discretion may think proper.
63Proof of service of summonsUnless the Court shall
otherwise order the service of a summons to appear and answer shall be proved by the appearance or Vakalatnama having been filed, or when no appearance or Vakalatnama has been filed by evidence showing that the summons was served In the manner
provided by the Code of Civil Procedure. Such proof shall ordinarily
be by the affidavit of the bailiff and (as to such matters as the bailiff
cannot speak to of his own knowledge) of the person who attended
the bailiff for the purpose of identification at the time of service,
or
of such other person or persons as can speak to the identity of the person served or to other matters necessary to be proved in respect of the service.
64When service through another courtWhen the summons
has been served through another court, the service may be
proved by deposition or affidavit of person who has effected the
service or the certified copy of the statement made by him before the court through which the service was effected.
65Substituted serviceApplications for substituted service
of a summons to appear and answer shall be made in Chambers.
The application must be supported by an affidavit, or in the case of service through another court, by the deposition of the officer who attempted to make the service, and of such other person as
may have accompanied him—for the purpose of pointing out the party to be served, stating when, where and how much service was attempted to be made.
Written statement and set off.
66Rules as to plaints to apply to written statementRules
37 & 40 as to plaints shall mutatis mutandis, apply to written
statements, the words plaint and plaintiff therein being read for the
purpose of this rule as though they were written statement and defendant.
67Written statement of plaintiffWhere a written statement
is called for from the plaintiff, the Judge shall direct when it
is to be filed and when to be served upon the defendant.
68Documents relied upon to be referred to in schedule
Each written statement shall, by way of list or schedule, refer to
any documents not then filed, by which it is intended to be
supported.
69Court or Judge may disallow set offThe Court or a
Judge may on the application of the plaintiff, at any stage of the
proceedings in a suit if in the opinion of the Court or Judge a set—off
cannot be conveniently disposed of in the pending action or ought not to be allowed, refuse permission to the defendant to avail himself thereof, and require him to file a separate suit in respect thereof.
7OPayment with denial liabilityIn an action for damages,
the defendant may at any time after he has filed his appearance.
pay into court a sum of money to satisfaction of the plaintiffs claim with a denial of liability.
71Form of notice of such paymentNotice of such payment
shall be given to the plaintiff. The notice shall be In form No. 11
with such variations as the circumstances may require.
72Mode for withdrawing money paid with denial of
liabilityAfter the money is paid into court under the above rule,
the plaintiff may. within seven days of the receipt of the notice of
payment in to Court, take out a Chamber Summons for payment of the said money to him in satisfaction of his claim and the Judge may at the hearing of the summons make such orders as to
payment of the money as he may think fit.
“Counter Claim“.
73Counter—claim by defendantA defendant in a suit. in
addition to his right of pleading a set—offender Order VIII, R.6 of the
Code of Civil Procedure, 19O8: may set up by way of counter claim against the claim of the plaintiff any right or claim in respect of a cause of action accruing to the defendant either before or after the filing of the suit but before the defendant has delivered his defence and before the time limited for delivering his defence has expired: whether such counterclaim sounds in damages or not. and such counter—claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment In the same suit,
both on the original and on the counterclaim and the plaintiff (if so
advised) shall be at liberty to file a written statement in answer to
the counter—claim of the defendant, within four weeks after service upon him or his pleader of a copy of the defendant’s counter— claim: and the court, or Judge may on the application of the plaintiff before trial, in the opinion of the court or Judge such counterclaim cannot be disposed of in the pending suit or ought not to be
allowed, refuse permission to the defendant to avail himself thereof and require him to file a separate suit in respect thereof.
74Counter—claimWhere any defendant seeks to rely upon
any grounds as supporting a right of counter claim, he shall in his
written statement: state specifically that he does so by way of counter—claim.
75Time of counter—claimWhere defendant by a written
statement sets up any counterclaim which raises questions between
himself and the plaintiff along with any other persons, he
shall add to the title of his written statement a further title similar
to the title in a plaint, setting forth the names of all the persons whom if such counter—claim were to be enforced by cross—suit
would be defendants to such cross—suit, and shall deliver copies of
his written statement to such of them as are parties to the suit within the period within which he is required to deliver it to the plaintiff.
76Claim against persons not partyWhere any such person
as in the last preceding rule mentioned is not a party to the suit,
he shall be summoned to appear by being served with a copy of the
written statement and such service shall be regulated by the same rules as are herein or under the Civil Procedure Code contained with respect to the service of a writ of summons.
77Appearance of third partyAny person not a defendant to
the suit, who is served with a written statement and counterclaim As aforesaid, must appear thereto as if he had been served with a writ of summons to appear in a suit.
78Reply to counter—claimAny person named in a written
statement as a party to a counterclaim thereby made deliver a reply within the time, within which he might deliver a written statement if it were a plaint, the appearance or Vakalatnama having been filed, or when no appearance or Vakalatnama has been filed, by evidence showing that the summons was served in the manner
provided by the Code of Civil Procedure, such proof shall ordinarily be by the affidavit of the bailiff and (as to such matters as the bailiff
cannot speak to of his own knowledge) of the person who attended
the bailiff for the purpose of identification at the time of service,
or
of such other person or persons as can speak to the identity of
persons served or to other matters necessary to be proved in respect of the service.
79Exclusion of counter claimWhere a defendant sets up a
counter claim, if the plaintiff or any other person named in manner
aforesaid as party to such counter claim contends that the claim thereby raised ought not to be disposed of by way of counter claim but in an independent suit. he may, at any time before reply to the court or a Judge for an order that such counter—claim may be excluded, and the court or a Judge may, on the—hearing of such application make such order as shall be just.
8ODiscontinuance of suitlf in any case in which the defen—
dant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.
8lDefendant to counter claim in defaultlf the defendant
to the counterclaim makes default in putting in a reply to the counterclaim, the defendant in the suit who is the plaintiff to the counterclaim may, in such cases, get the suit set down on motion
for judgment on the counterclaim and such judgment shall be
given as the court shall consider him to be entitled.
82Judgment for balanceWhere in any suit a set—off or counterclaim is established as a defence against the plaintiffs claim, the court or a Judge may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or
may otherwise adjudge to the defendant such reliefs as he may be entitled to upon the merits of the case.
“Third Party Procedure“.
83Third Party notice—filling form and service of notice—Effect of notice(l) Where in a suit a defendant claims as against
any person not a party already to the suit (hereinafter called the
third party)—
(a) that he is entitled to contribute or indemnity, or
(b) that he is entitled to any reliefer remedy relating to or connected with the original subject matter of the suit
and substantially the same as some relief or remedy
claimed by the plaintiff, or
(c) that any question or issue relating to or connected with the said subject matter is substantially the same as
some questioner issue arising between the plaintiff and
the defendant and should properly be determined not
only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third party or between any or either of them,
he may by leave of the court or a Judge, issue a notice (Form No.
l2) (hereinafter called the third party notice) to that effect, sealed with the seal of the Court. Such notice shall be filed with the Registrar and a copy thereof served on such person according to
the rules relating to the service of writs of summonses.
(2) The notice shall state the nature and grounds of the claim or the nature and extent of any relief or remedy claimed or the nature of the question or issue sought to be determined, and shall, unless otherwise ordered by the court or a Judge, be served on the third party within the time limited for filing the written statement of defence and therewith shall be served a copy of the plaint.
(3) The third party shall, as from the time of the service upon him of the notice be a party to the suit with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.
84Appearance of third party—Default ofIf a person not a
party to the suit who is served as mentioned In Rule 83 (hereinafter
called the third party) desires to dispute the plaintiffs claim in the suit as against the defendant on whose behalf the notice has been given, or, his own liability to the defendant, the third party must enter an appearance or file a Vakalatnama’ in the suit. within ten
days from the service of the notice. In default of his so doing, he
shall be deemed to admit the validity of the decree obtained against such defendant whether obtained by consent or otherwise, and his
own liability to contribute or indemnify, as the case may be, to the extent claimed in third party notice:
Provided always that a person so served and failing to appear
within the said period often days may apply to the court or a Judge
for leave to appear, and such leave may be given upon such terms, If any, as the Court or Judge shall think fit.
85Default In appearance of third party—Decree on trial
Where a third party makes default in entering an appearance or
filing a Vakalatnama’ In the suit in case the suit Is tried and results in favour of the plaintiff, the Judge who tries the suit may, at or after the trial, pass such decree as the nature of the case may
require for the defendant giving the notice against the third party:
Provided that execution thereof be not issued without’ leave of
the Judge until after satisfaction by such defendant of the decree
against him. And if the suit is finally decided in the Plaintiff favour,
otherwise than by the trial, the court or a Judge may, on application
by motion, as the case may be. pass such decree as the nature
of the case may require, for the defendant giving the notice against
the third party at any time after satisfaction by the defendant of the amount recovered by the Plaintiff against him.
86Appearance of third party—Appiation for directionsIf
a third party enters an appearance or files a ’Vakalatnama’ the defendant giving notice may after serving notice of the Intended application upon the Plaintiff the third party and other defendant, apply to the court or a Judge for directions, and the court or a
Judge may (a) where the liability of the third party to the defendant
giving the notice is established on the hearing of the application, pass such decree as the nature of the case may require In favour
of the defendant giving the notice against the third party, or (b) If
satisfied that there Is a question or Issue proper to be tried as between the plaintiff and the defendant and the third party or between any or either of them as to the liability of the defendant the plaintiff or as to the liability of the third party to make the contribution or indemnity claimed, in whole or in part or as to any other reliefer remedy claimed in the notice by the defendant or that a question or Issue stated in the notice should be determined not only as between the plaintiff, and the defendant but as between the
plaintiff, the defendant and the third party or any or either of them,
order such question or issue to betried in such manner, before, at
or after the trial of the suit, as the Court or Judge may direct, or
(c) dismiss the application. (Form No. 13).
87Directions, what may be givenThe Court or Judge upon
the hearing of the application mentioned in rule 86, may, if it shall
appear desirable to do so, give the third party liberty to defend the suit, either alone or jointly with the original defendant upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may other such proceedings
to be taken, pleadings or documents to be delivered, or amend—
ments to be made, and give such directions as to the Court or Judge shall appear proper for having the question and the rights and liabilities of the parties most conveniently determined and enforced, and as to the mode and extent in or to which the third party shall be bound to made liable by the decree in the suit.
88CostsThe Court or a Judge may decide all questions of
costs as between a third party and the other parties to the suit, and may order any one or more to pay the costs of any other, or others,
to give such direction as to costs as the justice of the case may require.
89Remedy of a person served with a third party notice(1) Where a person served with a third party notice by defendant
makes as against any person not already a party to the suit such
claim as is defined in rule 83, he may by leave of the Court or a
Judge issue a third party notice to that effect, and the preceding rules as to third party procedure shall be apply mutatis mutandis to every notice so Issued and the expression ”third party notice” and ”third party” in these rules shall apply to and include other notices so issued and every person served with such notice respectively.
(2) Where a person served with a notice under this rule by a third party in turn makes such a claim as Is defined in Rule 83 against another person not a party to the suit. the procedure prescribed by the proceeding rules shall be followed as regards such further person and any other further person or personsso served and so on successively.
9ODefendant claiming against Co—defendantWhere a
defendant claims against another defendant (a) that he is entitled
to a contribution or indemnity or (b) that he is entitled to any relief
or remedy relating or connected with the original subject matter of the suit and substantially the same as some relief or remedy
claimed by the plaintiff or (c) that any question or issue relating to
or connected with the subject matter is substantially the same as some question or issue arising between the plaintiff and the” defendant making the claim and should properly be determined
not only as between the plaintiff and the defendant making—the
claim but as between the plaintiff and the defendant and another
defendant or between any or either of them, the defendant making
the claim may without leave of the court or a Judge issue and serve
on such other defendant a notice making such claim or specking such question or issue, and the same procedure shall be adopted for the determination of such questions between the defendants as would be issued and taken against such other defendant, if such last mentioned defendant were a third party: but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in suit.
CHAPTER 7Matters arising pending suit.
91Further written statement by leave may be filedWhere
a ground of defence arises after the defendant has filed his written
statement, the defendant may within eight days after such ground of defence has arised, or at any subsequent time, by leave of the Court or a Judge, file a further written statement setting forth the same, and in such case, shall forthwith serve a copy thereof upon
the plaintiff or his Advocate.
92Plaintiffs confession of such defence and procedure thereonWhenever any defendant in his written statement, or any further written statement, raises any grounds of defence which have arisen after the commencement of the suit, the plaintiff may file a confession of such defence in Form No. 14, and, if such
defence Is an answer to the whole suit, may thereupon apply to the
Judge in Chambers and obtain a decree for his costs upto the time
of filing such written statement or further written statement as the
case may be, with leave to withdraw his suit, unless the Judge
shall, either before or after the filing of such confession, otherwise
order.
93Ex—parte amendmentsAmendments In pleadings, which
are made only for the purpose of rectifying some clerical error or In names, dates or sums may be made on an order In Chambers,
without notice.
94Amendments how to be madeIf in any amendments the
new matter does not exceed in any one place three folios, the record containing the original documents shall be amended by an Interlineation,
or if the amendment by omitting some original matter,
the same shall be struck out of the record. In all other cases a new
document shall be engrossed and annexed to the original. The amendment or revision shall be made or indicated in red ink and subsequent amendments or variations shall be made or indicated in different coloured ink.
Discovery and Inspection.
95Agent may make affidavit of documents when none of
the parties reside In AhmedabadWhere the transactions which
form the subject—matter of a suit have been carried on wholly or principally in the City of Ahmedabad, and any of the parties are not residing in the City of Ahmedabad at the time, an affidavit of documents is required to be filed, such affidavit may be made by the agent in the City of Ahmedabad of such absent party on his
behalf. For the purposes of this rule, a resident partner In the City of Ahmedabad shall be the agent of his non—resident partners.
96Procedure where the affidavit is required to be made by
the absent partyIf in the case provided for by the last preceding
rule, any party desires to have such affidavit made by all or any of the absent personally he shall be at liberty to apply on summons
for an order to that effect to the Judge in Chambers, setting forth
the grounds for making such order, and the Judge, after hearing the opposite party may, if he thinks it right and just, make such order.
97Summons for directions(1) In all suits, other than summary suits and short causes, the plaintiff shall take out within 21 days from the time when the pleadings are closed or deemed to be closed a summons for directions returnable in not less than 15 days. The summons shall be in Form No. 84 with such variations
as the circumstances may require and shall be addressed to and
served upon all parties to the suit. At the hearing of the summons the Judge shall give such directions with respect to pleadings, interrogatories, particulars, admission of documents facts ex— amination of witness, discovery, inspection and production of documents, fixing a date for setting issues and for trial of any Issues as preliminary Issues, fixing a date for hearing of the suits and such other matters as he may think expedient.
The Judge may adjourn the hearing of the summons for directions from time to time.
(2) The pleadings shall be deemed to be closed when the written statement If filed. Where there are several defendants in a suit and some only have filed the written statement, the pleadings shall be deemed to be closed when the time of filing the written statement
of the other defendants has expired.
(3) If the plaintiff does not take out a summons for directions
In accordance with sub—rule (1), the defendant may do so or apply
for an order to dismiss the suit.
(4) Upon an application by a defendant to dismiss the suit
under sub—rule (3) the court, or a Judge may either dismiss the suit on such terms as may be just or deal with the application as if it were a summons for directions.
(5) In the case of a suit which is proceeding only as respects a counterclaim, reference in this rule to the plaintiff and defendant shall be constructed respectively as reference to the party making the counter—claim and the defendant to the counter— claim.
98No affidavit be madeNo’ affidavit shall be made or used
on the hearing of the said summons except by special leave of the
Judge.
99Duty to make all interlocutory Applications summons directionsAny party to whom the Summons for directions is
addressed shall, so far as practicable, apply at the hearing of the summons for any order or directions which he may desire as to any matter capable of being dealt with on an interlocutory chamber application In the suit and shall not less than 7 days before the hearing of the summons, serve on the other parties a notice in writing specifying those orders and directions in so far as they differ from the orders and directions asked for by the summons.
(2) If the hearing of the summons for directions is adjourned
and any party to the proceedings desires to apply at the resumed
hearing for any order or directions not asked for by the summons
or in any notice given under sub—rule (1) he shall not less than 4
days before he resumed hearing of the summons, serve on the other parties a notice in writing specifying those orders and directions
in so far as they differ from the orders and directions asked for by the summons or in any such notice as aforesaid.
1OOSubsequent applicationAny application subsequent to
the original summons for any directions as to any matter by any
party shall be made under the summons on two clear days’ notice to the other party staling the grounds of the application.
If the Judge is of opinion that such application could properly have been made, on the original summons, he may direct that the party applying shall in any event pay the costs of such application
lOlSummons directions. Summary suits and short
causesRule 97, Rule 98,Rule 99 and Rule lOO shall apply to summary
suits
and short causes which have been transferred to the list of long
causes, when all necessary directions which could be given on a
summons for directions have not been given at the time of the order transferring these suits to the list of long causes, unless the court at the time of such transfer has otherwise ordered.
lO2Certain rules not to apply to suit transferred or proposed to be transferred to the Commercial ListRule 97.
Rule 98, Rule 99 and Rule lOO shall not apply to suits in which an application for
transfer to the commercial list is pending or which have been ordered to betransferred to the commercial list.
lO3Summons for Directions In Transferred SuitsSummons for directions shall be taken out in all the suits transferred
to the City Civil Court except in suits which are part heard.
lO4Notice for an order for InterrogatoriesNo application
for an order for interrogatories shall be heard without giving previous notice of the same to the other side.
lO5Service of the order of discoveryThe party seeking
discovery shall serve a copy of the order for discovery with his
Interrogatories upon the order side and the time for answering or making discovery shall in all cases commence from the date of service of the interrogatories, and the order for discovery.
CHAPTER 8Adjournment.
lO6Postponement may be granted by RegistrarSave as
otherwise provided in this Chapter the Registrar may postpone the hearing of a suit, If the writ of summons has not been served, and the defendant or defendants has or have not appeared on the
written application of the plaintiff or his Advocate or if the
plaintiff
and the defendants or such of them as have been served or
appeared, consent thereto in writing or on the plaintiff undertaking
to give notice of such postponement when the consent of the defendant or such of them as have been served or appeared, cannot for good and sufficient cause be obtained, to the day named in the said application or consent, or as near thereto as the state of business will allow.
lO7Postponement of new long causeBefore the original
date fixed in the summons is reached, a new long cause suit can
be postponed by Purshis in the Registrars Office under Rule lO6
or by a Judge’s order in Chambers, in cases not coming under that rule.
lO8How suit on prospective list may be postponedIf in
any suit or matter on the prospective list the parties are desirous
of obtaining a postponement of the hearing, application for that purpose should be made as provided by Rule lO6.
lO9Transfer of short cause to long cause list by Registrar
The Registrar may, upon written application of the parties, transfer
a suit from the list of short causes to the list of long causes.
llOPostponement of suits In dally boardA suit, when in
the daily board, shall not be postponed by Judge’s order for that
day unless it be in the board of the Judge making the order. If such suit be upon that day postponed in Court it shall be on such terms
as to costs as the Judge may direct.
lllAdjournment In short causesNo adjournment shall be
granted by the Registrar on a Purshis in a short cause which has been pending for more than twelve months but the Purshis shall
be submitted for directions to the Judge on whose board the suit appears.
ll2Postponement in peremptorily adjourned suitsNo
postponement shall be granted by the Registrar in any suit which has been peremptorily adjourned to any particular date by the
Court but the Purshis setting out the grounds for further adjournment
shall be. submitted to the Judge who granted the peremptory date or in his absence to the Chamber Judge.
Witnesses.
ll3Witness summons when. Issued(i) Notwithstanding
anything contained in rule 58, witness Summons to be served
within the local limits of the jurisdiction of the court, may be taken out for service by an Advocate on payment of half the prescribed process fees.
(ii) When service is effected under sub—rule (i) above, the Advocate shall cause to be filed, with the return of the summons, the affidavit of service of the person effecting the service.
ll4How many names In one summonsThe names of all
witnesses (not exceeding six) required by one party to attend at the
trial of a cause may be inserted in one summons.
ll5Order necessary for summons to witness out side local limitsNo summons to give evidence or produce documents, shall
be issued by the Registrar to compel the attendance, as witness, of
any person resident, and at the time residing, beyond the local limits of the Court, unless by order of the Court or a Judge.
ll6Order necessary for production of a public document
No summons or letters of request for the production of a public
document shall be Issued by the Registrar without an express order in that behalf made by the Court or a Judge.
ll7The payment and sale of expenses to witnessesEvery person summoned to give evidence at the Court shall have tendered to him with the summons a reasonable sum for his
travelling expenses, if any, for coming to Ahmedabad and for the
first day’s attendance at the rates prescribed in paragraphs 63 to
66 of the Civil Manual. Such Witness in Class I or Class II
mentioned in paragraph 63 of Chapter VII of the Civil Manual shall,
in addition, be entitled to tanga or taxi fare to and from their residence each day if their residence is at a distance exceeding one mile from the court house and If not provided with a conveyance
by the party requiring his evidence and if coming for the purpose
of attending the court only. Similarly each witness of Class III or
Class IV shall under similar circumstances be entitled to bus fare to and from the court house to his residence.
CHAPTER 9Affidavits
ll8’Affidavit’ to include plaint, etc..—The word affidavit’ In
this chapter shall include plaint, written statement, petition, and document required to be sworn, and the words ’Swear’ and ’Sworn’ shall include affirm and affirmed.
ll9Title of affidavitsEvery affidavit shall be intituled in the
suit or matter in which It Is sworn or declared; but in every case In which there are more than one plaintiff or defendant, It shall be sufficient to state the full name of the first plaintiff or defendant respectively, and that there are other plaintiffs or defendants as the case may be.
l2OBefore whom affidavit to be swornAffidavits shall, if
taken within the City of Ahmedabad, be taken before an officer of
the Court, and If elsewhere in India, before the Officers indicated by S.l39 of the Code of Civil Procedure,l9O8.
l2lPlace of taking affidavits to be stated when taken
outside court houseEvery officer of the Court shall express at
the foot of the affidavit the place where he has taken any affidavit In the event of the same being taken elsewhere than In the Court house.
l22Form of affidavitEvery affidavit shall be drawn up in
the first person, and shall be divided into paragraphs and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every
affidavit shall be written bookwise. Every affidavit shall contain a
statement as to whether the deponent has personal knowledge of
any of the statements made therein or whether his statements are based on knowledge and/or belief.
l23Description and abode of deponent to be statedThe
occupation and nationality and the true place of abode of every
person making any affidavit, shall be inserted therein.
l24Affidavit by two or more deponentsIn every affidavit
made by two or more deponents, the names of the several persons
making the affidavit shall be inserted in the Jurat, that Is memorandum at the foot of the affidavit stating when and before
whom it was made, except that, is the affidavit of all the deponents
is taken at one time by the same Officer, it shall be sufficient to state that it was sworn by both (or all) of the “above named“ deponents.
l25Filing of affidavitsNo affidavit shall be filed in the
several offices of the Court unless properly endorsed, giving the names ofthe deponents the date on which it is sworn, and stating by whom. or on whose behalf it is filed.
l26Scandalous mattersThe Court or a Judge may order to
bestruck out from any affidavit any matter which is scandalous
and may order the cost of any application to strike out such matter to be paid by the party In default.
l27Alterations In affidavitNo affidavit having In the Jurat (memorandum at the foot of the affidavit stating when and before whom it was made) or body thereof any Interlineations, alteration
or erasure, shall, without leave of the Court or a Judge, be read, or
made use of, in any matter depending In Court, unless the
interlineation
or alteration (other than by erasure) is authenticated by
the Initials of the Officer taking the affidavit, and Is also
Initialled
by the deponent and/or his Advocate or in the case of any erasure, unless the words, or figures appearing at the time of taking the affidavits to be written on the erasure, are rewritten and initialled in the margin of the affidavit by the Officer taking It and is also Initialled by the deponent and/or his Advocate.
l28Affidavit by blind personswhere an affidavit is sworn
by any person, who appears to the Officer taking the affidavit to be blind, the officer shall certify at the foot of the affidavit that the affidavit was read or read and Interpreted (where necessary) In his presence to the deponent that the deponent that the deponent seemed perfectly to
understand It, and that the deponent made his signature or mark
In the presence of the Officer. No such affidavit shall be used In
evidence In the absence of this certificate unless the Court or a
Judge is otherwise satisfied that the affidavit was read over to, and appeared to be perfectly understood by the deponent.
l29Use of defective affidavitsThe Court or Judge may
receive any affidavit sworn for the purpose of being used in any suit
or matter, notwithstanding any defect by mis—description of parties or otherwise in the title or jurat (memorandum at the foot of the affidavit stating when and before whom it was made), or any other Irregularity In the form thereof, and may direct a memorandum to
be made on the document that It has been so received.
l3OSpecial time for filing affidavitsWhere a special time
is limited for filing affidavits, no affidavit filed after that time shall
be used unless by leave of the Court or a Judge.
l3lEvery exhibit to be dated and InitialledEvery exhibit
annexed to any affidavit shall be dated and initialled by the Officer before whom the affidavit is sworn.
l32Officers to attend in rotation for affidavits outside
Court house on requisition to the RegistrarWhere an affidavit
is required to be taken outside the. court house, a written requisition shall be made to the Registrar, stating where the Officer is
required to attend, and for what purpose, and why he is so
required. On receipt of such requisition the Registrar shall, unless
he sees any reason to the contrary, require an Officer to attend. So
far as possible the Registrar shall require the Officers to attend in rotation.
A fee of Rs. 5.OO shall be levied for each affidavit in such cases and conveyance to and from shall be arranged for or the charges thereof be paid by the parties.
CHAPTER lOCommercial Causes.
l33What are commercial causesCommercial Causes include
causes arising out of the ordinary transactions of merchants, bankers and traders, whether of a simple or complicated nature. amongst those relating to the construction of mercantile documents, export or import of merchandise, affreightment carriage of
goods by land, insurance banking and mercantile agency and
mercantile usages. Suits relating to the purchases and sales between merchants or traders on the one hand and manufacturer on
the other hand in respect of goods which are normally purchased and sold by the manufacturers in the ordinary course of their business as manufacturers shall also be treated as commercial causes.
l34bodging of plaintsAll plaints intended to be filed as
commercial causes shall be lodged in the ordinary way and the writ
of summons In long cause Form No. 4 shall be served with the
plaint on the defendant.
l35bist of Commercial CausesA separate list for summons
In commercial causes shall be kept. A separate list shall also be
kept for the entry of such causes for trial but no causes shall be
entered in such list which has not been dealt with by the Judges charged for the time being by the Principal Judge with commercial business, upon application by either party for that purpose, or upon summons for directions or otherwise.
l36Application for transfer to the commercial listThe application may be made by either party by ordinary summons or
on summons for directions and may be made by the plaintiff before or after appearance of the defendant. If on such application an
order is made before appearance, the defendant may, after appearance,
object but the only point open to him Is that the cause is not a commercial cause.
l37Transfer of short causes and summary suits to commercial list(l) At the hearing of short cause, the Judge may
instead of transferring the suit to the list of causes, transfer it to
the list of commercial causes;
(2) At the hearing of a summons for judgment In a summary
suit, the judge may, If he grants leave to the defendants to defend, transfer the suit to the list of commercial causes.
l38Interlocutory proceedingsIn making the order for
transfer, the Judge may make such order as he thinks fit for the
speedy determination of the suit. the avoidance of multiplicity of Interlocutory proceedings and the avoidance of expense and delay which might arise from commissions to take evidence or otherwise. l39. Form of order of transfer.—Such order shall be in Form
No. l7 with such variations as circumstances may require.
l4OSubsequent applicationAny application subsequent to
the original summons on two clear days’ notice to the other party, stating the grounds of the application.
l4lJudgment for want of written statement or points of defence In commercial causesApplication for judgment in a commercial cause for want of written statement or points of defence shall be made by motion on notice to the opposite party although the date on which the summons is returnable may not
have expired. On the filing of an affidavit of service of the notice of
motion, the suit shall be set down on the daily board for the
purpose of such application.
CHAPTER llSummary Suite.
l42Institution of summary suits upon bills of exchange,
etc..—(l) All suits upon bills of exchange, hundis or promissory notes and all suits In which the plaintiff seeks only to recover a debt or liquidated demand In money payable by the defendant with
or without Interest, arising on contract express or Implied, or an enactment where the sum sought to be recovered Is fixed sum of money or In the nature of a debt other than a penalty, or on a
guarantee, where the claim against the principal is in respect of a
liquidated demand only may In case the plaintiff desires by proceed
hereunder, be instituted by presenting a plaint which shall be Instituted as a “Summary Suit“ and which shall contain an averment that the plaintiff Is suing under the Summary Procedure
under Order XXXVII of the Code of Civil Procedure.
(2) The writ of summons In a suit Instituted under sub—rule l
above shall be in form No. 5. The Plaintiff shall together with the
writ of summons serve on the defendant a copy of the plaint and exhibits thereto and the defendant may at any time within ten days of such service enter an appearance. The defendant may enter an
appearance either in person or by an Advocate. In either case an address for service shall be given In the memorandum of appearance, and unless other wise ordered, all summons notices or
other judicial process required to be served on the defendant shall
be deemed to have been duly served on him if left at his address for service. On the day of entering appearance, notice of the appearance shall be given to the plaintiffs Advocate (or If the plaintiff sues in person to the plaintiff himself) either by notice
delivered at, or sent by prepaid letter directed to, the address of the
plaintiffs Advocate or of the plaintiff as the case may be.
(3) In any suit under this Rule the defendant shall not defend the suit unless he enters an appearance and obtains leave from a Judge as hereinafter provided so to defend: and in default of his entering an appearance and of his obtaining such leave to defend,
the allegations in the plaint shall be deemed to be admitted and the
plaintiff shall be entitled to a decree for any sums not exceeding
the sum mentioned in the summons together with interest at the
rate specified (If any) to the date of the decree, and such amount
not exceeding the amount of costs fixed in the ordinary way as may
be fixed by the Court as costs unless the plaintiff does not want the costs to be quantified in which case cost shall be taxed in the ordinary way, and such decree may be executed forthwith.
l43Appearance of defendant(l) (a) In a suit filed under
order 37 of the Code of Civil Procedure, if the defendant enters an
appearance or files a Vakalatnama. the plaintiff shall on affidavit made by himself, or by any other person who can swear to the facts of his own personal knowledge verifying the cause of action, and
the amount claimed, and stating that in his belief there is no
defence to the action, apply by summons for judgment returnable
not less than ten clear days from the date of service to the sitting
Judge in Chamber for the amount claimed, together with interest
(if any) and costs.
(b) The defendant, if he desires to defend the suit, may file an affidavit or declaration disclosing the grounds and facts on which he seeks leave to defend the suit. A copy of such affidavit or
declaration shall be supplied by the defendant to the plaintiff or his advocate who may file an affidavit or declaration in rejoinder. The provisions of Rule 36 shall apply to any such affidavit, declaration
or rejoinder.
(c) At the hearing of the summons for judgment, the Judge may
after considering the affidavits and declaration (if any), if he is
satisfied that the defendant has a good defence to the action on the
merits, or has disclosed such facts as may be deemed sufficient to entitle him to defend, grant leave to defend for the whole or any part of the claim as he may deem fit, unconditionally or on such terms and conditions as to security or otherwise as the Judge may appear just.
(d) The Judge, If no affidavit or declaration as aforesaid has
been filed by the defendant or, if he is satisfied that the defendant has not made out sufficient grounds or disclosed facts sufficient to entitle him to defend, may pass a decree for the plaintiff accordingly—
(2) Interlocutory proceeding .—On the summons for judgment all such directions may be given and orders made for the conduct of the suit as may appear necessary to the Judge hearing the same.
(3) Default in filing appearance.—If the defendant does not enter an appearance or file a Vakalatnama within ten days of the service upon him of the writ of summons and the plaint and exhibits
thereto the plaintiff shall be at liberty to apply to put the suit down for hearing forthwith thereafter before the Sitting Judge in Chambers. In such applications the plaintiff shall state the date when
the defendant was served and also state the fact of the affidavit of service of the writ of summons having been filed.
(4) When no decree applied for within six months.—If the plaintiff does not apply for a decree within six months after the filing of the plaint, the suit shall be set down In the daily cause board for dismissal t)efore the Sitting Judges in Chambers, one week before
the day fixed for such dismissal. Upon the day fixed for such dismissal, the suit shall be called on before the Sitting Judge in Chambers and shall be dismissed if the plaintiff fails to appear, or appearing fails to satisfy the Judge that he has sufficient cause for not having proceeded with his suit.
l44Judgment for part of claimIf on the summons for
judgment it appears that the defence set up by the defendant
applies only to a part of the plaintiffs claim, or that any part of his
claim is admitted, plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution, or otherwise as the Judge may think fit.
l45Where one defendant has good defence but not the
otherIf it appears to the Judge that any defendant has a good
defence to or ought to be permitted to defend the action, and that
any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment without prejudice to his right to proceed with his action the former.
l46Form of summons for judgmentA summons for judgment
shall be in Form No. 6 to the Forms annexed to these Rules.
l47Default In completing securityIf the defendant does
not complete his security (if any) or carry out such other directions
as the Judge may have given within the time limited in the order, the plaintiff shall be at liberty to apply to put the suit down for hearing forthwith before the Sitting Judge in Chambers, as if no such order has been made.
l48Setting down of summary suitsSummary suits in
which leave to defend is granted shall, as far as possible, be set
down for hearing before the Judge appointed from time to time by the Principal Judge for that purpose, on the day fixed for hearing thereof, unless they have been transferred to the Long Cause List.
7 l48ASupersession of rules 2 and 3 of Order XXXVIIThe
Rules in this Chapter shall be in supersession of rules 2 and 3 of
Order XXXVII as amended by the High Court of Bombay under
section l22 of the Civil Procedure Code and Rules 4 to 7 of Order
XXXVII of the Code of Civil Procedure shall be applicable to Suits under this Chapter. 1
CHAPTER l2Pauper Suits.
l49Contents of application,— (i) An application for permission to sue as a pauper shall contain the particulars required in
regard to plaints in suits: a scheduled of any movable or immovable property belonging to the applicant with the estimated value there— of, shall be annexed thereto and it shall be signed and verified in the manner, prescribed for signing and verification of pleading in Rule 36 of Chapter V. The application shall be presented to the Registrar who shall, on satisfying himself that the provisions of Order XXXIII of the Civil Procedure Code have been complied with
and not otherwise, order it to be interpreted and declared gratis.
(ii) The provisions contained in the above Rule shall apply mutatis mutandis to application to proceed with the suitor defend the suit as Pauper.
l5ONotice for InvestigationOn such petition being filed in
the Registrar’s office, a notice for investigation of his pauperism
returnable in Court shall on application of the petitioner, be issued to the opposite party and the Government Pleader. Such notice
shall be accompanied by a copy of the petition filed as per Rule l49.
l5lAdvocate may be assigned to pauper suitorsWhen a
person is admitted to sue or defend as a pauper, the Registrar may, if necessary, assign an Advocate to assist him. and Advocate so assigned shall not be at a liberty to refuse his assistance, unless he satisfies the Registrar that he has good reason for refusing.
l52Duty of Advocate In pauper mattersIt shall be the duty
of the Advocate who may be assigned to a person admitted to sue
or defend as a pauper, to take care that no notice is served,
summons issued, or petition presented without good cause, and to report to the Court every six months the progress of the suit or matter.
l53No fees to be taken from pauperWhilst a person sues
or defends as a pauper, no person shall take or agree to take, or seek to obtain from him, any fee. profit or reward for the conduct of his business in the Court and any person who takes, or agrees
to take or seeks to obtain any such fee, profit or reward, shall be
guilty of a contempt of Court:
Provided that, notwithstanding anything herein contained, the Court or a Judge shall have power to reward costs against the adverse party or out of the property recovered in the suit and to direct the payment thereof to the Advocate representing the
pauper.
l54No compromise without leave of courtNo cause, suit
or matter commenced or carried on by a pauper plaintiff or defendant
shall
be compromised on any account whatever without leave
first had and obtained from the Judge in Chambers or the Court.
l55Direction for payment of Court fee In every decree or
OrderUnless otherwise ordered, in every suit In which a pauper
party is concerned, a direction shall be inserted in every decree or
order for payment to Government of the court fees which he would
have had to pay had he not been permitted to sue or proceed with the suit or defend as a pauper.
l56Memo of fees to Government Pleaderin every suit in
which a pauper is concerned after the disposal thereof the
Registrar shall send to the Government Pleader a memo of the
Court fees due and payable by such pauper.
CHAPTER l3Land References.
l57Registrar of Land ReferencesA register of Land Refe
ence shall be kept in which shall be entered all references filed under the Land Acquisition Act, l894.
l58Collector to furnish postal address of partiesThe
Collector as defined in section 3 (c) of the Land Acquisition Act,
l894, shall, along with every reference under section l8, supply to the Registrar the postal address of all persons on whom notices are required to be served under section 20 of the Land Acquisition Act and in the case of a reference under section 30 the postal address of all persons interested in the apportionment.
l59Collector to file notice etc..—Along with every Reference.
the Collector shall file notices in the appropriate form duly filed in
and shall pay the Court—fees and postal charges payable for service of such notices.
l60Registrar to Issue NoticesUpon a reference being filed,
the Registrar shall forthwith issue notices in Form No. 82 if the
reference is under section l8 and in Form No. 83 if the reference is under section 30.
l6lNotice to be sent by Registered postSuch notices shall
be sent by registered post in the case of references under section
l8 to all persons to whom notices are required to be sent under the provisions of section 20 of the Land Acquisition Act, and in the case of references under section 30 to all persons interested, at the addresses supplied by the Collector.
l62Returnable date of Notice under sections l8 and 30
The returnable date given in a reference under section l8 for
compensation with or without apportionment shall be three
months from the date of the issue of notice and the returnable date
in case of any reference relating to appointment only shall be one
month.
l63Application for order under section 32 of the Land
Acquisition ActAn application for an order under S.32 of the Land
Acquisition Act, l894, shall ordinarily be made in Chamber to the Judge who shall have been appointed to hear land references, but the Judge may adjourn the application Into Court if he thinks fit.
CHAPTER l4Testamentary and Intestate Matters.
l64Will to Include CodicilThe word “Will“ In this Chapter includes a “Codicil“.
l65Application for probateApplication for probate shall be
made by petitioner with the Will annexed, accompanied, if the Will
is not in English or Gujarati, by a translation thereof in English or
Gujarati; such application shall be in Form No. 52 or as near
thereto as the circumstances of the case may permit and shall be accompanied by
(a) A warrant signed by the petitioner unless the applicant appears in person.
(b) Executor’s oath to be endorsed on the Will when possible. (Form 53).
(c) Affidavit of one of the attesting witnesses. If procurable
(Form No.54) and
(d) Schedule of property of the deceased, (Form No. 55).
l66Application for Letters of AdministrationApplication
for letters of administration shall be made by petition in Form No.
56 or as near thereto as the circumstances of the case may permit,
and shall be accompanied by the annexures (a) and (d) mentioned
in the last preceding rule and the administrator’s oath (Form No.
56).
l67Application for letters of administration C.T.A..— Application for letters of administration with the Will annexed shall
be made by petition in Form No. 58 or as near thereto as the
circumstances of the case may permit and shall be accompanied by the annexures (a), (c) and (d) mentioned in rule l65 and administrator’s oath. (Form No. 58).
l68Application for succession certificateApplication for
succession certificate shall be made by petition in Form No. 64 in the schedule or as near thereto as the circumstances of the case may permit and shall be accompanied by the annexure (a) mentioned in Rule l65 and a schedule of the property of the deceased
in respect of which the succession certificate is asked for. It shall
also be accompanied by a petitioner’s undertaking as specified In Form No. 65 or as near thereto as the circumstances of the case will permit.
l69Certificate of Registrar for duty paid In advanceEvery application for probate or for letters of administration with or without the Will annexed or for succession certificate shall be accompanied by the certificate of the Registrar that duty payable has been paid. unless the Judge hearing Testamentary Matters
shall otherwise direct.
l7OAdministration to creditorIn all applications by a
creditor for letters of administration, it shall stated particularly how the debt arose.
l7lVerification of petitionThe petition for probate or
letters of administration or succession certificate shall be subscribed by the petitioner and his Advocate (if any) and shall be
verified by the petitioner in the manner prescribed for verification
of plaints.
l72Interlineations alterations, etc. in the Will should be
sworn to by the attesting witnessWhen interlineations, alterations
erasures or obliterations appear in the Will (unless duly
executed as required by the Indian Succession Act or recited in or otherwise Identified by the attestation clause) a statement must, if possible, be made in the affidavit of the attesting witness whether they existed in the Will before its execution or not.
l73In absence of attesting witness what other evidence
must be producedIf no affidavit by any of the attesting witnesses
is procurable, an affidavit shall be procured (if possible) from some other person (if any) who may have been present at the execution
of the Will, but if no affidavit of any such person can be obtained,
evidence on affidavit must be produced of that fact and of the hand writings of the deceased and attesting witnesses, and also of any circumstances which may raise a presumption in favour of due execution.
l74Notice of application to whom to be givenThe
Registrar shall give notice of all applications for probate or letters
of administration to the Collector ofAhmedabad.
l75Filling up of probates, etc..—All probates or letters of administration or succession certificates shall be drawn by the Court.
l76Schedule of property to be annexed to grantA copy of
the schedule of the property of the deceased accompanying an
application for probate or Letters of Administration shall be annexed to the grant of probate or Letters of Administration.
l77Production of deed. paper, etc., referred to In willIf a will contains a reference to any deed, paper, memorandum, or
other document of such a nature as to raise a question whether it ought not to form a constituent part of the Will, such deed, paper. memorandum or other document should be produced, with a view
to ascertain whether it is entitled to probate and if not produced,
its non—production must be accounted for. No deed paper,
memorandum,, or other document can form part of a Will unless it was in existence at the time when the Will was executed.
l78Unsigned unattested willIn cases in which it is not
necessary a Will should be signed by the testator or attested by witnesses to constitute a valid testamentary disposition of the testator’s property, the testators intention that it should operate
as his testamentary disposition must be clearly proved by affidavit. l79Attempted cancellation must be accounted forAny
appearance of an attempted cancellation of a testamentary writing
by burning, tearing obliteration or otherwise, and every circumstance leading to a presumption of abandonment or revocation
of such writing or part thereof must be accounted for.
l8ONotice to next of kinIn all application for Probate,
Letters of Administration and Succession Certificate, Notice of the application shall be given to all the heirs and next—of—kin of the deceased mentioned in the Petition except to those whose consent
has been filed in the proceedings.
l8lApplication by constituted attorneyAn application for
Letters of Administration or administration with the Will annexed
or Succession Certificate may be made by a constituted attorney of a person residing out of the State, provided that such constituted attorney resides within the State and that such application is made through an Advocate of the Court.
l82Administration bondSubject to the provisions of rule l83—
(a) In all cases of Letters of Administration, save and except under Section 24l, Indian Succession Act, l925, the persons to whom the grant is made shall give a bond in Form No. 7O with one surety;
(b) In all cases of Succession Certificates, the person to whom
the grant is made shall in cases covered by sub—sections (3) and (4)
of section 373 of the Indian Succession Act, l925, and may in all other cases, be required to give a bond in Form No. 72 with one surety.
The exception made above in respect of a grant under Section
24l shall not operate when the deceased was a Hindu/Moham—
medan/Buddhist/Sikh or Jain, in which case the person to whom
grant is made shall give a bond in Form No, 7l with one surety for
such amount as the Court may think sufficient for the protection of the estate of the deceased.
l83Surety to Justify in certain cases(a) In the following
cases the surety to the bond shall justify for the whole amount of
the estate—
(i) When the person to whom the grant is made has taken out Letters of Administration or Succession Certificate for the use and benefit of a lunatic or person of unsound
mind, unless he be a committee of the estate of such lunatic appointed by the Court and has given security.
(ii) When the person to whom the grant is made has taken out Letters of Administration or Succession Certificate for the use and benefit of a minor, unless he be a guardian of the property of such minor appointed by the Court and has given security.
(iii) When the person to whom the grant of Letters of Administration or Succession Certificate is made is entitled
to a life interest.
(b) When the person to whom the grant of Letters of Administraion or Succession Certificate is made Is entitled to a portion only
of the estate, the surety to the bond shall justify for the whole
estate less the shares of the grantee and of such shares as shall
consent in writing thereto.
(c) In all other cases the Surety may be a common Surety. The Judge hearing the testamentary matters may, however, in
a proper case and for reasons to be recorded in writing dispense with the justification of surety.
8[l84Bank and Insurance Company as SuretiesBesides any Nationalised Bank or Nationalised Insurance Company, any other Scheduled Bank approved by the Principal Judge may be accepted as a common and justifying surety and in such cases the bond
shall be given only for the amount of the property for which the grant Is made.]
l85Attestation of bondsAdministration bonds shall be
attested by a Gazetted Officer of the Court, or if executed outside
the Court house by such clerk or clerks as may be nominated by the Registrar for that purpose.
l86Oath of executor or administrator with the Will an—
nexedThe oath of the executor in the case of probate or of the
administrator in the case of letters of administration with the Will annexed whenever possible, shall be endorsed on the Will. When
this is not possible such oath of the executor or of the ad—
ministrator is to be subscribed and sworn or affirmed by him, as
an affidavit and then filed in the Court. (Forms Nos. 53. 57, 59 and
6l).
l87Disclosure of all persons having prior right to the
grantThe petition for Letters of Administrator or for Letters of Administration with the Will annexed shall disclose the names of all persons having a prior right to the grant and shall set forth.
when the fact is such, that the party applying is the only next—of—
kins of the deceased.
l88Grant under section 254 of the Indian Succession
ActWhenever under section 254 of the Indian Succession Act the
Court appoints an administrator, a person other than the person
who would have entitled to the grant, the fact shall be so stated in
the grant.
l89Marking WillEvery Will, copy of a Will or other testamentary paper to which an executor or administrator with the
Will annexed is sworn or affirmed shall be marked by the person before whom he Is sworn or affirmed.
l9ORenunciationNo person, who renounces Probate of a
Will or Letters of Administration of the property of a deceased
person in one character, shall without the leave of the Judge, take out representation to the same deceased in another character.
l9lService of citationsCitations shall be served personally
when possible. Personal service shall be effected by leaving a true
of the citation with the party cited and showing him the original.
l92Service by advertisementCitations which cannot be
personally served as required by the last preceding rule shall be served by the insertion as an advertisement in such local
newspapers as the Registrar may direct, of a notice in Form No. 66.
l93Certificate under section 274 (l) (b) of the Indian
Succession ActWith every certificate to be sent to a High Court
under the provisions of section 274 (l) (b) of the Indian Succession
Act, the Registrar shall send copy of the property and credits of the deceased as relates to the estate within the jurisdiction of such court.
l94Application of extension of Succession Certificate
The Registrar may extend a Succession Certificate to any debt or security not originally specified therein. Application for such extenion
shall be by a petition with all accompaniments mentioned in
Rule l68, staling the particulars of the debt or security: and on
payment of duty payable in respect thereof and on the petitioner giving a further bond, if required, the certificate may be extended.
l95Register of grants. etcThe party propounding the Will
shall furnish to the office of the Registrar a copy of the Will if the
same is In the English language or the Gujarati language or a copy of its translation in English language or the Gujarati language if the same Is In a language other than English.
l96Register of grantsThe record of all grants of Probates, Letters of Administration and Succession Certificates shall be
prepared in the Court and shall be kept In the Registers along with
copies of the wills and their translations, If any.
l97CaveatAny person intending to oppose the issuing of a
grant of Probate or Letters of Administration, must either personally
or by his Advocate file a caveat in the Court in Form No. 78. No
caveat shall affect any ‘grant made on the day on which the caveat is filed. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his Advocate.
l98Affidavit supporting caveatWhere the caveat is filed
before the filing of the application for Probate or letters of
Administration, the
notice of application for Probate or Letters of
Administration shall be given by the petitioner to the caveator
within eight days of the date when the notice of the filing of the caveat is given to him or his Advocate by the Registrar under the preceding rule. A copy of the application for Probate or Letters of Administration shall be served on the caveator along with the notice.
l99Affidavit supporting caveatIn every case in which a
caveat is filed before the filing of the application for Probate or
Letters of Administration, an affidavit in support of the caveat shall be filed within eight days of the service of the notice of the filing of
the application for Probate or Letters of Administrations under the
preceeding rule and in other cases an affidavit in support of the
caveat shall be filed within eight days of the filing of the caveat. notwithstanding the Court Vacations, such affidavit shall state the right and Interest of the caveator, and the grounds of the objections
to the application. If such affidavit be not filed within such time the
caveat shall not prevent the grant of Probate or Letters of
Administration. No
such affidavit shall be filed after the expiration of
the said eight days without the order of the Judge. A copy of such affidavit shall be supplied by the caveator to the petitioner for Piobate or Letters of Administration.
2OONotice In probate suitIn a probate suit, the party
opposing a Will may, with his affidavit, give notice to the party
setting up the Will that he merely insists upon the Will being
proved in solemn form and only intends to cross—examine the witnesses produce in support of the Will and he shall thereupon be
at liberty to do so. and shall not, in any event, be liable to pay the costs of the other side, unless the Court shall be of opinion that there was no reasonable ground for opposing the Will.
2OlProcedureUpon the affidavit in support of the caveat
being filed petitioner for Probate or Letters of Administration shall be numbered as a suit in which the petitioner shall be plaintiff and the caveator shall be the defendant. The procedure in such suit
shall, as nearly as may be, be according to the provisions of the
Code of Civil Procedure and these Rules.
2O2Certified CopiesCertified copies of Wills and other
documents furnished by the office shall be signed by the Registrar
or one of his assistants and shall be sealed with the seal of the
Court.
2O3Issue and return of processesAll processes and citation
shall Issue from and be returnable to the office of the Registrar
shall be prepared signed, and dated by him or one of his assistants and attested, subscribed sealed, executed and returned, in the
same manner as processes of the Court.
2O4Notice by executor or administration to creditors
under section 36O and 367 of Act XXXIX of l925Where an
executor or administrator has given notice to creditors and other
in form contained in Form No. 8l, such notice shall be deemed to satisfy the requirements of sections 36O and 367 of the Indian Succession Act, l925.
2O5Name etc. of petitioner and caveator in petition and
caveatThe name. true place of abode, description and occupation, If any, of the petitioner shall be given In the petition and of the caveat.
2O6Application by parties In person, personal attendance
Persons desirous of obtaining grants of Probates or Letters
of Administration or Succession Certificates without the intervention
of an Advocate must apply in person at the office and not by
letter and all fees payable by such parties shall be paid in advance
in Court—fee stamps.
2O7Disposal of petitions for non—prosecutionAll Testamentary petitions in which grants or certificates are not issued
owing to non—prosecution of the petitions for two years after the
petitions have been filed, shall be treated as disposed of and no
action shall be taken in such petitions unless a fresh petition is filed or an order obtained from the Judge in Chambers giving permission to the petitioner to proceed with the petition already filed.
CHAPTER l5Proceedings at the Hearing of Suits and Upto and
Including of Decree.
2O8Suits to be set down for final disposal at first hearing
When a suit is set down for final disposal at the first hearing, parties must then be prepared with their documents and witnesses. unless otherwise ordered.
2O9Formal order for postponement unnecessaryWhen
the hearing of any sit Is ordered by the Court to be postponed, the officer In Court shall take a note of the order In Roznama and entry of the date fixed shall then be made In the Register of suits, and the Summons, If not already served, shall be amended accordingly.
2lOProceedings in another suit how put in evidence
When any proceedings In a suit In the Court are necessary as
evidence in another suit In the Court, they shall not be removed from the file of the former suit, unless the Judge shall otherwise direct.
2llThe Judgment shall be dated and initialled by the
JudgeThe Judgment shall be dated and initialled by the Judge in
open Court at the time of pronouncing it and, when once initialled,
shall not afterwards be altered or added to, save as provided by
Section l52 of the Code of Civil Procedure or on review:—
Provided that Where the judgment is pronounced by dictation
to a shorthand writer in open Court, the transcript of the judgment
so pronounced shall after making such corrections therein as may
be necessary be initialled by the Judge and shall bear the date of its pronouncement, and when the judgment is once so initialled by the Judge It shall not afterwards be altered or added to save as
provided by Section l52 of the Code of Civil Procedure or on review.
2l2Return of DocumentsDocuments not directed by the
Judge who has heard a suit or proceeding to be retained will be
returned by the Registrar on the expiration of the time for appealing
(if no memorandum of appeal has been filed) unless cause to
the contrary appear or they are of the nature specified In the
second proviso to Order XIII, rule 9, of the Code of Civil Procedure.
2l3Application for return of Documents must be made
within ten daysApplications by parties or their Advocates for the
return of exhibits put in at the hearing shall be made within ten days after the time for appealing against the decree in the suit has expired.
2l4No decree unless suit on boardNo decree in a suit shall be passed unless the suit appears on the daily trial board.
2l5Contents of decree(l) A decree shall contain the number of the suit, the names and description of the parties, and particulars of the claim and shall state whether both sides appeared and how and whether evidence was taken, and shall specie
clearly the relief granted or other determination of the suit but not
Issue or findings thereon shall be Inserted unless by special directions of the Judge: nor shall there be any recitals other than such short ones as the Registrar thinks necessary.
(2) The decree shall bear date the day on which the judgment was pronounced, and it shall be engrossed in the office of the Registrar and be signed by him and sealed with the seal of the
Court. The decree shall also state the date when the Registrar signs
It.
2l6Extend of order for payment out of fundEvery decree
or order for payment of money out of a fund subject to the order of
the Court shall, for the purpose of such payment, be deemed to authorise the sale and subdivision of the securities belonging to the fund, or of a sufficient portion thereof.
2l7Decree for maintenanceIn a suit for maintenance, the
Court may pass a decree ordering payment of the allowance out of the property charged and in such a case the Court may appoint, subject to such condition, if any, as It shall think fit, a receiver thereunder with directions. In case of default in payment of the maintenance to take possession of the property and sell the same,
and out of the sale—proceeds to pay the allowance for maintenance.
2l8Draft decree or order to be submitted to JudgeIn
cases of doubt or difficulty, the Registrar may submit the draft of the decree or order to the Judge who passed it.
2l9Setting down suit on board to speak to minutes,—Any
party dis—satisfied with the decree order as drawn ‘up by the
Registrar shall forthwith apply to the Registrar to set the matter down on board as early as possible to be spoken to on the minutes. The Registrar when speaking to the minutes seems indispensable,
may at once set the matter down before the Court.
22OVariation in draft decree by CourtWhen a variation is
made by the Court In the draft settled by the Registrar such
variation shall be embodied in the decree or order.
22lErrors how rectified after decree sealedAfter a decree
or order has been sealed, any application to rectily an inaccuracy
or clerical or arithmetical error, shall be made to the Judge who
passed the decree or order, or In the event of his absence on leave,
or retirement to any Judge, and he (the Judge) may (in his discretion)
after notice to the parties, when he deems It necessary, amend the same so as to bring it into conformity with the judgment, or rectify such Inaccuracy or error. Save as aforesaid, no alteration or
variation shall be made without a review of judgment and rehearing under the provisions of section l l4 and Order XLVII of the Code
of Civil Procedure.
CHAPTER l6Time
222Computation of timeIn all cases in which any particular number of days not expressed to be clear days, is prescribed
by the rules or practice of Court and not coming under any law relating to limitation, the same shall be reckoned exclusively of the first day, and inclusively of the last day unless the last day shall happen to fall on a Sunday or other day on which the offices are closed, in which case the time shall be reckoned exclusively of that day also, and any succeeding day or days on which the offices
continue to be closed:
Provided that written statements due in vacations may be filed on the day the Court re—opens.
223”Month” means calendar monthWhere by these rules
or in any decree or order time for doing any act or taking any
proceedings is limited by months, and where the word ”month” occurs in any document which is part of legal procedure under these rules, such time shall be computed by calendar months, unless otherwise expressed.
224The time for giving security for costs when not to be reckonedThe day on which an order for security for costs Is served, and the time thenceforward until and including the day on
which such security is given, shall not be reckoned In the computation
of time allowed to plead, answer Interrogatories or take any other proceedings In the suit or matter.
225Power of Court or Judge to enlarge or abridge time
The Court or a Judge shall have power to enlarge or abridge the
time appointed by these rules, or fixed by any order, for doing any act or taking any proceedings, upon such terms (if any) as the justice of the case may require, and any such enlargement may be
ordered although the application for the same is not made until after the expiration of the time appointed or allowed.
CHAPTER 17Execution of Decrees and Orders
226Application to be made to the RegistrarAll applications for the execution of decrees or orders shall be made by Advocates or by parties in person to the Registrar, and the transmission
of decrees and the issue of all the necessary warrants and notices and all amendments thereof shall be made by him.
227Transmission of decree on affidavitApplications
under section 39 of the Code of Civil Procedure to transmit a decree
or order to another Court for execution shall be made on affidavit clearly stating the particulars mentioned in clauses (a) or (b) of that section and be accompanied by a certified copy of the decree or
order, and the Registrar shall thereupon transmit such certified copy together with the other documents mentioned in Order XXI Rule 6 of the Code of Civil Procedure direct by registered post.
228Transmission of decree or order when provisions of
Order 21. Rule 22 applywhen a copy of the decree or order of
this Court is to be transmitted to another Court for execution and
the provisions of Order 21. Rule 22 of the Code of Civil Procedure apply, the notice under Order 21, Rule 22 shall be issued by this Court and order obtained thereon; provided that where the judgment debtor resides or carries on business in the place to which
the decree is to be transmitted and the provisions of Order 21, R.
22 apply then the copy of the decree or order may be transmitted to such Court without the notice under Order 21. Rule 22 being issued by this Court.
229Certificate of non—satisfaction when provisions of O.
21, and R. 22 applywhen a copy of the decree or order of this Court is transmitted to another Court for execution and the provisions of Order XXI, Rule 22 —of the Code of Civil Procedure apply and have been complied with, it shall be stated in the certificate of non—satisfaction that these provisions have been complied with.
23OStay of execution on transmissionwhen a decree or
order is sent to another Court for execution, a stay of execution will be entered In the proceedings in this Court unless the Judge shall,
on such terms as he thinks fit, otherwise direct.
231Transmission of decree in two or more districts simultaneously.
—when a person against whom execution is sought has
property in two or more districts, the Registrar may, on being
satisfied of the necessity, cause a copy of the decree or order obtained against such person to be transmitted for execution in
some or all of such districts contemporaneously. In the certificate
of non—satisfaction, to be sent therewith to the Court of each of such districts It shall be stated to what other Courts a copy of the decree or order has been sent for execution. At the same time a letter shall be sent to the Judge of one of such Courts requesting him to attach and sell the property in his districts (hereinafter
mentioned as district A), or a sufficient portion thereof and certify the result to this Court and with such letter shall be sent a copy of the letter sent to the Judge of each of the other Courts. A letter shall also be sent to the Judge of each of the other Courts,
requesting him to attach the property in his district, but not to sell the same until furnished by this Court with information as to the result of the sale of the property in district A.
232When insufficient amount realised in first districtIf
the amount realised in district A shall not be sufficient to satisfy
the decree or order, a certificate stating the result of the sale shall
be sent to the Judge of another of such Courts with a letter
requesting him to sell the property under attachment in his district (hereinafter mentioned as district B). or a sufficient portion thereof and certify the result to this Court.
233Also in second or succeeding districtsIf the amount
realised in execution in district B shall not be sufficient to satisfy the balance payable under the decree or order, the proceedings indicated in the last preceding rule shall be followed, and so on as
to each of the other districts successively.
234When sufficient amount realised in executionIf the
amount realised in execution in district A or district B or any other
district except the last, shall be sufficient to satisfy the decree or order a certificate that such is the case shall be sent to the Court
of each district, in which property shall at the time be under
attachment in execution of the decree or order.
235Procedure on receipt of decree more than 2 years old
without compliance with 0. XXI. Rule 22 of the Civil Procedure
CodeWhen a copy of decree or order of another Court is transmitted
to this Court for execution after the lapse of two years from
the date thereof, or of the last order made on any application for
execution, or after the death of the judgment—debtor, and there is nothing to show that notice has been given under Order XXI, Rule
22 of the Code, the Registrar may return the copy of the decree or
order to the Court from which it was received, with a request that it may be certified whether notice has been given under that section. The Registrar shall also return the copy of the decree or
order if the requirements of Order XXI, Rule 6 of the Code shall not
have been fully complied with.
236Return of decree for non—prosecutionWhen a copy of
a decree or order of another Court is transmitted to this Court for execution and the judgment creditor does not take any steps in this Court for a period of one year after the receipt of the decree or order, the Registrar shall return the copy of the decree or order to the Court from which it was received.
237Form of application for executionThe application for
execution whether the provisions of Order XXI, Rule 22 of the Code
of Civil Procedure apply or not, shall be in Form No. 6 in Appendix E to the Code of Civil Procedure and shall be on a sheet of durable paper, foolscap size. and shall, in addition to the particulars mentioned in Order XXI, Rule 11 (2) contain the following:—
(1) (By way of schedule)—The description of property and the interest of the judgment debtor therein as required by Order XX. Rule 13 of the Code of Civil Procedure.
(2) When land sought to be attached is not registered In the Collector’s office an express statement to that effect shall be added after the description of the said property.
238Copy of decree to accompanyIn all cases the application shall be accompanied by a duly certified copy of the decree or order, or by the original.
239Non—prosecution of application for executionWhen a
party does not proceed with the application for execution for a
period of twelve months from the date of the filing of the application, the
Registrar shall place the application before the Chamber
Judge for dismissal for want of prosecution. The Chamber Judge may pass such orders thereon as he may think fit.
24ORegistrar not to issue execution simultaneously
against person and propertyThe Registrar shall not issue execution
at the same time against the person and property of the judgment— debtor but a judgment—creditor desiring to proceed
against both at once, must apply specially to the Judge on affidavit and in case of such application being refused, shall not be allowed to include the costs thereof in his costs as against the debtor without the special order of the said Judge, but when execution of
a warrant of the one kind has failed, the Registrar may at the
request of the judgment creditor, forthwith issue a warrant of the other kind.
241Notice under Order XXI. Rule 22 of the Code of Civil
ProcedureWhen the provisions of Order XXI. Rule 22 of the Code
of Civil Procedure apply the Registrar shall issue the necessary notice on the application for execution. (Form No. 27).
242Procedure on return of noticeIf no cause be shown on
the returnable day of such notice or on such day as the hearing
thereof may be postponed to. the officer of the Court will endorse thereon, “No cause shown“ and obtain the Judge’s signature to
such endorsement, and on the said notice being filed with an
affidavit of service thereof, the Registrar shall direct the necessary warrants to issue.
243Procedure when cause allowed or disallowedIn like
manner if cause be shown and allowed or disallowed, the Officer of
the Court will endorse on the said notice “Let no execution issue“ or such other words as the case requires and obtain the Judge’s signature to such endorsement.
244Issue service and return of noticeAll notices under
Order XXI. Rules 16. 37, 22. section 144, section 145, Order XXI, Rules 2, 34 (1) to (4) and section 73 of the Code of Civil Procedure shall be issued by the Registrar and be made returnable before the Judge, on a day to be therein mentioned and shall be served if the party upon whom the service is to be made is residing or carrying
on business—
(a) Within the City of Ahmedabad At least four clear days. (b) At any other place within India At least fourteen days. (c) at a place outside India At least two months.
before such date unless the judge shall otherwise order. (Forms
Nos. 26 to 31).
245Application for Receiver In execution of decreeAn
application for the execution of a decree or order, by the appointment
of a Receiver under Order XL, Rule I to realise or otherwise
deal with property under attachment, shall be made to the Judge,
and such receiver shall, unless otherwise ordered, be subject to the
rules of this Court applicable to parsons appointed receivers of property, the subject—matter of a suit.
246Costs of execution to be specified on warrant of arrest.
— Every warrant for the arrest of any person in execution of a
decree or order shall specify the amount due and payable under
the decree or order for principal, interest and costs of the execution.
247Also on warrant of attachment.—Every warrant for
attachment of property shall be in Forms prescribed by the Code of
Civil Procedure or such of them as may be appropriate.
248Payment Into Court when to be madePayment of
money into Court in satisfaction of decree or order shall be made
to the Registrar, if warrants in execution have not been issued and
the Registrar shall enter satisfaction pro tanto upon the decree or order.
249Payment out of Court to be notifiedWhenever money
payable under a decree or order is paid out of Court to the
decree—holder (as provided by Order XXI, rule 2 of the Code of Civil Procedure) or to an Advocate out of Court on behalf of his client. the decree—holder or his Advocate as the case may be shall
forthwith notify in writing such payment to the Registrar and request entry or satisfaction in whole or in part, as the case may
be on the said decree or order and in the Registrar of Suits stating whether the satisfaction was obtained with or without execution.
25OWhen fresh application necessaryWhen a warrant for
sale is not taken out within a year from the date of the warrant of
attachment, or when a warrant in execution of a decree or order
has not been fully executed within a year from the date thereof, a
fresh application must be made for such further execution as may
be necessary but at the cost of the party seeking execution, unless the Registrar otherwise directs:
Provided that on such application the Registrar may, if he thinks fit direct an alias warrant to issue; and
Provided also that if no such fresh application is made to the Registrar, the Registrar after giving notice to the judgment— creditor and after hearing his objections if any, on the application of any party interested in the property subject to attachment make
an order that the attachment has ceased and on such order being made, the attachment shall be deemed to have been raised.
25lReference to Judge on refusal by Registrarwhen the
Registrar shall refuse an application for execution, the matter
shall, at the request of the applicant, be referred to the Judge, and
In all such cases, the Registrar shall certify the ground of his
refusal, and they shall be brought to the notice of the Judge.
252Procedure on realisation by Registrarwhen assets by
sale or otherwise have been realised from the property of the
judgment—debtor the Registrar shall certify to that effect and shall
also at the request of the judgment—creditor, at whose instance the realisation was made, certify what persons have applied to the
Court for execution of decrees for money against the same judgment—
debtor
or have been declared entitled to share in such assets
together with the amount appearing in the Register of Suits to be payable under such decrees. (Form No. 38).
253Notice to all persons claiming to share to attend Judge
In ChamberThe Registrar shall also issue notice calling upon all
persons who claim to share in such assets to attend on the Sitting
Judge in Chambers on the day therein named in support of their
claims. Such notice (Form No. 32) shall be served upon the persons named in the certificate and a copy thereof shall be posted up in a conspicuous place in the court house.
254Procedure on such noticeUpon the day so named the
Judge, upon proof of the due service of the said notice, will proceed
to deal with such claims and make such order as he deems fit.
2550n realisation of monthly pay, frequent certificates
not to Issuewhen any portion of the pay or salary of a judgment—
debtor is paid monthly in the Court in execution of a decree, it shall
not
be necessary for the Registrar to issue a further certificate and notice
on each realisation but at such periods only as he may think fit.
256Procedure when judgment—creditor neglects to get certificateShould the judgment—creditor, at whose Instance the realisation was made, neglect or refuse to apply for the certificate or to serve the notice hereinbefore mentioned, any other person entitled to share In the assets shall be at liberty to apply for such certificate and serve such notice.
257when such Judgment—creditor alone entitled to payment.
—If the Registrar shall certify that no person has. before the realisation of the assets by the Court, applied to the Court for execution of a decree for money against the judgment—debtor, the judgment—creditor may at once apply to the Registrar for an order for payment to him of the amount realised or so much thereof as may be sufficient to satisfy his decree.
258Procedure In case of doubt or difficultyIn cases of
doubt or difficulty under this Chapter, the Registrar shall either obtain the fiat of the Judge in Chambers to the application, or refer the matter into Chambers for argument.
CHAPTER l8Garnishee Orders
259Procedure, when debt or any movable property not in possession of judgment—debtor attached.—The Registrar may. in
the case of any debt (not secured by a negotiable instrument), any
movable property not in the possession of the judgment—debtor, or any negotiable instrument, which has been attached under Order XXI, Rules 46, 5l or 52 of the Code of Civil Procedure, upon the
application of the attaching creditor, issue a notice to any person (hereinafter called the gamishee) liable to pay such debt or to deliver or account for such movable property, or liable on such negotiable instrument to such judgment—debtor, calling upon him
to appear before the Judge sitting in Chambers and show cause
why he should not pay or deliver into Court the debt due from or the property deliverable by him to such judgment—debtor, or so
much thereof as may be sufficient to satisfy the decree and the cost of execution (Form No. 35). If at the hearing, the Judge dismisses the said gamishee notice, the prohibitory order issued under any
of the above rules shall stand discharged and the attachment raised.
26OProcedure when gamishee does not forthwith pay
amount, etcIf the gamishee does not forthwith pay or deliver into
Court the amount due from or the property deliverable by him to
the Judgment—debtor or so much as may be sufficient to satisfy the
decree and the cost of execution and does not dispute his liability to pay such debtor deliver such movable property, or if he does not appear In answer to the notice, then the Judge may order the gamishee to comply with the terms of such notice and on such
order execution may Issue as though such order were a decree
against him.
26lProcedure when Gamishee disputes his liabilityIf the
gamishee disputes his liability, the Judge instead of making such order may order that any Issue or question necessary for determining his liability be tried as though It were an Issue In a suit: and
upon the determination of such issue shall pass such order upon
the notice as shall be just.
262Procedure when debt or property belongs to third personwhenever In any proceeding under this Chapter it Is
suggested, or appears to the Judge to be probable, that the debt or
property attached or sought to be attached belongs to some third
person or that any third person has a lien or charge upon. or an interest In It, the Judge may order such third person to appear and state the nature of his claim (if any) upon such debt or property, and prove the same. If necessary.
263Order to be made on hearing such personAfter hearing
such third person, and any other person, who may subsequently
be ordered to appear, or in the case of such third or other person not appearing when ordered, the Judge may pass such order as is hereinbefore provided, or make such other order as he shall think
fit, upon such terms in all ca$es with respect to the lien, charge or interest (if any) of such third or other person as to such Judge shall seem just and reasonable.
264Payment or delivery under order to be valid discharge Payment or delivery made by, or execution levied upon the garnishee under any such order as aforesaid shall be valid dis— charge to him as against the judgment—debtor, and any other order to appear as aforesaid, for the amount paid. delivered or levied. although such order or the judgment may be set aside or reversed.
265Attachment of debts owing from firmDebts owing
from a firm carrying on business within the jurisdiction may be attached under this Chapter, although one or more partners of
such firm may be resident out of the jurisdiction provided that any person having the control or management of the partnership
business or any partner of the firm within the jurisdiction is served
with the garnishee order. An appearance by any partner pursuant to an order shall be sufficient appearance by the firm.
266The costs of any application made under rule 259The
costs of any application made under rule 259 and of any proceeding
arising therefrom and incidental thereto shall be in the discretion of the Court.
267An order made under any of the rules of this chapter
shall be appealable as a decreeAn order made under any of the
rules of this Chapter shall be appealable as a decree. CHAPTER l9Minors and persons of unsound mind
268Admission of next friend to bring a suit, order unnecessary.
—When a suit is brought on behalf of a minor, his next
friend shall make an affidavit, to be presented to the Judge with
the plaint in the suit, that he has not interest directly or indirectly adverse to that of the minor, and that he is otherwise a fit and
proper person to act as such next friend. Date of birth of the minor
If known or otherwise his age shall also be stated.
269Procedure by petition when defendant is minorWhen
a Plaintiff knows that a defendant is a minor he shall on the
presentation of the plaint, present a petition for the appointment
of a guardian for the suit for such defendant: such petitions shall be in Form No. 40 and be verified in like manner as a plaint.
270Person eligible to be guardian ad itemThe person to
be appointed guardian for the suit If he has no interest directly or
indirectly adverse to the minor, and is otherwise fit, will ordinarily be the (a) testamentary or (b) natural guardian or (c) the custodian
of the minor, and the plaintiff shall, if possible, obtain the consent
In writing of one of such persons to the above order.
27lProcedure when stranger appointedIf the plaintiff Is
unable to obtain the consent of any of the persons In the last rule
mentioned he shall state the reason of his Inability and propose some other fit and proper person: a notice will then Issue to the minor and his testamentary or natural guardian, or failing them,
to the person with whom the minor resides Informing them that on
the day to be therein named, the Judge sitting in Chambers will. If
no cause be shown to the contrary, proceed to appoint the person proposed by the plaintiff, or some other fit and proper person, to be such guardian as aforesaid. (Form No. 41).
(1) Service of summons on guardian.—On such appointment
being made the summons and other process or notice In the suit shall be served on such guardian ad Item on behalf of the minor, unless otherwise ordered.
(2) Where no guardian ad item has been appointed or for any
other reason the court orders service, on a minor personally and such minor is unable to acknowledge the same, it shall be done by effecting service on any person in whose charge the minor or with whom he habitually resides.
In case there is no such person, the service shall be
effected by affixing a copy of the writ or other process (with a
translation) on the outer door of the house In which the minor ordinarily resides.
272Application of Rules 268 to 271 to persons of unsound
mindThe provisions contained In rules 268 to 271 so far as they
are applicable shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged, are found by
the Court on enquiry by reason of unsoundness of mind or mental
infirmity to be capable of protecting their Interest when suing or being sued.
CHAPTER 2OMotions—Injunctions
273Injunction order may be made by notice of motion
Applications in Court for Injunctions, receivers and other interim
relief in a cause shall be made by notice of motion. A notice of
motion shall be in Form 8 with such variations as the circumstances may
require. Where special leave to serve It, Is obtained, the
fact shall be so stated in the notice of motion. An application together with affidavit, II any. In support of the motion with sufficient number of copies for service on other parties shall. In the first instance be presented in the office for being registered.
274Service of notice of motion. Affidavits when to be filed and served
Unless the Court or a Judge, gives special leave to
the contrary, there must be at least seven clear days between the service of the notice of motion together with copies of the affidavits In support thereof and the day named for bringing
on the notice of motion. Affidavits In reply shall be filed and copies thereof furnished to the other side not later than I p.m. on the penultimate working day preceding the date fixed for hearing, not more than one affidavit In rejoinder, shall be filed without the leave of the Judge and such affidavit shall be confined strictly to matters of reply. The affidavit in rejoinder shall be filed not later than 4.15 p.m. on the working day preceding the day fixed for the hearing. If such working day is
9[2nd or 4th Saturday of the month] affidavits in reply shall be
filed not later than 11.3O a.m. and the affidavit in rejoinder
not later than 1.30 p.m. on such day.
275What affidavits can be used on argumentExcept by
leave of the Court no affidavits in support of the application beyond
those served with the notice of motion, and beyond the affidavit (if any) in rejoinder—, not any affidavit in answer to the motion filed later than the time prescribed in Rule 274 shall be used at the hearing.
276Notice for production of recordNo motion in which it
may be necessary to refer to any proceeding in a suit or matter
shall except under very special circumstances and by leave of the Court, be made unless notice thereof shall have been given to the Registrar, before 4.15 p.m. in the afternoon of the day previous and such notice shall state Court In which and the day on which, the motion is intended to be made.
277Procedure In applying for Interim reliefThe plaintiff
may move the Court ex—parte for interim relief on the grounds of urgency and the Court on such application may give leave to serve notice of motion for a particular date and may also If It shall think fit grant interim relief upto that date on such terms and undertakings as shall seem just.
278Undertaking to pay damages to be given by party applying for same
A party to whom interim relief has been
granted shall, before the order is issued, unless the Judge otherwise directs, give an undertaking in writing, either personally or
through his Advocate to pay such sum by way of damages as the Court may award as compensation In the event of a party affected sustaining prejudice by such order.
RECEIVERS
279Definitions10
In these rules:—
(a) “Court Receiver“ means a person appointed by the High Court to perform the functions of a Receiver under the Code of Civil Procedure.
(b) “Official Receiver“ means a person appointed by the State Government to perform the functions of the Receiver under the Provincial Insolvency Act. 1920.
(c) “Special Receiver“ means a person other than the Court
Receiver or the Official Receiver appointed by the Court
to perform the functions of a Receiver under the Code of
Civil Procedure.]
279—AProcedure on application for appointment of a Receiver
11(1) An application for appointment of a receiver of
property which is the subject matter of the suit, shall be made to the Court and In other cases which are usually dealt within Chambers before the Judge sitting in Chambers.
(2) The Court or the Judge, as the case may be, when appointing receiver shall ordinarily appoint the Court Receiver, provided that the Court or the Judge may, for reason to be recorded in writing, appoint any other person as Special Receiver.
(3) The Court or the Judge may, when making appointment of
a Receiver or thereafter from time to time whenever deemed necessary, order any party to deposit such amount as may be deemed
fit for the costs, charges, expenses, fees or commission of the receiver and issue such other directions as to the Court or the Judge may appear proper.
(4) When a receiver is appointed, the Registrar shall if the
person appointed is the Court Receiver, forward to him a certificate certifying his appointment and the conditions, if any. under which
he has been appointed, and, if the Receiver appointed is a person
other than the Court Receiver, shall forward the certificate as aforesaid to the Commissioner for Taking Accounts.
l228OProvision for payment of receiver’s costs, etc.When
an order is made directing the Court Receiver or Special Receiver
to part with any property, the order may provide that the costs, expenses, fees or commission of the Court Receiver or Special Receiver shall be deposited in Court by such party as the Court or the Judge may direct as a condition precedent to such delivery.]
28lAppointment of interim receiverThe preceding
provisions of this chapter shall apply mutatis mutandis to applications
and orders for appointment of interim receivers. CHAPTER 2lArrest and Attachment Before Judgment.
282Arrest or attachment before judgmentAll applications
for arrest or attachment before judgment under Order XXXVIII of the Code of Civil Procedure shall be supported by an affidavit stating distinctly the ground on which the warrant Is sought and the reason for believing such ground to exist.
A party applying under this rule shall give an undertaking in writing, signed by himself or his Advocate to pay such sum by way of damages as the Court may award as compensation In the event
of a party affected sustaining prejudice by such order.
283Conditional attachment duration ofWhen a condition—
al attachment before judgment is granted under Order XXXVIII,
rule 5 of the Code of Civil Procedure, it shall only continue until
the day named in the warrant or until the further order of the
Judge.
284Rules 246 and 247 to applyRules 246 and 247 shall
severally mutatis mutandis to warrants of arrest and attachment
before judgment.
285Security procedureIn every case where security shall
be offered fortyeight hours’ notice of the name and address of each
surety, and of the description of property in respect of which such
surety will offer to justify and also the residence of each surety for the last six months, shall be given by the party or his Advocate tendering such security, to the party requiring it (unless the latter consents to the surety or sureties proposed): provided always that
duly endorsed Government Promissory Notes or cash to the
amount of security required, may be lodged and received by the
Registrar without notice.
286Surety to produce title deeds and make affidavit
Every person offering himself a surety (if there is no consent or deposit as provided in the last rule) shall produce before the Registrar his title—deeds and vouchers, and shall be examined by him on oath or solemn affirmation, as the case may be, touching
the value of his property and the debts and liabilities to which it is
subject: after being examined and allowed the surety shall make
and file his affidavit of justification, and sign the bond, and if the
Registrar requires, deposit his title—deeds and vouchers.
287Contents of such affidavitAffidavits of justification
shall be deemed insufficient, unless they state that each person justifying is worth the amount required by the practice of the Court, over and above what will pay his just debts and over and above every other sum for which he is then surety.
288More than two sureties IrregularA tender of notice of
more than two sureties shall not be accepted unless by order of the
Court or a Judge.
289When principal may be renderedSureties shall be at
liberty to render the principal, at any time, during the last day for rendering, provided such render is made before the prison doors
are closed for the night.
29OProcedure on render or surrender of principalIf the
surety be desirous of rendering the principal, or If the principal be desirous of surrendering himself, such surety or principal shall
give notice to the Registrar to attend In court or Chambers at the
time of the render or surrender that the Registrar or the Nazlr may take immediate charge of the principal.
29lState of proceedingsA party shall not be at liberty to proceed on the bond, pending a rule to bring in the body of the principal.
CHAPTER 22Examination De Bene Ease Commissions
292Commission for examination of witnessWhen one
party to a suit intends to apply for a commission under section 76, Order XXVI, rule 4 of the Code of Civil Procedure to examine a
witness outside the local limits, he shall give notice to other party or parties.
293Interrogatories, etc. when to be filedIf the opposite
party joins In the commission, each party shall, when the evidence
is to be taken on Interrogatories file his interrogatories—in—chief with the Registrar, and deliver a copy thereof to the opposite party within a fortnight from the granting of such order. In all such
cases, cross Interrogations shall be filed within ten days from the service of the copy of the interrogatories—in—chief and re— interrogatories
within six days from the service of the cross—interrogatories: In
default of such filing, the commission may be Issued,
but in any of the above cases of cross or re—interrogatories,
application
may be made to the Court or a Judge to enlarge the time.
294Preparation etc. of commissionThe commission shall
be prepared by the Registrar, who shall seal the same, and annex
thereto the Interrogatories, cross—interrogatories and re— Inter— rogatories, if any and shall enclose it (with directions that the same be returned to him when executed) in a sealed envelope to
the Commissioner therein named (Form No. 43).
295Deposit of fees of the CommissionerWhenever a com—
mission is issued outside the local limits of the Court, the Advo—
cates at whose instance the commission is issued shall deposit with the Registrar such sum as an advance towards the payment
of the fees of the Commissioner in question as the Registrar may
determine, undertaking at the same time to pay a further sum exceeding the amount deposited.
296Procedure In examination of witnessThe Officer
taking an examination under the preceding rules shall have regard
to the provisions of the Indian Evidence Act, and shall, In case the Advocates or other person examining the witness, press any question and the answer thereto record the same, but the same shall
not be admitted as evidence except when the Judge before whom
the deposition is put in evidence, shall so direct. Where times or
dates In Christian era appear In the evidence given, times and dates in Christian era corresponding thereto shall be given by the officer.
297Deposition of witness to be read over to and signed by himAfter the deposition of any witness shall have been taken
down and before it is signed by him it shall be distinctly read over,
and when necessary, translated to the witness in order that mistakes or omissions may be rectified or supplied. The deposition
shall be signed by the witness, and left with the officer who shall
subscribe his name and date of the examination. CHAPTER 23Payments By Officers of the Court
298Application for payment of money, etc. by officers of
the CourtEvery application for an order for delivery out of Government Promissory Notes or for payment out of cash in the hands of the Registrar, the Commissioner for taking accounts, or
a Receiver shall be supported by an affidavit, instituted in the suit
or matter, showing the right and interest of the party applying and
shall be accompanied by the certificate of the Officer in whose hands such Government Promissory Notes or cash may be, certifying the amount and particulars of the estate in his hands.
299Certificate of such officerThe certificate mentioned in
the last preceding rule may be obtained on a letter signed by the party interested in such notes or cash. or by his Advocate, addressed to such officer, requesting such certificate and distinctly
stating the interest of the party, and the object for which such
certificate is required.
3OOWritten authority of client requisite for payment to AdvocateUnless otherwise ordered by the Court or a Judge no payment in a suit or matter save and except when it is in respect
of costs shall be made to an Advocate on behalf of his client without the written authority of the client for such payment.
3OlDecree In favour of a minor Investment of surplus InterestWhen a decree or order directs money to be deposited with the Registrar, on behalf of a minor, the decree or order
directing such deposit should in general provide that any surplus
interest, aggregating to Rs. 3OO or over not required for current
expenditure should from time to time be invested by the said
Officer in further purchase of Government securities for the benefit
of minor.
3O2Unclaimed deposits to be transferred to Government
All securities and sums of money deposited in Court in the course of suits or proceedings and appearing to have been in such deposit for a period often years or upwards any claim thereto having been made allowed during that period, shall be transferred and paid to the State Government.
3O3Repayment on subsequent establishment of claimIf
any claim be made in any part of the securities, money or proceeds which have been transferred and paid to Government under the
last preceding rule, and if such claim is established to the
satisfaction
of the Court, the State Government shall pay to the Claimant
the amount of the principal so transferred and paid as aforesaid, or so much thereof as shall appear to be due to claimant.
CHAPTER 24Execution of Court Processes
3O4Extent of limitsThe execution of the process of the
Court shall ordinarily be within the local limits of the jurisdiction
of the Court and the court shall not be compellable to execute
process beyond the said limits.
3O5Special warrant to execute process within limits
Upon occasions when It shall be necessary or expedient to serve a
writ of summons or to execute process within the local limits of the
jurisdiction of the Court by a person other than the Court bailiff, the Registrar shall grant his special warrant to such person or persons nominated by the Advocate at whose instance the writ of summons or process is issued: and In order to prevent any improper use or abuse of the process of the Court, the said Advocate
shall give indemnity for its proper service or execution to the satisfaction of the Registrar.
3O6Service by parties in personParties in person shall serve all summonses and other processes through the Court.
3O7When translation of process necessaryIf the summons
or other process has to be served or executed on any person, not being certified by the Party or his advocate, issuing the summons or process to be well acquainted with the Gujarati language such person shall at the time of such service or execution, be likewise
served with a true translation in the English language if the party
or his Advocate certifies that such person is familiar with the English language but otherwise in the Hindi language, of such summons, or other process, and of any endorsement there may be thereon, respectively, and where on the execution of any warrant or order of attachment against the houses, lands, or tenements of any
person, it is necessary to affix the warrant shall, if such person be not
certified as aforesaid, cause to be affixed in some conspicuous place on the premises a true translation of such warrant or order in the English language or Hindi language as the case may be.
3O8Payment of feesThe Court may refuse to serve the
warrants unless fees are paid and a representative of the judgment—
creditor is present to point out the property to be attached.
3O9Deposit with warrant of arrestBefore the issue of a
warrant of arrest before or afterjudgment there shall be deposited
with the Registrar the sum of Rs. 2 for the intermediate subsistence of the judgment—debtor, pursuant to Order XXI, rules 39 (l)
to (4) of the Code of Civil Procedure.
3lORelease of person or estate or property attached(l)
Any person arrested before judgment shall be released from arrest by the Nazlr immediately on his being served with a certificate issued by the Registrar that sufficient security has been taken by that Officer.
(2) Any property attached before judgment shall be released from attachment by the Registrar on sufficient security being furnished to him.
3llRelease of judgment—debtor on the written request of
Judgment—creditorThe Registrar shall cause the judgment—debtor
to be released on the written request of the judgment—creditor or
his Advocate, unless there are detainers against the same judgment—
debtor
lodged with the Registrar before the time of making
the arrest.
3l2Levy of sums mentioned in warrant of arrest or attachment.
— Under every warrant of arrest and of attachment before or afterjudgment, the Registrar shall receive or levy the sums, if any mentioned therein, and a sufficient sum for Interest where interest is payable.
3l3Release on payment of moneys specified in preceding
ruleThe Payment of the moneys specified In the preceding rule
shall entitle the person against whom the warrant has been issued
to his release and to the release of his property immediately after
the Registrar has satisfied himself by search In his office that no
other warrant under which he or his property could be detained have been lodged.
3l4Production of persons arrested before Judge, order. committal warrantEvery person arrested who is not released
under the preceding rule shall, as soon as practicable, be brought
before a Judge upon all warrants of arrest lodged against him with
the Registrar for an order of committal or otherwise, but in no case after 8 p.m. A note of the purport of the order, and the rate of subsistence allowance fixed, if any, shall be endorsed on the
warrant of arrest by the Registrar or an Officer of the Court in
attendance, and authenticated by him with his Initials. Upon
production In the Registrar’s office of the warrant with an endorsement ordering a committal, a separate warrant shall be issued
for the commitment of the person in which the rate of subsistence allowance if fixed as aforesaid shall be specified: Provided that In case of two or more warrants the Judge may apportion the subsistence allowance between the judgment— creditors In such manner
as he thinks just.
3l5Production of persons arrested after 8 p.m.Every
person arrested after 8 p.m. shall be immediately lodged in the Jail
and brought before one of the Judges at the opening of the Court the next day. If the next day happens to be a Sunday or other Holiday, such person shall be brought before one of the Judges at his bungalow.
3l6Keeper to keep in custodyThe Keeper of the Civil Jail. Ahmedabad shall receive and keep In his custody any person arrested till the said person can be placed before a Judge for an order of committal or otherwise: provided that on committal an order of committal shall be lodged with the Keeper.
3l7Application for production of person In custodyIf it
shall at any time necessary that a person in custody of the Keeper of the Civil Jail, Ahmedabad, should be brought up before the
Court or Judge, the application for that purpose shall be supported
by an affidavit and by the production of the Bailiff’s return of having executed the writ of attachment or warrant of arrest. The Officer having the custody of the Bailiffs return shall cause the same to be produced before the Court or Judge on a requisition to him in writing by the person making the application.
3l8Production before Judge under fresh warrant of person already In custodywhen the Registrar received awarrant to
arrest, a person already in custody of the Keeper of the Civil Jail,
Ahmedabad, on civil process, he shall forthwith bring the person
before a Judge for an Order of committal. The Judge may then apportion the subsistence allowance between the detaining creditors In such manner as he thinks just.
3l9Payment of money realised under warrant of arrest
The Registrar shall receive all money tendered to him under any warrant of arrest and shall, unless ordered to the contrary, pay the same to the judgment—creditor or his Advocate duly authorised
who took out the warrant.
320Procedure when Registrar receives money In other
casesIn all other cases, whenever the Registrar shall receive
moneys under warrants of attachment or realize assets by sale or otherwise from the property of the judgment—debtor, he shall hold the same until the further order of a Judge.
321Power of the Registrar to withdraw from possession In absence of further depositThe Registrar shall be entitled to withdraw from possession, when the deposit made with him for the Incidental expenses of maintaining possession is exhausted, unless a further deposit Is made on notice given by the Registrar.
322Payment direct to Execution creditor or his Advocate.
—Where any execution—creditor or his Advocate receives direct
any instalment or other sum ordered to be paid by the judgment—
debtor in whole or In part satisfaction of the decree he shall file a
precipe with the Registrar Informing him of the payment made.
323When Advocate to be responsible for notifying such paymentThe Advocate shall be responsible for furnishing this precipe if the payment has been made through his office, or he has been informed of It by the execution—creditor.
324Battaki when beatenFor the purpose of Order XXI, rule
36 to 54, clause 2 and rules 67 and 96 of the Code of Civil Procedure. the Registrar shall cause to be beaten a Battaki on the premises at the time action Is taken under the above mentioned rules.
325Service of certain noticesAll notices under Order XXI.
rules 16. 37. 22. section 145, Order XXI. rules 2, 34 (1) to (4) and section 73 of the Code of Civil Procedure shall be served through
the Court.
326Execution through Court of all warrants
(1) All warrants
under decrees and orders of the Court for the attachment
and sale of movable and Immovable property shall be executed through the Court unless the contrary be especially ordered.
(2) In case there are goods of the judgment—debtor on the
premises of which vacant possession is directed to be given under
Order XXI. Rules 35 and 36. or Order XXI, rules 95 and 96, the
Registrar shall unless the judgment—debtor makes immediate arrangements
for taking charge of the goods sell the same, but
immediately thereafter and if possible prior thereto, he shall give
public notice in the press as to the goods, or the sale proceeds lying
with him, if the value of the goods or the sale proceeds exceeds Rs.
100: where a sale has taken place hold the same till a claim Is
made. If no such claim is made within one year, the amount of the sale proceeds shall be credited to Government.
(3) In cases where the Registrar Is directed to sell movable property and has sold such portion of the property as is sufficient
to satisfy the judgment debt, costs of execution, etc., he shall hand over the surplus property to the judgment debtor if he be present
or to his authorised agents. If the judgment—debtor is not present
nor represented by an authorised agent, the Registrar shall sell the same immediately and hold the sale proceeds of the surplus
property till a claim is made: if no such claim is made within one year, the amount of the sale proceeds shall be credited to Governent.
327Proclamation under Order XXI. rule 66, Civil Procedure Code— Movable PropertyThe Registrar shall prepare the proclamations required by Order XXI, rule 66 of the Code of Civil
Procedure in the case of the Intended sales of movable property and
shall, if so ordered by the Court, publish them In such Gujarati or
English newspaper as the Court may direct.
328Proclamation under Order XXI, rule 66, Civil Procedure
Code—Immovable propertyOn receipt of the proclamation
of sale of immovable property from the Commissioner appointed under Chapter XXIII, the Registrar shall publish it or material extracts thereof in such of the Gujarati newspaper as he may deem proper: Provided that the Registrar may publish the same In any English newspaper or newspapers if he so thinks fit.
329Sale of movable property subject to certain conditions very sale of movable property by the Registrar shall be made subject to the following conditions:—
1st. Terms cash.
2nd. All lots to be at the risk and expense of the purchaser from the time of sale and to be removed by them, with all faults and errors of description, immediately after the sale.
3rd. Should any mistake be made in describing any articles.
such mistake shall not be held to vitiate or affect the sale of such
lot In any way. It being understood that intending purchaser should satisfy themselves on all points before purchasing and no dispute shall be entertained after the sale.
33OSale of immovable property subject to certain conditions.
— Every sale of Immovable property by the Registrar shall be made subject to the following conditions, videliot:—
1st. The highest bidder shall be the purchaser. If any dispute arises between two or more bidders, the lot In dispute shall be put up again at the last undisputed bidding.
2nd. The person who shall be declared to be the purchaser
shall deposit immediately twenty—five per cent of the amount of his
bid, and In default the property shall forthwith be again put up and
sold.
Such deposit shall be made In cash unless the execution—
creditor or his Advocate consents to receiving payment by cheque.
3rd. The balance of the purchase—money shall be paid by the purchaser before the closing of the Court on the fifteenth day from the day of sale, or if the fifteenth day be a Sunday or other close holiday, then on the first office day after the fifteenth day, and in default of payment within such period the deposit, after defraying
expenses of the sale. may be forfeited and the property shall be re—sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently
be sold. If the proceeds of the re— sale be less than the price bid by
such defaulting purchaser, the difference shall be leviable from him under the rules contained In Order XXI of the Code of Civil Procedure for the execution of a decree for money.
4th. The sale shall not become absolute until the same has been confirmed by the Court.
5th. If the sale be set aside by the Court, or if the judgment—
debtor have no saleable interest whatever in any lot sold under
these conditions, the purchaser shall be entitled to receive back his
purchase—money with or without interest as the Court may direct.
6th. The right, title and interest only of the said judgment—
debtor In the above described property is sold by the Registrar.
7th. The sale Is made under and subject to all other provisions contained In the Code of Civil Procedure relative to sales in execuion of
decree.
33lRegistrar to include Deputy Registrar, etc.—In this
Chapter the term “Registrar“ shall include the Registrar or the
Deputy Registrar or other officer who may be appointed by the
Registrar to execute the process of the Court. CHAPTER25Office of Commissioner for taking Accounts, etc
332Rules for Commissioner for taking AccountsWhenever
the Commissioner for taking accounts is appointed a Commissioner by this Court in any, proceeding the following rules shall apply.
333Registrar to send certified copy of any decree or order of reference
The Registrar shall send a certified copy of any
decree or order of reference to the Commissioner as soon as practicable and the Commissioner shall thereupon fix a date for the purpose of taking Into consideration the matter of the said
decree or order and shall Issue a notice Informing the parties about
the same and cause the notice to be served on the parties or on
their respective Advocates.
334Service of summons, etc. on parties concernedService
of summonses, notices, orders or other proceedings upon any
party concerned In such reference who Is not represented by an
Advocate shall be made In the manner provided by the Code of Civil
Procedure, unless the Commissioner otherwise directs.
335Manner of execution of decree or orderAt the time
appointed for considering the matter of the said decree or order,
the Commissioner shall proceed to regulate as far as may be the manner of Its execution and shall give such directions as may be necessary.
336. Commissioner may proceed ex—parte.If any party concerned
in such reference who shall have been duly served with
notice of a meeting shall not attend the meeting or any adjournment thereof,
the Commissioner shall be at liberty to proceed ex parte as regards such party.
337Application to Court on certificate for performance of some act or
In default for attachment
In cases where It is not
expedient or practicable for the Commissioner to proceed by
reason of the refusal or neglect of a party to do some act required
to be done, the adverse party upon notice, and the Commissioner’s certificate of the fact may apply to the Court for an order that the party served do the act required within a certain time, or that a writ of attachment may Issue against him on default, and the Court
shall thereupon make such orders as to It may seem proper.
338Who is entitled to appear on a claim against estate of a deceased
In any suit or matter for the administration of the
estate of a deceased person, no party other than the executor or
administrator shall, unless by leave of the Commissioner, be
entitled to appear (except at his own risk as to costs) In the Commissioner’s office on the claim of any person not a party to the suit or matter against the estate of the deceased person In respect of any debt or liability.
339Commissioner may obtain process for attendance or for production of documents
The Commissioner shall be at
liberty In all matters referred to him to obtain the process of the
Court to compel the attendance of witnesses or for the production
of any document which he may desire to Inspect, and to examine such witnesses on oath or solemn affirmation touching the matters referred to him as he shall think proper.
34OCommissioner may make a separate reportIn all matters referred to him, the Commissioner shall be at liberty, upon the application of any party Interested, to make a separate report or reports from time to time as to him shall seem expedient, the cost of such separate reports to be in the discretion of the Court.
34lCommissioner may make special report for opinion of Court— Hearing of such report
The Commissioner, If he thinks
fit, shall make a special report concerning any matter or thing
arising In or about the matter referred to him, in order that the
opinion of the Court may be taken therein, or with respect thereto, and such special report shall be brought before the Court by such parties as the Commissioner shall direct by motion on notice that such special report may be confirmed, discharged, or varied by
order of the Court, or that any directions may be given thereon;
and on the hearing of such motion the same may be confirmed, discharged, or varied as the Court shall deem just, or such directions may be given as shall appear to be necessary or expedient In
that behalf.
342Report of Commissioner is binding on parties unless discharged or varied
When any report of the Commissioner made
in pursuance of any order of the Court or Judge in Chambers shall
have been signed by him, the same shall forthwith be transmitted to the Registrar and shall be binding on all the parties to the proceeding except so far as the same may thereafter be discharged or varied either in Chambers or in Court according to the nature of the case in manner as Is hereinafter provided.
343Registrar to notify the date of the filing of the report
On the filing of the report In the Registrar’s office, the Registrar
shall notify the date of the filing of the report with. particulars as to
the number of suit and the parties to the suit on the notice board and such notification shall be deemed to be sufficient notice to all the parties concerned.
344Exceptions to be filed and observed within twenty days. On abandonment by party filing them, other party mayproceed with them. Extension of time for filing exceptions
Any party desiring such report to be discharged or varied shall,
within 20 days from the notification of the filing thereof in the Registrar’s office as prescribed In the preceding rule, file his exceptions thereof, and serve a copy of the same on the other
parties to the suit proceedings. After the exception have been filed
as aforesaid, the suit shall be set down for hearing on such
exceptions. If any party after having filed exceptions abandons or does not proceed with them, any other party in the same interest shall be at liberty to proceed with such exceptions: Provided that the Court or a Judge may for sufficient cause allow such exception to be filed and served within such time after the expiry of twenty days as may appear to be just.
345Rules apply to Special CommissionerThis and the last preceding ten rules shall also apply to a Special Commissioner.
346 Disposal of suit without report to be notified to Commissioner. Whenever a suit referred to the Commissioner is finally
disposed of without his report or is referred to arbitration by the order
of the Court, the Registrar shall forthwith notify the same to the
Commissioner, who shall thereupon remove the suit from his list.
347347In case where no proceedings have been taken for three months Commissioner to certify to Registrar and to
remove reference from his file.—In any case In which no effective proceedings have been taken in the office of the Commissioner for
a period of three months In any reference or in the matter of a sale
pending before him he shall certify the same to the Registrar, and remove the reference or sale matter from his file and the reference or sale matter shall not be restored without an order of the Court or a Judge.
l3348Security to be given by a receiver unless otherwise ordered
Where as order is made appointing a person other than
the Court Receiver as a Special Receiver in any suit or proceeding
the person so appointed shall, unless otherwise ordered, first give security for such amount as the Court or the Judge may order to
the satisfaction of the Registrar duly to account for such amount or other properties as he may receive in his capacity as Receiver and to account for and pay the same as the Court or the Judge may direct.
14349Fees of Court Receiver
(1) Unless otherwise order by
the Court or the Judge, the fees according to the following scale shall be charged by the Court Receiver:—
(2) The amount of such fees shall be deposited in Court and credited to Government in the appropriate account,]
349ARemuneration of Special Receiver—The remuneration
of a Receiver other than a Court Receiver shall be such amount
as may be allowed by the Court or the Judge, provided that the total remuneration allowed shall not ordinarily exceed the amount of fees computed under rule 349 above.
l635OForms of Account for Receivers
(l) Forms of accounts
prescribed for the Official Receiver shall mutatis mutandis apply
to the Court Receiver, who shall maintain accounts in such forms with suitable modification and adaptions.
(2) Special Receiver shall maintain accounts in form No. 44 of these rules with such modifications as may be directed by the Commissioner for Taking Accounts having regard to the cirumstances of the case.
l735OAInspection of Court Receiver’s AccountsThe Court Receiver’s accounts shall be inspected and audited every six months by such Officers as the Principal Judge may designate.
35lPeriod for filing Receiver’s accounts with the Commissioner. In the absence of any directions of the Court to the contrary
a receiver, other than the Court Receiver, shall file his accounts in the office of the Commissioner for taking accounts within three months from the expiry of a year from the date of his appointment, and thereafter, within three months from the expiry
of each subsequent year.
l8352Inspection and passing of accounts of Special
Receivers and payment of balance to be fixed by Commissioner
(l) The Commissioner shall fix the days upon which a
Receiver other than a Court Receiver shall pass his accounts and
also the day upon which such Receiver shall pay the balance appearing due on the accounts so filed or such part of the balance as the Commissioner may deem proper to be paid by him. And with respect of any such Receiver who shall neglect to file his accounts as aforesaid and pacs the same and pay the balance thereof at the time fixed for that purpose, the Commissioner may require such Receiver or the parties, or any of them to attend the Office of the
Commissioner to show cause why such account has not been filed, or passed or such payment made or any other proper proceeding taken or act done and thereupon such directions as may be
deemed proper may be given by the Commissioner.
(2) If the Commissioner does not see fit to require such Receiver
or the parties to attend as aforesaid. or if he shall not be satisfied
with the explanation offered to him, or in any other case where there has been neglect as aforesaid on the part of such Receiver, and directions of the Court are necessary, the Commissioner shall forthwith report the matter to the Court subject to such directions as may be given by the Court on the report of the Commissioner or
on the application of such receiver, the Commissioner shall, when the subsequent accounts of such Receiver are produced to be examined and passed, disallow any remuneration or commission claimed by such Receiver in the accounts In respect of which he
was in default and also charge him with interest at the rate of 4 per
cent per annum upon any balance directed to be paid by him during the time the same shall appear to have remained in the hands of such Receiver. If on the report of the Commissioner, It appears to the Court or Judge that such Receiver has mismanaged
or neglected the estate or neglected to file and pass his accounts and pay the balance thereof, the Court or Judge may remove such Receiver and appoint another Receiver of that estate or may make such other order as the Court or Judge may deem proper.
353Upon account being filed, a warrant to proceed etc. to issueUpon a Receiver’s account being filed In the office of the Commissioner to be passed, a warrant to proceed thereon and other necessary warrants shall be taken out: and an affidavit
veriflying the accounts so passed shall be endorsed at the foot of
the account and shall refer to it as an exhibit.
354Consequences of default by receiverIn case of any
receiver failing to leave any accounts or affidavit, or to pass such accounts or to make any payment, or otherwise, the receiver or the parties, or any of them may be required to attend the office of the Commissioner to show cause why such accounts or affidavit have
not been filed, or such accounts passed, or such payment made,
or any other proper proceeding taken, and thereupon such directions as shall be proper may be given by the Commissioner or he
may refer the matter to the Court.
355Commissioner to Issue a certificateThe Commissioner
shall at the request of the parties concerned Issue from time to time a certificate stating the result of a receiver’s account.
356When certificates becomes binding—Application to discharge or vary ItEvery certificate with the accounts (if any) to be filed therewith shall be transmitted by the Commissioner at the
request of the parties concerned to the office of the Registrar to be
these filed, and shall thenceforth be binding on all the parties to the proceedings unless discharged or varied upon application by summons to be made before the expiration of eight clear days after the filing of the certificate.
357Discharge or variation of certificate after lapse of any timeThe Court may. if the special circumstances of the case
require it, upon an application by summons for the purpose, direct
a certificate to be discharged or varied at any time after the same has become binding on the parties.
358Certificate from the CommissionerWhen a decree or
order directs an unascertained sum to be deposited with the
Registrar on behalf of a minor, the Advocate or the party concerned shall lodge before the Commissioner for taking accounts sufficient accounts with all vouchers relating thereto for verification In a summary manner of the sum to be deposited, and shall obtain from
the Commissioner a certificate as to the correct amount of such
sum. The Registrar shall not receive any such sum unless accompanied by such a certificate, provided however that this certificate
shall not be required when money is deposited either by the Court receiver or other person who is ordinarily appointed by the Court as Receiver, or if such certificate is expressly dispensed with by
order of the Judge.
359Registrar’s receipt to be produced before the Commissioner.
—Within seven days from the issue of the Commissioner’s
certificate mentioned in rule 358. Advocate or the party concerned shall forward the amount specified in the certificate to the Registrar, and within seven days from the date of issue of the receipt by the Registrar shall produce before the Commissioner for his inspection the receipt of the Registrar in respect of the amount
so forwarded. In default of the production of the said receipt within the period aforesaid, the Commissioner shall refer the matter to the Honourable the Sitting Judge in Chambers who after hearing the advocate or party concerned shall make such order as he may seem
fit.
36OBond by guardian or next friendThe bond to be given
by a guardian or the next friend of a minor shall, unless otherwise
ordered, be with two sufficient sureties to be approved of by the Commissioner and shall be in Form No. 45 with such variation as the circumstances may require.
SALE OF PROPERTIES
36lCopy of decree or order for sale to be filedA certified copy of every decree or order for the sale of property by the Commissioner shall be filed in the office of the Commissioner.
362Sale to be conducted by or with the approbation of the
Commissioner by public auction, exceptionUnless otherwise
ordered, every such sale shall be by or with the approbation of the
Commissioner and shall be made by public auction except that if
the property to be sold shall consist of negotiable securities, or of
shares in any Public Company or Corporation, the Commissioner
shall be at liberty to sell the same through a broker at the market
rate of the day.
363Sale to be to the best purchaser offering a sufficient sumEvery such sale shall be to the best purchaser that can be
got for the same provided the Commissioner shall consider that a
sufficient sum has been offered.
364Conduct of proceedingsWhen mortgaged property is to
be sold, the mortgagee, or first mortgagee, and in other cases the plaintiff, or party having the carriage of the general proceedings, shall have the carriage of the proceedings relating to the sale, but a Judge .may, when necessary, commit the carriage of such
proceedings to any other party.
365Documents of title to be left with the Commissioner
and to be disposed of under directions—appealAll documents of
title relating to the property to be sold in the possession or power
of any of the parties shall be produced to and left with the
Commissioner, and shall be subject to his directions both as to their custody pending the sale and their ultimate destination, such directions being subject to appeal to a Judge.
366Mode of notifying sale or propertyNotwithstanding
any thing contained in Order XXI, rules 54 (2) and 67 (1) of the Code of Civil Procedure, a notification of every Intended sale by public auction under this Chapter shall be published In such public papers, and as often as the Commissioner shall direct,
having regard to the nature and value of the property to be sold. A proclamation of sale of the property together with a copy of the print containing particulars and conditions of sale shall be affixed on a conspicuous part of the property to be sold and copies thereof shall be put up on the Notice Board of the City Civil Court, of the office of the Commissioner and of the office of the Collector of the District In which the property is situate.
367Sale to be regulated by conditionsEvery such sale
shall be regulated by conditions in writing, which, when immov—
able property is to be sold shall be adapted to the state of the title to such property.
368Notification and conditions of sale and abstract of title by whom to be preparedThe notification and conditions of sale
and an abstract of title when Immovable property Is to be sold and the same has directed by the Commissioner, shall be prepared by
the Advocate of the party having the carriage of the proceedings.
369Notification of saleThe notification shall specie the
time and place of sale, and shall contain a description and particulars of
the property, together with a statement that it Is to be
sold by or with the approbation of the Commissioner pursuant to
a decree or order of the Court, and of the manner in which It is
proposed to lot the same. When the property or any portion of It, Is to be sold subject to an encumbrance, the nature and amount
of such encumbrance shall so far as practicable, be also stated.
37OConditions of saleThe conditions of sale shall be as few
and simple and may be compatible with the nature of the property
to be sold. If a reserved bidding be fixed, the fact of a reserved
bidding having been fixed, but not the amount shall be stated in
the conditions. When movable property is to be sold, unless otherwise ordered or agreed to by the parties, it shall be a condition that
the whole of the purchase—money shall be paid to the Commissioner at the time of the sale, and that upon such payment the sale
shall become absolute, and delivery of the property sold shall be
given to the purchaser and that In default of such payment the property shall be again Immediately put up for sale. When Immovable property is to be sold, unless otherwise ordered or agreed to
by the parties, it shall be a condition that not less than twenty—five
per cent, of the purchase—money shall be deposited with the
Commissioner at the time of the sale, and that unless so deposited
the property shall Immediately be again put up for sale, and it shall
be stated in the conditions that the purchaser shall, at his own expense, take such steps as may be necessary for the purpose of obtaining possession. When immovable property is to be sold in lots, and the same monuments of title relate to more than one lot, or when the same monuments of title relate to property, a portion of which remains unsold, provision shall be made in the conditions
for the destination of the original monuments and for the production
thereof and the furnishing of copies. (Forms Nos. 46 and 47).
37lSettlement of notification and conditions and
abstractThe notification, conditions and abstract shall be left with the Commissioner, and an appointment obtained from him to go through the same. Notice of such appointment shall be served on all parties entitled to attend. At such appointment or an
adjournment thereof the notification, conditions and abstract shall
be settled, the day, time and place of the sale fixed, the days appointed for delivery of the abstract and of objections and requisitions
to and on the title, and for payments Into the Court of the
purchase—money, and the notification shall be signed and issued
by the Commissioner and directions given for Its publication.
372Reserved biddingwhen a sale is ordered at the instance
of a subsequent encumbrance or of a mortgagor, or when a party
having the carriage of the proceedings has obtained leave to bid,
reserved bidding shall be fixed by the Commissioner, unless dispensed with
by the proper parties. The Commissioner may also in
any other case, in which it taay be deemed necessary or desirable,
fix a reserved bidding.
373ValuationFor the purpose of fixing a reserved bidding,
the Commissioner shall decide the reserved bid on a valuation
made by him on the materials supplied by the parties or in special
cases with the previous permission of the court may direct a
valuation by a Surveyor or an Architect appointed by the Court. In case a Special Surveyor or Architect Is appointed, such Surveyor
or Architect shall certify the result of his valuation under his signature, and shall deliver or transmit such certificate to the Commissioner under a sealed cover with the words on the cover
“Private and to be opened only by the Commissioner“. The Commissioner may, If he shall think fit, require the certificate to be
verified by an affidavit or affirmation of the valuer. In that case the certificate shall be referred to without being annexed to or filed
with the affidavit or affirmation, which shall be so prepared as not
to disclose the contents of the certificate. On the reserved bidding being fixed, the certificate shall be put In a sealed cover and kept with the proceedings.
374Reserved bidding not to be divulgedUnless otherwise
ordered the reserved bidding shall not be divulged to any person either before, at, or after the sale.
375Copy of notification and conditions and abstract to be
filedOn the certificate and conditions being settled a fair copy
thereof, and of the abstract shall be filed In the Commissioner’s office. If required by him.
376Copy of notification and conditions with translation
to be posted upA copy of the notification and conditions of sale,
with translation thereof as the Commissioner shall direct, shall be posted up at the door of the Commissioner’s office on the day of the sale, and for a week previously.
377when conditions of sale to be published and hand bills
distributedIn any case In which it may be deemed desirable, and
the value of the property to be sold shall admit of it, It shall be In
the discretion of the Commissioner to cause the conditions of sale or any part thereof to be published with the notification mentioned in Rule No. 366 and also, with a view to give greater publicity to the sale, to cause hand—bills to be prepared and distributed.
378Advocate conducting proceeding to be present at the
saleThe Advocate of the party having the carriage of the sale
proceedings shall be present at the sale.
379SaleOn the day, and at the time and place appointed for
the sale, the notification and conditions of sale, and the translations thereof, if any shall be read out preparatory to the property
being put up for sale.
38OBiddings to be entered in the Commissioner’s note bookThe amount of each bid shall be entered in the Commissioner’s note—book.
38lPostponement of sale for want of sufficient biddingIf
there be no bid, or the highest bid be below the reserved price (if
any) or be deemed insufficient by the Commissioner he shall postpone the sale and record the reason for such postponement in his note—book.
382When property sold, form of entry to be made in the
Commissioner’s note—book..—If the highest bid be equal to, or
higher than the reserved price (If any), or be deemed sufficient by
the Commissioner, he shall, subject to the provisions of rule 383, make an entry In his note—book to the following effect:—
“I declare A.B. to be the purchaser of the property comprised in lot for the sum of Rs. .....“
383Property to be again Immediately put up for sale. If deposit or purchase money not paidIf in the case of movable property the purchase money, or so much thereof, as may be payable at the time of the sale, or if In the case of Immovable property the amount to be deposited, be not at once paid to or deposited with the Commissioner, the bid of the person who would
otherwise have been declared the purchasers shall be rejected and
the property again immediately put up for sale:
Provided that at the request and risk of the party having the carriage of the proceedings, such bid may be accepted and time allowed to the purchaser to pay the amount payable by him.
384Bidding Paper to be signed by the purchaserThe result
of the sale shall also be set forth In a paper to be called “the
Bidding
Paper“ with particulars showing the lots, which have been sold,
and for what price, and the lots which have not been sold, and stating the names of the purchasers, and what sums have been received as deposits and the balance remaining due in respect of
each purchase. If there be no bid for any lot, the words “no bidding“
shall be written in the bidding paper opposite the number of the
lot. If the highest bid be deemed Insufficient the words “not sold“ shall be written opposite the number of the lot. If the property be sold, the highest bid shall be inserted opposite the number of the lot, and the purchaser shall write his full name opposite such entry, and shall add his address and occupation. All notices thereafter served at the address so given shall be deemed to have been duly served (Form No. 48).
3850r by his agent as suchA person purchasing as agent
for another shall sign the bidding paper as such giving the full name, address, and occupation, both of himself and his principal. All notices thereafter served at either of the addresses so given shall be deemed to have been duly served.
386Postponement of sale otherwise than under rule
(l)The Commissioner, if unable to attend on the day appointed for the
sale or for other sufficient cause or with the consent of the parties,
may postpone the sale.
(2) When a sale is advertised in newspapers and the Commissioner is unable to conduct the sale on account of the office being closed on the day of the sale under the orders of the High Court, the Commissioner shall postpone the sale and fix a fresh date of the sale and shall give a short notice of such postponement In newspapers and shall dispense with fresh notification of sale.
387When sale postponed a new day to be fixedWhen a
sale is postponed, the Commissioner shall be at liberty without further order to appoint a new day for the sale of the property, and, on notice to the parties, to make any necessary alterations In the notification and conditions of sale.
388Proceedings on a postponed sale or re—saleWhen sale
is postponed, or when a resale is directed, unless otherwise ordered a
fresh notification shall be issued and published and the
proceedings down to the certificate of sale shall be similar to those
on an original sale.
389Certificate of result of saleThe Commissioner shall, as
soon as possible after the sale. proceed to certify the result. The party having the carriage of the proceedings shall file the certificate,
and apply for an order confirming the sale. In case of his not doing so, the purchaser of the property comprised In any lot shall
be at liberty to apply for such order, and to retain the costs out of the purchase money.
39OCertificate of sale to be confirmed by the courtNo sale of Immovable property made under this chapter shall become absolute until It has been confirmed by the Court.
39lCertificate of Commissioner and Registrar required for confirmation of sale0n every application for confirmation of sale there shall be produced a certificate of sale from the Commissioner
and also a certificate of the Registrar certifying that no application has been made to set aside the said sale.
392Application to compel delivery of abstract costIf the
abstract of title be not delivered within the time specified in the
conditions of sale a summons may be taken out by the purchaser
and served on the party conducting the proceedings, requiring him
to deliver the abstract within a limited time. Such order shall be made thereon, and as to the costs of the application, as to the Judge shall deem fit.
393Questions arising out of objections or requisitions
Any disputed question arising out of objections or requisitions by a purchaser may be brought by either party before the Commissioner who shall certify his opinion.
394Enquiry whether a good title can be madeWhen Important questions of title are in dispute, either party may apply, on
summons, for an order that It may be referred to the Commissioner to enquire whether a good title can be made.
395Costs of the enquiryIf the title be found to be good on grounds not appearing on the abstract, the purchaser unless otherwise ordered shall be entitled to his costs of enquiry, if the title be found to be good on grounds appearing on the abstract, the purchaser, unless his objections have been frivolous or vexatious
or unless otherwise ordered, shall not be liable to pay more than his own costs of the enquiry.
396If sale set aside purchaser entitled to receive back his deposit or purchase money with costsWhen a sale of immovable property Is set aside, the purchaser, unless precluded by the
conditions of sale, or unless otherwise ordered, shall be entitled to
receive back his deposit of purchase—money, and to be paid his
costs, charges and expenses occasioned by his bidding for and being declared the purchaser of the property, and also incidental to his application to be discharged.
397Application by purchaser for leave to pay his purchase money into CourtAfter a sale has been made the purchaser may,
If prepared to accept the title, at once pay the balance of the
purchase—money Into Court to the credit of the suit, or he may. If
not prepared to accept the title, apply for leave to pay the purchase—
money Into Court, without prejudice to any question as the title to
the property. Such application shall be made on summons to the
party having the carriage of the proceedings, and also to the party
whose property has been sold. Such terms as to the Judge shall seem fit may be Imposed upon the purchaser as to his paying Interest upon the purchase—money or waiving his right to the rents In the events of a good title having made to the property upto the time when the question as to title shall be determined.
398Application by any other party against defaulting purchaser—Any party interested may apply, on summons, for such
order or orders as It may be necessary to obtain for the purpose of compelling a purchaser, who has neglected to pay his purchaseoney
In due time to comply with the conditions of sale. Such
order or orders may be made subject to the right (If any) of the
purchaser to obtain an inquiry as to whether a good title can be
made.
399Direction for Investment of purchase—moneywhen an
application Is made to confirm the sale or when an application Is
made under either of the last two preceding rules for payment of the purchase—money Into Court, the purchaser, or the Advocate of the party having the carriage of the proceedings, may at the same time obtain directions for Investment of the purchase money. Any subsequent application for that purpose shall be on summons,
and, unless otherwise ordered, at the expenses of the applicant.
4OOPurchase—money to remain uninvested until otherwise orderedThe purchase—money. If paid Into Court without any directions as to Investment, shall until otherwise ordered, remain uninvested.
4OlNot to be paid out without an orderThe purchase
money paid into Court shall not be paid out or otherwise disposed of without an order of the Court or a Judge in Chambers, except in the case of ground rent and municipal taxes due In respect of the property sold.
4O2Purchaser when deemed to have accepted the titleA
purchaser of Immovable property or of any right title or Interest in
such property, who pays his purchase money Into Court without
his right to object to the title being reserved, or who enters Into
possession, shall be deemed to have accepted the title.
4O3Possession of movable property—Transfer of securities and sharesOn the purchase money of movable property being
paid the purchaser, unless otherwise provided for In the conditions
of sale. shall be entitled to obtain Immediate possession thereof
and If such property shall consist of negotiable securities, or of any shares In any Public Company or Corporation, to have the same
duly transferred to him.
4O4ConveyanceOn the purchase money for Immovable
property being paid, and the sale confirmed the purchaser (except In cases In which the legal estate Is already In him, and the equitable estate has passed to him by virtue of the sale so as to complete his title) shall be entitled to proper conveyance. In which all necessary parties shall join as the Commissioner shall direct.
4O5By whom to be preparedUnless otherwise ordered, the
conveyance shall be prepared by and at the expense of the purchaser, and shall be sent for approval to the Advocate of the party
having the conduct of the proceedings.
4O6Improper delay In perusing & returning Costs—lf there
be any Improper delay In perusing and returning the conveyance
to the purchaser, he may apply, on summons for the return thereof
to him. and such order shall be made thereon, and as to costs as
to the Judge shall seem fit.
4O7Conveyance to be fettled by the CommissionerSubject
to appeal to a Judge, every conveyance shall be settled by the
Commissioner If the parties differ about the same or If any of them
be under any legal disability.
4O8Certificate of approvalwhen a conveyance is settled by
the Commissioner, a certificate of approval shall be Issued by him
or endorsed by him upon such conveyance.
4O9Proceedings to procure execution of conveyanceIf
any person certified by the Commissioner to be a necessary party
to a conveyance be a minor or otherwise under disability, or being
sui juris shall neglect or refuse to execute the conveyance an order may be obtained In the case of a person under disability appointing the Commissioner to convey the property, the subject of such conveyance, and execute the conveyance for him and in his name
and In other cases directing the person to execute the conveyance
within a time to be fixed by the order, and In default thereof appointing the Commissioner to convey the property and execute the conveyance for him and In his name. The application shall be
on summons, and shall be supported by an affidavit or affirmation of the facts, and It shall be shown that the person required to execute the conveyance was certified by the Commissioner to be a necessary party, and that the conveyance has been approved of by such party or by the Commissioner.
4lOPossession of immovable propertyOn the purchase—
money for Immovable property being paid and the title accepted,
the purchaser shall be entitled to proceed to obtain possession of
the property purchased by him In like manner as the purchaser of
Immovable property sold In execution under the provision of the
Code of Civil Procedure.
4llBidding not to be openedNo bidding shall be opened,
except with the consent of the purchaser, or unless It be shown
that there has been fraud or misconduct In the management of the sale, or that the purchaser by reason of being In a fiduciary position, was disqualified from purchasing.
4l2Leave to bidAny party to the suit may apply for leave to
bid at the sale. Such leave If not contain In the decree or order directing the sale, may be obtained on summons; but the costs of
a separate application, unless otherwise ordered, shall be borne and paid by the applicant. where such leave is granted to a mortgage, the Court may order that he shall not bid at the sale for an amount less than the principal. Interest and costs due to him; and where the property is to be sold In separate lots. the bid
shall not be less In respect of each lot than such figure as shall appear to be properly attributable to it In relation to the said amount.
4l3Special certificateIf a party to the suit, not having the
conduct of the proceedings without obtaining previous leave to bid,
be accepted as the purchaser, the fact, together with the circumstances
under which he was allowed to bid shall be specially
stated In the certificate of sale. In every such case the sale shall not
be confirmed without an order obtained on notice.
4l4Application for Incumbrancer to be made a party to
the cult, or to Join In the saleAn incumbrancer, not a party to
the suit may, at any time before the sale, apply by motion In Court
to be made a party or for leave to join In the sale; and such order shall be made thereon, and In protection of his rights and as to costs as to the Judge shall seem fit.
4l5Substitution of nameThe name of a principal or subpurchaser shall not be substituted for that of the person certified
to be the purchaser, without an order to be applied for on summons.
The application shall be supported by an affidavit, or affirmation. stating the facts, and when It Is sought to be substituted
the name of a sub—purchaser for that of an original purchaser, the
affidavit, or affirmation, shall also show that there was no collusion or under bargain between the purchaser and sub—purchaser
before the sale was confirmed, or shall disclose the terms of the under—bargain, If any.
4l6Not allowed after execution of conveyanceNo order
shall be made for the substitution of names under the last preceding
rule after the execution of a conveyance to a purchaser.
4l7When additional price if any, to be paid Into Court
Unless It shall appear that the purchase by a sub—purchaser was
made after the sale has been confirmed or unless otherwise ordered,
every order for the substitution of the name of a sub—purchaser for that of an original purchaser shall be made subject to
the payment into Court as part of the purchase—money of any
additional price obtained by the original purchaser from the subpurchaser.
4l80ne application may be made for the substitution of
names and confirmation of saleApplication for the substitution
of names under rule 4l5 may be made as part of the application to confirm the sale.
4l9Sale by private contractThe sale of property ordered to
be sold by the Commissioner by private contract shall be regulated
by the foregoing rules as far as they are applicable.
42OCopy of warrant of sale of property attached in execution to be looked In Commissioner’s 0fficeWhen Immovable
property has been attached In execution of a decree and the
attaching creditor is desirous of having same sold, he shall lodge a copy of the warrant of sale in the Commissioner’s office.
42lCommissioner may issue summons on Judgment—debtor to attend and produce and lodge all title deeds of property proposed to be soldThe Commissioner shall, when the attendance of the judgment—debtor can conveniently be produced, issue
a summons calling upon him to attend upon a day therein named and to produce and lodge with the Commissioner all title—deeds and other documents affecting the property proposed to be sold which may be In his possession or power. Such documents shall
(If produced) be left with the Commissioner and shall be subject to
his directions both as to their custody pending the sale and their ultimate destination, such directions being subject to appeal to the Sitting Judge In Chambers (Form No. 49).
422Enquiry before the Commissioner also as to matters
specified In O.XXI r. 66, C.P.C..—If the Judgment debtor attends
upon the day named In the summons, the Commissioner shall examine him on any matter affecting his title to the attached property. The judgment—creditor may also examine him on any
matter relating thereto. If the judgment—debtor falls to attend on the summons or If no summons has been issued the Commissioner
may produce ex parte. In conducting an enquiry under these rules the Commissioner may also summons any person whom he thinks necessary and examine him in respect of the matter specified in OrderXXI, rule 66, of the Code of Civil Procedure and may require him to produce any documents in his possession or power relating thereto, but such documents shall not, without a special order, the reasons for which are to be recorded, be handed over for perusal
to any other person than the Commissioner and shall at the end of
the particular enquiry to which they relate be restored to persons who have produced them.
423Commissioner shall also issue notice to all persons having rights to such property to lodge claims of oathThe Commissioner shall also, at the instance of the judgment creditor issue a notice to all person having rights In or charges or claims on the attached property or any part thereof (except claims under Order XXI, rule 58, of the Code of Civil Procedure involving an objection to the attachment or seeking the removal of the same which claims will be disposed of by the Sitting Judge In Chambers upon summons) that they should on or before a day to be named therein, lodged In the office of the Commissioner a statement verified on oath or solemn affirmation of the rights, interest or claim In each Instance set up. The notice shall be In Form No. 50 or as the circumstances of the case may require, and shall be published In such of the English and/or Gujarati newspapers as
the Commissioner may direct, and copies thereof shall be posted upon the attached premises and In conspicuous place In the Collector’s office and In the Court.
424Claims to be registered—Day to be fixed for enquiry
When any such claim has been lodged In the office of the Commissioner he shall enter the same In a register to be kept for the
purpose and shall fix a day for the Investigation thereof. The
judgment creditor shall then obtain from the Commissioner a
summons calling upon the claimant to appear before the Commissioner
upon the day so fixed with such evidence as he may desire to produce In support of his claim.
425Enquiry to such claim, result thereof to be included In the proclamationUpon the day named In the summons or upon
any adjournment thereof the Commissioner shall proceed to deal with the several claims brought forwards relating to the property proposed to be sold, and after a perusal of the documents by which such claims are supported and resisted and after taking such oral evidence and hearing such arguments as shall be brought forward, determine summarily, whether such claims or any of them shall be Included in the list of claims to be appended to the proclamation of sale hereinafter mentioned.
4260n Investigation a list of claims to be drawn upwhen
the Commissioner shall have Investigated the several claims relating to the attached property he shall draw up a list of all those for which a reasonable and probable cause shall appear,
and append the same to the proclamation of sale hereinafter
mentioned.
427Appeal from decision of CommissionerThe decision of
the Commissioner on any matters mentioned In the foregoing
rules shall be subject to appeal to the Sitting Judge In Chambers.
428After investigation Commissioner to prepare
proclamation of saleThe Commissioner shall Immediately after
such investigation prepare the proclamation of sale required by
0rder XXI, rule 66, of the Code of Civil Procedure and forward the
same to the Registrar upon the application of the judgment—
creditor or his Advocate. (Form No. 51).
429Procedure when order not filed within proper time,
etcSuits which the Commissioner has certified for non—prosecution,
or which have been settled or otherwise concluded, and suits
In which reports have been made disposing of the case, shall be
removed from the board of the Commissioner. Suits which have been removed from the board of the Commissioner on the ground that the Commissioner has certified them for non—prosecution, shall be set down for directions before the Judge, taking miscellaneous.
The fact that the suits will be so set down shall be
notified at least one week in advance on the notice board of the
Court.
43OCertificate of no exceptions to vary or discharge
reportwhen no exceptions have been filed to vary or discharge a report within the prescribed time, the Registrar shall, at the request of any party to the proceedings, certify such fact on the report; and such certificate shall appear on such report, before the Court or a Judge Is asked to give further directions therein.
431Setting down of suit for hearing on exceptions to
Commissioner’s ReportUnless otherwise provided by an order
of the Court or a Judge, exceptions to the Commissioner’s report shall be set down for hearing at the same time as the suit is set down for further directions before the Judge who made the reference to the Commissioner, If he is available, and otherwise before
any other Judge sitting on the original side, fourteen days after the
exceptions are filed. Such further hearing of the suit on exceptions and on further directions shall be treated in regard to Its place on the board as a part—heard suit.
432Procedure when no application made for confirmation.
—If in a suit referred to the Commissioner for taking accounts, no application is made for confirmation of the Commissioner’s report within two months from the date on which the same is filed
in the Registrar’s office, the suit shall be set down for directions
before the Judge taking miscellaneous matters. The fact that the
suit will be so set down shall be notified at least one week in advance on the notice board of the Registrar.
19[432AFees to be charged by the Commissioner for Taking AccountsUnless otherwise ordered by the Court of Judge, for reasons to be recorded in writing, the Commissioner for Taking Accounts shall charge the following fees:—
(1) (a) For attendance on sales Rs. 25.00
(b) For attendance outside the Court
House to take examinations,
administer oaths or other business
incidental to his office.
(i) for a period not exceeding one Rs. 10.00
hour
(ii) for every other hour or part Rs. 6.00
thereof
(iii) In addition to the fees in (i) and
(ii) above, if any expenses have
been incurred by Commissioner
for conveyance fare or otherwise,
the actual amount of such expenses.
(c) For taking custody of proceeds of sale ½ per cent
of movable or immovable property, (subject to a
except in so far as the same are
covered maximum of
by a set-off allowed by a Court or Rs. 500.00).
Judge: -
(d) For the execution by the
Commissioner
of any Conveyance of immovable
property under orders of a Court
or Judge: -
For each party in whose behalf he Rs. 10. 00
executes the conveyance. (subject to a
maximum of
Rs. 50.00).
(2) Except for the expenses mentioned In item (b) (iii) of Sub—rule ( 1
) above, all the fees shall be paid In Court fee stamps In the
manner prescribed In Rule 432—B below.
432—BComputation of fees, estimated, maintenance of
register for In respect of fees etc.—(1) When the fee prescribed In rule 432—A is a fixed amount which does not require computation
after the work is done. Court fee stamps of the required value shall
be supplied in advance before the work is commenced.
(2) When the fee Is to be computed and ascertained after the
work is done, the office shall estimate In advance the fee likely to be incurred and the party concerned shall thereupon forthwith
deposit with the Nazir of the City Civil Court, the amount of the estimated fee.
(3) The office shall estimate in advance the expenses to be
incurred for conveyance fare or other expenses likely to be incurred
when the Commissioner is required to work outside the Court premises and the party concerned shall forthwith deposit the amount of the estimated expenses with the Nazir of the City Civil Court.
(4) When the fees mentioned In sub—rule (2) have been computed and ascertained after the work Is done, the Court fee Stamp
of the required value shall be purchased from the amount in deposit, and appropriated to the said fee.
(5) The Commissioner shall submit his bill certifying the actual expenses incurred by him for conveyance charges or other expenses and the amount of such bill shall be paid from the deposit made under sub—rule (3) above.
(6) The balance of any deposit made under sub—rules (2) and (3) after the payment of the fees or expenses of the Commissioner, as the case may be, shall be refunded to the party who made the deposit.
(7) When the amount deposited under sub—rule. (2) or (3) Is
found to be insufficient, the party concerned shall within seven
days of his being given a notice of such deficiency, supply the Court
fee stamps of the value of the deficit in the amount deposited under sub—rule (2) or deposit in cash with the Nazir, the deficit in the amount deposited under sub—rule (3), as the case may be.
(8) The Commissioner shall report to the Court or Judge any
default of the party in making good the deficit under sub—rule (7), and the Court or Judge may pass such orders as may be deemed fit.
432—C.(1) The office of the Commissioner for Taking Accounts
shall maintain separate Registers m respect of the fees paid under
sub—rule (1), the fees payable under sub—rule (2) and expenses payable under sub—rule (3) of rule 422—B above.
(2) The Nazir of the City Civil Court shall maintain separate Registers in respect of deposits made under sub—rules (2) and (3) of rule 432—B.
433”Commissioner” to Include any other qualified officer appointed by the Principal JudgeThe term ”Commissioner”
shall throughout this chapter include In case of temporary absence of the Commissioner any other qualified officer authorised by the Principal Judge to perform the duties usually performed by the Commissioner whether in connection with sales or otherwise.
CHAPTER 26Appeals
434.Subject to the Rules hereinafter following the provisions
of 0. 41 of the Code of Civil Procedure, 1908, and the provisions contained in Chapter XX of the Civil Manual, 1960. shall mutatis mutandis apply to appeals transferred to the Ahmedabad City Civil Court under the Ahmedabad City Court Act, 1961.
435.(i) When the Court hearing an appeal is of the opinion that
It Is necessary to pass an order under 0. 41, R. 23, Code of Civil
Procedure, 1908, on an order for further hearing of the suit it shall pronounce Judgment accordingly with a direction that the matter
shall be placed before the Principal Judge for directions.
(ii) The Principal Judge shall direct the Registrar to take the original suit from which the appeal arose, on the file as
If the suit had been originally instituted in the Ahmedabad
City Civil Court and further direct that the suit
be placed before a Judge for disposal according to law.
(iii) The provisions as to suits prescribed In these rules shall apply to suits restored to file under sub—rule (ii) above.
436436(i) When the Court hearing an appeal is of the opinion that
it is necessary to frame fresh issues under Rule 25 of Order XLI of
the Code of Civil Procedure, 1908, It shall pronounce Judgment accordingly and frame the issues.
(ii) When the Court is of the opinion that the evidence already on record Is sufficient for the decision of the issues so framed. It shall record its findings on the said issues and proceed to dispose of the appeal according to law.
(iii) When the Court is of opinion that the parties to the appeal should be given an opportunity to lead fresh evidence on the Issues so framed, it shall record the evidence the parties may lead on the said issues, and
after deciding the said issues proceed to dispose of the appeal according to law.
437.When the trial Court has not tried and recorded Its findings on the Issues remanded for trial by Appellate Court under Rule 25 of Order XLI of the Code of Civil
Procedure before the transfer of appeal to the Ahmedabad City
Civil Court, the appeal shall be placed
before such Judge as the Principal Judge may order. The
Judge shall try and record findings on the Issues
remanded for trial by the Appellate Judgment and thereafter proceed to dispose of the appeal in accordance with
law.
CHAPTER 27Miscellaneous Matters
438Petitions how verifiedAll petitions and miscellaneous applications shall be signed and verified in the same manner as plaints.
439Service of processService effected after 5 p.m. on
[working days and 1.15 p.m. on a 2nd and 4th Saturday of the
month when it is a working day), shall for the purpose of computing any period of time subsequent to such service, be deemed to
have been affected on the following day.
44OBusiness In VacationWhenever any business is required
to be done In Vacation, the Advocate or party in person shall
give reasonable notice thereof to the Registrar or the Officer whose
duty it is to attend to such business.
441Advocate’s responsibility forNo Advocate shall be at
liberty to withdraw from the conduct of any suit or matter without written order for that purpose from the Court or a Judge thereof.
442Notice of change of AdvocateWhen a suitor applies for
a Chamber Order for change of his Advocate on record In a suit
or matter, he shall first give notice of his intended application for change to that Advocate and the fact of such notice having
been served shall be stated in the affidavit in support of the said order.
443Notice of discharge to clientWhen an Advocate on
record in a suit, or matter, applies for a Chamber Order for his
discharge, he shall first give notice of his intended application for discharge to his client and the fact of such notice having been served shall be stated in the affidavit in support of the order.
444Duration of Advocate retainerAn Advocate on the
record of a suit or matter shall continue to represent his client until
an order of Discharge Is obtained and filed In Court or until the
Substituted by Notfn. 2111/64; G.G.Gaz. IV—C. dt. 9—12—1965,p. 1277. final conclusion of such suit or matter. Proceedings in execution
shall be deemed to be proceedings in the suit or matter. The parties
to the suit will not be allowed to appear or apply in person, by precipe or otherwise when they are represented by an advocate.
445Security for costs of plaintiff temporarily within jurisdiction.
—A Plaintiff ordinarily resident out of India may be ordered
to give security for costs though he may be temporarily within the jurisdiction.
446Bank and Insurance Company as SuretiesBesides any Nationalised Bank or Nationalised Insurance Company, any other Scheduled Bank approved by the Principal Judge may be accepted
as surety in respect of any order for security to be given in any
matter or proceeding in the Court.
447.The procedure prescribed by these Rules shall as far as
applicable be followed in all petitions under the Indian Divorce Act,
1869, the Special Marriage Act XLIII of 1954 and the Hindu
Marriage Act XXV of 1955 except In so far as it Is Inconsistent with the Rules framed by the High Court under the said respective/Acts.
Party in Person
448Name, etc. of party in person and of the writer, personal attendance
In case of parties, acting in person, the name,
exact address and description of such parties and of the writer of all documents filed shall be subscribed therein and parties acting in person must personally attend the Registrar’s office to receive notice, or information they may require.
449Costs(a) The Costs of an Advocate or Pleader shall be taxed in accordance with the Rules framed by the High Court under section 16 of the Bar Councils Act or section
31 of the Bombay Pleader’s Act.
(b) When several defendants having substantially one defence to make employ several Advocates, they shall be allowed one set of cost only. In such cases It will be for
the Plaintiff, at the time of hearing, to ask for a direction of the Court that separate costs be not allowed.
(c) When two or more defendants having separate substantial defences have engaged the services of one Advocate,
they shall be allowed separate sets of costs. In this case it will be for the defendants Interested to apply at the hearing for separate costs.
Substituted by H.C. Notfn. 0251/61 dt. 26—11—1974; G.G.Gaz. IV—C. dt.
5—12—1974,
p. 1020.(d) When several defendants having separate defences are represented by separate Advocates they shall be entitled
to separate costs.
(e) In case of the death of one Advocate and the appointment of another, a second fee should not be included in
the bill of costs and made leviable under the decree. This
bill exhibits the costs as between party and party, not
between Advocate and client. A party can only be made liable for one fee on account of the costs of the opposite party’s Advocate.
(f) No separate cost for Advocates or Pleaders fees shall be taxed on a Chamber Summons or a Notice of Motion
unless expressly ordered by the Court. Any party desiring
that such costs should be awarded should move the Court at the hearing of such a Chamber Summons or Notice of Motion.
450Forms to be observedThe forms contained in part II
with such variation as the circumstances of each case may require shall be used for the respective purpose therein mentioned.
Civil Manual
451Civil Manual to apply when not Inconsistent with the Rules or Act
The Orders contained In the Civil Manual, 1960
Volumes I and II of the High Court will apply In so far as they are not inconsistent with the above Rules or the provisions of the Ahmedabad City Courts Act, 1961, and the rules framed under the
Act.
Copies and copying fees, etc
22452Rules under the Bombay Civil Courts Act to apply
(1)The Rules in respect of supply of copies and translations, for
search, and fees prescribed therefor, framed under the Bombay
Civil Courts Act. 1969. and contained in Chapter XXVI of the Civil
Manual, shall apply to the copies and translations supplied and
search allowed In the City Civil Court, Ahmedabad.
(2) The party or advocate applying for certified copy of the
decree (except in summary suits) shall furnish with the application
R. 452 renumbered and sub—rule (2) added by H.C. Notfn. 0205/61. dt.
10—8—1977; G.G.Gaz. IV—C, dt. 25—8—1977, p. 743.
a copy of the plaint (as amended up to date) for preparing the certified copy of the decree and the applicant will not be entitled to the supply of a certified copy of the decree applied for till such a copy of the plaint Is furnished:
Provided that In case the party does not supply the copy within a fortnight, his application shall be deemed to have lapsed.]
23452ASupply of uncertified copies(i) Subject to such regulations as the Principal Judge may make with the previous approval of High Court, any party to the proceeding or his advocate may obtain uncertified copies of notes of evidence recorded by the Court. Fees for supply of such copies shall be charged as follows:—
(
a
) If only one party applies for a 12 Ps.
copy, per folio of 100 words or
fraction thereof —
(
b
) If two parties apply for copies. 10 Ps.
per folio of 100 words or per party.
fraction thereof —
(
c
) If more than two parties apply 8 Ps.
for copies, per folio of 100 per party.
words or fraction thereof —
(ii) out of the fees recovered as above, one half shall be paid to the stenographer or typist making out the copies and
the balance shall be credited to Government.
452BSupply of uncertified copies of Commissioner’s
Reports and Maps etc—(1) Subject to such regulations as the
Principal Judge may make with the previous approval of the High
Court, any party to the proceeding or his Advocate may obtain uncertified copies of Commissioner reports and maps with explanatory notes, if any, prepared by the Commissioner appointed
by the Court for making Inventory notes, maps, etc. as also of
reports of the Commissioner for taking accounts In matters pending
before the City Civil Court. Copying fee for such copies other than maps or plans the copying fees shall be such fees not exceeding Rs. 15 and not less than Re. I as the Registrar, may determine. Such fees for uncertified copies shall be credited to Government. No comparing fees for such uncertified copies shall be charged.
Petition Writers
453Rules under the Bombay Civil Courts Act to applyThe
Rules In respect of petition writers, framed under the Bombay Civil Courts Act, 1869, and contained in Chapter XXVIII of the Civil Manual, shall apply mutatis mutandis to the Petition Writers In
City Civil Court. Ahmedabad.
23 Added by G.G.Gaz. IV—C, d, 10—8—1967, p. 974.
CHAPTER 28Rules for Preservation and Destruction of Records in the
Ahmedabad City Civil Court.24
454.(1) The Superintendent of the Civil Board Department
shall latest by the 15th of each month cause to be prepared a list
of suits, petitions, awards and all miscellaneous matters and proceedings, which have been disposed of during the preceding month.
(2) The Superintendent of Execution Department shall latest by the 15th of each month cause to be prepared a list of execution application and other proceedings (except such miscellaneous proceedings account of which Is maintained by the Board Department) which have been disposed of during the preceding month.
(3) The Superintendent of Appeal Department shall latest by
the 15th of each month cause to be prepared a list of appeals, and
all miscellaneous matters and proceedings pertaining to appeals
which have been disposed of during the preceding month.
(4) The aforesaid lists shall be In the form prescribed below:—
S.No. No. and year of the Date Remarks, Proceeding of disposal If any
1 2 3 4
(5) The Superintendent concerned shall certify at the foot of the list that the final orders passed In such proceedings have been duly noted In the relevant registers.
455.The Superintendents of the Departments concerned shall
by 25th of each month or within ten days of the receipt of the
record, whichever is later, send records alongwith the list prepared
as per Rule 454 of the preceding month to the Superintendent, Record Department.
456.On receipt of the records, the Superintendent, Record Department shall verify whether the records correspond with those entered In the list.
457.The Superintendent, Record Department shall, on receipt
of the list and records and after verification as per Rule 456,
arrange the records of such suits, appeals and matters In file to be
marked as files ‘A‘, ‘B‘, ‘C‘ and ‘D‘. These files shall be kept in the prescribed Docket on a durable paper (Form No. 85 In part II of the Ahmedabad City Civil Court Rules, 1961).
Note.—The Sheristedar of the Court concerned should, as far as practicable, place the papers classification—wise as Indicated hereinafter In dockets or envelops marked with letters “A“, “B“, “C“ and “D“ respectively as soon as the suit or proceeding is disposed
of by the Court.
24 Chapt. XXVII. Rr. 454—470 added by Notfn. No. C. 205/61. d. 30— 4—
1970;
G.G.Gaz. IV—C, d. 14—5—1970, p. 544.
458.The arrangement of the records of such proceedings In the said flies shall be done In the following manner:—
(i)The papers which are required to be preserved shall be kept In file ‘A‘.
(ii)The papers which are required to be preserved for 30 years shall be kept In the file ‘B‘.
(iii)The papers which are required to be preserved for 12 years shall be kept In file ‘C‘.
(iv)The papers which are required to be preserved for 3 years shall be kept In file ‘D‘.
459.The Record—keeper shall prepare each month a list of the records received by him each month of such proceedings In the form prescribed below:—
No. of No. of No. of Date of No. of
papers not papers Exhs. not receipt in cupboards
or
noted in filed after to be the Record Rack and
the
Roznama decision destroyed. Room shelf
6 7 8 9 10
No. & year Date when When If destroyed Remarks
of appeal due for actually what extent
etc. if any destruction destroyed
11 12 13 14 15
460.The records shall be kept in the Record Room in cup—
boards or racks and all pre—cautlons shall be taken to ensure that
the records are not destroyed by white—ants. Insect, etc. Any
damage noticed in this respect shall be brought to the notice of the
Registrar, Immediately.
461.Each cup—board and rack shall be numbered. Each shelf of a cup—board and rack shall also be numbered.
462.(1) All records of such proceeding Including the records of any appeal etc., therefrom, shall be kept together In one bundle. Cumbrous or bulky records shall be kept separately. The records shall be arranged monthwise according to the dates of disposal.
(2) A card shall be affixed to each cup—board and rack, and the number of shelves and the particulars of the records kept In each shelf of such cup—board and rack.
463.A test Inspection of the records kept In the Record Room shall be made at the end of each quarter by an Officer to be appointed for the purpose by the Registrar. A note of the Inspection shall be made and submitted to the Registrar.
464.When any record Is removed from the Record Room for
any purpose, a note regarding such removal shall be made by the
Superintendent on a sheet of foolscap paper and such note shall be kept In the bundle where such record was kept. On return of
the record a note to that effect shall be made on the said fool— scap paper by the Superintendent.
465.(1) The papers and registers shall be preserved for the
period specified In this rule. On expiry of the respective periods or
as soon thereafter as may be convenient, they shall be destroyed. (2) Papers falling in:—
A Category on file shall be preserved permanently.
B Category on file shall be destroyed at the end of 30 years. C Categoiy on file shall be destrayed at the end of 12 years. D Category on file shall be destroyed at the end of 3 years
(3) The above periods, shall be calculated from the date of the final decree or order, which In cases In which appeal or revision applications are filed will be that of the appellate or revislonal Court.
466.(1) The papers and Registers hereunder mentioned shall
be preserved for the periods specified in Rule 466. On expiry of the respective periods or as soon thereafter as may be convenient, they shall be destroyed.
PART 1
Papers forming part of Court proceeding .—(A) To be preserved permanently:
(1) In the case of suits and matrimonial cause:— (a) Plaint.
(b) Written Statement and counter—claim if they form one document.
(c) Counter—claim If made separately from written statement. (d) Judgment.
(el Preliminary and final decree.
(f) Final order.
(g) Written statement other than that shown In (b). (h) Reply to counter—claim or set off.
(2) In case of execution proceedings:—
(a) Order confirming Sale of immovable property in execution. (b) Copy of sale certificate for sale of immovable property.
(c) Proclamation of sale. Lilav yadi or Memorandum of auction in
case of sale of immovable property in execution of decree.
(3) In case of appeals:— (a) Appeal Memo.
(b) Memorandum of Cross objections. (c) Judgment.
(d) Decree or final order.
(4) In the case of Testamentary and Succession matters:— (a) Petition.
(b) Judgment.
(c) Final order.
(3) In case of Insolvency matters:— (a) Petition.
(b) Order of Adjudication.
(c) Order setting aside order of adjudication.
(d) Judgment or final order.
(e) Order on the application for discharge.
(f) Order of Annulment.
(g) Order sanctioning sale of insolvent’s immovable property—
(6) In the case of other petitions, applications and miscellaneous matters not being of an interlocutory nature:—
(a) Petition. (b) Judgment.
(c) Final Decree or final order.
(B) To be preserved, for 30 years.—(1) In the case of suits and other matters mentioned at (1), (2), (3), (4), (5) and (6) above. (a) Summons on notice with return thereof in cases in
which an exparte order Is passed against the defendant.
(b) Reference to Arbitration and award If Decree is passed
in terms thereof.
(c) any order of the Court sanctioning a compromise as beneficial to minor or lunatic.
(d) Petition of compromise If given effect to in the decree. (e) Roznama of proceeding.
(f) Findings certified to the Appellate court.
(g) Copy of judgment. Decree or orders passed in appeal or
revision, if any.
(h) Bond given as security. (I) Administration Bond.
(j) Schedule of insolvents assets and liabilities.
(k) Maps or plans relating to property in dispute and admitted in evidence.
(C) To be preserved for 12 years:—
(a) Affidavits giving particulars in pleadings.
(b) Documents admitted in evidence.
(c) Interrogatories and their answers.
(d) Oral evidence.
(e) Affidavits when treated as evidence.
(f) Reports and petitions of the Official Receiver and the
orders passed thereon.
(g) Memorandum of Issues.
(D) To be preserved for 3 years:—
(a) Warrant of attachment before judgment.
(b) All summonses and notice except those mentioned in file
’B’ (a).
(c) List of witnesses and documents.
(d) Petition relating attendance of witnesses and adjournments on calling for and sending papers or records.
(e) Registered addresses of parties.
(f) Documents not exhibited.
(g) Powers of attorney.
(h) Vakalatnamas and memo of appearance.
(1) Interlocutory proceedings not specified as Included in
any other file.
(j ) All papers relating to Insolvency petition and insolvency
notice not otherwise provided for by these rules.
(k) All other papers not included in files ‘A‘, ‘B‘, ‘C‘.
PART II
Papers not forming part of court proceeding are classified as follows for the purpose of destruction of records.
Nature Classification
1 2
(1) CIVIL BOARD DEPARTMENT
1. Register of Suits. A
2. Register of Land References A
3. Register of Insolvency Petitions A
4. Register of M.A.C.T. A
5. Register of Misc. Appln. in M.A.C.T. A
6. Lodging Registers of Suits D
7. Lodging Registers of Petitions D
8. Lodging Registers of Insolvency Petitions D
9. Register of Processes sent for service D
10. Register of compensation cases A
11. Register under Guardian and Wards Act A
12. Register of rejected plaints C
13. File of plaints returned for presentation to
proper courts B
14. Daily court fee register C
15. Process fee register C
16. ‘A‘, ‘B‘, ‘C‘, ‘D‘ Registers of decided cases. D
17. Register of Notice of Motion D
18. Register of Chamber Summons. D
19. Register of Commission issued D
20. Register of stamp duty and penalty C
21. Daily, Weekly and Monthly Boards D
22. Memo Books C
23. Register of pending suits (Bombay Register) D
24. Register of suits referred to and pending D
with the Commissioner.
25. Register of stayed suits. D
26. Register of suits referred to Arbitration D
27. Register showing original suits and matters D
sent to Decree Department.
28. Register of Grants D
29. Register showing transmission of process D
for service through courts.
(2) NAZIR AND ACCOUNTS
DEPARTMENT
1. Forms A-C-D-E-F-G-H-I-J-K-L, regarding D
accounts
Note. -Before the Registers in Form ’C’ and
’G’ C
are destroyed all the outstanding items
therein
including amounts lapsed to Government
should
be transferred to new Registers in the same
forms
under the initials of the Superintendent of the
Department and these new Registers (to be
called
the permanent Registers ’C’ and ’G’) should
be
preserved permanently.
2. Instructions issued for guidance on B
examination of accounts (from the date of
receipt)
3. Chalans C
4. Accounts Books of postage stamps D
5. Office copies of contingent bills and D
Travelling Allowance bills
6. Receipt of Registered letters and money
orders. D
7. Bailiffs’ process serving and receipt book 6 years.
8. Audit Notes and objections (not containing 6 years.
instructions for guidance) (from the date of
receipt)
9. Office copies of replies on explanations to 6 years.
Audit Notes and Objections (from the dates
of such replies on explanations).
10. File of Wills A
11. Register of cases in which Nazir is appointed
guardian-ad- litem. C
12. Register of Attachment. C
(3) EXECUTION DEPARTMENT
1. Register of application for Execution. B
2. Register of Applications requiring Judicial A
inquiry
3. Register of Applications not requiring C
Judicial inquiry
4. Register of Sale Certificates. C
5. Register of Darkhasts transferred to the B
Collector for execution.
6. Register of Decrees received for execution. C
7. Daily Court-fee Register C
8. Process Fee Register C
9, File containing copies of sale certificates. A
10. Register showing documents sent to Sub- B
Registrar for registration.
11 Register showing transmission of certified C
copies of decree and orders .
(4) DECREE DEPARTMENT
1. Register showing progress of the drawing up D
of the decrees and orders.
2. Register showing Applications for certified C
copies and translation.
3. Applications for copies and translations. D
4. Fee account book kept under Rules 4 and 7 C
(para 505 of the Civil Manual).
5. Register of copies supplied to prisoners in D
Jail (From VII).
(5) RECORD DEPARTMENT
1. Receipt books of documents, returned to D
parties.
2. Register of withdrawal of exhibits. D
3. Register for search and inspection purposes D
4. General Register of records. A
5. Registers showing original documents or B
suit records sent to other Department or
court.
(6) APPEAL-CUM-COPYING
DEPARTMENT
1. Receipt Book of documents given to Section D
Writers.
2. Register of work done by Section-Writers. D
3. Appeal Register. A
4. Register of Writs in Appeals. C
(7) CORRESPONDENCE DEPARTMENT
1. Register of Commission. D
2. Inward and Outward Registers. (Both C
English and Gujarati)
3. Correspondence file of ephemeral
importance. C
4. Government Gazettes. A
5. Reports of Enquiry Officers and final orders
6 years .
in Departmental enquiries (from the date of
final order).
6. Other miscellaneous correspondence (from D
the date of disposal of the subject to which
such correspondence relates).
7. Miscellaneous reports of Judges to D
Principal Judge.
8. Post Books (tapal books) D
9. Lawyer’s application for leave, etc. D
10. Muster Rolls. D
11. Statements, depositions and other records 6 years.
of departmental enquiries (other than
reports of Enquiry Officers and Final orders)
(from the date of final order).
12. Reports of Enquiry Officers and Final B
Orders in Department enquiry (from the date
of final order).
13. Correspondence and office copies of 6 years.
correspondence relating to Administrative
subjects such as buildings, accommodation,
strength of staff etc. and miscellaneous
correspondence (From the date of disposal of
the subject to which such correspondence
relates.)
14. Government Resolution File. A
15. Register of Pleaders. A
16. Register of Pleaders’ clerks. A
17. Register of Advocates regarding issue of D
certificates.
18. Register of Departmental enquiry. B
19. L.A. and L.C. Questions Register. C
20. Register regarding Advocates debarred from
practice. B
21. Register regarding oath of allegiance. B
Note. I. —The period prescribed for the destruction of the records mentioned in Part II will begin to run from the date of the last entry.
2. The records will not be destroyed till all live entries required to be carried forward are carried forward to new register.
PART III
467Special order for preservation or destructionNotwithstanding anything herein contained, the Principal Judge, may,
for any reason, direct that any of the papers and books be destroyed either earlier or later than the time prescribed by the above rules. The Principal Judge may direct that any book or documents not hereinabove mentioned may be destroyed after
such time as he may think fit.
PART IV
468Preparation of list of suits etc., in which papers are proposed to be destroyed(l) The Record Keeper shall, in the month of March every year. prepare a list of suits, matter and
appeal in which the papers are proposed to be destroyed. The list
shall be approved by an Officer to be appointed by the Registrar, City Civil Court for this purpose.
(2) Notice to be put up.—One month before the date fixed for the destruction of records a notice alongwith the list prepared under sub—rule ( I ) shall be put up on the notice board In the office of the Registrar, City Civil Court, Ahmedabad. informing parties that it is proposed to destroy the records of suits, matters and appeals
mentioned in the said list In accordance with the rules for the destruction of records.
(3) Application for withdrawal of exhibit.—Any party desiring to withdraw any exhibit produced by him may apply to the Registrar, City Civil Court for its withdrawal. The application shall be made within three weeks from the date of the notice mentioned in sub—rules.
(4) If no application Is made within such time, the exhibit shall be destroyed in accordance with these rules.
PART V
469Records due for destruction to be kept separatelyThe
record which Is due for destruction in any year shall be taken out and kept on separate racks until it is destroyed.
PART VI
47OWhen destruction to be carried out disposal of
destroyed recordThe destruction of records shall ordinarily be
carried out in the Summer Vacation each year. The destroyed
record shall be disposed of in accordance with the orders issued by
Government from time to time.
Rule 37 (2) Verification of plaint on written statement. Rule 49 Short Cause Plaint presented this day of 19 Summons to answer plaint under section 27, 0. V, rr. 1, 5, 7
and 8 and 0. VIII, r. 9 of the Code of Civil Procedure.
Rule 49 Long Cause Plaint filed this day of 19 . You are required to file a written Statement of your defence and
serve a copy on the Plaintiff within four weeks from the service of this summons upon you, in default whereof the suit will be set down to be heard as undefended and you will be liable to have a
Decree or order passed against you.
Tuesday, October 6, 2009
AHMEDABAD CITY CIVIL COURT RULES, 1961
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