Code of Civil Procedure, 1908. Act no. V of 1908 [21st March 1908]




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ORDER XXXV

INTERPLEADER

1. In every suit of interpleader the plaint shall, in addition to other statements necessary for plaints, state -

a) that the plaintiff claims no interest in the subject matter in dispute other than for charges or costs;
b) the claims made by the defendants severally ; and
c) that there is no collusion between the plaintiff and any of the defendants.

2. Where the thing claimed is capable of being paid into Court or placed in the custody of the Court the Plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.

3. Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect of the subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall on being informed by the Court in which the interpleader suit has been instituted stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but if and in so far as they are not provided for in that suit they may be added to his costs incurred in the interpleader suit.

4. - (1) At the first hearing the Court may -

a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs and dismiss him from the suit; or
b) if it thinks that justice or convenience so require retain all parties until the final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed.

(3) Where the admission of the parties do not enable the Court so to adjudicate it may direct -

a) that an issue or issues between the parties be framed and tried and


b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff,
and shall proceed to try the suit in the ordinary manner.

5. Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue then landlords for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or the landlords.




Illustrations

a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A and claims them from B. B cannot institute an interpleader-suit against A and C.


b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute an interpleader-suit against A and C.

6. Where the suit is properly instituted the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.



ORDER XXXVI

SPECIAL CASE

1.-(1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court and providing that, upon the finding of the Court with respect to such question,-

a) a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them ; or
b) some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or
c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

(2) Every case stated under this rule shall be divided into consecutively numbered paragraphs and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised thereby.

2. Where the agreement is for the delivery of any property, or for the doing, or the refraining from doing, any particular act, the estimated value of the property to be delivered or to which the act specified has reference shall be stated in the agreement.

3.-(1) The agreement if framed in accordance with the rules hereinbefore contained, may be filed in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.

(2) The agreement when so filed shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of them as defendant or defendants; and notice shall be given to all the parties to the agreement other than the party or parties by whom it was presented.

4. Where the agreement has been filed the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained therein.

5.-(1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suits so far as the same are applicable.

(2) Where the Court is satisfied, after examination of the parties or after taking such evidence as it thinks fit,-

a) that the agreement was duly executed by them,-
b) that they have a bona fide interest in the question stated therein and
c) that the same is fit to be decided,

it shall proceed to pronounce judgement thereon in the same way as in an ordinary suit and upon the judgement so pronounced a decree shall follow.




ORDER XXXVII

SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS

1. This order shall apply only to the High Court [to the District Court and to any other Civil Court notified in this behalf by the High Court.]

2. - (1) All suits upon bills of exchange hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed.

(2) In any case in which the plaint and summons are in such forms respectively the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree -


[a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80 as the case may be of the Negotiable Instruments Act 1881 up to the date of the institution of the suit or for the sum mentioned in the summons whichever is less and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and

b) for such subsequent interest if any as the Court may order under section 34 of this Code; and

d) for such sum for costs as may be prescribed:
Provided that if the plaintiff claims more than such fixed sum for costs the costs shall be ascertained in the ordinary way.

(3) A decree passed under this rule may be executed forthwith.

3. - (1) The Court shall upon application by the defendant give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.

(2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court giving security, framing and recording issues or otherwise as the Court thinks fit.

[(3) The provisions of section 5 of the Limitation Act 1908 (IX of 1908) shall apply to applications under sub-rule (1)].

4. After decree the Court may under special circumstances, set aside the decree and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do and on such terms as the Court thinks fit.

5. In any proceedings under this Order the Court may order the bill hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.

6. The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment or otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.

7. Save as provided by this Order the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.


ORDER XXXVIII

ARREST AND ATTACHMENT BEFORE JUDGMENT

Arrest before Judgment


1. Where at any stage of a suit other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied by affidavit or otherwise, -

a) that the defendant with intent to delay the plaintiff or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,-

i) has absconded or left the local limits of the jurisdiction of the Court, or

ii) is about to abscond or leave the local limits of the the jurisdiction of the Court or
iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or

b) that the defendant is about to leave [Pakistan] under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,


the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

2.- (1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.

(2) Every surety for the appearance of a defendant shall bind himself in default of such appearance to pay any sum of money which the defendant may be ordered to pay in the suit.

3.- (1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.

(2) On the application being made, the Court shall summon the defendant to appear or, if it thinks fit, may issue a warrant for his arrest in the first instance.

(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.

4. Where the defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to […..] prison until the decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied:

Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees:
Provided also that no person shall be detained in prison under this rule after he has complied with such order.

Attachment before Judgment

5. - (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him, -

a) is about to dispose of the whole or any part of his property, or


b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the court may direct the defendant, within a time to be fixed by it either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

6. - (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.

(2) Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, make such other order as it thinks fit.

6. Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

7. Save as other wise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

8. Where any claim is preferred to property attached before judgment such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money.

9. Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.

10. Attachment before judgment shall not affect the rights, existing prior to the attachment of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying the for the sale of the property under attachment in execution of such decree.

11. Where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.

12. Nothing in this Order shall be deemed to authorise the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.

[13. Nothing in this Order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.]



ORDER XXXIX

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary Injunctions

1. Where in any suit it is proved by affidavit or otherwise-
a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
b) that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors,

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction keeping an account giving security or other wise, as the Court thinks fit.

(3) In case of disobedience, or breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience of breach to be attached, and may also order such person to be detained in [……] prison for a term not exceeding six months, unless in the meantime the Court directs his release.

(4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto.

[ (2-A) An interim injunction passed under rule 1 or 2 in the absence of defendant shall not ordinarily exceed fifteen days:

Provided that such injunction may be extended for failure of its service on the defendant when such failure is not attributable to the plaintiff or when the defendant seeks time for defence of application for injunction.

(2-B) The order of injunction made under rule 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the court after hearing the parties again and for reasons to be recorded for such extension:
Provided that report of such extension shall be submitted to the High Court].

[3. The Court shall in all cases, before granting an injunction direct notice of the application for the same to be given to the opposite-party:

[Provided that except in the case of sale of goods for default in payment at the stipulated time of a debt in respect of which the goods were pledged with any bank, or where the injunction is to be granted against Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government in any case not involving the ejectment of any person from or the demolition of, any premises, the Court may where it appears that the object of granting injunction would be defeted by the delay, dispense with such notice:

Provided further that the period of notice under this rule to Government or a Government servant as such or any statutory authority, board or corporation set up or established by Government shall not be less than two days nor exceed seven days.]

4. Any order for an injunction may be discharged, or varied, or set aside by the Court on application made thereto by any party dissatisfied with such order.

[ 4-A. An injunction granted by a Court in a suit which seeks to question the validity or legal effect of any order made, proceedings taken or act done by authority or person, which has been made, taken or done, or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule to the Constitution or relates to, or is connected with assessment or collection of public revenues shall cease to have effect on the expiration of a period of [ six months] following the day on which it is made, unless the case is finally decided, or the injunction is discharged or set aside, by the Court earlier.

Explanation - In this rule, 'public revenues' includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government.]

5. An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.

6. The Court may, on the application of any party to a suit, order the sale by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property, being the subject-matter of suit or attached before judgment in such suit, which is subject to speedy and natural decay or which for any other just and sufficient cause it may be desirable to have sold at once.

7. (1) The Court may, on the application of any party to a suit and on such terms as it thinks fit -

a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit or as to which any question may arise therein;
b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; and
c) for all or any of the purposes aforesaid authorise any samples to be taken or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorised to enter under this rule.

8. - (1) An application by the plaintiff for an order under rule 65 or rule 7 may be made after notice to the defendant at any time after institution of the suit.

(2) An application by the defendant for a like order may be made after notice to the plaintiff at any time after appearance.

9. Where land paying revenue to Government or a tenure liable to sale, is the subject-matter of a suit, if the party in possession of such land or tenure neglects to pay the government revenue, or the rent due to the proprietor of the tenure, as the case may be and such land or tenure is consequently ordered to be sold any other party to the suit claiming to have an interest in such land or tenure may upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court) be put in immediate possession of the land or tenure;

and the Court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid with interest thereon at such rate as the Court orders in any adjustment of accounts which may be directed in the decree passed in the suit.

10. Where the subject matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party or that it belongs or is due to another party the Court may order the same to be deposited in |court or delivered to such last named party with or without security subject to the further direction of the Court.

ORDER XL

APPOINTMENT OF RECEIVERS

1. - (1) Where it appears to the Court to be just and convenient, the Court may by order -

a) appoint a receiver of any property, whether before or after decree;
b) remove any person from the possession or custody of the property;
c) commit the same to the possession, custody or management of the receiver; and
d) confer upon the receiver all such powers as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has or such of those powers as the Court thinks fit.

(2) Nothing in this rule shall authorise the court to remove from the possession or custody of property any person whom any party to the suit has not present right so to remove.

2. The Court may by general or special order fix the amount to be paid as remuneration for the service of the receiver.

3. Every receiver so appointed shall -

a) furnish such security (if any as the Court thinks fit, duly to account for what he shall receive in respect of the property;
b) submit his accounts at such periods and in such form as the Court directs;
c) pay the amount due from him as the Court directs; and
d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

4. Where a receiver -

a) fails to submit his accounts at such periods and in such form as the Court directs, or
b) fails to pay the amount due from him as the Court directs or
c) occasions loss to the property by his wilful default or gross negligence,

the Court may direct his property to be attached and may sell such property and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

5. Where the property is land paying revenue to the Government or land of which the revenue has been assigned or redeemed and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector appoint him to be receiver of such property.

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