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




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ORDER XLV

APPEALS TO THE [SUPREME COURT]

[1. In this Order unless there is something repugnant in subject or context the expression "decree" shall include a judgment or a final Order.]

2. Whoever desires to appeal to [the Supreme Court] shall apply by petition to the Court whose decree is complained of.

[3. - (1) A petition made under rule 2 shall briefly state the grounds of appeal and pray for a certificate.]

(2) Upon receipt of such petition the Court shall direct notice to be served on the opposite-party to show cause why the said certificate should not be granted:

[Provided that no notice shall be directed to be served on or given to the opposite party or to the legal representative of a deceased opposite party in a case where such opposite party did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court.]

[(3) The Court may if the opposite party in response to the notice issued under sub-rule (2) appears after hearing both the parties or if the opposite party does not appear in response to such notice then after hearing the party making the petition, grant or refuse the certificate]

(4) If on the date fixed for the hearing the party making the petition does not appear and the opposite party appears in response to such notice or if both the parties do not appear on such date the petition shall be dismissed.]

4. for the purposes of pecuniary valuation suits involving substantially the same questions for determination and decided by the same judgment may be consolidated; but suits decided by separate judgments shall not be consolidated notwithstanding that they involve substantially the same questions for determination.

5. In the event of any dispute arising between the parties as to the amount or value of the subject matter of the suit in the Court of first instance or as to the amount or value of the subject matter in dispute on appeal to [the Supreme Court], the Court to which a petition for a certificate is made under rule 2 may, if it thinks fit refer such dispute for report to the Court of first instance which last mentioned Court shall proceed to determine such amount or value and shall return its report together with the evidence to the Court by which the reference was made.

6. [Omitted by Federal Adaptation of Laws Order (P.O. 4 of 1975) w.e.f. 1st August 1975]

7. - (1) Where the certificate is granted the applicant shall within [ninety days or such further period, not exceeding sixty days as the Court may upon cause shown allow] from the date of the decree complained of or within six weeks from the date of the grant of the certificate whichever is the later date, -

a) furnish security [in cash or in Government securities] for the costs of the respondent and
b) deposit the amount required to defray the expense of translating, transcribing, indexing [printing] and transmitting to [the Supreme Court] a correct copy of the whole record of the suit, except -
(1) formal documents directed to be excluded by any [Rule of the Supreme Court] in force for the time being
(2) papers which the parties agree to exclude;
(3) accounts or portions of accounts which the officer empowered by the Court for that purpose considers unnecessary and which the parties have not specifically asked to be included; and
(4) such other documents as the High Court may direct to be excluded;

[Provided that the Court at the time of granting the certificate may after hearing any opposite party who appears order on the ground of special hardship that some other form of security may be furnished;

Provided further that no adjournment shall be granted to an opposite party to contest the nature of such security.

8. Where such security has been furnished and deposit made to the satisfaction of the Court the Court shall -

a) declare the appeal admitted
b) give notice thereof to the respondent
c) transmit to [the Supreme Court] under the seal of the Court a correct copy of the said record except as aforesaid and
d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore any paying the reasonable expenses incurred in preparing them.

9. At any time before the admission of the appeal the Court may upon cause shown revoke the acceptancy of any such security and make further directions thereon.

9.-A. [Omitted by Federal Adaptation of Laws Order (P.O. 4 of 1975) with effect from 1st August 1975.]

10. Where at any time after the admission of an appeal but before the transmission of the copy of the record except as aforesaid to [the Supreme Court] wuch security appears inadequate.

Or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record except as aforesaid,

The Court may order the appellant to furnish within a time to be fixed by the Court other and sufficient security or to make within like time the required payment.

11. Where the appellant fails to comply with such order, the proceedings shall be stayed.

And the appeal shall not proceed without an order in this behalf of [Supreme Court],

And in the meantime execution of the decree appealed from shall not be stayed.

12. When the copy of the record except as aforesaid, has been transmitted to [the supreme Court] the appellant may obtain a refund of the balance (if any) of the amount which he has deposited under rule 7.

13. - (1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court, -

a) impound any movable property in dispute or any part thereof, or
b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which [the Supreme Court] may make on the appeal, or
c) stay the execution of the decree appealed from taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from or of any order which [the Supreme Court] may make on the appeal, or
d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as
it thinks fit, by the appointment of a receiver or otherwise.

14. - Where at any time during the pendency of the appeal the security furnished by either party appears inadequate, the Court may, on the application of the other party, require further security.

(2) in default of such further security being furnished as required by the Court, -

(a) if the original security was furnished by the appellant, the Court may, on the application of the respondent, execute the decree appealed from as if the appellant had furnished no such security;


(b) if the original security was furnished by the respondent, the Court shall, so far as may be practicable, stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respecting the subject-matter of the appeal as it thinks fit.

15. - (1) Whoever desires to obtain execution of any order of [the Supreme Court] shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to [the Supreme Court] was preferred.

(2) Such Court shall transmit the order of [the Supreme Court] to the Court which passed the first decree appealed from, or to such other Court as [the Supreme Court] by such order may direct, and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.

[(3) * * * * * * * * *]

[(4) Unless [the Supreme Court] is pleased otherwise to direct, no order of [the Supreme Court] shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite-party or deceased respondent in a case where such opposite-party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court but such order shall have the same force and effect as if it had been made before the death took place.]

16. The orders made by the Court which executes the order of [the Supreme Court], relating to such execution, shall be appeal able in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees.

17. [Appeals to the Federal Court]. Omitted by the Federal Court Act 1941 (XXI of 1941), S.2.


ORDER XLVI

REFERENCE

1. Where before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained and refer such statement with its own opinion on the point for the decision of the High Court.


2. The Court may either stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an order contingent upon the decision of the High Court on the point referred;

But no decree or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference.

3. The High Court, after hearing the parties if they appear and desire to be heard, shall decide the point so referred, and shall transmit a copy of its judgment, under the signature of the Registrar, to the Court by which the reference was made; and such Court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.

4. The costs (if any) consequent on a reference for the decision of the High Court shall be costs in the case.

5. Where a case is referred to the High Court under rule 1, the High Court may return the case for amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose, and make such order as it thinks fit.

6.-(1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court, with a statement of its reasons for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the Court either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit.

7.-(1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or if required by a party shall submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous.

(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.

(3) With respect to any proceedings subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such order as in the circumstance appears to it to be just and proper.

(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purpose of this rule.




ORDER XLVII

REVIEW

1.- (1) Any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b) By a decree or order from which no appeal is allowed, or
(c) By a decision on a reference from a Court of Small Causes,

And who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was ot within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

2. An application for review of a decree or order of a Court, not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the Judge who passed the decree or made the order sought to be reviewed; but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under rule 4, sub-rule (2), proviso, (a) be disposed of by his successor.

1. The provisions as to the form of preferring appeal shall apply, mutatis mutandis, to applications for review.

4.-(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) Where the Court is of opinion that the application for review should be granted it shall grant the same;

Provided that -

(a) no such application shall be granted without previous notice to the opposite-party to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and
(b) no such application shall be granted on the ground of discovery of new matter or evidence which, the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

5. Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application and no other judge or judges of the Court shall hear the same.

6.- (1) Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected.

(2) Where there is a majority the decision shall be according to the opinion of the majority.

7.-(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was -
(a) in contravention of the provisions of rule 2,
(b) in contravention of the provisions of rule 4, or
(c) after the expiration of the period of limitation prescribed therefore and without sufficient cause.

Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.

(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub rule (2) unless notice of the application has been served on the opposite-party.

8. When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make, such order in regard to the re-hearing as it thinks fit.

[9. - (1) No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.

(2) Nothing in this order shall apply to any judgment pronounced or order made by the Supreme Court.]


ORDER XLVIII

MISCELLANEOUS

1. - (1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.

(2) The court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued.

2. All orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons.

3. The forms given in the appendices, with such variation as the circumstances of each case may require shall be used for the purposes therein mentioned.


ORDER XLIX

HIGH COURTS

1. Notice to produce documents, summonses to witnesses, and every other judicial process, issued in the exercise of the original civil jurisdiction of the High Court, and of its matrimonial, testamentary and intestate jurisdictions, except summonses to defendants, writs of execution and notices to respondents may be served by the attorneys in the suits, or by persons employed by them, or by such other persons as the High Court, by any rule or order, directs.

2. Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in force at the commencement of this Code for the taking of evidence or the recording of judgment and orders by a High Court.

3. The following rules shall not apply to any High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:-

1) rule 10 and rule 11, clauses (b) and (c), of Order VII,
2) rule 3 of Order X;
3) rule 2 of Order XVI;
4) rules 5,6,8,9,10,11,13,14,15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII;
5) rules 1 to 8 of Order XX; and
6) rule 7 of Order XXXIII (so far as relaxes to the making of a memorandum);
and rule 35 of Order XLI shall not apply to any High Court in the exercise of its appellate jurisdiction.

ORDER L

PROVINCIAL SMALL CAUSE COURTS

1. The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887, *** or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act], that is to say -

a) so much of this schedule as relates to -
i) suit excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;
ii) the execution of decrees against immovable property or the interest of a partner in partnership property;
ii) the settlement of issues; and

b) the following rules and Orders, -

Order II, rule 1 (frame of suit);
Order X, rule 3 (record of examination of parties);
Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment ;
Order XVIII, rules 5 to 12 (evidence);
Order XLI to XLV (appeals);
Order XLVII, rules 2,3,5,6,7 (review);
Order LI.


ORDER LI

[PRESIDENCY SMALL CAUSE COURTS]
Omitted by the A.O., 1949.



ORDER L


PROVINCIAL SMALL CAUSE COURTS

1. Provincial Small Cause Courts:- The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act, that is to say--


(a) so much of this schedule as relates to
(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;
(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;
(iii) the settlement of issues; and
(b) the following rules and Orders,--
Order II, rule 1 (frame of suit);
Order X, rule 3 (record of examination of parties);
Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment;
Order XVIII, rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Order XLVII, rules 2,3,5,6,7 (review);
Order LI.

Leg. Am.: 1. The words and figures "or under the Berar Small Cause Courts Law, 1905" which were ins. by the Berar Laws Act 1941 (4 of 1941), S. 2 and Third Sch. have been omitted by the A.O., 1949.

2. The original words "under that Act" have been successively amended by the Berar Law Act 1941 (4 of 1941) and the A.O., 1949 to read as above.
IHA : K.
Cross Ref.: S. 7; 0. 20.4.

ORDER LI

PRESIDENCY SMALL CAUSE COURTS

Leg. Am.: 1. Omitted by the A.O., 1949.


High Court Amendment-Sind. Add the following as Order 52.

ORDER LII

1. Applicability of Rule 38 of Order 41 to proceedings under Section 115. Rule 38 of Order 41 shall apply, so far as may be, to proceedings under Section 115 of the Code.



TITLES OF SUITS
APPENDIX A
PLEADINGS

(1) Titles of Suits

IN THE COURT OF


A.B. (add description and residence) … Plaintiff
against
C. D. (add description and residence) … Defendant

(2) Description of Parties in Particular Cases


Pakistan or the Province of, as the case may be
The Advocate-General of
The Collector of
The State of
The A.B. Company, Limited, having its registered office at
A.B., a public officer of the C.D. Company.
A.B. (add description and residence) on behalf of himself and all other creditors of C.D., late of (add description and residence).
A.B. (add description and residence) on behalf of himself and all other holders
of debentures issued by the Company,
Limited
The Official Receiver
A.B., minor (add description and residence), by C.D., (or by the Court of Wards], his next friend.
A.B. (add description and residence) a person of unsound mind (or of weak mind], by
C.D., his next friend
A.B, a firm carrying on business in partnership.
A.B, (add description and residence by his constituted attorney C.D (add description and residence).
A.B, (add description and residence), Shebait Thakar.

FORMS OF PLEADINGS

A B. (add description and residence) executor of C.D. deceased.


A.B. (add description and residence), heir of C.D., deceased.

(3) Plaints

No. 1 MONEY LENT
A.B., the above-named plaintiff, states as follows:-

1. On the_____day of_____19 he lent the defendant rupees repayable on the ____ day of ____.


2. The defendant has not paid the same except _____ rupees paid on the ____ day of ___19. (If the plaintiff was a minor (or insane) from the ____day of _____ till the ____day of ___.
3. The plaintiff was a minor (or insane) from the day of_____.
4. Facts showing when the cause of action arose and that the court has jurisdiction).
5. The value of the subject matter of the suit for the purpose of jurisdiction is____ rupees.
6. The plaintiff claims____ rupees with interest at _____ percent from the ____ day of ___19.
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