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CODE OF CIVIL PROCEDURE 1908

ORDER XXXI SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

What is Representation of beneficiaries in suits concerning property vested in trustees, etc.? What is Joinder of trustees, executors and administrators? Is Husband of married executrix not to join? Rule 1, 2 and 3 of Order XXXI of Code of Civil Procedure 1908

 

 

ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

Can Minor to sue by next friend? Where suit is instituted without next friend, plaint to be taken off the file? Security to be furnished by next friend when so ordered, Should Guardian for the suit to be appointed by Court for minor defendant? Who may act as next friend or be appointed guardian for the suit? Representation of minor by next friend or guardian for the suit, Receipt by next friend or guardian for the suit of property under decree for minor, Agreement or compromise by next friend or guardian for the suit, Retirement of next friend? Rule 1, 2, 3, 4, 5, 6, 7 and 8 of Order XXXII of Code of Civil Procedure 1908

What is Removal of next friend? What is Stay of proceedings on removal, etc., of next friend? How is the Retirement, removal or death of guardian for the suit? What is the Course to be followed by minor plaintiff or applicant or attaining majority? Where minor co-plaintiff attaining majority desires to repudiate suit? What is Unreasonable or improper suit? Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind, Savings, Rule 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of Order XXXII of Code of Civil Procedure 1908

ORDER XXXII A SUITS RELATING TO MATTERS CONCERNING THE FAMILY

What is Application of the Order? Are Proceedings to be held in camera? What is the Duty of Court to make efforts for settlement? How to get Assistance of welfare expert? What is the Duty to inquire into facts? What is "Family"-meaning of? Rule 1, 2, 3, 4, 5 and 6 of Order XXXII A of Code of Civil Procedure 1908

 

 

ORDER XXXIII SUITS BY INDIGENT PERSONS

What is the meaning of Suits may be instituted by indigent person? What Inquiry into the means of an indigent person? What is Contents of application? What is Presentation of application? What is Examination of applicants? What is Rejection of application? What is Notice of day for receiving evidence of applicant’s indigency? Rule 1, 2, 3, 4, 5 and 6 of Order XXXIII of Code of Civil Procedure 1908

What is the Procedure at hearing? What is the Procedure if application admitted? What is Withdrawal of permission to sue as an indigent person? What is Costs where indigent person succeeds? What is the Procedure where Indigent person fails? What is the Procedure where indigent persons suit abates? State Government may apply for payment of court-fees Rule 7, 8, 9, 10, 11 and 12 of Order XXXIII of Code of Civil Procedure 1908

State Government to be deemed a party? How to do Recovery of amount of court-fees? What is Refusal to allow applicant to sue as indigent person to bar subsequent application of like nature? What is Grant of time for payment of court-fee? Costs, How to Defence by an indigent person? What is the Power of Government to provide for free legal services to indigent person? Rule 13, 14, 15, 16, 17 and 18 of Order XXXIII of Code of Civil Procedure 1908

ORDER XXXIV SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

Who are the Parties to suits for foreclosure sale and redemption? What is Preliminary decree in foreclosure suit? What is Final decree in foreclosure suit? What is Preliminary decree in suit for sale? What is Final decree in suit for sale? What is Recovery of balance due on mortgage in suit for sale? What is Preliminary decree in redemption suit? Rule 1, 2, 3, 4, 5, 6 and 7 of Order XXXIV of Code of Civil Procedure 1908

What is Final decree in redemption suit? What is Recovery of balance due on mortgage in suit for redemption? What is Decree where nothing is found due or where mortgagee has been overpaid, Costs of mortgagee subsequent to decree? What is Power of Court to direct mortgagee to pay mesne profits? What is Payment of interest? What is Sale of property subject to prior mortgage? What is Application of proceeds? What is Suit for sale necessary for bringing mortgaged property to sale? What is Mortgages by the deposit of title deeds and charges? Rule 8, 9, 10, 11, 12, 13, 14 and 15 of Order XXXIV of Code of Civil Procedure 1908

ORDER XXXV INTERPLEADER

What is Plaint in interpleader-suit? Payment of thing claimed into Court, What is the Procedure where defendant is suing plaintiff? What is the Procedure at first hearing? Can Agents and tenants may not institute interpleader suits? What is Charge for plaintiff’s costs? Rule 1, 2, 3, 4, 5 and 6 of Order XXXV of Code of Civil Procedure 1908

ORDER XXXVI SPECIAL CASE

What is the Power to state case for Courts opinion? Where value of subject-matter must be stated? Rule 1 and 2 of Order XXXVI of Code of Civil Procedure 1908

ORDER XXXVII SUMMARY PROCEDURE

What are the Court and classes of suits to which the Order is to apply? What is the process for Institution of summary suits? What is the Procedure for the appearance of defendant? What is the Power to set aside decree? What is the Power to order bill, etc., to be deposited with officer of Court? What is Recovery of cost of noting non-acceptance of dishonoured bill or note? What is the Procedure in suits? Rule 1, 2, 3, 4, 5, 6 and 7 of Order XXXVII of Code of Civil Procedure 1908

ORDER XXXVIII ARREST AND ATTACHMENT BEFORE JUDGMENT

Where defendant may be called upon to furnish security for appearance? Security, What is Procedure on application by surety to be discharged? Procedure Where defendant fails to furnish security or find fresh security? Rule 1, 2, 3,  and 4 of Order XXXVIII of Code of Civil Procedure 1908

Where defendant may be called upon to furnish security for production of property? Attachment where cause not shown or security not furnished? What is the Mode of making attachment? What is Adjudication of claim to property attached before judgment? How is Removal of attachment when security furnished or suit dismissed? What is Attachment before judgment not to affect rights of strangers, nor bar decree -holder from applying for sale? What is the meaning Property attached before judgment not to be re-attached in execution of decree? What are the Provisions applicable to attachment? Is Agriculture produce not attachable before judgment? Is Small Cause Court not to attach immovable property? Rule 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Order XXXVIII of Code of Civil Procedure 1908

ORDER XXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

What are the Cases in which temporary injunction may be granted? What is Injunction to restrain repetition or continuance of breach, Consequence of disobedience or breach of injunction, Before granting injunction? Is Court to direct notice to opposite party? Is Court to dispose of application for injunction within thirty days? Can Order for injunction may he discharged, varied or set aside? Is Injunction to corporation binding on its officer? Rule 1, 2, 2A, 3, 3A, 4 and 5 of Order XXIX of Code of Civil Procedure 1908

What is the Power to order interim sale? What is Detention preservation, inspection, etc., of subject-matter of suit? What is the meaning of Application for such orders to be after notice? When party may be put in immediate possession of land the subject-matter of suit? What is Deposit of money, etc. in Court? Rule 6, 7, 8, 9 and 10 of Order XXIX of Code of Civil Procedure 1908

ORDER XL APPOINTMENT OF RECEIVERS

What is the process of Appointment of receivers? Remuneration, Duties, How to do Enforcement of receiver's duties? When Collector may be appointed receiver? Rule 1, 2, 3, 4 and 5 of Order XL of Code of Civil Procedure 1908

ORDER XXXIV SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY - RULE 1, 2, 3, 4, 5, 6, 7 OF CODE OF CIVIL PROCEDURE 1908

Who are the Parties to suits for foreclosure sale and redemption? What is Preliminary decree in foreclosure suit? What is Final decree in foreclosure suit? What is Preliminary decree in suit for sale? What is Final decree in suit for sale? What is Recovery of balance due on mortgage in suit for sale? What is Preliminary decree in redemption suit? Rule 1, 2, 3, 4, 5, 6 and 7 of Order XXXIV of Code of Civil Procedure 1908

 

Parties to suits for foreclosure sale and redemption, Preliminary decree in foreclosure suit, Final decree in foreclosure suit, Preliminary decree in suit for sale, Final decree in suit for sale, Recovery of balance due on mortgage in suit for sale and Preliminary decree in redemption suit are defined under Rule 1, 2, 3, 4, 5, 6 and 7 of Order XXXIV of Code of Civil Procedure 1908. Provisions under these Rules are:

Rule 1 Order XXXIV of Code of Civil Procedure 1908 "Parties to suits for foreclosure sale and redemption"

Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

Explanation-A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage.

Rule 2 Order XXXIV of Code of Civil Procedure 1908 "Preliminary decree in foreclosure suit"

(1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree-

(a) ordering that an account be taken of what was due to the plaintiff at the date of such decree for-

(i) principal and interest on the mortgage,

(ii) the costs of suit, if any, awarded to him, and

(iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon; or

(b) declaring the amount so due at that date, and

(c) directing-

(i) that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a) or from the date on which such amount is declared. in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the plaintiff shall deliver up to the defendant, or to such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at his cost free from the mortgage and from all encumbrances created by the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title, by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property; and

(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled. to apply for a final decree debarring the defendant from all right to redeem the property.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

(3) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or subrogated to the rights of,any such mortgagees are joined as parties, the preliminary decree shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10, as the case may be, of Appendix D with such variations as the circumstances of the case may require.

Rule 3 Order XXXIV of Code of Civil Procedure 1908 "Final decree in foreclosure suit"

(1) Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into court of all amounts due from him under sub-rule (1) of rule 2, the Court shall, on application made by the defendant in this behalf, pass a final decree-

(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,

and, if necessary,-

(b) ordering him to re-transfer at the cost or the defendant the mortgaged property as directed in the said decree,

and also, if necessary,-

(c) ordering him to put the defendant in possession of the property.

(2) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him or debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.

(3) On the passing of a final decree under sub-rule (2), all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.

Rule 4 Order XXXIV of Code of Civil Procedure 1908 "Preliminary decree in suit for sale"

(1) In a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (i) of sub-rule (1) of rule 2, and further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

(3) Power to decree Sale in foreclosure suit - In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the Court may, at the instance of any party to the suit or of any other person interested in the mortgage-security or the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.

(4) Where, in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from, or subjugated to the rights of, any such mortgagees are joined as parties, the preliminary decree referred to in sub-rule (1) shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No. 11, as the case may be, of Appendix D with such variations as the circumstances of the case may require.

Rule 5 Order XXXIV of Code of Civil Procedure 1908 "Final decree in suit for sale"

(1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order-

(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,

and, if necessary-

(b) ordering him to transfer the mortgaged property as directed in the said decree,

and, also, if necessary,-

(c) ordering him to put the defendant in possession of the property.

(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser.

Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent. thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of rule 4.

Rule 6 Order XXXIV of Code of Civil Procedure 1908 "Recovery of balance due on mortgage in suit for sale"

Where the net proceeds of any sale held under rule 5 are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.

Rule 7 Order XXXIV of Code of Civil Procedure 1908 "Preliminary decree in redemption suit"

(1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree-

(a) ordering that an. account be taken of what was due to the defendant at the date of such decree for-

(i) principal and interest on the mortgage,

(ii) the costs of suit, if any, awarded to him, and

(iii) other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage-security, together with interest thereon; or

(b) declaring the amount so due at that date; and

(c) directing-

(i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him where the defendant claims by derived title, by those. under whom he claims, and shall also, if necessary put the plaintiff in possession of the property; and

(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the defendant shall be entitled to apply for a final decree-

(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgage property be, sold, or

(b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid that the plaintiff be debarred from all right to redeem the property.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

 

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